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Nair Service Society Ltd., Perunna, Changanacherry Vs. K.C. Alexander and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 5 of 1971
Judge
Reported inAIR1974Ker94
ActsKerala Land Reforms Act, 1964 - Sections 7A
AppellantNair Service Society Ltd., Perunna, Changanacherry
RespondentK.C. Alexander and ors.
Appellant Advocate P.K. Kesavan Nair and; T.K. Venugopalan, Advs.
Respondent Advocate C.M. Kuruvilla and; Annamma Alexander, Advs.
DispositionAppeal dismissed
Excerpt:
- - and that the other conditions necessary to invoke the benefits of section 7a were not satisfied. all the interesting dissertation of counsel for the appellant as to possession, conferring an interest or a right to property on an occupant appears to be misplaced and irrelevant the land as such, cannot be said to have become the property of the occupant nor, if it has, was it brought about in consequence of the judgment or decree in the suit 8. the order of the court below was right we dismiss this appeal with costs......(1) the occupier; (2) another, whose land is occupied; and (3) the government whose property the land occupied, is believed to be. in the instant case, as rightly held by the court below, the appellant occupied the land of the government, knowing and believing it to be. government land. this is plain from paragraph 2 of the judgment of the high court in 1966 k. l. t. 333, where it is stated that the entire land comprised in the two survey fields is admittedly forest poramboke belonging to the government 7. nor can it be said that such other land 'had become the property of such other person as a conseouence of any judgment decree or order of a civil court' as provided by clause (b) of section 7a. there is no 'other person'' whose land the appellant can be said to have occupied, nor......
Judgment:

Gopalan Nambiyar, J.

1. O. S. No. 10 of 1958, Sub Court. Mavelikara was a suit for recovery of over 130 acres of land, instituted by the 1st Respondent in this appeal against the appellant herein (who was the 1st Defendant in the suit) and others. The property belongs to the Government: and the 1st Respondent, himself a trespasser on Government property, had been evicted from nearly 160 acres, which, thereafter, were demised on kuthakappattom to the appellant The 130 and odd acres which are the subject-matter of the suit are said to be adjacent, to the 160 and odd acres from which the 1st Respondent had been evicted. The suit was decreed on appeal to the High Court, against the 1st Defendant also. The decision is reported in 1966 K. L. T. 333. There was an appeal to the Supreme Court which dismissed the appeal in respect of a portion of the property, and allowed the amendment of the written statement prayed for by the 1st Defendant in regard to the rest, and remanded the suit for trial on the amendment thus allowed. The decision is reported in 1968 K. L. T. 182. The matter is pending trial.

2. While so, the appellant filed, on the trial side. I. A. No. 307 of 1970 to refrain from proceeding with the trial of the suit and claiming the benefits of a 'deemed tenant' under Section 7-A of the Kerala Land Reforms Act (Act I of 1964), and I. A. No. 1541 of 1970 to direct the Tahsildar to prepare a record of rights. On the execution side, he filed E. A. No. 278 of 1970 for stay of proceedings in execution till the disposal of that E. A. and the two other applications, namely, I. As. 307 and 1541 of 1970. L A. Nos. 307 and 1541 of 1970 were dismissed by a common order delivered on 27th August 1970. On the same day, E. A. No. 279 of 1970 was also dismissed. A copy of the common order in the other two I. As. was appended to the order in I. A. 279 of 1970. This appeal is against the said order.

3. Against the order in I. A. Nos. 307 and 1541 of 1970 the appellant filed C. R. P. No. 11 of 1971 in this Court which was dismissed in admission by one of us, on the around that there was no jurisdictional error: but it was recorded that the said order of dismissal will not prejudice the disposal of the present appeal, where, it was observed, the same question was involved.

4. Counsel for the 1st Respondent raised an objection that this appeal has become infructuous as the prayer in E. A. 279 of 1970 was only for an interim relief till the disposal of the application and the other two applications, namely I. A. Nos. 307 and 1541 of 1970. Strictly and technically, counsel for the 1st Respondent appears to be right. Why E. A. 279 of 1970 was framed in this fashion, we know not. But the affidavit in support of the petition did raise the contention that the appellant was a tenant. That contention was dealt with and negatived on the merits in the order pronounced in E. A. No. 279 of 1970, and in the common order in the other two applications, also appended as part thereof. The legal ingenuity that E. A. No. 279 of 1970 had become infructuous after the disposal of the other two applications was never pressed into service in the Court below, which pronounced the order under appeal, on the merits, after the disposal of the other two applications. The order dismissing C. R. P. No. 11 of 1971. preferred against the other two orders proceeded on the basis that the same question which arose in I. A. Nos. 307 and 1541 of 1970 was involved in the present appeal. In these circumstances, to avoid unfairness and injustice, we proceed to deal with the appeal also on the merits.

5. The appellant's contention in the Court below and before us, was that he is entitled to the benefits of Section 7-A of Act I of 1964 and therefore to regard himself as a 'deemed tenant' under Section 2 (57) (i) of the Act Section 7A of the Act reads:

'7A. Certain persons occupying land for not less than ten years to be deemed tenants-

Notwithstanding anything to the contrary contained in Section 52 or any other provision of the Transfer of Property Act 1882, or any other law. or in any contract, custom or usage, or in any judgment decree or order of court a person shall be deemed to be a tenant in respect of the land of another in his occupation--if-

(a) he or his predecessor-in-interest occupied such land believing it to be the property of the Government.

(b) subsequent to such occupation such land has become the property of such other person as a consequence of any judgment, decree or order of any civil court, and

(c) such land has been in the continuous occupation of such person for a period of not less than ten vears preceding the commencement of the Kerala Land Reforms (Amendment) Act 1969.

(The explanations are not material, and are left out).

The Court below in the common order in I. A. No. 307 and 1541 of 1970 (appended to the order under appeal) held that the appellant cannot be said to be in occupation of the land of another: nor could such land be regarded as having become the property of such other as a consequence of any judgment or decree of a civil court; and that the other conditions necessary to invoke the benefits of Section 7A were not satisfied. In this view, it dismissed the appellant's application.

6. We think the court below was right. Condition (a) in Section 7-A is that a person must have occupied 'such' land i. e. the land of another, believing it to be the property of the Government For the fiction of deemed tenancy under Section 7A to operate, there should be three parties, namely (1) the occupier; (2) another, whose land is occupied; and (3) the Government whose property the land occupied, is believed to be. In the instant case, as rightly held by the court below, the appellant occupied the land of the Government, knowing and believing it to be. Government land. This is plain from paragraph 2 of the judgment of the High Court in 1966 K. L. T. 333, where it is stated that the entire land comprised in the two survey fields is admittedly forest poramboke belonging to the Government

7. Nor can it be said that such other land 'had become the property of such other person as a conseouence of any judgment decree or order of a Civil Court' as provided by Clause (b) of Section 7A. There is no 'other person'' whose land the appellant can be said to have occupied, Nor. assuming there was, can it be said that the land occupied has become the property of such other person as a consequence of any judgment or decree. The expression used by Clause (b), is 'land has become the property of such other person' and not that such other person has acquired property in the land. The land was Government land prior to the adjudication by this Court and the Supreme Court It remained so after the ad indication. There has been no transformation of the right of property in the land, whether of the Government or of the 1st Respondent, in consequence of the judgment or decree. All the interesting dissertation of Counsel for the appellant as to possession, conferring an interest or a right to property on an occupant appears to be misplaced and irrelevant The land as such, cannot be said to have become the property of the occupant Nor, if it has, was it brought about in consequence of the judgment or decree in the suit

8. The order of the court below was right We dismiss this appeal with costs.


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