Kerala High Court
B. Rajeevi R. Hegde vs Thyampanna Shetty And Ors. on 15 February, 1984
Equivalent citations: AIR1984KER222, AIR 1984 KERALA 222, (1984) KER LJ 244 (1984) KER LT 536, (1984) KER LT 536
ORDER
K. Bhaskaran, Ag. C.J.
1. The landowner is the revision-petitioner. The first respondent herein had filed a petition for purchase of the revision-petitioner's right, title and interest under Section 72-B of the Kerala Land Reforms Act, 1963, Act 1 of 1964, as amended by Act 35 of 1969 (the Act). The Tribunal allowed the application by its order dt. 24-6-1976 as prayed for. The appeal filed against that order was dismissed by the Appellate Authority (Land Reforms), Cannanore, by its judgment dt. 5-12-1980 confirming the order of the Land Tribunal; hence this revision under Section 103 of the Act.
2. Sri U.P. Kunikullaya, the counsel for the revision-petitioner, submitted that the Land Tribunal and the Appellate Authority went wrong in allowing the purchase of the right, title and interest of the petitioner (landowner) inasmuch as, according to him, there was no tenancy with respect to the land subsisting between the revision-petitioner or his predecessor-in-interest on the one hand, and the 1st respondent on the other. It was submitted by Sri Kunikullaya that under Ext. d1 WILL dt. 15-7-1930. executed by one Kinhanna Naik, neither the revision-petitioner nor his predecessor-in-interest, Ramayya Shetty and Shamanna Shetty, had absolute right in the property, as under Ext. D1 will all of them derived a life interest alone in the land, and the respondents claiming tenancy created by the revision-petitioner's predecessors, could not invoke the pro-visions of Sections 53 to 72-S of the Act in view of the clear provisions contained in the proviso to Clause (vi) of Sub-section (1) of Section 3 of the Act. Clause (vi) of sub-section (1) of Section 3 with the relevant proviso roads:
"3. Exemption.-- (1) Nothing in this Chapter shall apply to-
X X X
(vi) tenancies in respect of land or of buildings or of both created by persons having only life interest or other limited interest in the land or in the buildings or in both.
Provided that the provisions of this clause shall not apply to a tenancy created by a nissanthathi kavaru as defined in the Madras Aliasanthana Act, 1949, in respect of lands or of buildings or of both over which the nissanthathi kavaru has only a life interest."
3. The submission made by Sri P.G. Rajagopalan, the counsel for the first respondent in the revision petition, on the other hand, is that the definite case of the first respondent was that he and his predecessor-in-interest had been holding the land for not less than 50 years honestly believing themselves to be cultivating tenants of the land and, therefore by virtue of the provisions contained in Section 7 of the Act, he was entitled to invoke Section 72-B of the Act. Section 7 so far as it is material for this case provides :
"7. Certain persons occupying land honestly believing to be tenants, 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, any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of another situate in Malabar shall be deemed to be tenant if he or his predecessor-in-interest was continuously in occupation of such land honestly believing himself to be a tenant for not less than two years within a period of twelve years immediately preceding the 11th day of April, 1967.
Explanation: Notwithstanding anything contained in the Evidence Act, 1872, where a person hag been continuously in occupation of any such land for two years within the said period of twelve years, it shall be presumed until the contrary is proved that he has been in such occupation honestly believing himself to be a tenant."
4. The pleadings on both sides have not been of precise nature. The correct position, however, has to be understood in the spirit in which the parties entered the arena for the contest, and on the basis of which the Tribunal and the Appellate Authority proceeded in the matter.
5. The first respondent (the applicant before the Land Tribunal) has specifically pleaded that he and his predecessors-in-interest had been holding the land honestly believing "themselves to be ten-ants for not less than a period of 50 years, paying a certain quantity of paddy by way of rent. The stand taken by the revision-petitioner as well as his predecessors-in-interest was that the petitioner (1st respondent herein) was not entitled to purchase their right, title and interest in the land, as he and his predecessors-in-interest were persons claiming on the basis of a tenancy created by a person having only life interest in the land in terms of Ext. D1 will.
6. It might appear that there is an apparent conflict with respect to the relevant provision of Section 7 of the Act on the one hand, and that of Section 3 (1) (vi) of the Act on the other. Section 7 inter alia provides: "any person in occupation at the commencement of the Kerala Land Reforms (Amendment) Act 1969, of the land of another, situate in Malabar shall be deemed to be tenant if he or his predecessor-in-interest was continuously in occupation of such land honestly believing himself to be a tenant for not less than two years within a period of twelve years immediately preceding the 11th clay of April, 1967"; and the Explanation thereto provides: "Notwithstanding anything contained in the Evidence Act 1872, where a person has been continuously in occupation of any such land for two years within the said period of twelve years, it shall be presumed until the contrary is proved that he has been in such occupation honestly believing himself to be a tenant". The conditions to be satisfied for claiming benefit under Section 7 are:
(1) the land should situate in Malabar;
(2) the person claiming tenancy ought to have been in occupation of that land for not less than two years within a period of twelve years immediately preceding the 11th day of April. 1967: and (3) such occupation should be honestly believing himself to be a tenant.
7. There is no dispute that conditions
(i) and (2) stated above are satisfied in the present case. The only dispute is whether such occupation by the 1st respondent and his predecessors-in-interest was honestly believing themselves to be tenants. This dispute has to be resolved with the aid of the Explanation to the section which provides; "where a person has been continuously in occupation of any such land for two years within the said period of twelve" years, it shill be presumed until the contrary is proved that he has been in such occupation honestly believing himself to be a ten-
ant". The concurrent finding of the Tri bunal and the Appellate Authority is that it was honestly believing themselves to be tenants of the land and the 1st re spondent and his predecessors-in-interest were in occupation of the land. This is a finding of fact. Moresoever, there is no thing on evidence to rebut the presumption that the occupation by the 1st respondent and his predecessors-in-interest was honestly believing themselves to be tenants, arising under the Explanation to the section.
8. The deemed tenancy envisaged by Section 7 of the Act within its sweep is capable, of taking in all cases of occupation satisfying the requirements laid down in the section read with the Explanation: no exclusion from its purview appears to have been contemplated in case such conditions are satisfied. In view of the scheme of the Act and the object, behind the deemed provision it is difficult to hold that it was the intention of the legislature to restrict the scope and amplitude of the section by Section 3 (1) (vi) of the Act. In my view Section 3 (1) (vi) of the Act would not have any application to cases covered by Section 7 of the Act.
For the foregoing reasons I find no merit in the revision, and accordingly it is dismissed, however, in the circumstances of the case, without any order as to costs.