ivil Appeal No 1924 of 1990
From the Judgment and Order dated 681986 of the Kerala High Court in ESA No 15 of 1979
543 KK Venugopa MK Sasidharan and PK Pillai for the Appellants
TS Krishnamoorthy Iyer PS Poti section Balakrishnan Deepak Nargoalkar EMS Anam RM Keshwani MKD Nam boodiri and Irfan Ahmed for the Respondents
The Judgment of the Court was delivered by section RATNAVEL PANDIAN J
Special leave granted
The unsuccessful appellants herein have preferred this appeal against the judgment of the High Court of Kerala dated 681985 passed in ESA Execution Second Appeal No 15 of 1979 whereby the High Court dismissed the said appeal filed by the appellants
The relevant facts giving rise to this appeal are necessary to be recapitulated and they are as follows Othayath Gopalan Nambiar since dead and Othayath Lekshmy Amma who is the first appellant herein filed an Execution Application No 556 of 1970 in Original Suit No 817 of 1943 in the court of the Munsiff of Badagara under Section 13B of the Land Reforms Act as amended by the Amending Act 35 of 1969 hereinafter referred to as the Act  for restoration of possession of the properties mentioned in the schedule of the application which were sold in court auction for arrears of rent in pursuance of the decree made in OS No 817 of 19431t seems that during the pendency of the proceedings before the Munsiff Othayath Gopalan Nambiar died and thereafter the first appellant s son claiming to be the karnavan of the tavazhi got himself impleaded as the third petitioner in the said Execution Application who is figuring as the second appellant herein
In order to decide the questions that arise for consid eration certain salient and material facts may be recapitu lated
The suit OS No 817 of 1943 was filed for recov ery of arrears of rent of Rs815 for the Malayalam years 1116 to 1118 corresponding to English era 1941 to 1943
There were 11 defendants of whom Othayath Gopalan Nambiar and the first appellant were the defendants 2 and 3
A preliminary decree was passed on 2651944 followed by the final decree on 2911
The decree holder assigned the decree to another member of his family who in turn assigned it to one Kunhikannan
The rights of Kunhikannan devolved on Respondents 2 to 4 in the Execution Application who are Respondents 4 to 6 in this appeal and who brought the 544 property to sale
The sale took place on 2611
One Thekkayil Kanaran who was the first Respondent in the Execu tion Application ie the third Respondent herein purchased the property in the Court auction held on 26111962 which sale was confirmed on 148
1964 and consequently obtained delivery of the disputed scheduled property extending to 870 acres of double crop wet land through court on 91
1965 from the possession of the appellants
exhibit C 3 is the delivery account and report submitted by the Amin
The remaining extent of the property was in the possession of the sub tenants in respect of which there was resistence with which we are not concerned here
After the delivery has been effected Gopalan Nambiar and the first appellant herein trespassed into the suit property
Therefore the Court auction purchaser filed OS 6 of 1966 in the court of the Subordinate Judge of Badagara for recovery of possession
The suit was decreed as per the judgment exhibit B 16 dated 2771966
exhibit B 15 is the decree
Ex B 49 dated 2581966 and exhibit B 50 dated 2281966 are the respective certified copies of the delivery account submit ted by the Amin and the delivery warrant issued to Amin in OS No 6 of 1966
The auction purchaser ie third re spondent in this appeal assigned portions of the property under sale deeds Exts
A2 and A3 dated 5121966 to the 5th and 6th respondents in the Execution Application who are the first and second respondent in this appeal
1t is stated that while the first respondent is stranger the second respondent is none other than the wife of the fourth re spondent
As we have pointed out earlier this fourth re spondent is among the three respondents on whom the rights of Kunhikannan devolved
While it is so Act 9 of 1967 came into force
So Gopa lan Nambiar and the first appellant filed Execution Applica tion No 1711 of 1967 for restoration of possession under the said amended Act after making the necessary deposit
While this EA was pending Act 35 of 1969 tame into force Kerala Land Reforms Amendment Act repealing Act 9 of 1967
So the appellants filed EA 55670 under Section 13 B of the Act for restoration of possession with a prayer that earlier deposit made under Act 9 of 1967 be treated as a deposit under Act 35 of 1969 and also under took to pay the balance if any as would be found by the Court
The third respondent court auction purchaser and his assignees Respondents 1 and 2 contended that the appellants have no interest in the properties and the delivery of the property had already been taken
The appellants attacked the validity of exhibit A2 and A3 contending that the assignments in favour of Respondents 1 and 2 were made without consideration and bona fides and that auction 545 purchaser Thekkayil Kanaran Respondent No 3 was only a benamidar of the decree holder in the matter of the Court auction purchase
This application EA 55670 was stoutly opposed by the respondents inter alia contending that the properties did not belong to the Tavazhi of the appellants and the appellants have no right to the suit properties and are not entitled to apply for restoration of possession
According to the respondents there is no valid deposit and after the delivery of the property has been effected Gopa lan Nambiar trespassed into the properties and he was eject ed by recourse to a suit and thereafter the properties were assigned to Respondents 1 and 2 for proper consideration and bona fides and they are in possession of the properties on the strength of the said sale deeds
The Trial Court held that the appellants were the tenants of the properties when they were dispossessed and the deposit made by the appel lants was sufficient and the Respondents 1 and 2 are not bona fide purchasers for consideration
On the said finding it allowed E A 55670 and set aside the sale
Aggrieved by the order of the Trial Court the Respond ents 1 and 2 filed AS 4974 before the Sub Court Badaga ra which for deciding the appeal posed the following four points for its consideration namely 1
Are the Petitioners entitled to maintain the application 2
Is the deposit sufficient 3
Are the appellants bona fide purchaser for consideration 4
Whether the court sale is liable to be set aside and the restoration of possession claimed allowable If so are the petitioners liable to pay anything by way of value of improvements The learned Judge answered the first point that the petitioners are competent to maintain the applica tion and the second point holding    that the deposit when it was made is sufficient
However the interest accrued till date of the present appli cation will be directed to be deposited in case the peti tioners are found entitled to restoration of possession
 546 Coming to the third point it has been held thus The first respondent third respondent in SLP had absolutely no necessity to execute any sham documents
The fact that respondents 5 and 6 Respondents 1 and 2 in the SLP came into possession and exercised their rights under Exhibits A2 and A3 by payment of rent and revenue and pay ment of consideration spoken to by both the vendor and vendee are sufficient to hold that they are bona fide pur chasers for consideration
 Under the fourth point the relief claimed by the appellants was held to be rejected
In the result the order of the Trial Court was set aside and the appeal was allowed dis missing EA 55670
The learned Subordinate Judge has also expressed his opinion in his judgment that in summary proceedings under Section 13B of the Act the plea of the appellants that the third respondent was a benamidar of the fourth respondent cannot be allowed to be raised in the light of Section 66 of the Civil Procedure Code
On being dissatisfied with the judgment of the Subordi nate Judge the appellants preferred ESA No 1579
The respondents filed their cross objections
Though the High Court admitted the appeal on being satisfied that the appeal involves as many as 11 substantial questions of law it disposed the appeal on a short ground that the documents and the evidence adduced by the respondents 1 and 2 Govindan Nair and Ambrolil Ammalu clearly show that the respondents 1 and 2 are bona fide purchasers of the properties in ques tion for consideration and the plea of benami put forth by the appellants has to be negatived
The contentions in the cross objections were that for filing an application under Section 13B1 of the Act a deposit of the purchase money together with the interest at the rate of 6 per cent per annum in the court is a condition precedent and that the finding of the lower Appellate Court that the earlier depos it made under Act 9 of 1967 was sufficient and the interest accrued till the date of the Execution Application under Act 35 of 1969 would be directed to be deposited in case the appellants were found entitled to restoration of possession of the property is erroneous
The High Court disposed the contentions in the main appeal observing thus It is not necessary for me to examine this question and finally adjudicate it since I have upheld the decision of the 547 lower appellate Court on other grounds
I only indicate that the respondents  counsel thought to sustain the conclusion of the lower appellate court on other grounds as well
 In the result the High Court affirmed the decree of the lower Appellate Court and dismissed the second Appeal with costs
So far as the cross objections are concerned the High Court passed the following order There is no need to dispose of the cross objections on the merits
It is ordered accordingly
 Hence the appellants by this appeal are impunging the judg ment of the High Court
Mr KK Venugopal Sr
Counsel appearing on behalf of the appellants Mr TS Krishnamurthy lyer Sr Counsel and Mr PS Poti St Counsel appearing on behalf of the first and second respondents respectively took us very meticulous ly and scrupulously through the judgments of all the three courts and put forth the case of their respective parties
Having heard the learned counsel on either side for a considerable length of time we are clearly of the view on a conspectus of the relevant Section 13B of the Act and on the factual matrix of the case that the result of the case would depend upon the decision of two substantial questions involved they being 1 Whether respondents 1 and 2 are bona fide purchasers of the scheduled land in dispute for adequate consideration entitling to the benefit of the proviso to Section 13B1 2 Whether the appellants are entitled to the benefit of subSection 1 of Section 13B of the Act Before making a more detailed and searching analysis on different aspects of the case it would be necessary for proper understanding of the issues involved to reproduce the relevant provisions of Section 13B1 of the Act on the pivotal of which both the questions revolve
Section 13B There is no requirement in any of the clauses 548 that an offer of readiness to comply with any order for deposit of costs must be expressed in any judgment decree or order of court where any holding has been sold in execu tion of any decree for arrears of rent and the tenant has been dispossessed of the holding after the 1st day of April 1964 and before the commencement of the Kerala Land Reforms Amendment Act 1969 such sale shall stand set aside and such tenant shall be entitled to restoration of possession of the holding subject to the provisions of this Section Provided that nothing in this sub Section shall apply in any case where the holding has been sold to a bona fide purchas er for Consideration after the date of such dispossession and before the date of publication of the Kerala Land Re forms Amendment Bill 1968 in the Gazette
If the answer to the first question is in the affirma tive then there is no need to consider the second question as it would be only academic
We therefore shall now address ourselves in the first instance whether the concur rent finding of facts by both the Appellate Courts relating to the first question warrant interference
Before the Trial Court whilst the appellants examined PWs 1 to 4 and filed Exhibits A 1 to A22 the respondents examined RWs 1 to 4 and marked Exhibits B 1 to B 58
Besides exhibit X 1 X 2 X 3 X 5 and X 6 and C 1 to C4 were also exhibited
The Respondents 4 to 6 admittedly are brothers
Though at the initial stage Mr Krishnamurthy Iyer did not accept the relationship of the third Respondent with Respondents 4 to 6 on the ground of lack of evidence subsequently no serious dispute was raised about the said relationship
The Trial Court has proceeded on the ground that the Respondents 3 to 6 are brothers being the sons of Kunhikannan in whose favour the decree had been assigned
However it is admitted during the course of hearing of this appeal that the third Respondent is not a direct brother of Respondents 4 to 6 but son of the step mother of Respondents 4 to 6
The second Respondent Ambrolil Ammalu is admittedly the wife of the fourth Respondent Krishnan
The first Respondent Govindan Nair is a stranger
The third Respondent the Court auction purchaser sold the property extending 435 acres in favour of the first Respondent and the remaining half in favour of the second Respondent under sale deeds Exts
A2 and A3 dated 549 512
Consideration mentioned in each of the sale deeds Exts
A2 and A3 is Rs3000
Out of Rs3000 shown as consideration for A2 a sum of Rs2500 is said to have been left with the first Respondent for payment of arrears of rent
In exhibit A3 it is recited that the third respondent is said to have already received Rs2000 on a promissory note from the second Respondent for meeting the expenses incurred by him for conducting OS No 666
The said sum of Rs2000 is stated to have been adjusted towards the consideration under exhibit A3
The first Respondent has produced a receipt exhibit B28 showing that out of the amount of Rs2500 left with him he had paid a sum of Rs 100
There is no other document evi dencing the discharge of the entire alleged arrears of rent out of Rs2400
When the third Respondent was questioned about the promissory note on the strength of which he is stated to have borrowed a sum of Rs2000 he has stated that he had returned the promissory note
This evidence as rightly pointed out by Mr Venugopal is highly unacceptable because in usual practice whenever a debt borrowed on a promissory note is discharged that promissory note is re turned to the borrower and never left with the lender
Moreover the evidence of the third Respondent is contra dicted by RW 3 the son of the second Respondent
According to RW
3 when exhibit A3 was executed the promissory note was returned to the third Respondent
According to Mr Venugo pal this contradictory version betwixt the evidence of the first Respondent and RW
3 clearly shows that the recital regarding payment of consideration to the extent of Rs2000 in exhibit A3 is not genuine and acceptable and that exhibit A3 is not fully supported by consideration
As per the recitals of consideration under Exhibits A2 and A3 the total cash consideration received by the third Respondent was only Rs 1500 ie Rs500 from the first Respondent and Rs1000 from the second Respondent
It is vehemently urged on behalf of the appellants that the third Respondent after purchasing the property for Rs815 in 1962 would not have parted with it after fighting several litigations for a cash considera tion of Rs1500 only
The evidence of the third Respondent that he left a sum of Rs2500 with the first Respondent for discharging arrears of rent and earlier received a sum of Rs2000 from the second Respondent on a promissory note is not credit worthy in the absence of any supporting contempo rary documentary evidence
His assertion that he paid the amount for the Court auction purchase in the year 1962 out of the money in his possession as well as from borrowings shows that he was a man of slender means
When he was con fronted from whom he borrowed that amount his answer was that he did not remember from whom and how much he borrowed
The 550 Trial Court has rightly pointed out in paragraph 19 of its Order that the third Respondent did not leave any impression that he was conversant with the various pending litigations regarding the present property
Mr Venugopal drew out attention to another piece of evidence of RW3 deposing that his father was never consult ed with regard to exhibit A3 and assailed his evidence as in credible and bereft of truthfulness and trust worthiness
Coming to the sale deed exhibit A2 it is stated that the first Respondent is residing about 11 miles away from Palayed Amson where the property is situated
He has no other property in Amson
The reason given by him for purchasing this property which was already riddled with litigation is not at all convincing
The first appellate Court while perfunctorily rejecting the reasoning of the Trial Court with regard to the consid eration part of exhibit A2 and A3 disposed of that contention in a summary manner holding The apparent inadequacy is no ground to think that there is no consideration  
I don t think that the recitals in Exhibits A2 and A3 can be overlooked for this or the other reasons stated by the learned Munsiff Then relying on Exhibits B 17 B28 B31 B41 and B45 and other documents it concluded that the Respondents 1 and 2 came into possession of the properties and exercised their rights under Exhibits A2 and A3 by payment of rent and revenue and payment of considera tion spoken to by both the vendor and vendee and as such they are bona fide purchasers for consideration The High Court accepting the reasons given by the sub Judge held thus Most of these documents are public records or registers kept in the respective village office and proceedings in courts
There is no more of law in placing reliance on such documents
The finding entered by the learned Subordinate Judge that respondents 5 and 6 are bona fide purchasers for consideration is based on substantial evidence
It cannot be said to be arbitrary or unreasonable or perverse   551 But both the Appellate Courts have conveniently ignored even the relationship of the parties which assumes much importance and significance in evaluating the evidence in the light of the facts and circumstances of the case for reaching a satisfactory conclusion and seem to have summari ly disposed of the case of the appellants
The question is not the mere inadequacy of consideration as pointed by the lower appellate Court but lack of evi dence in substantiating the recitals of both the documents
The next contention advanced by Mr Venugopal is that though the High Court has formulated as many as 11 substantial questions of law
it has not dealt with any of them enumer ated as a to e and examined the question No f in the proper perspective
Further the important question No g reading rs not the admitted fact that the 6th respondent is the wife of the 2nd respondent prima facie proof that she is not a bona fide purchaser for value is not at all dealt with
It may be noted in this connection that the 6th re spondent and the 2nd respondent referred to in that question are Ambrolil Ammalu 2nd respondent herein and Krishnan 4th respondent herein
As pointed out supra the High Court itself has expressed that it was inclined to dispose of the appeal on a short ground 
The bone of contention of Mr Krishnamurthy Iyer and Mr Poti is that it is not open to the appellants to reagitate the matter and request this Court to disturb the concurrent finding of facts arrived at by both the appellate Courts which had rendered their findings on the proper evaluation of the evidence and there can be no justification to review or re appreciate the evidence to take a contrary view in the absence of any contemporaneous document in support of the plea of the appellants
In addition to the above Mr Poti urged that the appellants have not properly and satisfacto rily discharged the onus of proof cast upon them and the concurrent findings based on voluminous documents the copies of which are not annexed to the SLP for perusal of this Court do not call for interference
In reply to the above arguments Mr Venugopal has pointed out that none of the documents referred to in the judgments of the appellate Courts would either improve the case of the respondents or deny the claims of the appel lants
Of the documents relied upon by the appellate Courts exhibit B 17 and B31 are the true extracts showing payment of tax in the Village Officer Day Book
exhibit B28 is a rent receipt dated 2321969 issued by the receiver appointed in OS 164 on the file of the Sub Court lower appellate Court
B 42 is a true extract 552 from the Foodgrains Cultivation Register and B46 is a true extract from the Peringathor Village Account
exhibit
B41 to B45 are the levy notices and revenue receipts for the years 1967 1968
1969 and 1973
Exhibits B55 to B59 are copies of orders in MC No 371
As rightly pointed out by Mr Venugopal it is but natural that the receipt for the pay ment of tax rent receipt revenue receipt etc are in the names of the persons in whose names the properties stand and therefore those documents cannot by themselves dispel the claim of the appellants
Besides urging with aH emphasis that Exhibits A2 and A3 are only sham and nominal documents it has been incidentally urged by Mr Venugopal that the transaction under these two sale deeds is benami in nature
This argument was stoutly resisted by Mr Krishnamurthy Iyer stating that in the teeth of Section 66 of the Code of Civil Procedure and in the absence of any proceedings to set aside the sale in favour of respondents 5 and 6 on the ground of fraud etc
 the plea of benami transaction cannot be counte nanced
He also cited the decision in Mithilesh Kutnari and Another vs Prem Behari Khare  But Mr Venugopal explained his argument that he has not advanced that argument to set aside the sale deeds on the ground of benami transaction but only for scrutinising the circum stances of the transaction in examining the validity of the sale deeds
However as the plea of benami transaction is not pressed into service it need not detain us any more
We shah now examine whether this Court would be justi fied in interfering with the concurrent finding of facts in exercise of its discretionary powers under Article 136 of the Constitution of India
In a recent decision in Dipak Banerjee vs Lilabati Chakraborty  it has been observed thus That jurisdiction under Article 136 of the Constitution of India has to be exercised sparingly
But that cannot mean thai injustice must be perpetuated because it has been done two or three times in a case
The burden of showing that a concurrent decision of two or more courts or tribunals is manifestly unjust lies on the appellant
But once that burden is discharged it is not only the right but the duty of the Supreme Court to remedy the injustice No doubt this discretionary power has to be exercised sparingly Out when there are exceptional and special cir cumstances justifying the exercise of the discretionary powers and where manifest injustice or grave miscarriage of justice has resulted by overlooking or ignoring or 553 excluding material evidence resulting in unduly excessive hardships this Court will be justified in stepping in and interfering with the concurrent finding of facts in the interest of justice and it is also the duty of this Court to remedy the injustice so resulted
Vide Basudev Hazra vs Meutiar Rahaman Mandal  and Bhanu Kumar Shastri vs Mohan Lal Sukhadia and Others at pages 385 and 386
The present case in our view suffers from the infirmi ty of excluding ignoring and overlooking the abundant materials and the evidence which if considered in the proper perspective would have led to a conclusion contrary to the one taken by both the appellate Courts
The relation ship of the parties inter se has been completely and conven iently ignored and excluded from consideration
In fact the High Court has not rendered any finding on question No g which is one of the eleven substantial questions of law formulated in paragraph 3 of its judgment
The lack of evidence in support of the recital in regard to the consid eration is completely overlooked
Therefore in view of the above exceptional and special circumstances appearing in this case this Court will not be justified in refusing to exercise its discretionary powers merely on the ground that the conclusion of both the Courts is concurrent
For the discussions made above we are of the view that the conclusion arrived at by both the appellate Courts is only backed by assertions rather than by acceptable reason ing based on the proper evaluation of evidence and so we are unable to subscribe to the concurrent finding that the respondents 1 and 2 are bona fide purchasers of the proper ties in dispute for consideration
On the other hand we hold that the evidence and circumstances of the case coupled with the evidence on record do establish that the respond ents 1 and 2 are not bona fide purchasers for consideration
In the result we hold that the respondents 1 and 2 are not entitled to the benefit of the proviso to sub Section 1 of Section 13B of the Act and answer the first ques tion against the respondents and in favour of the appel lants
We shall now pass on to the next question whether the appellants are entitled to the benefit of Section 13B1 of the Act
The Kerala Land Reforms Act of 1963 came into force on 141964
Amended Act 9 of 1967 was a temporary enactment which 554 remained in force till 3112
Thereafter Act 35 of 1969 came into force from 111970 containing Section 13B which is substantially on the same terms as Section 6 of Act 9 of 1967 with a proviso superadded
To invoke this benevo lent provision the satisfaction of two primary conditions are sine qua non
Those conditions are 1 Any holding to which a tenant is entitled to resto ration of possession should have been sold in execution of any decree for arrears of rent
2 The tenant should have been dispossessed of the holding after the first day of April 1964 and before the commencement of the Kerala Land Reforms Amendment Act 1969
If these two essential conditions are fulfilled then the sale in execution of any decree for arrears of rent shall stand set aside notwithstanding anything to the con trary contained in any law or in any judgment decree or order of court and the tenant shall be entitled to restora tion of possession of such holding but subject to the provisions of this Section 13B
The only bar for the resto ration of possession under this Section 13B1 is the sale of the holding to a bona fide purchaser for consideration after the date of such dispossession and before the date of publication of the Kerala Land Reforms Amendment Bill 1968 in the Gazette
For invoking the benefit of sub Section 1 of section 13B the person entitled to restoration of possession of his holding should within a period of 6 months from the commencement of the Kerala Land Reforms Amendment Act 1969 deposit the purchase money together with interest at the rate of 6 percent per annum in the court and apply to the court for setting aside the sale and for restoration of possession of his holding
Once these legal formalities are satisfactorily complied with then the Court by holding a summary enquiry shall set aside the sale and restore the applicant to possession of his holding
The explanation to that section says that the term holding  includes a part of holding
The expression holding is defined in Section 217 of the Act
The language of Section 13B is plain clear and unam biguous representing the real intention of the legislature as reflected not only from the clear words deployed but also from the very purpose of the vesting of rights on the dis placed tenants
To construe the provisions of a statute especially of a benevolent provision like the one in ques tion we have to take into consideration the dominant pur pose of the statute the intention of the legislature and the policy underlying
Vide 555 P Rami Reddy  Others vs State of Andhra Pradesh  Others   Skandia Insurance Co Ltd vs Kokilaben Chandravadan  Others 1987 2 SCC 654 and Ms Doypack Systems Pvt Ltd vs Union of India  Others  Admittedly the third respondent obtained delivery of the property in question through court on 2911965 from the possession of the appellants who were the tenants of the said property which was sold for arrears of rent and there after the appellants preferred a petition for restoration of possession of their holdings in Execution Application No 171167 under Section 6 of Act 9 of 1967 after depositing the sale amount of Rs815 and the interest of Rs255
Thus the appellants have satisfied the conditions for entitlement of the possession of the property
While this proceeding was pending Act 35 of 1969 came into force repealing Act 9 of 1967
Therefore the appellants filed the Execution Applica tion No 56670 in OS 81743 praying that the present application should be treated as a proceeding in continua tion of the earlier Execution Application and the amount deposited already in the previous Execution Application should be treated as deposit for the present application with an undertaking to deposit the balance if any
Though it has been contended by the respondents that the appellants have failed to establish that they were tenants at the time of the dispossession both the Trial Court as well as the first appellate Court have concurrently found that the appellants were holding the property as tenants and they were dispossessed
Before the High Court it was contended that at the time of dispossession of the holding the appel lants were not tenants but only trespassers that the dis possesion was only pursuant to the decree in OS No 666 and that both the lower Courts have not applied their minds to these salient and vital facts
The learned Judge of the High Court has answered this contention in the penultimate paragraph of his judgment observing thus  This is a serious legal error
It is not necessary for me to examine this question and finally adjudicate it since I have upheld the decision of the lower appellate court on other grounds
 Suffice to mention here that the High Court has not specifi cally dislodged the findings of the lower Courts that the appellants were tenants at the time of the dispossession
However we will deal with this question presently
The main thrust of the argument of Mr Krishnamurthy Iyer is 556 that the appellants are not entitled to restoration of the possession of their holding  because of an intervening cause that being that the third respondent got the pos session of the property which is now sought to be disturbed not in execution of the decree for arrears of rent but by filing a suit subsequent to the court auction purchase
That intervening cause is explained by the learned counsel stating that after the property was delivered over to the third respondent on 2911965 Gopalan Nambiar since dead and the first appellant trespassed into the land which necessitated the third respondent to institute a suit OS No 666 in the Sub Court of Badagara which was decreed on 277
1966 as evidenced by the judgment exhibit B16
He con tinues to state that the third respondent only in pursuance of the execution of this decree in OS 666 obtained pos session of the property on 238
1966 and therefore Section 13B1 in view of the said intervening cause cannot be availed of since the third respondent though got possession earlier by the auction purchase was dispossessed by the subsequent event of trespass by the appellants and got possession by instituting the suit OS 666
One other argument of the learned  counsel is that as the sales under Exhibits A2 and A3 are only subsequent to the decree in OS No 666 these transactions cannot be brought into the dragnet of Section 13B and the said provision will have no application to the facts of the present case
We are afraid we cannot permit this inconceivable argument to be advanced
Admittedly the third respondent purchased the property in court auction sale in pursuance of the decree for arrears of rent in OS No 81743 and obtained the possession by dispossessing the tenants namely the appellants
It was only thereafter there was trespass by the appellants
There fore the subsequent event of obtaining possession of the property in pursuance of the decree in OS No 666 will not in any way alter the position that the appellants had been dispossessed in pursuance of the decree for arrears of rent
The decree in OS No 666 for obtaining possession from the trespassers does not confer any new right or title over the property in favour of the third respondent
Mr Venugopal countered this argument stating that this new plea should not be allowed to be raised because this plea was never taken both before the trial and the first appellate Courts
The reply given by Mr Krishnamurthy Iyer is that since it is a question of law it is permissible to raise this question even at this stage
As we have said earlier even assuming that this plea could be raised it has no substance in any way affecting the claim of the appellants for the reasons stated supra
Mr Poti after giving a brief note about the legislative history that Act 4 of 1961 was declared as void on 512
1961 in respect of certain 557 provisions and that thereafter Act 1 of 1964 was enacted which came into force on 141964 repealing earlier Act 4 of 1961 advanced a hesitant argument that the application is liable to be dismissed as the entire amount has not been deposited in compliance with sub Section 2 of Section 13B which is a condition precedent to claim the restora tion of the possession of the property
Admittedly the appellants filed an application in the year 1967 for resto ration of the possession of the property under Section 6 of Act
9 of 1967 and during the pendency of that application Act 35 of 1969 came into force
The applicant who had al ready deposited the purchase amount together with interest has made the request to treat that application as the one in continuation of the later proceeding and undertook to pay the deficiency of the amount if any
The lower appellate Court in paragraph 6 of its judgment found that the deposit already made was sufficient and that the interest accrued thereafter would be directed to be deposited in case the appellants were found entitled to restoration of possession
This finding of the first appellate Court concurring with the Trial Court has not been dislodged by the High Court
It may not be out of place to mention that on account of cer tain divergent views expressed by Judges of the Kerala High Court on this point the question was referred to a Division Bench of that Court which drawing strength on the ratio laid down by this Court in State of Punjab vs Mohar Singh  observing The line of enquiry would be not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them and agreeing with the view expressed by Krishnamurthy Iyer J as he then was and who is now appearing before us for the first respondent in different capacity in Civil Revision Petition Nos 1090 and 109 1 of 1972 wherein this precise question came up for consideration held that the application filed under Section 6 of Act 9 of 1967 which was pending on the date of the commencement of the Act 35 of 1969 was liable to be continued and dealt with under the provisions of the earlier Act untrammelled by the provisions of the later Act
We approve the view taken in the above Parameswa ran Narnbudiri s case and hold that the deposit made in the earlier application under Section 6 of Act 9 of 1967 which was pending on the date of commencement of Act 35 of 1969 was liable to be continued uneffected by the provisions of the later Act
558 In Summation We for the aforementioned discussion disagree with the findings of the High Court set aside the impugned judgment and restore the judgment of the Trial Court holding that the sale of the holdings  of the appellants was in execution of the decree in OS No 81743 for arrears of rent and the appellants who are tenants were dispossessed of the holdings after 1464 and before the commencement of the Kerala Land Reforms Amendment Act 1969 and the respondents 1 and 2 are not bona fide purchasers for consideration
In view of our above conclusion the appellants are entitled to recover possession of the properties in dispute but without preju dice to the rights if any of the respondents 7 to 10 who are the wife and children of Gopalan Nambiar and who have got themselves impleaded as parties to the present proceed ings
The amount under deposit made by the appellants is permitted to be withdrawn by the respondents 1 to 3
In the result the appeal is allowed with costs
SB Appeal al lowed


Summary:
The respondent was permitted by the Municipal Council to construct a building on the disputed land
Later the site was reserved under section 4 of the Land Acquisition Act for a town planning scheme
When the respondent was prevented from proceeding with the construction he filed a suit for dam ages
The Municipal Council however by a resolution passed on February 13 1967 decided to accord permission
The suit was thereafter withdrawn
The State Government appointed a high power committee to examine the entire matter
The aforesaid resolution was rescinded by the Municipal Council
The respondent made a fresh application in July 1968 which was kept in abeyance
He thereupon filed a writ peti tion before the High Court in 1969
During the pendency of the case the Municipal Council passed a resolution on June 29 1970 deciding to replan the scheme with respect to the area in question in accordance with the recommendations of the high power committee
The High Court by its judgment dated April 18 1972 directed the Municipal Council to dispose of the application in accordance with law
The latter however by its order dated November 21 1972 rejected it on the basis of the 1970 resolution
In the writ application challenging the said order it was contended for the respondent that the disputed question must be deemed to have been finally settled in his favour in view of the earlier judgment which was binding on the par ties by reason of rule of res judicata
For the State it was contended that no final decision was arrived at in the earlier case
The High Court allowed the writ application on the basis of constructive res judicata
In the appeal by special leave it was contended for the appellants 534 that the previous judgment could not be interpreted as a direction commanding the Municipal Council to allow the proposed construction and that the plots were urgently needed for providing parking space for vehicles
For the respondent it was contended that the resolution of February 13 1967 was passed by way of a compromise between the parties and acting thereupon he withdrew his suit
it was therefore binding on the Municipal Council that the 1970 resolution should be completely ignored and the Municipal Council should not be allowed to bypass the judgment of the High Court
Allowing the appeal this Court
HELD 1
The resolution dated February 13 1967 was not binding on the Municipal Council so as to disable it to take a different decision later
It was not the result of a compromise between the parties
538D 537E F 21 At the best for the respondent it could be assumed that when the said resolution in his favour was passed the acquisition of the land was not so urgently essential so as to call for his dispossession
But for that reason it could not be said that the plots had become immune from being utilised for any other public purpose for ever
538B C 22 The question as to whether a particular scheme framed in exercise of statutory provisions is in the public interest or not has to be determined according to the need of the time and a final decision for all times to come cannot be taken
Such a scheme may serve the public purpose at a given point of time but due to change of circumstances it may become essential to modify or substitute it by anoth er scheme
The requirements of the community do not remain static they indeed go on varying with the evolving process of social life
Accordingly the State or a bodylike the Municipal Council entrusted with a public duty to look after the requirements of the community has to assess the situa tion from time to time and vary the scheme periodically to meet the changing needs of the public
In the instant case the high power committee appointed by the State had given a report stating that the land in question would he needed for the proper circulation of traffic
537H 538 537F G 3
There was no scope for application of the principle of res judicata
By the judgment dated April 18 1972 the High Court did not finally decide the controversy and it remained open for the Municipal Council to decide by recon sidering and disposing of the application of the respondent in accordance with law
537G H 535