IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 CRP.No. 155 of 2010() --------------------- AA.92/2005 of APPELLATE AUTHORITY (LR), ALAPPUZHA .................... REVN. PETITIONER/APPLLANT/ADDL.2ND RESPONDENT: ------------------------------------------------- B.K.THANKAPPAN, T.C.15/349 'LAKSHMY',EDAPAZHINJI, SASTAMANGALAM,THIRUVANANTHAPURAM. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR RESPONDENTS/RESPONDENTS/APPLICANT, RESPONDENT & STATE: --------------- 1. VELAYUDHAN NADAR NARAYAN NADAR, CHANATHARAVILA VEEDU, EDAPAHINJI, THIRUVANANTHAPURAM FORM MULLOOR DESOM, KOTTUKAL VILLAGE, * 2. G.LKKLAMMA, W/O.LATE. PARAMESWARAN PILLAI, RESIDING AT VISHNU SREE PARAMBIL KADAVU, CALICUT-673012. * 3. L.RADHAMANI, D/O.LATE,PARAMESWARAN PILLA 'USHAS', KS.H.B.COLONY, MALAPARAMBA,CALICUT-673009. * 4. P.RAJASEKHARAN NAIR, S/O.SRI.PARAMESWRAN PILLAI, K.S.D.C.LTD.,KUTTIPPURAM P.O., MALAPPURAM DISTRICT. * 5. P.VENUGOPAL, S/O.SRI.PARAMESWARAN PILLAI VISHNU SREE, PARAMBIL KADAVU, CALICUT-673012. * 6. P.JAYAPRAKASH,S/O.LATE.PARAMESWARAN PILLAI.,PANCHAJANYAM,MURUTHA ROAD, MARUTHA P.O.,PALAKKAD. 7. STATE OF KERALA, REP.BY.SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. (* - R2 TO R6 DELETED FROM THE PARTY ARRAY VIDE ORDER DTD. 19/03/10 IN I.A.No.761/10 IN CRP 155/10) GOVERNMENT PLEADER: ADV SRI P R JAYAKRISHNAN FOR R7 SRI.DEVAN RAMACHANDRAN FOR R1 SRI.V.K.PEERMOHAMED KHAN FOR R1 SRI.K.M.ANEESH FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/09/2010, ALONG WITH CRP NO. 205 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 'CR' THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.Nos.155 and 205 of 2010 --------------------------------------- Dated this 14th day of September, 2010 ORDER These revisions arise from the order of Land Reforms Appellate Authority, Alappuzha (for short, “the Appellate Authority”) in A.A.Nos.22 of 2009 and 92 of 2005 confirming the order passed by the Deputy Collector (Land Tribunal), Alappuzha (for short, “the Land Tribunal”) in O.A.No.658 of 1976. Question raised for a decision is whether in the case of a deemed tenant who was found so by the Civil Court after the expiry of six months from the date of commencement of Act 35 of 1969, an application for resumption under Section 17 of Kerala Land Reforms Act (for short, “the Act”) could be filed within six months from the date of decision of the Civil Court regarding deemed tenancy? 2. Short facts necessary for a decision of the question are: Respondent No.1 filed O.S.No.1089 of 1966 in the court of learned Munsiff, Thiruvananthapuram for redemption of mortgage over 11 cents with two buildings thereon. Learned Munsiff passed a decree for redemption in favour of respondent No.1. The mortgagees challenged that decree in A.S.Nos.531 and C.R.P.Nos.155 and 205 of 2010 : 2 : 533 of 1968. During pendancy of the appeals Act 35 of 1969 came into force with effect from 01-01-1970. The mortgagees claimed that they are deemed tenants under Sec.4A of the Act. The claim was negatived and the appeals were dismissed on 13-04-1973. Judgment and decree of the first appellate court were challenged in S.A.Nos.1021 and 1022 of 1973. The second appeals were disposed of by common judgment dated 06-02-1976 (reported as Parameswaran Pillai Vs. Narayanan Nair - 1976 KLT 341-FB)). This court while disposing of the second appeals held that defendant No.1 is a deemed tenant under Sec. 4A of the Act and hence respondent No.1 is not entitled to recover possession of the property. Judgment and decree of the courts below were set aside and suit for redemption of mortgage ended in a dismissal. Within six months from the disposal of second appeals on 06-02-1976 respondent No.1 filed O.A.No.658 of 1976 in the Land Tribunal for resumption of one-half of the suit property under Sec.17 of the Act claiming that he is a 'small holder'. That application was contested by petitioners who claimed title over the property under defendant No.1. They denied that respondent No.1 is a small holder entitled to resumption under Sec. 17 of the Act and contended that at any rate O.A.No.658 of 1976 is filed beyond the prescribed time and C.R.P.Nos.155 and 205 of 2010 : 3 : hence is barred. The Land Tribunal held that respondent No.1 is a small holder entitled to seek resumption Sec. 17 of the Act. So far as plea of limitation (or bar as the case may be) is concerned the Land Tribunal got over the difficulty relying on the decision of the Supreme Court in Sankaranarayanan Potti (Dead) by L.Rs. Vs. K Sreedevi and Ors. (AIR 1998 SC 1808). Accordingly, O.A.No.658 of 1976 was allowed which petitioners challenged before the Appellate Authority in A.A.Nos.92 of 2005 and 22 of 2009. Appellate Authority has confirmed order of the Land Tribunal. Hence these revisions. 3. At the time of hearing learned counsel for petitioners did not challenge finding of the lower authorities that respondent No.1 is a 'small holder' as referred to in Sec. 17 of the Act. Hence it is not necessary to go into that question in these revisions. It is contended by learned counsel for petitioners that O.A.No.658 of 1976 is filed beyond the prescribed time and hence is barred under Sec. 72(4) of the Act. According to the learned counsel right, title and interest of respondent No.1 in the schedule property vested with the Government on the expiry of six months from 01-01-1970 and hence any application for resumption under Sec.17 of the Act ought to have been filed before such vesting. O.A.No.658 of 1976 was filed only in the year 1976, ie, much C.R.P.Nos.155 and 205 of 2010 : 4 : after the right, title and interest of respondent No.1 vested with the Government by virtue of Sec.72(4) of the Act. Learned counsel placed reliance on the decision of the Full Bench of this court in Parameswara Pillai Vs. Kunchali Lekshmi (1987(2) KLT 349 (F.B)). It is also contended that lower authorities were not justified legally or factually in trying to get over the decision of the Full Bench by reference to the decision of the Supreme Court in Sankaranarayanan Potti (Dead) by L.Rs. Vs. K Sreedevi and Ors. (supra), which learned counsel argued, has no bearing on the facts of the case. In response, it is contended by learned counsel for respondent No.1 that issue regarding deemed tenancy arose only when the second appeals were disposed of by this court on 06-02-1976. Until then, respondent No.1 was a mortgagor entitled to redeem the mortgage as held by the trial and first appellate courts and hence the contention that respondent No.1 ought to have filed the application for resumption within six months from 01-01-1970 cannot be accepted. According to the learned counsel right of respondent No.1 to seek resumption under Sec.17 of the Act arose only on this court holding on 06-02-1976 that defendant No.1, predecessor-in-interest of petitioners is a deemed tenant. Respondent No.1 could not move an application for resumption C.R.P.Nos.155 and 205 of 2010 : 5 : before the Land Tribunal when the issue whether the mortgage is redeemable or not was pending consideration of the civil court. The Land tribunal could not also decided the question then. Hence lower authorities are justified in holding that the application filed within six months from 06-02-1976 is not barred. Learned counsel argued that respondent No.1 could not be expected to move an application for resumption under Sec.17 of the Act at a time when he was holding a confirmed decree for redemption of mortgage. 4. Act 35 of 1969 came into force on 01-01-1970. This court vide judgment dated 06-02-1976 held that predecessor-in- interest of petitioners is a deemed tenant under Sec.4A of the Act. Sec.17 of the Act enables a small holder to apply to the Land Tribunal to apply for resumption. Sec.18 of the Act deals with the general conditions and restrictions applicable to resumption under Secs.14 to 17 of the Act. A 'small holder' does not come within the description of Sec.18. Sub sec.(1) of Sec.18 deals with tenancies subsisting at the commencement of the (parent) Act and states that no application for resumption shall be made after a period from one year from the commencement of the parent act. The proviso deals with certain categories of persons which does not cover a 'small holder'. But, Sec.72(4) of the Act deals C.R.P.Nos.155 and 205 of 2010 : 6 : with a 'small holder' as well. Sec.72 states about vesting of landlord's rights in the Government and subsec.(1) states that on a date to be notified in the Gazette all right, title and interest of landowners and intermediaries in respect of holdings held by cultivating tenants shall vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon (on the date of vesting). Subsec.(4) which is relevant for the decision of the present case reads as under: “Where in the case of a holding or part of a holding, the landowner or an intermediary is a minor or a person of unsound mind or a member of the Armed Forces of a seaman or a legal representative of any such member or seaman, or a small holder, the right, title and interest of the landowner and intermediaries, if any, in respect of such holding or part of a holding shall vest in the Government- (a) on the expiry of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or on the date notified under sub- section (1), whichever is later, in cases where no application for resumption of the holding or part of the holding has been preferred; (b) in any case where C.R.P.Nos.155 and 205 of 2010 : 7 : application for resumption has been preferred, on the date on which the order rejecting such application, either in part or in full, has become final or on the date notified under sub-section (1), whichever is later. As per sub-section (4) in the case of a holding or part of a holding where the landowner comes within the category of persons referred to therein (including a 'small holder') the right, title and interest of the landowner or intermediary in respect of such holding or part of such holding would vest in the Government on the expiry of six months from the commencement of Act 35 of 1969 (ie.01-01-1970) or on the date notified under sub-section (1) whichever is later. Sub clause (a) further states that the said rule applied to cases where no application for resumption of the holding or part of holding has been preferred. Sub clause (b) relates to cases where an application for resumption has been preferred and the date of vesting in such case is postponed to the date on which rejection of such application either in part of in full, has become final or on the date notified under sub-section (1), whichever is later. In the present case, there was no application for resumption preferred by respondent No.1 on commencement of Act 35 of 1969. O.A.No.658 of 1976 was filed only in the year 1976. Hence clause (b) of sub-section (4) of C.R.P.Nos.155 and 205 of 2010 : 8 : Sec.72 has no application. The provision that would therefore, apply is clause (a) of subsection (4) of Sec.72. Hence in the case of respondent No.1 who is a 'small holder', vesting of his right, title and interest in the property with the Government occurred on the expiry of six months from commencement of Act 35 of 1969. Vesting took place on 01-07-1970. 5. Now the question is whether this court having held defendant No.1, predecessor-in-interest of petitioners to be a deemed tenant on 06-02-1976, application for resumption under Sec.17 of the Act preferred within six months from that date is within time or, it could be said that Sec.72(4)(a) of the Act barred respondent No.1 from filing that application after 01-07-1970. 6. It is apposite to refer to the relevant decisions of this court which is ultimately led to the decision of the Full Bench in Parameswara Pillai Vs. Kunchali Lekshmi (supra). First of the decisions is Raghavan Nair Vs. Narayana Panicker (1976 KLT 369) rendered by a learned Single Judge. That was a suit for recovery of possession of property filed in the year 1966. The suit was pending on 01-01-1970 when Act 35 of 1969 came into force. Petitioner claimed to be a deemed tenant under Sec.7B of the Act introduced by Act 35 of 1969. That claim was allowed as per decree dated 24-07-1970. Respondent filed C.R.P.Nos.155 and 205 of 2010 : 9 : application under Secs.17 and 22 of the Act for resumption. That application was resisted on the ground of bar under Sec.72(4) of the Act. Learned Single Judge held that Sec.18(1) relates to tenancies existing on the date of commencement of the Act (01-04-1964) and that in respect of a 'small holder', Sec.18 does not prescribe any period of limitation. Accordingly objection to the application on the ground of limitation was rejected. In Ravindranathan Nair Vs. Saraswathi Amma (1982 KLT 997) a suit for redemption of mortgage was filed in the year 1968 and plaintiff filed I.A.No.8862 of 1970 under Sec.17 r/w Sec.132(3)(C) of the Act claiming resumption. That application was dismissed on 08-01-1975. The suit was dismissed on 09-01-1973 holding that defendant No.1 was a deemed tenant under Sec.17(1) of the Act and the case was remitted to the trial court. The suit was then decreed on 19-10-1974 allowing plaintiff to resume one-half of property from defendant No.1 under sec.132(3)(C) of the Act. The appeal filed by defendant No.1 was dismissed. In second appeal, this court observed that “commencement of this Act” referred to in Sec.18(1) of the Act has to be interpreted as referring to commencement of the Principal Act which came into force on 01-04-1964. 7. Then came the decision in Subramanian Vs. C.R.P.Nos.155 and 205 of 2010 : 10 : Kunjamma (1983 KLT 351) rendered by a Devision Bench While accepting the view expressed in Raghavan Nair's case (supra) that Sec.18(1) of the Act does not prescribe any period of limitation for an application for resumption by a small holder, the Division Bench observed that in such a situation Article 137 of the Limitation Act applied and the period of limitation is three years. That was a suit for redemption of mortgage and a decree was passed on 31-07-1959 which was confirmed in appeal. After Act 35 of 1969 came into force petitioner claimed to a deemed tenant. Decree holder filed application for resumption. It was held that right to apply for resumption accrued to the decree holder on 01-01-1970 but, applying Article 137 of the Limitation Act the application filed within three years of the date on which the right accrued was found to be within time. 8. Overruling the decision in Raghavan Nair's case and dissenting from the decision of the Division Bench in Subramanian's case, another Division Bench rendered the decision in Kallyani Amma Vs. Kerala Varma Thirumu (1985 KLT 777). The Division Bench considered the question whether an application for resumption by a small holder against the mortgagee who is a deemed tenant under Sec.4A can be filed after the expiry of six months from 01-01-1970 (when Act 35 of C.R.P.Nos.155 and 205 of 2010 : 11 : 1969 came into force). In paragraph 3 of the judgment, Division Bench referred to the question whether simply because no time limit is fixed under Sec.17 of the Act an application for resumption by a small holder could be filed after the right of landlord has vested in the Government by virtue of Sec.72 of the Act. Referring to Sec.72(4) of the Act it was held that if the landlord or intermediary is a 'small holder', vesting takes place on the expiry of six months from 01-01-1970 except when an application for resumption under Sec.17 was pending as on 01-01-1970. 9. The foregoing conflicting decisions were considered by the Full Bench in Parameswara Pillai Vs. Kunchali Lekshmi (supra). The Full Bench considered the issue regarding filing of an application after the expiry of six months from 01-01-1970 in the case of a deemed tenant where an application for resumption was not pending on the commencement of Act 35 of 1969 (01-01-1970). That was a case where petitioners filed the suit in the year 1966 for redemption of mortgage and pending the suit, Act 35 of 1969 came into force whereby Sec.72(4)(a) of the Act was introduced. Respondents claimed to be deemed tenants under sec.4A of the Act. That contention was upheld in the suit. Petitioners (mortgagors) filed C.R.P.Nos.155 and 205 of 2010 : 12 : application for resumption of one-half of the property under Sec.17 of the Act. But, that application was filed long after the expiry of six months from the commencement of Act 35 of 1969. The Land Tribunal relied on the decision Raghavan Nair Vs. Narayana Panicker (supra) and held that there is no time bar for filing the application. Appellate authority confirmed that order. The Full Bench referred to Sec.72 of the Act and said that vesting of right, title and interest of the landlord with the Government took place when Act 35 of 1969 was introduced with effect from 01-01-1970 and hence on 01-01-1970 the mortgagees were deemed as tenants by virtue of Act 35 of 1969. So far as application for resumption is concerned, the Full Bench held that it ought to have been filed before the expiry of six months from the commencement of Act 35 of 1969 under Sec.72(4) of the Act (in relation to a small holder and in a case where no application for resumption was pending on the date of commencement of Act). It was held that application preferred after six months from 01-01-1970 (ie. after 01-07-1970) is barred under Sec.72(4) of the Act. While holding so, the Full Bench overruled the decisions in Raghavan Nair's case and Subramanian's case (supra) and approved the decision of the Division Bench in Ravindranathan Nair's case and Kallyani Amma's case C.R.P.Nos.155 and 205 of 2010 : 13 : (supra). The Full Bench held in paragraph No.13, “From the foregoing decision it would be clear that the period of limitation for resumption under Sec.17 of the Act by a small holder in respect of deemed tenants is six months from 01-01-1970, the date of commencement of Amendment Act 35 of 1969 in a case where no application for resumption has been preferred and application after that date is not maintainable in view of vesting of the right, title and interest of small holder and the intermediary in the Government on the expiry of that period.” If that be so, vesting having taken place on the expiry of six months from 01-01-1970 (ie. on 01-07-1970) in the case of a small holder entitled to seek resumption under Sec.17 of the Act as no application for such resumption was pending when Act 35 of 1969 came into force, the application for resumption ought to have been filed by respondent No.1 before such vesting took place (ie. before 01-07-1970) while the application in the present case was filed only in the year 1976. 10. The lower authorities have relied on the decision of the apex court in Sankara Narayanan Potti Vs. K Sreedevi and Ors. (supra). To decide whether reliance placed on that decision is correct on facts and on point of law it is necessary to go into the relevant decisions on the point. Parameswaran C.R.P.Nos.155 and 205 of 2010 : 14 : Thampi Vs. Podiyan Thomas (1984 KLT 397) was a case involving recovery of possession. Plaintiff claimed that he leased the property to defendant No.3 in 1120 ME and that there was a surrender of lease hold right to the plaintiff on 30-04-1954. According to the plaintiff he, then, leased it to two others in the year 1962 who surrendered the property to the plaintiff in the year 1969 and thereafter he was in possession of the property. He filed the suit on 29-03-1972 alleging that there was trespass into the property by defendant No.3. The latter claimed that he continued to be in possession of the property as a lessee from 1120 ME onwards and is entitled to fixity of tenure under Sec. 72 of the Act. Question was referred to the Land Tribunal under Section 125(3) of the Act. Reference was answered in favour of defendant No.3 and the suit was dismissed. In the meantime, there was an original application filed by defendant No.3 in the Land Tribunal which went in favour of defendant No.3. This court while considering the appeal held that when the question of tenancy was in issue in a civil court, a party to that proceeding could not bypass the civil court and seek to obtain orders from the Land Tribunal by filing an application under Sec.72 of the Act. It was observed that if such an application was filed before the Tribunal, that Tribunal ought to have waited till the civil court C.R.P.Nos.155 and 205 of 2010 : 15 : rendered its decision, or if the Tribunal proceeds to enter any finding on tenancy it will only be a tentative decision subject to the final decision of the civil court. The decision in Parameswaran Thampi' s case was challenged in the Supreme Court. The Supreme Court rendered its decision in Mathevan Padmanabhan Vs. Parameswaran Thampi (1995(1) SCC 479). The Supreme Court observed that the High court was right in its approach that when the question of tenancy is in dispute in the civil court the Land Tribunal was not correct in directing appellant/defendant No.3 to purchase the property (as if he is entitled to fixity) and that ultimately if the High Court found that defendant No.3 is not a tenant, his entitlement to purchase the property would be lost. Under those circumstances appropriate course for the Land Tribunal would have been to keep the application under Sec.72B filed by defendant No.3 pending till the dispute was resolved in the civil court. Then came the decision of this court in Sankara Narayanan Potti Vs. K Sreedevi and Ors. (supra) (unreported decision in C.R.P.No.1271 of 1995). That was a suit for redemption of a mortgage dated 01-12-1944 executed by the Tarwad in favour of Parameswaran Pillai and his sons. Preliminary decree for redemption was passed on 22-01-1963 and the appeal arising C.R.P.Nos.155 and 205 of 2010 : 16 : therefrom was dismissed. The second appeal was dismissed on 19-02-1969. Defendant No.11 filed I.A.No.5092 of 1979 on 17-11-1979 (ie, after Act 35 of 1969 came into force) for passing final decree. Defendant No.2 contended that application for passing final decree is time barred. He also contended that he had obtained an order in his favour from the Land Tribunal that he is a deemed tenant and hence decision of the Land Tribunal on the question of tenancy operated as res judicata. Trial court found that application for passing final decree is time barred and accordingly dismissed that application. Defendant No.11 filed appeal as A.S.No.198 of 1982. That appeal was allowed on 10-01-1989 holding that application is not time barred. Application was remitted to the trial court for decision on the other objection raised by defendant No.2. Defendant No.2 filed I.A.No.1307 of 1994 contending that defendant No.11 is not entitled to get a final decree in the light of the purchase certificate issued in her favour in O.A.No.599 of 1973. Defendant No.2 wanted question regarding maintainability of the application for passing final decree to be decided as a preliminary point. That application was opposed by defendant No.11 on the ground that O.A.No.599 of 1973 was decided pending suit, after the preliminary decree and hence not binding C.R.P.Nos.155 and 205 of 2010 : 17 : on the civil court. The trial court accepted that contention and dismissed I.A.No.1307 of 1994 filed by defendant No.2. That order was challenged in C.R.P.No.1271 of 1995. This court said that defendant No.2 had not raised a plea of fixity of tenure when the appeal was disposed of though he could have raised that question in the appeal. This court held that when the Land Tribunal was moved with the application it was clearly precluded from going behind the finding in the second appeal rendered by this Court that the transaction is a redeemable mortgage and hence the Land Tribunal