IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 CRP.No. 1841 of 2000(B) ----------------------- AA.8/1988 of APPELLATE AUTHORITY, KANNUR DT.16.10.1997 .................... REVN. PETITIONER(S): -------------------------------- 1. LAKSHMI (DIED) 2. RAMAKRISHNAN 3. JANAKI 4. PADAVALI 5. PADMANABHAN 6. GIRIJA (ALL ARE RESIDING AT NHEKLIYIL, PO PANAYAL, PANAYAL VILLAGE, HOSDURG TALUK, KASARAGOD (DIST) BY ADV. SRI.KODOTH SREEDHARAN RESPONDENTS: --------------- 1. CHANDRAVATHI 2. KALALAKSHA 3. BALAKRISHNA 4. BHASKARAN (DIED) LRS IMPLEADED 5. JALAJAKSHI 6. CHANDRA MOHINI (ALL ARE RESIDING AT NEKILIYIL, PANAYAL VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT) 7. STATE OF KERALA, REP BY THE CHIEF SECRETARY SECRETARIAT, THIRUVANANTHAPURAM 8. RAMACHANDRA, RESIDING AT NHEKILIYIL PO, PANAYAL, PANAYAL VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT (ADDL.R8 IMPLEADED AS PER ORDER DATED 06.11.2000 IN CMP 5166/00) 9.GURUVAYYA 10. PRABHAKARA 11. NARAYANAN 12. KASTURI 13. RAJESH (THE CHILDREN OF LATE R4 BHASKARAN, RESIDING AT MALADKA HOUSE PO PANAYAL, PANAYAL VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT ARE IMPLEADED AS SUPPLEMENTARY RESPONDENTS 9 TO 13 VIDE ORDER DATED 20.10.2009 IN IA NO.3294/06) ADV. SRI.K.SHRIHARI RAO FOR R1,8, SMT.N.SHOBHA THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON 07.01.2010 PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- CRP No.1841 OF 2000-B ------------------------------------- Dated 7th January 2010 Order The tenant, whose claim for fixity of tenure under S.72B of the Kerala Land Reforms Act, 1963, was declined by the Authority below, is the revision petitioner. During the pendency of this revision petition, the fourth respondent died and his legal representatives have been brought under the party array. 2. An extent of 1.27 acres of land, comprised in RS No.134/3 of Panayal Village, is the subject matter of the proceedings. The revision petitioner claimed right over the property as per Ext.A1 document, which was styled as an illidarwar deed. 3. It appears, this is the second round of litigation before this Court. This Court, as per order dated 18.09.1997 in C.R.P.No.2950/82, directed the Appellate Authority to reconsider the issue, in the light of the observations made by it in the said Judgment. In obedience to the said direction, the Appellate CRP NO.1841/2000 2 Authority took up the matter again and found against the tenant. 4. In this petition, the revision petitioner claims fixity of tenure as per S.10(v) of the Kerala Land Reforms Act. The said provision reads as follows : “10. Certain other persons to be deemed tenants - 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, the following classes of persons shall be deemed to be tenants :- (i) a punam or kumri cultivator ; (ii) a licensee ; (iii) a varamdar ; (iv) a vechupakuthidar ; and (v) a person holding land situate in any part of the taluk of Hosdurg or Kasargod, to which the Malabar Tenancy Act, 1929, did not extend, under a transaction described in the document evidencing it as bhogya, otti, nattotti, arwar, illidarwar or Krithasartha illidarwar, but not being a usufructuary mortgage as defined in the Transfer of Property Act, 1882.” 5. On a reading of the above provision, it can be seen that when a document is styled as Illidarwar deed and it satisfies other conditions mentioned therein, the holder of the document is deemed to be a tenant, unless it is shown to be a usufructuary CRP NO.1841/2000 3 mortgage, as defined under the Transfer of Property Act, 1982. Therefore, when the nomenclature of the document is illidarwar deed, it follows that unless shown otherwise, the holder is a deemed tenant, coming under the above provision. 6. In the Judgment dated 18.09.1997 in CRP No. 2950/82, there was a specific direction by this Court to consider certain aspects regarding the deemed tenancy claimed by the revision petitioner. But the Appellate Authority did not apply its mind to the issue involved in this case and simply held that it was a loan transaction. The learned counsel for the respondents pointed out that there was a subsequent suit between the parties for redemption of the mortgage decree and so, nothing survives in this revision. It is also submitted that the possession of the property has also been taken. 7. The learned counsel for the revision petitioner submitted that the Appellate Authority has not considered the CRP NO.1841/2000 4 matter in the proper perspective. 8. As rightly pointed out by the learned counsel, once the document is styled as illidarwar deed, going by S.10(v) of the Kerala Land Reforms Act, which has already been quoted above, the holder of the document is deemed to be a tenant, unless it is shown that the document is a usufructuary mortgage. A reading of the order of the Appellate Authority, does not indicate as to how it has come to the conclusion that the transaction is a mortgage. The various decisions referred to in the order, have not been properly considered. The reasoning given is that since Ext.A1 document does not permit improvements to be made in the property, it is not a lease and cannot stand to legal scrutiny. Whatever that be, there has not been proper consideration of the issue involved in this proceedings. Therefore, the matter requires reconsideration by the Appellate Authority. CRP NO.1841/2000 5 9. In the result, this Revision Petition is allowed. The impugned order is set aside and the matter is remanded to the Appellate Authority for fresh consideration in accordance with law and in the light of the observations contained herein above and also taking into account, the fact that there has been a suit between the parties, which is claimed to have attained finality, as submitted by the learned counsel for the respondents. The Appellate Authority shall dispose of the matter as expeditiously as possible. P.BHAVADASAN, JUDGE sta CRP NO.1841/2000 6 P.BHAVADASAN, J. ======================== C.R.P.No.1841 of 2000 ======================== JUDGMENT DATED 7TH JANUARY 2010 ========================= CRP NO.1841/2000 7 CRP NO.1841/2000 8