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2019 DIGILAW 122 (KER)

Mariyakutty Chellamma v. Kesavan Sreedharan

2019-02-06

P.B.SURESH KUMAR

body2019
JUDGMENT : The first defendant in a suit for redemption of a mortgage of the year 1095 M.E. is the appellant in the second appeal. A preliminary decree was passed in the suit on 07.10.1966 allowing redemption, after ascertaining the value of improvements. Plaintiffs 2 and 3 later preferred an application for passing of the final decree in the matter. Defendants 1 and 2 raised objection to the said application contending that the value of improvements as determined by the Advocate Commissioner appointed in the suit is inadequate and that they are entitled to fixity in terms of Section 4A(1)(c) of the Kerala Land Reforms Act, 1963 ('the Act') as the land comprised in the mortgage was a waste land at the time of mortgage and they have effected substantial improvements in the mortgage holding before the commencement of the Kerala Land Reforms (Amendment) Act, 1969. The trial court found that the defendants have not demonstrated that the value of improvements as assessed by the Advocate Commissioner does not represent the adequate value of the improvements made by them in the property. The trial court also found that defendants 1 and 2 have not established that they are entitled to fixity in terms of Section 4A (1) (c) of the Act. Accordingly, a final decree was passed allowing the plaintiffs to redeem and recover possession of the mortgaged property on deposit of the value of improvements as assessed by the Advocate Commissioner. Defendants 1 and 2 challenged the decision of the trial court in appeal. The appellate court, on a re-appraisal of the materials on record, affirmed the decision of the trial court. The first defendant is aggrieved by the final decree passed in the suit as affirmed in appeal. 2. Heard the learned counsel for the appellant as also the learned counsel for the respondents. 3. The learned counsel for the appellant contended that the findings rendered by the courts below that defendants 1 and 2 are not entitled to fixity in terms of Section 4A (1) (c) of the Act are incorrect and unsustainable. According to the learned counsel, the benefit of the aforesaid provision cannot be denied merely for the reason that there were a few trees in the property. According to the learned counsel, the benefit of the aforesaid provision cannot be denied merely for the reason that there were a few trees in the property. It was contended that in the light of Explanation VII to Section 4A(1) of the Act, existence of scattered trees in the mortgage holding is no ground to decline the benefit of the above statutory provision. 4. The relevant portion of Section 4A of the Act reads thus: “4A. Certain mortgagees and lessees of mortgagees to be deemed tenants.- (1) Notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgment, decree or order of Court, a mortgagee with possession of land, other than land principal by planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee, of such land shall be deemed to be a tenant if x x x x x x x x x x x x x x x x (c) the land comprised in the mortgage was waste land at the time of mortgage or land to which the Madras Preservation of Private Forests Act, 1949, would have applied if that Act had been in force at the time of mortgage, and (i) the mortgagee or lessee was holding such land for a continuous period of not less than thirty years immediately preceding the commencement of the Kerala Land Reforms (Amendment ) Act,1969; and (ii) the mortgagee or lessee has effected substantial improvements on such land before such commencement. x x x x x x x x x x x x x x x Explanation VII-For the purposes of clause(c),- (i) improvements shall be deemed to be substantial improvements if the value thereof on the date of commencement of the Kerala Land Reforms (Amendment) Act, 1969, is not less than twenty-five percent of the market value of the land on that date; (ii) a land shall be deemed to be waste land notwithstanding the existence of scattered trees thereon”. It is evident from the extracted provision that in order to claim fixity in terms of Section 4A(1)(c) of the Act, the mortgagee has to establish that the land comprised in the mortgage was a waste land at the time of mortgage. It is evident from the extracted provision that in order to claim fixity in terms of Section 4A(1)(c) of the Act, the mortgagee has to establish that the land comprised in the mortgage was a waste land at the time of mortgage. The first and foremost fact to be established in a case of this nature, therefore, is that the land was a waste land at the time of the mortgage. True, in terms of Explanation VII to Section 4A(1) of the Act, a land shall be deemed to be waste land notwithstanding the existence of scattered trees thereon. The expression "scattered trees" contained in the provision in the context would only mean trees naturally grew up and standing scattered in the property, as otherwise, the land would not be a waste land. It is seen that the appellate court noticed that valuable trees were in existence in the property at the time of mortgage. Further, going by the description of the property in the mortgage deed as extracted by the appellate court in its judgment, it is evident that the mortgage holding was not only the land but also the trees stood therein. When the mortgage was in respect of the land as also the trees stood therein at the relevant time, it cannot be said that the property mortgaged was a waste land and the trees referred to in the description of the mortgage holding as contained in the mortgage deed were only scattered trees. Further, the question whether the property was a waste land at the time of mortgage is a pure question of fact, the correctness of which cannot be gone into in a proceedings under Section 100 of the Code of Civil Procedure, unless the same is demonstrated to be a perverse one. In the said view of the matter, I do not find any infirmity in the decisions rendered by the courts below. The second appeal, in the circumstances, is without any merit and the same is, accordingly, dismissed.