Paily Geevarghese v. Paily Varkey — 1993 DIGILAW 563 (KER)

Judgment :- Krishnamoorthy, J. This case was referred to a Bench by one of us (Krishnamoorthy, J.) as it was felt that there is a conflict between the dictum laid down in Rajagopalan Nair v. Kuppunni (1975 KLT Sh.Note Case No. 163, page 63) and in the order in C.R.P.No. 3115 of 1976, between the same parties in the case. So also, it was felt by the learned Single Judge that the question as to whether subsequent acquisitions after the date of application can be taken into account in determining the extent of land entitled to be resumed under S.17 of the Kerala Land Reforms Act is an important question to be decided by a Bench. 2. Revision petitioner is the applicant in O.A.No.199 of 1971 on the file of the Land Tribunal, Ernakulam (which was originally filed as O.A.No. 417 of 1965 on the file of the Land Tribunal, Muvattupuzha and later transferred to the Land Tribunal, Ernakulam and renumbered as O.A. 199 of 1971) which was an application under S.17 of the Kerala Land Reforms Act, for resumption of one-half of the property namely,1 acre 33 cents of nilam in Sy. Nos. 538/1A, 538/1B, 538/2A and 538/2B2 and 7 cents of purayidom in Sy. No. 545/3 of Vengoor Village, Kunnathunad Taluk. The petitioner alleged that he is a small-holder as defined in the Land Reforms Act and that he is entitled to resume the land. The 1st respondent denied that the petitioner is a small-holder and contended that he is not entitled to resume the land. During the pendency of the petition, the revision petitioner sold 95 cents of land under Ext. P3 dated 26-3-1966 and on the same day he purchased 1 acre 78 cents of land. Accordingly it was contended by the 1st respondent that the petitioner is disentitled from resuming any land under the proviso to S.17 of the Act. 3. The Land Tribunal held that the petitioner is a small holder but that in view of the acquisition of certain properties during the pendency of the application he ceased to be a small holder and hence he was not entitled to resume any extent of the holding. The petitioner challenged the decision of the Land Tribunal before the Appellate Authority. The Appellate Authority dismissed the appeal on 27-2-1976. These decisions were challenged by the petitioner in C.R.P.No. 3115 of 1976. The petitioner challenged the decision of the Land Tribunal before the Appellate Authority. The Appellate Authority dismissed the appeal on 27-2-1976. These decisions were challenged by the petitioner in C.R.P.No. 3115 of 1976. This Court set aside the judgment of the Appellate Authority by order dated 8-9-1978 and remanded the matter back to that Authority for fresh consideration after holding that a person will be a small holder even if he had more than 4 acres of land if it was less than2 l/2standard acres. Even after remand the Appellate Authority dismissed the appeal and confirmed the order of the Land Tribunal dismissing the application for resumption. Hence this revision by the petitioner-applicant. 4. Two points arise for consideration in this revision: 1) Whether the petitioner is a small holder as defined in S.2(52) of the Kerala Land Reforms Act; and 2) whether in determining the right of resumption under S.17 of the Act, the subsequent acquisitions during the pendency of the application can be taken note of or not. We shall consider these questions one by one. 5. Point No 1-It is conclusively proved by the revision petitioner-applicant as also found by the authorities below that the total extent of land in the ownership of the applicant comes to 5.91 acres, out of which 1.33 acres of nilam and 7 cents of purayidom are not in his possession. Thus the property in the direct possession of the applicant as on the date of application or even as on 18-12-1957 (which alone has to be taken into account under Explanation to S.2(52) is 4.51 ordinary acres of land. The classifications of the lands are different which will be dealt with later. S.2(52) of the Kerala' Land Reforms Act which defines a small holder reads as follows: "(52) "small holder" means a landlord who does not have interest in land exceeding eight standard acres or ten acres in extent, whichever is less, as owner, intermediary, or cultivating tenant, or in two or more of the above capacities, so however that the extent of non-resumable land in his possession as owner or as cultivating tenant, or partly as owner and partly as cultivating tenant, does not exceed (i) two and a half standard acres; or (ii) four acres in extent, whichever is greater. Explanation:-For the purposes of this clause a person who was in possession of, or had interest in land exceeding the limits specified in this clause immediately before the 18th December, 1957, but such extent of land was reduced to the said limits or below by partition or transfer effected after the date mentioned above, shall not be demed to be a small holder nor shall such partition or transfer entitle the allottee or transferee to exercise the rights of a small holder in respect of the land allotted or transferred to him"' We have already held that the land in the possession of the applicant as on 18th December, 1957 as also on the date of the application is the same. From the main part of the Section it is clear that the ingredients necessary for a person to become a small holder are: i) that he should not have interest in land exceeding 8 standard acres or 10 acres in extent, whichever is less; and ii) that the extent of non-resumable land in his possession as owner or as cultivating tenant, or partly as owner and partly as cultivating tenant shall not exceed 21/2 standard acres or 4 acres in extent, whichever is greater. There is no dispute that the applicant is not having interest in land exceeding 8 standard acres or 10 acres. But the main controversy between the parties is as to whether he is having land in excess of 21/2 standard acres of 4 acres in extent. Counsel for the revision petitioner contended that though the revision petitioner is in possession of land in excess of 4 ordinary acres in extent, if on conversion it is less than 21/2 standard acres, he will be a small holder. On the other hand, counsel for the respondents contended that if a person is having land in excess of 4 ordinary acres, he will not come within the purview of a small holder as defined in S.2(52) of the Act. Counsel for the revision petitioner relied on a decision of this court in 1975 KLTSh.NoteCaseNo.163 at p.6.3. On the other hand, counsel for the respondents contended that if a person is having land in excess of 4 ordinary acres, he will not come within the purview of a small holder as defined in S.2(52) of the Act. Counsel for the revision petitioner relied on a decision of this court in 1975 KLTSh.NoteCaseNo.163 at p.6.3. It is true that in that case there is a statement to the following effect:- "It is not necessary to quantify extent in terms of standard acres, for, the definition of a 'small holder will take a person out of that category if that person has more than 4 ordinary acres in possession as owner or as cultivating tenant. The joint family is also treated as a person." At the first blush it may appear as if the learned judge has taken the view that if a person is having land more than 4 acres in extent, lie will be out of the definition of a small holder irrespective of the question whether he is having more land than 21/2 standard acres. But on going through the full text of the decision, we are clear in our mind that the learned judge has not meant that in all cases it is not necessary to compute the extent in standard acres to find out whether the person concerned is in possession of land exceeding 21/2 standard acres or 4 acres whichever is greater. On the facts of that case it was not necessary to compute the extent in standard acres as the facts are clear that on computation the extent will exceed 21/2standard acres. Reading the decision as a whole, it is clear that the Short Note report has quoted one sentence from the judgment out of context. The same view has been taken by another learned judge of this Court in Jaiiaki Amma and Ors. v. State of Kerala& Ors. (1981 KLN 783). A reading of S.2(52) makes it absolutely clear that in order to disentitle a person being a small holder the extent of non¬resumable land in his possession either as owner or as cultivating tenant, or partly as owner and partly as cultivating tenant, should be above 21/2 standard acres or 4 acres, whichever is greater. (1981 KLN 783). A reading of S.2(52) makes it absolutely clear that in order to disentitle a person being a small holder the extent of non¬resumable land in his possession either as owner or as cultivating tenant, or partly as owner and partly as cultivating tenant, should be above 21/2 standard acres or 4 acres, whichever is greater. In other words, even if a person is having land more than 4 ordinary acres in extent but less than 21/2 standard acres or vice versa he will still be a small holder entitled to the benefits conferred on them. 6. Coming to the facts of this case, it is conclusively proved by the applicant that on the date of the application, he was having possession of 4.51 acres of land out of which 3.81 acres of land is other dry land and 70 cents is double crop wet land. Converting them into standard acres, 3.81 acres of other dry land will be equivalent to 1.524 standard acres of land and 70 cents of double crop wet land will be equivalent to 0.560 standard acres, making a total extent of 2.084 standard acres of land. We have already held that a person even though having possession of more than 4 acres, on conversion if it is less than 2 1/2 standard acres, he will be a small holder. The land in the possession of the revision petitioner-applicant being only 2.084 standard acres as on the date of application, we hold that the applicant is a small holder and is entitled to maintain an application under S.17 of the Kerala Land Reforms Act. 7. Point No. 2:-The further question to be determined is as to whether the acquisition of certain lands by the revision petitioner-applicant during the pendency of the application will disentitle him from maintaining an application for resumption. In this case, by Ext. P3 sale deed dated 26-3-1966 the petitioner sold 45 cents of land in Sy.No. 604 and 50 cents in Sy No. 600/7Aand B, making a total extent of 95 cents which is equivalent to 0.38 standard acres. On the same day, under Ext. P1 sale deed the petitioner purchased 1.78 acres of land which is equivalent to 0.712 standard acres of land. Thus he came into possession of another 0.332 standard acres of land after the date of the application. On the same day, under Ext. P1 sale deed the petitioner purchased 1.78 acres of land which is equivalent to 0.712 standard acres of land. Thus he came into possession of another 0.332 standard acres of land after the date of the application. The question is as to whether this can be taken note of in determining the entitlement of the applicant for resumption of land from the tenant under S.17 of the Act. From the Explanation to S.2(52) of the Act it is clear that it is the position as on 18-12-1957 that is relevant for determining as to whether a person is a small holder or not. In the light of the Explanation the fact whether the land in the possession of the applicant either decreased or increased is immaterial and the position as on 18-12-1957. has to be taken into account. But the question is whether the subsequent acquisition of land will affect his right under S.17 of the Kerala Land Reforms Act which reads as follows: "17. Resumption by small holder.-Without prejudice to the right of resumption under S.16, a small holder (other than a sthani or the trustee or owner of a place of public religious worship) may resume from his tenant a portion of the holding not exceeding one half: Provided that, b y such resumption, the total extent of land in the possession of the small holder shall not be raised above two and a half standard acres or five acres in extent, whichever is greater: Provided further that no land shall be resumed under this section from a tenant who was entitled to fixity of tenure in respect of his holding immediately before the 21 st January, 1961, under any law then in force." In the first proviso to the above Section it is provided that by resumption the total extent in the possession of a small holder shall not be raised above 21/2 standard acres or 5 acres in extent, whichever is greater. We have already held that on the dale of the application the petitioner is in possession of only 2.084 standard acres of land so that he will be entitled to resume 0.416 standard acres of land. But if we lake into account the subsequent acquisition also, the petitioner will be entitled to resume only 0.084 standard acres of land which will be equivalent to 1.05 cents. But if we lake into account the subsequent acquisition also, the petitioner will be entitled to resume only 0.084 standard acres of land which will be equivalent to 1.05 cents. A learned Single Judge of this Court in Varkey v. Mariam (1979 KLT 723) has held: "There appears to be no policy behind the Act that a small holder should always remain a small holder. If the rights of the petitioner "crystallised in the initial cause of action" had been finally decided any time within three years of his approaching the Tribunal, there could have been no case against his claim at all. It is not possible to hold that simply because the matter had dragged on, he should be denied the relief he was otherwise entitled to. The "sounder rule of law", it is plain, is to exclude the later event "factually or legally"." In Rameshwar v. Jot Ram (AIR 1976 SC 49) their Lordships of the Supreme Court considered the question as to whether the right to relief is to be determined as on the date of institution of the proceedings or whether the Court can lake note of subsequent events in moulding the relief to the petitioner. In considering that question their Lordships observed: "8 In/' Venkateswarlu v. Motor & General Traders, AIR 1975 SC 1409,1410 this Court dealt with the adjectival activism relating to post-institution circumstances. Two propositions were laid down. Firstly, it was held that "it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suit or institutes the legal proceeding'. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. loiter developments cannot defeat his right because, as explained earlier, had the court found his facts to be true the day he sued he would have got his decree. The court's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action. This position finds support in Bhajan Lai v. State of Punjab (1971) 1 SCC 34. 9. The impact of subsequent happenings may now be spelt out. The court's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action. This position finds support in Bhajan Lai v. State of Punjab (1971) 1 SCC 34. 9. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Alabama (1934) 294 U.S.600, 607, illustrates this position. It is important that the party claiming the reliefer change of relief must have the same right from which either the first or the modified remedy may How. Subsequent events in the course of the case cannot be constitutive of substantive rights .enforceable in that very litigation except in a narrow category (later spell out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad v. Keshwar Lai, 1940 FCR 84 = AIR 1941 PC 5 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs-cannot deny rights-to make them justly relevant in the updated circumstances. Where the relief is discretionary, courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the lime the relief is to be-ultimately granted, the Court, even in appeal, can take note of such supervening facts with fundamental impact. Venkateswarlu, AIR 1975 SC 1409 read in its statutory setting, alls in this category. Where a cause of action is deficient but later events have made up the deficiency the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. Venkateswarlu, AIR 1975 SC 1409 read in its statutory setting, alls in this category. Where a cause of action is deficient but later events have made up the deficiency the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the court is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Clwkalingam Chetty : 54 Mad. L.J. 88 = AIR 1927 PC 252). The law stated in RumjiLal v. State ofl'uiijah,1LJR (1966) 2 Punj.125 = (AIR 1966 Punj. 374 F13) is sound: "Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiff's suit would be wholly displaced by the proposed amendment (see Steward v. The North Metropolitan Tramways Company (1885) 16 QBD 178) and a fresh suit by him would be so barred by limitation.".' One may as well add that while taking cautious judicial cognizance of 'post-natal' events, even for the limited and exceptional purposes explained earlier, no court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis." From the above dictum it is clear that the right to relief must be judged as on the date a suit or legal proceeding is initiated and that the later developments cannot defeat his rights. It is however said that the subsequent events can be taken into account. and the relief moulded accordingly only in exceptional circumstances. This being the position, it is clear that the right of the petitioner has to be determined as on the dale of the institution of the proceedings. It is however said that the subsequent events can be taken into account. and the relief moulded accordingly only in exceptional circumstances. This being the position, it is clear that the right of the petitioner has to be determined as on the dale of the institution of the proceedings. Otherwise it will lead to anomalous consequences and the law's delay cannot affect the right of parties one way or the other. By the mere pendency of a proceeding for resumption the status of a person in regard to the holdings cannot be static and it should not be the law that the ownership and possession of '.and should remain the same throughout the proceedings however long it may be. This is a typical case where the proceedings have been pending for nearly 30 years in various Tribunals and this Court. There cannot be any moratorium on the persons like the petitioner in acquiring lands during the pendency of the proceedings before the authorities. If we hold otherwise, it may lead to disastrous consequences, for even if a person is entitled to resume land on the date of initiation of proceedings, his position may change during the pendency of the proceedings. At one stage he may be entitled to resume land. At another stage he may become disentitled to resume by acquisition of lands. At a later stage he may become entitled to resume land if he sells away his land and becomes a small holder by that time. Thus it will lead to uncertainties and speculation if it is held that the subsequent events have also to be taken into account in such circumstances. As rightly observed by the Supreme Court, subsequent events can be take note of only in exceptional circumstances and not in cases where it will lead to anomalous situations. In a case of this nature where the question is as to whether a person is entitled to resume land under S.17 of the Kerala Land Reforms Act, we arc clearly of the opinion that his status as on the date of application alone has to be taken into account and the subsequent events have to be ignored. We accordingly reverse the findings of the Land Tribunal and the Appellate Authority that the petitioner is not entitled to resumption and hold that the petitioner is entitled to succeed. 8. We accordingly reverse the findings of the Land Tribunal and the Appellate Authority that the petitioner is not entitled to resumption and hold that the petitioner is entitled to succeed. 8. In the view that we have taken, the land in the possession of the petitioner as on the date of application was only 2.084 standard acres are not taking into account the extent in ordinary acres as it will exceed 5 acres ). Under the first proviso to S.17 the petitioner will be entitled to resume so much extent of land to make up 21/2 standard acres of land. Accordingly we hold that the petitioner will be entitled to resume 0.416 standard acres of land. What will be the area necessary can be determined only after the Land Tribunal decides the identity of the land to be resumed from the respondents as the lands sought to be resumed are of two different categories. 9. In the result, we allow this Civil Revision Petition and set aside the orders of the Land Tribunal as also of the Appellate Authority and hold that the revision petitioner is entitled to resume 0.416 standard acres of land from, the legal representatives of the 1st respondent who died during the pendency of the revision petition. The matter is remanded' t6 the Land Tribunal for deciding the identity of the land after giving an opportunity to them to opt for the land to be resumed. The area of the land liable to be resumed will be determined by the Land Tribunal in accordance with the category of land that is to be ordered to be resumed. The parties will bear their costs.