Kerala High Court
Devaki Amma And Ors. vs K.P. Sreedharan on 24 February, 1993
Equivalent citations: AIR1993KER348, AIR 1993 KERALA 348, (1993) 1 KER LJ 889
JUDGMENT T.L. Viswanatha Iyer, J.
1. Defendants 3, 5 to 8 and 12 to 15 in a suit for redemption of a mortgage and for recovery of possession of the plaint schedule property are the appellants. They are the legal representatives of the deceased second defendant. The respondent is the plaintiff.
2. The plaint schedule property, having an extent of 68 cents with a building thereon, was mortgaged to one Kumara Pillai for an amount of Rs. 294/- on 7-1-1923 ME. The first defendant is an assignee of the rights of Kumara Pillai under the mortgage as per deed dated 6-12-1954, and be settled his rights over the plaint schedule property and three others to the second defendant by the deed of settlement Ext. Dl, dated 6-11-1964. The suit was filed meanwhile for redemption and recovery of possession, in the year 1961.
3. A preliminary decree for redemption was passed on 22-11-1962. The plaintiff thereafter filed LA. No. 5885 of 1965 for the passing of final decree. At the initial stages, the only objection of the second defendant was regarding the value of improvements payable, but after the amendment to the Kerala Land Reforms Act, 1963 (the Act) by Act 35 of 1969, he raised additional objections claiming the benefit of deemed tenancy under Section 4A(1)(b) of the said Act. His case was that he satisfied the prescribed requirement namely that the mortgagee had constructed a building in the property for his own residence and that he was occupying the building for such purpose for a continuous period of not less than twenty years immediately preceding the commencement of the amending Act 35 of 1969, namely 1-1-1970. He also pleaded that he was not precluded by the proviso to the section from claiming the benefit thereof as the extent of his other holdings was less than two acres as on the relevant date namely 16-8-1968 when the Kerala Land Reforms (Amendment) Bill 1968 was published in the Official Gazette.
4. The trial Court passed a final decree on 9-7-1970 holding that the second defendant was "possessed of more than two acres of land" and was not therefore entitled to fixity of tenure under Section 4A(1)(b) because of the exclusion contained in the proviso thereto. He did not go into the other question whether the mortgagee had constructed a building for his own residence and whether he had occupied it continuously for not less than twenty years prior to 1-1-1970 -- another requirement of Section 4A(1)(b) -- apparently because of his view that the mortgagee became disentitled to any benefit as his holdings exceeded two acres. An appeal A.S. No. 15 of 1971 was taken to the District Court, Alleppey by the second defendant, which was allowed and the matter remitted to the trial Court with a laconic judgment dated 18-12-1972. The judgment is significant for its brevity. The court noted that the only point arising for consideration was whether the second defendant was entitled to the benefits of Section 4A of the Act as amended. The court stated that the trial Court had, without adverting to the evidence on record, come to the finding that he was not entitled to fixity of tenure under the Act. He thereafter proceeded to state:
"......... but it is in evidence that the second defendant or his predecessor-in-interest has constructed the building for his own residence on the mortgage property and he was occupying such building for such purposes for a continuous period of not less than twenty years. I therefore find that the lower Court's finding is incorrect and it is set aside. The case is remanded to the lower Court for fresh disposal according to law."
5. There was no appeal from this order. After the matter came back, the Munsiff passed a revised judgment and final decree for redemption and recovery of possession on 18-7-1973. He held that the District Court had in the order of remand held that the second defendant had constructed the building for his own residence and that he was occupying the building for such purposes for a period of not less than 20 years. This finding had in the absence of an appeal become final. Even otherwise, there was clinching evidence to show that the building in the property was more than twenty years old on the date of commencement of the Act namely 1-1-1970, that it was put up by the mortgagee and that he had been continuously occupying the same for residential purpose for more than twenty years prior to 1-1-1970. One of the qualifications for deemed tenancy under Section 4A(1)(b) was thus satisfied. The Munsiff however held that the second defendant was precluded from claiming the protection under the section because the extent of his holdings on the relevant date exceeded two acres and therefore the proviso to the section operated against him. A final decree was accordingly passed.
6. The second defendant's appeal against this decree was disposed of by the Subordinate Judge by judgment dated 25-3-1976. The appeal was allowed and the matter remitted to the trial Court again for fresh disposal acceding to the second defendant's prayer to be afforded an opportunity to adduce evidence to show that he was not in possession of two acres of other land on the relevant date. It was stated categorically that the remit was only for considering the question whether the mortgagee was entitled to fixity of tenure under Section 4A(1)(b). The appellate Court did not advert to the other question about the construction of the building or its occupation. No finding was rendered thereon.
7. This judgment was also not made the subject of any appeal. After remit, the trial Court dealt with the matter again on 22-11-1979. This time he upheld the second defendant's claim for protection under Section 4A(1)(b) of the Act. The Court held that the finding on the question regarding construction of building by the mortgagee and its occupation by him for not less than twenty years stood concluded by the first judgment of the District Court in A.S. No. 15 of 1971 and was not open for reconsideration. He held further that the second defendant was not in possession of other land in excess of two acres and therefore was not precluded by the proviso to the section from claiming the benefit thereof.
8. The plaintiff appealed and by his judgment dated 20-6-1990 the District Court allowed the appeal and negatived the second defendant's claim of deemed tenancy under Section 4A(1)(b). It is this judgment and decree that form the subject of the appeal.
9. The District Court has held against the second defendant on both the points that were in issue regarding the applicability of Section 4A(1)(b). He held that the decision in A.S. No. 15 of 1971 did not contain any final decision on the question whether the mortgagee had put up a building for residence in the mortgaged property and whether he had been in occupation of the same for such purposes for a period exceeding twenty years. The question whether this condition prescribed by Section 4A(1)(b) was satisfied was therefore open for consideration. The Court then went into the question, and found on a discussion of the evidence that the building must have been put up by Kumara Pillari (the original mortgagee) in 1124 M.A. or later, though reliable evidence of the date of its construction was not available. HOWEVER and even assuming that the construction was in 1124 ME, it was not established that the first defendant was continuously residing in the building from 1954 when he obtained the assignment of the mortgage right up to 1964, when he settled his rights on the second defendant. The second defendant occupied it only thereafter i.e. from 1964. The requirement of Section 4A(1)(b), of construction and occupation of the building for residence by the mortgagee continuously for a period of not less than twenty years prior in 1-1-1970 was not therefore satisfied. It was also held on a consideration of the evidence that the second defendant was in possession of land exceeding two acres in extent on 16-8-1968. He was therefore not entitled to claim the benefit of Section 4A(1)(h) because of these reasons.
10. Counsel for the appellants challenges both these findings. The question for consideration is therefore whether these findings entered by the appellate Court are correct or not.
11. Before going into these questions. I shall read the relevant portions of Section 4A "4A. Certain mortgagees and lessees of mortgagees to be deemed tenants.
(1) 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, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land shall be deemed to be a tenant if,
(b) the mortgagee or lessee has constructed a building for his own residence on the land comprised in the mortgage and he was occupying such building for such purpose for a continuous period of not less than twenty years immediately preceding such commencement :
Provided that a mortgagee or lessee falling under this clause shall not be deemed to be a tenant if he, or, where he is a member of a family, such family was holding any other land exceeding two acres in extent on the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette;
Explanation III. For the purpose of Clause (b),
(i) "mortgagee" or 'lessee' shall include a predecessor-in-interest of the mortgagee or lessee, as the case may be;
(ii) "building" include a hut.
Explanation IV. In computing the period of twenty years referred to in Clause (b), occupation of the building by any member of the family of the mortgagee or lessee for residential purpose shall be deemed to be occupation by the mortgagee or lessee, as the case may be, for such purpose."
The combined effect of Sub-clause (b) and of the proviso thereto (read with the Explanations), is to require, inter alia, two conditions to be satisfied before a mortgagee with possession of land could be deemed to be a tenant namely: (a) that the mortgagee had constructed a building for his residence in the mortgaged property and that he was occupying the building for that purpose for a continuous period of not less than twenty years prior to 1-1-1970; and (b) that the mortgagee was not holding any other land (i.e. land other than the mortgaged property) exceeding two acres in extent on 16-8-1968, the term "mortgagee" in both these clauses including his predecessor-in-interest also. These conditions are cumulative and both have to be satisfied before a mortgagee could claim to be a deemed tenant under Section 4A.
12. I shall consider the second of these aspects in the first instance. The lower appellate Court has found that the mortgagee, second defendant, was in possession of 2.07 acres of other land as on 16-8-1968. This is comprised of three items of properties, namely items 1, 3 and 4 in the deed of settlement Ext. Dl, item No. 2 therein being the mortgaged property, forming the subject matter of the suit. The lower appellate Court held that these items with extents of 1.45 acres, 50 cents and 12 cents respectively aggregating 2.07 acres, formed part of the second defendant's holdings as on 16-8-1968 and therefore he was hit by the proviso to Section4A(1)(b).
13. There is no dispute regarding item No. 1, which has an extent of 1.46 acres. The main dispute in both the courts below, as well as in this Court centred on the 50 cents of land in item No. 3, which was held by the donor first defendant, and also by the second defendant under a mortgage. The contention was that in reckoning the extent of the second defendant's holdings, this land held under mortgage has to be eschewed from consideration. The trial Court agreed with this view, but not the appellate Court, who relied on the decision of a Division Bench of this Court in Govinda Pillai v. Taluk Land Board, Parur, 1977 Ker LT 258 : (AIR 1978 NOC 265), to hold that this also formed part of the second defendant's holdings for the purposes of the proviso to Section 4A(1)(b).
14. The remaining item is item No. 4 with an extent of 12 cents which was also reckoned as part, of the second defendant's holdings. Before the courts below, no dispute had been raised about this item or its liability to be taken into account. But before me, a faint argument was raised at the time of arguments that no present right over this item vested in the second defendant, justifying its inclusion in his holdings as on 16-8-1968. The contention raised was that possession of this item had not been given to the second defendant under the settlement Ext. D1, which operated only as a Will and not as a gift, so far as this item was concerned.
15. I shall deal with this last point in the first instance. I have already noticed that this was not a point raised before either of the courts below, both of whom had proceeded on the assumption that this was part of the admitted holdings of the second defendant. Under the deed of settlement Ext. Dl, possession of items 1 to 3 was delivered to the second defendant. So far as item No. 4 was concerned, the first defendant reserved to himself the right to take the yield there from during his lifetime, after which alone possession was to go to the second defendant. The contention is that Ext. Dl was a Will regarding item 4 and not a gift, granting rights in present to the second defendant. I am unable to agree. A perusal of Ext. Dl shows that the rights over all the items had been settled on the donee. The donor reserved to himself only the right to take the usufructs from item 4 by making use of the property during his lifetime. A Will operates only on death, and rights vest thereunder only on the death of the testator. A Will is besides liable to be revoked by the testator, while a gift which has taken effect cannot be cancelled. There is nothing in Ext. Dl to indicate that there was a postponement of the vesting of rights in the second defendant till after the death of the first defendant. There is also nothing to indicate that the first defendant retained proprietary rights over the property till his death. No power of revocation is reserved in the settler to indicate that it was intended to operate only as a Will over item 4. On the other hand, the only right that the first defendant retained for himself was the right to take the usufructs during his lifetime and to enjoy the property. I am not satisfied that Ext. Dl bears the construction which the second defendant wants to place on it. This contention raised for the first time at the time of arguments in this Court that there was no vesting at all of item 4 on the second defendant as on 16-8-1968 is not valid or sustainable on the terms of Ext. Dl, and has only to be rejected.
16. I shall now come to the main question which had been agitated before both the courts below, regarding item 3 with an extent of 50 cents. The proviso to Section 4A(1)(b) lays down that a mortgagee satisfying the main part of the section shall nevertheless not be deemed to be a tenant if he was holding any other land exceeding two acres in extent on the relevant date, namely 16-8-1968. Section 2(59) of the Act defines the expression "to hold land" as meaning "to be in possession of land as owner or tenant or partly as owner and partly as tenant or in respect of land owned by the Government to be in occupation either as lessee or otherwise". The contention of the appellants is that possession either as owner or as tenant or partly as owner and partly as tenant is necessary before any person can be said to hold the land. So far as item No. 3 of Ext. D1 is concerned, the settler and the second defendant were in possession as mortgagees and not as owner or as tenant or partly as owner and partly as tenant and therefore the second defendant was not "holding" the land, item No. 3, as defined in Section 2(59), thereby leaving it out of the reckoning in computing the extent of land held by the second defendant. In Govinda Pillai's case, 1977 Ker LT 258: (AIR 1978 NOC 265), a Division Bench of this Court consisting of Gopalan Nambiar, Ag. C.J. and Kochu Thommen, J. had occasion to consider the scope of Section 2(59) in relation to proceedings arising under the ceiling provisions of the Act. In that context, the Division Bench upheld the contention of the State that lands in the possession of a person as a mortgagee were also liable to be taken into account in computing the extent of excess land held by him. They observed :--
"Besides even the definition of the term "to hold land" under Section 2, Clause (59) of the Act cannot be said to be wholly unrelated to the possession of a mortgagee. The definition no doubt refers only to the possession as owner or as tenant or partly as owner and partly as tenant. But when we turn to the definition of the word 'tenant' under Section 2(57) it includes a large variety of 'deemed tenants' under Sections 4A, 5, 6, 6A, 6B and so on. Under many of these Sections, mortgagees of a particular brand and subject to certain requirements are brought in. Section 4A for instance deals with the mortgagees with possession. Section 6 deals with mortgagees in possession in the Cochin area. In the light of these provisions, the mortgagees are paraded or made to masquerade as tenants and their possession is taken into account for the purpose of the Act. We are therefore of the opinion that although expressly the definition of 'to hold land' under Section 2, Clause (59) is related only to lands held as owner or as tenant, it is not to be understood in this restricted sense for the purpose of working out the ceiling provision of the Act, which we have sketched earlier."
This decision which had delineated the scope of Section 2(59) must equally apply to a case under Section 4A(1)(b) as well. Counsel for the appellants would however maintain that the decision, having been rendered in the context of Section 84 of the Act, it cannot apply to a case falling under Section 4A(1)(b). I do not find any warrant for this submission. Section 2(59) is applicable equally to Section 4A as to Section 84. No distinction is made between the two. If lands in possession as a mortgagee are liable to be treated as lands held by a person, it must be so whether the question is considered with reference to Section 84 or Section 4A. The subject or the context of Section 4A do not justify a departure from the general construction placed on it by the Bench. The Act has created a series of deemed tenancies, and many transactions which were otherwise mortgages under the Transfer of Property Act have been transformed and deemed to be tenancies under the Act. Section 4A is itself a classic example of a pure and simple mortgage being treated as a tenancy depending upon the duration of the occupation. The nomenclature of the transaction as a mortgage does not therefore carry any special sanctity to take the possession thereunder out of the purview of Section 2(59) or the proviso to Section 4A(1)(b). There is also no material placed to show that the transaction under which item No. 3 is held was really a mortgagee, or that it has been treated as not a tenancy under the Act. The appellants have no case that they have been or are attempted to be redeemed out of the property item No. 3 or that any proceedings have been initiated in that regard. Section 4A is intended to subserve the social purpose of a benefit to small holders, who may otherwise be driven out of their holdings, despite their long possession. The object of the proviso to Section 4A(1)(b) is to confine the benefit of the section to real small holders, who are not in possession of land in excess of two acres. A person in possession of a large extent of holding does not deserve the benefit of deemed tenancy under Section 4A. This purpose of the section will stand defeated if lands held under mortgage are taken out of the purview of the proviso, when it may well happen that the mortgage may turn out to be a deemed tenancy under the Act. I do not therefore find any reason to make a distinction between Section 4A and Section 84 on this part or to lake the view that Section 2(59) as construed in Govinda Pillai's case (AIR 1978 NOC 265) (Kerala) will not apply to Section 4A.
17. I must note here that Section 4A confers a right which is otherwise not available by creating a fiction of tenancy based on long possession. A serious inroad is made into the rights of the mortgagor. The section has therefore to be strictly construed, and a person claiming benefit under the section must fully satisfy all the conditions prescribed therein (vide Khalid, J. in Poonamma Pillai v. Bhaskaran Nair, 1978 Ker LT 327).
18. The second defendant is not therefore entitled to the benefit of Section 4A inasmuch as he was in possession of over two acres of land as on the relevant date namely 16-8-1968. The lower appellate Court has rightly rejected this claim of the second defendant,
19. The next question that arises is whether the second defendant satisfies the requirement (a) formulated in paragraph 11 supra and whether this point is open for consideration at this stage. A discussion on this point is unnecessary having regard to my finding that the second defendant is not entitled to the benefit of Section 4A for his failure to satisfy requirement (b) mentioned earlier. However, I shall briefly deal with this point as well.
20. The first aspect to be adverted to while on this point is whether this matter is open for consideration at all at this stage. This is because of the observations in the order of remand made in the first of the appellate judgments, namely the one in A.S. No. 15 of 1971, which I have extracted in paragraph 4 above. The trial Court held itself bound by these observations and treated the point as outside the pale of its consideration. It was only the lower appellate Court in the judgment impugned that held that the order of remand in A.S. No. 15 of 1971 did not really decide any point and therefore this question was open for fresh consideration,
21. The bar, if any, for fresh consideration of the matter has to be found in Section 105(2) of the C.P.C. This section lays down that when any party aggrieved by an order of remand from which an appeal lies does not file appeal therefrom, he shall thereafter be precluded from disputing its correctness. The order passed in A.S. No. 15 of 1971 was an order of remand which falls under Order 41, Rule 23. This order was appealable under Order 43, Rule l(u). No appeal was admittedly filed therefrom. It is therefore contended that the respondent-plaintiff is precluded from disputing the correctness of this order of remand, and that it is not open to him at this stage to plead that requirement (a) noted in paragraph 11 supra is not satisfied.
22. In Krishnaswamy v. Muthu Reddiar, AIR 1979 Mad 173, it was held following the decision in Sita Ram Goef v. Sukhnandi Dayal, AIR 1972 SC 1612, that the finality given under Section 105(2) of the C.P.C., to an order of remand which is appealable, but which was in fact not appealed against, will apply to the findings rendered in the order of remand as well. In Jagadish Chandra Bose v. Baijnath Shaw, AIR 1966 Cal 580, the High Court of Calcutta laid down that an order of remand which conclusively determines the rights of the parties on a particular question was appealable as a decree, and in the absence of an appeal, was conclusive between the parties. The aggrieved party is precluded from disputing its correctness in the subsequent stages of the proceeding. A Division Bench of this Court dealt with the matter relating to the scope of an order of remand and its finality exhaustively in the decision in Cherian v. Kochuvareed, AIR 1975 Ker 197. I shall extract the relevant parts of the judgment (at pp. 200-201 of AIR):
"If a High Court remands a case to the lower Court, the matters finally disposed of by the order of remand cannot, any of them, be re-opened, when the case comes back from the lower Court but, if at the time of remand, no final decision is given on a point, though some observations only are made in respect of it, it is open to another Bench, a court of coordinate jurisdiction, when finally determining the case, to come to its own conclusions on it; and (2) that even in a case, decided by the first court of appeal other than a case, decided by the High Court, if a Judge on appeal decides certain points and remands the case, his decision is binding on his successor, before whom, the case comes up again from the judgment after remand because such a court is a court of co-ordinate jurisdiction, and, therefore, he cannot go behind the earlier final decision of his predecessor before remand.
11. The test, therefore, in such a case, to ascertain if a particular finding given by the Judge on appeal is a final decision, or not is to find out, if, by the order of remand, the Judge on appeal has remanded the suit for determination of all the points at issue, or, it has determined some points in controversy, and remanded the suit for determination of the remaining points, which may include the question of maintainability of the plaintiffs' suit itself, in which case the decree of the first court has to be set aside, and, the suit remitted to the court below for a fresh decision of the case according to law."
If therefore a final decision is rendered on any point in the order of remand which could have been appealed against, that decision is binding on the parties and is not open to challenge before the same court or even before a superior court in a subsequent appeal. If however no final decision is given but only some observations made on any point, Section 105(2) does not bar consideration of that point in the subsequent stages of the proceeding. Since it is the appellate order A.S. No. 15 of 1971 that is pleaded as a bar to reconsideration of the point formulated as (a) in paragraph 11, that order has to be examined to see whether it contains a final decision on the point. As I have indicated already, the District Judge has, in the judgment under appeal, held that no such conclusive or final decision was rendered in the said order.
23. The applicability or otherwise of Section 4A(1)(b) depended inter alia on two conditions, namely the one laid down by the main part of the section based on construction of building by the mortgagee for his residence and its occupation by him continuously for a period exceeding twenty years prior to 1-1-1970, and secondly that the mortgagee did not hold land in excess of two acres as on 16-8-1968. Unless both these conditions concurred, it was not possible for the mortgagee to claim the benefit of deemed tenancy under the provision.
24. The first final judgment of the Munsiff passed on 9-7-1970 which again was laconic in its contents proceeded to reject the second defendant's claim for fixity of tenure because he was possessed of more than two acres of land. The other requirement was not discussed, apparently because this, finding was sufficient to reject the second defendant's claim. This judgment and the decree following it were the subject of the appeal A.S. No. 15 of 1971. The District Judge merely noted the second defendant's contention that he was entitled to fixity of tenure, on the ground that himself and his predecessors were residing in the property for a continuous period of twenty years before 1-1-1970, and went on to observe that the Munsiff had without adverting to the evidence on record come to a finding that he is not entitled to fixity of tenure under the Land Reforms Act. The District Judge followed this up with the observations extracted in paragraph 4 above. The satisfaction of the other requirement of Section 4A depending on the extent of the second defendant's folding on which the decision of the Munsiff was rested was not even adverted to. The question is whether this discloses any final decision on the first ingredient of Section 4A regarding construction of building by the mortgagee and continuous residence therein for the requisite period.
25. I am unable to read the order of remand as containing any such conclusive adjudication on this question which will bind the parties in future in the absence of an appeal. No doubt he referred to the question but did not choose to deal with the question or render a final decision. He merely referred to the existence of evidence in the case, (to which the Munsiff had not referred) and remitted the matter back for fresh disposal in accordance with law. The observation that the finding of the lower Court was incorrect does not lead to anything or to any inference of any final decision on this point for the reason that the two requirements of Section 4A(1)(b) are accumulative, both of which have to be satisfied before any relief could be given to the second defendant, What the District Judge evidently meant was that the matter required a remit to the Munsiff for rendering a decision after adverting to the evidence and in that sense, the judgment of the Munsiff rendered without adverting to the evidence was incorrect. I am unable to discern any final adjudication, decision or finding, anywhere in the order of remand. All that the District Judge did was to leave the matter open for decision by the Munsiff after pointing out the existence of evidence on this point. In fact, no conclusive adjudication by the District Judge was possible without his going into the point relied on by the Munsiff that the holdings of the second defendant exceeded two acres on the relevant date. Further and if any such final decision had been rendered, a remit to the Munsiff for disposal in accordance with law would have been unnecessary.
26. I am therefore satisfied on a construction of the order of remand that it has not given any final decision on any point and therefore Section 105(2) of the C.P.C., does not preclude consideration of requirement (a) formulated by me above in the subsequent proceedings. The order passed in the subsequent appeal A.S. No. 15 of 1975 does not pose any problem as this question was not adverted to or decided therein. I am therefore in agreement with the judgment under appeal that the question relating to construction of the building by the mortgagee and his continuous residence therein for more than twenty years prior to 1-1-1970 was open for consideration at this stage.
27. I shall now consider whether the finding of the appellate court that the first defendant was not occupying the property from the date of his put chase on 6-12-1954 till the date he executed the settlement in favour of the second defendant, on 6-11-1964 is correct. The appellate Court found that the mortgagee Kumara Pillai had put up a building on the property, though there was no reliable evidence regarding the year in which it was put up. He was occupying it till he assigned the mortgage right to the first defendant on 6-12-1954. The second period to be considered is from 6-12-1954 to 6-11-1964. The appellate court has analysed the evidence and found that there is no material to show that the first defendant was in occupation of the building from 1954. The second defendant had admitted in cross-examination that the first defendant was not continuously residing in the building. In fact, the first defendant was residing in Kalappurackal whereas the plaint schedule property is known as Pokkuvazhi. DW 5 the second defendant's wife had stated that the second defendant who is the first defendant's son started residing in the property only from the date of Ext. Dl namely 6-11-1964. A commission had been issued to inspect the property and to report about the occupation, and he had reported as per Ext. Cl that a homoeopathy dispensary was being run in the building in the year 1962. Evidently the first defendant was not occupying the building continuously from the date of his purchase on 6-12-1954 till 6-11-1964 when he settled the property on the second defendant. After the deed of settlement was executed, namely Ext. Dl, the second defendant demolished the building then in existence and put up a building and started residing in it.
28. The position that emerges therefore is that while there is evidence of occupation by the mortgagee Kumara Pillai up to 6-12-1954 and also by the second defendant after 6-11-1964, there is no evidence to show that the then mortgagee first defendant was occupying the building for his own residence between 6-12-1954 and 6-11-1964. If that be so, an essential ingredient for the applicability of Section 4A(1)(b) namely the continuous occupation of the building by the mortgagee for his residence for twenty years or more prior to 1-1-1970 is not satisfied. This is the finding rendered by the District Court which is based on an analysis of the material and the evidence on record. I am in agreement with this finding, which is essentially one of fact. No substantial question of law arises on this point entitling this court to interfere with this finding of fact.
29. The result of the above discussion is that the second defendant does not satisfy the requirements of the main part of Section 4A(1)(b), and is besides barred from claiming the benefit thereof by the proviso thereto. If Section 4A is not available, there is no other defence which avails him to resist redemption. The plaintiff is entitled to have a final decree for redemption of the mortgage and for recovery of possession. The decree passed by the lower appellate court does not call for any interference.
The Second Appeal is dismissed with costs.
Appeal dismissed.