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1987 DIGILAW 75 (KER)

NARAYANAN NAMBOODIRI v. KADEEJA UMMA

1987-02-17

BALAKRISHNA MENON

body1987
Judgment :- 1. Even though this Second Appeal by the plaintiff was admitted on as many as 8 questions of law formulated in the memorandum of appeal, counsel for the appellant has pressed before me only question No. 2 extracted below. "(ii) Is a melcharthdar a tenant or the legal representative or the assignee of a tenant within the meaning of S.106 of the Kerala Land Reforms Act;". 2. The facts of the case are not in dispute. The suit property is 3 cents of land with a shop building having three rooms. The jenmi, the Meppally Illom had granted Ext.B1 lease on 13-9-1905 to one Mammad specifically for the purpose of constructing a shop building. The rent fixed under Ext.B1 was Rs.5/- per year. Thereafter, the jenmi granted a melcharth Ext.A3 dated 24-9-1928 on rent at Rs.8/- per annum to two persons Anandan and Aboobacker, authorising them to evict the tenant Mammad. The tenant Mammad had by then constructed the shop building in the property. The Melcharthdars instituted a suit for eviction, obtained a decree and in execution took delivery of the property with the building thereon, on payment of the value of improvements in terms of the decree. The right of the Melcharthdars who obtained eviction have devolved on defendants 1 and 2. The jenmi Illom assigned the jenmom right to the plaintiff as per Ext.A4 dated 9-4-1954. 3. In the present suit for eviction of the commercial site with the building thereon, the defendants raised a contention that they are entitled to the benefits of S.106(1) of the Kerala Land Reforms Act, (the Act for short) and are not liable to be evicted firm the premises in their possession. The trial court referred the case to the Land Tribunal under S.125(3) of the Act for decision on the above plea raised by the defendants. The Tribunal returned the finding that the defendants are entitled to the benefits of S.106 of the Act, and are not liable to be evicted. The trial court accepting the finding of the Land Tribunal granted a decree for arrears of rent Rs.24/- with interest at 6 per cent from the date of suit. The lower appellate court has confirmed the decision of the trial court. The trial court accepting the finding of the Land Tribunal granted a decree for arrears of rent Rs.24/- with interest at 6 per cent from the date of suit. The lower appellate court has confirmed the decision of the trial court. The Melcharthdars according to the appellate court, on getting eviction of the lard and building should be deemed to be the legal representatives of the lessee and are therefore entitled to protection under S.106(1) of the Kerala Land Reforms Act. 4. A Division Bench of this court construing S.106(1) of the Act as it stood prior to its amendment by Art 35 of 1969 had in the decision reported in Lakshminarayana Shetty v. Andunhi Beary (1971 KLT 822) laid down that a transferee from the lessee was not entitled to claim the protection of S.106(1) of the Act and that the benefit accrues only to the person to whom the lease was granted for commercial or industrial purpose and who on the basis of the lease bad constructed a building for that purpose. The Division Bench refers to the decision in Mamoo v. Asya (1965 KLT 126) where this court had held that it is only a person who is liable for payment of rent under the 'contract of tenancy' who can claim the protection of S.106 and sub-s. (1) would clearly indicate that he must be a person in direct relationship with the landlord under the contract of tenancy. A sub-lessee rot being in direct relationship with the landlord under the contract of tenancy was accordingly held not entitled to the benefits of S.106 of the Act. The Division Bench refers also to the decision in Kunhiraman and Another v. Chemmarathi (1966 KLJ 452) where Madhavan Nair, J. held that it is only the person to whom a lease was granted for commercial or industrial purpose and who on the basis of the lease bad constructed a building for that purpose is entitled to the benefits of sub-s. (1) of S.106 and a transferee from the lessee is not entitled to any such benefits. There is a later decision of a Division Bench in Parameswaran Pillai v. Venkiteswara Prabhu (1974 KLT 210) wherein it is held that a sub-lessee is not entitled to the protection under S.106 of the KLR Act. 5. There is a later decision of a Division Bench in Parameswaran Pillai v. Venkiteswara Prabhu (1974 KLT 210) wherein it is held that a sub-lessee is not entitled to the protection under S.106 of the KLR Act. 5. The explanation to sub-s. (1) takes in a legal representative or an assignee as included in the expression 'lessee' in the sub-section. But a melcharthdar who has evicted the lessee and obtained possession of the building and the premises is neither a legal representative nor an assignee of the lessee who bad constructed the building for commercial or industrial purposes. S.3 Clause.20 of, the Malabar Tenancy Act, 1929 defines 'Melcharth' to mean "the transfer by the landlord of part of his interest in any land held by his tenant by which the transferee is entitled to evict such tenant." It is for the reason of the transfer by way of Melcharth and under the authority of the Melcharth that the Melcharthdar could evict the lessee who had constructed the building and on eviction the lease itself stands extinguished. The Melcharthdar is not therefore the lessee who had constructed the building for commercial or industrial purpose nor is be the legal representative or the assignee of the lessee. 6. Since I find that defendants 1 and 2 as successors in interest of the Melcharthdars are not entitled to the benefits under S.106 of the KLR Act, the plaintiff is entitled to a decree for eviction with arrears of rent. The defendants are entitled to the value of improvements. 7. For the aforesaid reasons I set aside the judgments and decree of the courts below and decree the suit for eviction with arrears of rent Rs.24/- and future rent at the rate of Rs.8/- per annum until eviction or up to a period of three years from today whichever is earlier, on payment of the value of improvements to defendants 1 and 2. The quantum of which will be determined in execution. The second appeal is allowed. There will, however, be no order as to costs.