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2000 DIGILAW 192 (KER)

Visalakshy v. Vijayaraghavan

2000-03-24

M.R.HARIHARAN NAIR

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Judgment :- M.R. Hariharan Nair, J. This petition was disposed of earlier as per order dated 30.9.1997. The respondents thereupon took up the matter before the Supreme Court and it was decided by the Supreme Court in SLP. No. 22885 of 1997 that a review petition cannot be disposed of on a provisional basis as done by this court and that it should be heard and disposed of afresh in accordance with law. After the remand, both sides were heard. 2. The review petitioner is the land lord. As against the order passed in O.A. 938 of 1975 by the Land Tribunal, Talikulam, Thrissur allowing the application for assignment made by the respondents' predecessor with regard to 1.04 acres in Survey No. 383/2 of Edamattom Village the petitioner filed A.A. No. 1100 of 1976 before the Appellate Authority, Thrissur and the matter was remitted back. Subsequently, the successor Land Tribunal namely; the Land Tribunal, Kodungallur after re-numbering the proceedings as O.A. No. 132 of 1977 dismissed the petition. The respondents then took up the matter in appeal by way of A. A. 174 of 1982 before the Appellate Authority, Thrissur and that was also dismissed. That order was challenged before this court in C.R.P. No. 1343 of 1987. This court set aside the order of dismissal passed by the Appellate Authority and remanded the matter for fresh consideration by the appellate authority. The successor appellate authority re-numbered the proceedings as A.A. No. 99 of 1988, heard the parties afresh and upheld the claim of tenancy raised under S.6-B of the Kerala Land Reforms Act. It was the turn of the petitioner now to challenge the order before this court. CRP No.131of 1990 filed by him was dismissed on 20.12.1990. It was challenging the said order that R.P. No. 54 of 1990 was filed. The contention of the petitioner is that the order passed by this court dismissing the revision petition is on a mistaken assumption. It is pointed out that since the tenant had claimed the benefit of tenancy under S.2(57) of the Act, it is not open to him to make a fresh claim under S.6-B of the Act and that the Appellate Authority, therefore, erred in upholding the said claim. 3. It is pointed out that since the tenant had claimed the benefit of tenancy under S.2(57) of the Act, it is not open to him to make a fresh claim under S.6-B of the Act and that the Appellate Authority, therefore, erred in upholding the said claim. 3. According to the leaned counsel for the respondents, there is no error apparent on the face of the record or any other mistake which is capable of a review. The claim under S.6-B of the Act also comes within the scope of S.2(57) of the Kerala Land Reforms Act and hence the Appellate Authority was fully justified in granting reliefs based on the claim under S.6-B of the Act. 4. The question that arises for consideration in the above background is whether the order of this court passed on 20.12.1990 in CRP. No. 131 of 1990 is liable to be reviewed and if so to what extent. S.2(57) of the Act defines 'tenant' as a person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land and includes under sub-cl. 0) a person who is a deemed tenant under S.6-B of the Act as well. The consideration of the question whether a person is a deemed tenant under S.6-B is thus part of the consideration of the larger question whether he is a tenant under S.2(57) of the Act. According to S.6-B in respect of areas to which the Malabar Tenancy Act, 1929 apply, a person holding property in consideration of payment of customary dues or any amount specified as Michavaram in the document evidencing the transaction is also a deemed tenant in spite of the fact that the transaction was one of mortgage. This court went into the definition of Michavaram in the order dated 20.12.1990 and found that the first part of the definition will not apply to the facts of this case as the money payable under the mortgage was not specified as michavaram. This court went into the definition of Michavaram in the order dated 20.12.1990 and found that the first part of the definition will not apply to the facts of this case as the money payable under the mortgage was not specified as michavaram. However, it held that the second part of the definition which mentions of 'money or products or both payable periodically under the document evidencing the transfer after deducting from the money or products or both due to the transferror, the interest due on the amount advanced to the transferor will apply to the present case and on that premise held that there is liability for payment of michavaram as agreed in the mortgage deed in question namely; document No. 1101/1949 which provides for payment of Purappad Pattom of 41/2 paras of paddy and one bunch of banana. 5. Reliance was placed on the decisions in M.T. Mathew v. State of Kerala and another (1989 (2) K.L.J. 77), Kaliyannan v. Narasimha Iyer (1974 K.L.T. 286) and Kunhi v. Ammu Amma (1990 (2) KLT SN 68 (page 50) to contend that after filing any claim for fixity, it is not open to the tenant to turn round and make a different claim at a later stage and that if such contradictory versions are raised, the court has to reject the contention. On a perusal of the said decisions, it is seen that the facts involved were different. Kaliyannan v. Narasimha Iyer (1914 KLT 286) was a case where the claim originally made was on the basis of an alleged oral lease. After it was found untenable, he came forward with a new case based on a registered deed. It was in these circumstances that it was found that such contradictory versions cannot be admitted. 6. Kunhi v. Ammu Amma (1990 (2) KLT SN 68 (page 50)) mentioned supra was a case where there was a binding finding that the defendant was not really a tenant. In other words there was no scope for 'honest belief that the defendant therein was a tenant and it was therefore that he was found disentitled to fall back on S.7 of the Act after his specific plea regarding lease was found against. In the instant case, the claim all along has been under S.2(57) and that too under a registered document styled as "Panayakkachif. In the instant case, the claim all along has been under S.2(57) and that too under a registered document styled as "Panayakkachif. Hence the mention of the S.6-B as the basis for claim under S.2(57) does not amount to raising of a new plea. A similar contention was gone into in the decision in Narayanaswami Iyer v. Kuttan (ILR 1974 (2) Kerala 363) and it was found that such a claim is admissible. In the circumstances, I am of the view that there is no new material placed before the court which justifies a review of the earlier order. 6. The contention that to enable grant of the benefit under S.6-B, the amount payable should be mentioned as Michavaram in the document itself has no basis when the comprehensive definition of the word "Michavaram" available under S.2(36) of the Act is taken into account. 7. It is in evidence that a suit for redemption of the mortgage filed as O.S. No. 251 of 1984 of the Munsiff s Court, Chavakkad is pending. The pendency of such suit need not stand in the way of disposing of the review petition. The subject matter of the present petition in which the order is sought to be reviewed is the legality and propriety of the order permitting assignment of the land-lord's right under S.72-B of the Kerala Land Reforms Act. That question is independent of any question of redemption that might arise in a suit. The suit has to take care of itself in accordance with the provisions of law governing the same. In the circumstances, the review sought for is declined and the Review Petition is dismissed.