IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 SA.No. 193 of 1997(F) ------------------------------- AS.122/1990 of ADDL.DISTRICT COURT, KOZHIKODE OS.569/1982 of PRL.MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT(S): APPELLANTS 1,3,4,8 TO 11, 13 TO 17, 20 TO 33 & 36 TO 51, ---------------------- 53-82, IN THE IST APPEAL/PLFFS ,1,45, 10-13, 15, 19 TO 22 , 23, 25-36, 39, 53 & 55 AND 57 TO 86. 1. NANDANASSERI KALPAKASSERI DAMODARAN NAIR, 2. DAKSHAYANI AMMA. *3. RUGMINI AMMA (DIED) *IT IS RECORDED THAT 3RD APPELLANT IS DIED AND 13TH APELLANT, 2ND RESPONDENT AND 3RD RESPONDENT ARE THE LEGAL HEIRS OF THE DECEASED 3RD APPELLANT AND THAT THE DECEASED HAS NO OTHER LRS TO BE IMPLEADED VIDE ORDER DT. 15.7.04 ON MEMO DT. 7.7.04 CF. 3470.2004. 4. BALACHANDRAN NAIR 5. JAYACHANDRAN NAIR 6. RAGHAVAN NAIR 7. INDIRA AMMA 8. PRABHAVATHI AMMA, 9. PRABHAKARAN NAIR N.K. 10. RATNAVALLI N.K. 11. JAYARAJAN NAIR, N.K. 12. VIJAYAKUNMARI, N.K. 13. RAJENDRA MOHAN N.K. 14. PADMINI AMMA 15. SARALA DEVI 16. PADMAVALLI N.K. 17. BHARGAVI 18. THANKAM S.A. NO.193/1997 19. RAMACHANDRAN NAIR 20. SHYAMALA 21. KRISHNAN 22. SUSHEELA 23. RAJASHREE N.K. 24. RAMESH N.K. 25. RATNASHREE N.K. 26. SURESH 27. ULLAS 28 . SABAREESH 29. SUMITHA 30. SATHEESH KUMAR 31. MANJULA 32. SINDHU 33. GOPALAN KUTTY NAIR 34. RUGMINI AMMA 35. KOMALAVALLI 36. VIMALA KUMARI 37. SAJINDRANATH 38. SUJATHA BAI 39. SUSHAMA BAI 40. SURESH BABU 41. BIJURAJ 42. BALAKRISHNAN NAIR P. 43. GANGADHARN NAIR 44. SAROJINI AMMA S.A. NO.193/1997 45. KAMALA AMMA P. 46. JANARDHANAN NAIR 47. SULOCHANA 48. KRINGALICHALIL DAKSHAYANI AMMA K.C. 49. KRISHNANUNNI NAIR K.C. 50. JANARDHANAN NAIR K.C. 51. JAYACHANDRAN NAIR. 52. KANANGOTT DIVAKARAN NAIR 53. KULOORMANNIL SUBHADRA AMMA 54. VISWALAKSHMI K.N. 55. MOTHIRATTIL RADHA AMMA. 56. CHANDRAIKA 57. PALAKUNNATH DINESH 58. SURESH 59. SHYLAJA 60. CHATTILODE AMBALAMOLI THANKAMMA 61. HARIHARA DASAN C.A. 62. CHANDRALEKHA 63. SHYLAJA 64. KRISHNAKUMAR C.A. 65. INDIRA 66. VINOD NARAYANAN C.A. 67. BINJU C.A. 68. K.VASANTHI 69. RAJESH 70. BINDU 71. RAJESWARI S.A. NO. 193/1997 72. ANOOP. APPELLANTS 1,3,4, 13 TO 16, 20 TO 22, 27 TO 29, 34 TO 41, 44, 52 TO 54 57, 58, 59 ARE RESIDING AT THIRUVAMBADI AMSOM AND DESOM, KOZHIKODE TALUK. APPELLANTS 2,8,10,11,12, 23,24, 25,26 ARE RESIDING AT KUNNAMANGALAM AMSOM AND DESOM. APPELLANTS 4,15,16,17,18,19,20,21,22,30,3 1 32, 55 56 ARE RESIDING AT NEELESWARAM AMSOM AND DESOM KOZHIKODE TALUK. APPELLANTS 48,49, 51 ARE RESIDING AT PADINGATTU MURI AMSOM AND DESOM OF KOZHIKODE TALUK. APPELLANT NO. 50 IS IN HYDRABAD. APPELLANTS NO.60 TO 67 ARE RESIDING AT THIRUVAMBADI AMSOM AND DESOM. APPELLANT NO.68 TO 72 ARE RESIDING AT KURUVATTOOR AMSOM AND DESOM KOZHIKODE TALUK. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN SRI.A.PARVATHI MENON RESPONDENT(S): RESPONDENT- DEFT.- AND APPELLANTS 18,19,34 AND 35. --------------------------------------------------------------------------------------------------------------- 1. THIRUVAMBADI RUBBER COMPANY LTD., 6/117, RACE COURSE ROAD, P.B. NO.1333. COIMBATORE. 2. DIVAKARAN NAIR, S/O. RUGMINI AMMA. 3. BHAVANI AMMA, D/O. RUGMINI AMMA. 4. SAVITHA, D/O. BHARGAVI AMMA. 5. RAJANEESH S/O. BHARGAVI AMMA. RESPONDENTS 2 TO 5 ARE RESIDING AT THIRUVAMBADI AMSOM AND DESOM , KOZHIKODE TALUK. BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE BY ADV. SMT.PRIYA KRISHNAMOORTHY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON 26/07/2010 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 193 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of July, 2010. JUDGMENT The plaintiffs in O.S. 569 of 1982 before the Munsiff's court, Kozhikode are the appellants. Their suit was dismissed by the trial court and it was confirmed in appeal. 2. The plaint schedule property belonged to the plaintiffs' tarawad namely, Nandanassery Kalpakasseri. It is claimed to be a private forest in the name of tarwad. As per Ext.A1 dated 21.6.1918 an extent of 963.75 acres was leased out to Campbell Hunt for a period of 36 years. The lessee was liable to pay a sum of Rs.693.12 annas towards rent. By subsequent assignments and transactions the property ultimately came to vests with the defendant Company. It is asserted in the plaint that neither the original lessee nor the successors in interest are entitled to claim fixity of S.A.193/1997. 2 tenure under the Kerala Land Reforms Act on the basis of the lease arrangement evidenced by Ext.A1. It is stated that since the property originally was private forest, it is exempted from the provisions of the Act. The initial period of lease expired so also the extended period. The plaintiffs took steps to terminate the lease and it is also pointed out that going by the terms of Ext.A1 the defendant is entitled to value of improvements. 3. The Company resisted the claim for eviction. They contended that they admitted execution of Ext.A1 document. They pointed out that out of the 962 and ½ acres of land leased out as per Ext.A1, the cultivable area was 925 acres. The lease was granted with a right to cultivate coffee, tea, pepper, cinchona, rubber etc., and any other produce which the lessee thinks proper by cleaning the area. According to the Company, since they had acquired fixity of tenure under the Malabar Tenancy Act they are entitled to the same under the Kerala Land Reforms Act S.A.193/1997. 3 also. They pointed out that none of the claims put forward by the plaintiffs is sustainable and the suit is liable to be dismissed. 4. Since the defendant has claimed fixity of tenure, the trial court was constrained to refer the matter to the Land Tribunal, Kasargode. The Land Tribunal returned the finding that the defendant is entitled to fixity of tenure. Accepting the same, the suit was dismissed. 5. Plaintiffs carried the matter in appeal. The appellate court reconsidered the finding of the Land Tribunal that the defendant Company is entitled to fixity of tenure. Before the lower appellate court, it appears that the finding of the trial court that there was no renewal of lease was re-agitated. So also the question regarding tenancy. The lower appellate court has concurred with the trial court on both grounds and dismissed the appeal. Hence the present appeal. S.A.193/1997. 4 6. Learned counsel appearing for the appellants raised three points for consideration, i) Being a private forest, the property stands exempted under Section 3 sub clause (vii), ii) At any rate, as on the date of the commencement of the Act, the property was a plantation and therefore it is exempted under Section 3(viii). The third contention is that on eviction, the defendant is not entitled to value of improvements or in other words benefits under the Compensation of Tenants Improvements Act, 1958. 7. Coming to the first contention, it has to be said that by no stretch of imagination, the property could have been said to be a private forest at the time of entrustment. The lease was granted to the Camphell Hunt as per Ext.A1 to cultivate rubber, Cinchona, coffee or any such crops, which the lessee thought fit and proper. Before going further, Section 3 of Kerala Land Reforms Act may be read, which reads as follows: S.A.193/1997. 5 “3(vii) leases of private forests: Provided that nothing in clauses (i) to (vii) shall apply in the cases of persons who ere entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force or persons claiming under such persons. (viii) tenancies in respect of plantations exceeding thirty acres in extent: Provided that the provisions of this Chapter, other than Sections 53 to 72S shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub-clause © of clause (44) of Section 2.” It is true that private forests come under Section 3. However, the proviso says that the provision shall apply in case of persons, who are entitled to fixity of tenure before 21.1.1961 under any law then in force. According to learned counsel appearing for the appellants, since the property was a private forest at the time of leasing it out, it is exempted from the provisions of the Malabar Tenancy Act and Kerala Land Reforms Act. It is contended based on the written statement filed by the defendant company and the evidence S.A.193/1997. 6 of defence witnesses that even according to them the property leased out is a private forest. Attention was drawn to the statement in the written statement that the original lessee had to remove the trees and shrubs and other areas in the property and also that the witness for the defendant has also in his evidence stated the same thing. Therefore, it is stated that even according to the respondent, the property as it stood when it was leased out was a private forest. Considerable reliance was placed on certain sentences in Ext.A1 in support of its contention. The words മല (Mountain), Forest, കനകള (Hills) etc were relied on and so also the words shrubs, കടകള etc. These words, according to learned counsel, are sufficient to show that the property was a private forest at the time of entrustment. However, unfortunately for the plaintiffs, the evidence of their own witness shows otherwise. A reading of Ext.A1 itself is sufficient to show that it was puramboke land not assessed to any revenue. Further, Ext.A1 permits the lessee to cut and remove trees, shrubs etc to clear the area for S.A.193/1997. 7 the purpose of cultivating rubber, tea, coffee etc. If it was a forest, certainly there would have been some agreement with regard to the trees that were cut and removed. Further, the rent is fixed on the basis of cultivable area. The lower appellate court has also noticed that the land has been assessed to Government revenue on the basis of cultivations done in the property and that shows that the claim of the plaintiffs that it is a private forest cannot be accepted. So also as per Ext.A2 survey plan attached to Ext.A1 shows that paddy cultivation was being done at the relevant time. Various terms like മല (Mountain), കനകള (Hills), forest, jungle, footpath, waste land, Nilam etc are seen referred to in Ext.A1. To sum up the claim of the plaintiffs that it is a private forest at the time of lease does not appear to be correct. 8. Even assuming that it was a private forest at the time of leasing it out, the fact that it has later been converted into cultivation of various crops makes the land go out of the ambit of private forest. This issue was S.A.193/1997. 8 considered in the decision reported in Ipe v. Pramathan Namboodiripad (1988(2) KLT 277). In the said decision, 614 acres of private forest belonged to the plaintiff was given on licence to fell trees. After expiry of the licence, the property was given on lease for cultivation. When recovery was sought, the lessee contended that he is entitled to fixity of tenure. The Land Tribunal held in favour of the lessee. However, the District Judge in appeal reversed the same. The matter was taken up before this court. It was held that if as a matter of fact at the time of lease the property was a private forest and the lessee was to cut and remove timber and keep the property as such, then it could be said that the lease is of a private forest. But once the property had cleared of trees etc and allowed the lessee to cultivate the same, it can no longer be said that the lease was of a private forest applying the principles to the facts of this case. Therefore viewed from any angle, the claim of the appellants cannot be sustained. S.A.193/1997. 9 9. What now arises for consideration is the plea based on Section 3(viii). 10. Learned counsel appearing for the appellants pointed out that the provision means that as on the date of coming into force of the Act, if the property involved is a plantation exceeding 30 acres, the same is exempted form the purview of the Act. 11. At the first blush, it may appear to be so. On a close scrutiny, the above argument of the learned Senior counsel for appellants cannot be countenanced. it cannot be the way in which it has been argued by the learned counsel for the appellants. A close reading of the provision will show that that provision applies to only in such cases, where at the time of entrustment of lease it was a plantation and not with reference to a property at the time of commencement of the Act. This aspect is no longer res integra in view of the decision reported in Rt.Rev.Dr.Jerome Fernandez v. Be- S.A.193/1997. 10 Be Rubber Estate Ltd. (1972 KLT 613), wherein an identical question was considered by a Full Bench of this Court and it was held as follows: “It may well be that the legislature though that it will not be fair or proper to deny the benefit of fixity of tenure to lessees who might have taken on lease extensive Parambas or waste lands and might have in course of time by their hard toil developed them into plantations. Even under the provisions of the Malabar Tenancy Act such a tenant was entitled to fixity of tenure unless the lease itself was one granted specifically for the purpose of raising a plantation. If the interpretation of S.3(1)(viii) contended for by the appellant is to be accepted, even such tanants in Malabar who had pre-existing rights of fixity under the Malabar Tenacy Act would be divested of that valuable right and rendered liable to be evicted. We do not think that the legislature would have intended such an anomalous consequence. Thus going by the clues furnished by the statutory history preceding this legislation and also by the express language used in S.3(1)(viii) we are clearly of opinion that it is more reasonable to S.A.193/1997. 11 conclude that the intention of the legislature was to restrict the scope of the exemption to leases of lands which were already “plantations” on the date of the transaction.” In the light of the above decision, there is little merit in the contention of the appellants and it is only to be rejected. 12. In the light of the fact that the defendant is entitled to fixity of tenure, the issue whether he is entitled to value of improvements need not be considered. The result is that this appeal is without merits and it is only to be dismissed. I do so confirming the judgments and decrees of the courts below. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.