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Sundaram Vs. Gopalakrishna Menon - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 455 of 1972
Judge
Reported inAIR1973Ker147
ActsTenancy Laws; Kerala Land Reforms Act, 1964 - Sections 13(2); Kerala Land Reforms (Amendment) Act, 1969
AppellantSundaram
RespondentGopalakrishna Menon
Appellant Advocate K.N. Karunakaran, Adv.
Respondent Advocate T.S. Venkiteswara Iyer, Adv.
DispositionRevision dismissed
Excerpt:
.....well within his rights to file application within six months - held, landlord competent to file application for resumption under section 13 (2). - - act 35 of 1969 came into force on 1-1-1970. and if the tenant's contention is right the petition under section 13 (2) has to fail because admittedly the landlord was not a member of the armed forces on 1-1-1970. the question is whether that is the correct position at law. in other words, an application at any time prior to 13-3-1968 could have been perfectly competent in the meanwhile act 9 of 1967 was enacted and it came into force on 30-7-1967. section 4 of that act is in the following terms: therefore, well within his rights to file the application within six months from the commencement of act 35 of 1969 in view of the second..........old act which i may read as follows:'nothing in sub-section (i) shall confer fixity of tenure on a tenant holding under a landlord- (i) who is a member of the armed forces or is a seaman, if the tenancy was created by such landlord within & period of three months before he became a member of the armed forces or a seaman, or while he was serving as such member or seaman; or x x x x x x'. from clause (a) of the second proviso to section 13 (2) it could be found that the tenant could get fixity of tenure only if the landlord referred to in clause (i) has not claimed resumption of the land comprised in the holding within one year from the date on which he ceased to be a member of the armed forces or a seaman, or within one year from the commencement of the act. or within one year from the.....
Judgment:
ORDER

N.D.P. Namboodiripad, J.

1. The respondent in Application No. 265/1970 is the petitioner. I may call him the tenant, and the respondent as the landlord. The landlord entered military service sometime in 1959 and he was discharged on 13-3-1967. According to him he obtained the property involved in these proceedings in pursuance of Ext. A-3 dated 12-3-1962, and thereafter he leased out the property to the tenant under Ext. A-4 dated 10-4-1962. On 26-6-1970 he filed an application for resumption of the holding presumably under Section 13 (2) of Act 1 of 1964. The tenant questioned the competency of the landlord to apply under Section 13 (2), and also contended that he was in possession of the pro-perty some 30 years back and not under Ext. A-4 which, according to him. was a fabricated document. The Tribunal accepted the contentions of the tenant and dismissed the resumption application. On appeal by the landlord the appellate authority found that the appli-cation is maintainable and that Ext, A-4 is genuine. The matter was nevertheless remitted back to the Tribunal for considering the other questions involved in these proceedings. Hence this revision by the tenant.

2. The first contention raised by the tenant is that the landlord has nolocus standi to apply under Section 13 (2) of Act 1 of 1964 since he was not a member of the Armed Forces on the date on which Act 35 of 1969 came into force. Act 35 of 1969 came into force on 1-1-1970. and if the tenant's contention is right the petition under Section 13 (2) has to fail because admittedly the landlord was not a member of the Armed Forces on 1-1-1970. The question is whether that is the correct position at law. Section 13 (1) of Act 1 of 1964 confers fixity of tenure on tenants. But there was an exemption contained in Sub-section (2) of Section 13 of the old Act which I may read as follows:

'Nothing in sub-section (I) shall confer fixity of tenure on a tenant holding under a landlord-

(i) who is a member of the Armed Forces or is a seaman, if the tenancy was created by such landlord within & period of three months before he became a member of the Armed Forces or a seaman, or while he was serving as such member or seaman; or

X X X X X X'.

From clause (a) of the second proviso to Section 13 (2) it could be found that the tenant could get fixity of tenure only if the landlord referred to in clause (i) has not claimed resumption of the land comprised in the holding within one year from the date on which he ceased to be a member of the Armed Forces or a seaman, or within one year from the commencement of the Act. or within one year from the expiry of the period of tenancy, whichever period expires last. The relevant provision thus provided three periods and the member of the Armed Forces could choose that which is most favourable to him. In the instant case the landlord was discharged from the Air Force on 13-3-1967. and by virtue of the provisions in the proviso referred to above he could have applied within one year from that date for resumption. In other words, an application at any time prior to 13-3-1968 could have been perfectly competent In the meanwhile Act 9 of 1967 was enacted and it came into force on 30-7-1967. Section 4 of that Act is in the following terms:

'Notwithstanding anything to the contrary contained in any other law, or in any contract, custom or usage, or in any judgment, decree or order of anv court or Land Tribunal with effect on and from the commencement of this Act. no suit or application or other proceeding for-

(a) aviction of a tenant from his holding or part thereof or eviction or shifting of a kudikidappukaran from his kudikidappu; or

(b) resumption of a holding or part thereof from a tenant.

shall lie in any Court or Land Tribunal, and all suits, applications, proceedings in execution of decrees or orders and other proceedings pending in Courts or Land Tribunals at such commencement for such eviction, shifting or resumption shall be staved:

X X X X X X.'

In view of this provision the landlord was precluded from making any application for resumption. The period of Act 9 of 1967 was extended upto 31-12-19G9 bv Act 5 of 1969. Consequently, the embargo on making applications for resumption also continued till 31-12-1969. It follows, therefore, that till 31-12-1969 the landlord could not have applied for resumption for no fault of his own, but because of the law in force. On 1-1-1970 Act 35 of 1969 came into force. That Act made some significant chances to the proviso to Section 13 (2). I may mention even at this stage that clauses (i) and (ii) of Sub-section (2) of Section 13 as they originally stood did not undergo any change. It is only the amendment to the second proviso as it then stood that is relevant for the purpose of this case. Section 15 of Act 35 of 1069 which amended Section 13 of the Principal Act is in the following terms:

'In Section 13 of the principal Act,--(a) in Sub-section (2). for the second proviso, the following proviso shall be substituted, namely:--

'Provided further that a tenant holding under any such landlord shall have fixity of tenure in respect of his holding if the landlord does not claim resumption of the land comprised in the holding within six months from the commencement of the Kerala Land Reforms (Amendment) Act. 1969:

X X X X X x'.

The result of the amendment of the second proviso was that the original alternatives contained in the second proviso were no longer there, and the application for resumption was to be made within six months from the commencement of Act 35 of 1969 if the landlord wanted to avoid fixity of tenure being given to the tenant. According to the learned counsel for the petitioner in view of the amendment to the second proviso by Act 35 of 1969 unless the landlord was a member of the Armed Forces on the date on which the amending Act came into force he cannot avail of the new proviso. The error in that argument is that the second proviso is not intended to confer any new benefit as such to the landlord or to the tenant. It was necessitated because of the staying of all proceedings in pursuance of the relevant provisions of Act 9 of 1967 and Act 5 of 1969. Section 13(2), as I have already referred to. is in the nature of an exception to sub-section (1). which generally confers fixity of tenure on all tenants. In a case covered by Section 13 (2), the tenant of the concerned holding can get fixity of tenure only subiect to the conditions mentioned therein. The landlords whose rights were sought to be protected by Section 13 (2) were given the power to exercise their right of resumption within a specified period. Subsequent legisla-lations made it impossible for such landlord to apply within the time specified in the original Act. end consequently when there was a regular amendment of the various provisions of Act 1 of 1964 by Act 35 of 1969 it was necessary to make a provision for enabling the disabled land-owners for exercising their option already conferred by the main part of Section 13 (2) as it stood even when Act 35 of 1969 came into force. The effect of the new proviso was to curtail the rights of such landlords further in the sense that the time was reduced from one year to six months and the alternative conditions were also taken away. This in short appears to be the purpose of the amendment and not for the purpose of taking away to any greater extent the right of option, given to the land-owners covered by Section 13 (2). The landlord in this case was. therefore, well within his rights to file the application within six months from the commencement of Act 35 of 1969 in view of the second proviso to the above section. The appellate authority was. therefore, right in holding that the landlord in this case was competent to file the application for resumption under Section 13 (2) of the Act.

3. It was contended by the petitioner-tenant that Ext. A-4 lease is not genuine. It is in evidence that the paramount owner of this property is one Poomully Mana. which instituted O. S. 312/1948 for recovery of this and other properties with arrears of rent. Ext. A-l is the decree passed in that case and Ext. A-2 is the delivery receipt. Ext. A-2 is dated 11-10-1956. The tenant in this case has signed Ext. A-2 delivery. It is, therefore, clear that his case that he was never dispossessed in pursuance of Ext. A-l decree is palpably false. According to the landlord subsequent to Ext. A-2 his uncle obtained the property on lease from the Mana and later on assigned it to him under Ext. A-3. Some evidence was let in by the tenant to show that subsequent to 1956 he was cultivating the property. It has to be remembered that the tenant has no case that after Ext. A-2 he took the property again on lease from P. W, 1. the vendor under Ext. A-3. It is in that background that the genuineness or otherwise ofExt. A-4 has to be considered. One of the attestors to Ext. A-4 was examined. In view of Exts. A-2. A-3 I am inclined to believe the version of the landlord that P. W. 1 was cultivating the property. It is onlv natural that since the petitioner was serving in. the armed Forces he thought of leasing out the property. I therefore agree with the appellate authority that Ext. A-4 is genuine and that the tenant's possession commenced only from the date of Ext. A-4. The appellate authority was, therefore, right in finding both the questions in favour of the landlord and remitting back the matter to the Tribunal for considering the other questions raised in these proceedings.

4. In the result, the order of theappellate authority is hereby confirmed and this revision is dismissed with costs.


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