David Livingston v. V. Rajamma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939 CRP.No. 1037 of 2007 ( ) ------------------------- AGAINST THE ORDER DATED 28.06.2007 IN EP NO.417/1994 IN OS NO. 59/1950 of I ADITIONAL SUB COURT,THIRUVANANTHAPURAM REVISION PETITIONER/2ND DECREE HOLDER: ---------------------------------------- DAVID LIVINGSTON, S/O.SAMUEL DAVID RESIDING AT 'CHRIS HOUSE', PULLANVILA, THUNDATHIL P.O., KARYAVATTOM, THIRUVANANTHAPURAM. BY ADVS.SRI.R.D.SHENOY (SENIOR ADVOCATE) SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL RESPONDENTS/JUDGEMENT DEBTORS 1 TO 6: --------------------------------------- * 1. V.RAJAMMA DIED * * 2. V.I.STEPHENSON. DIED, LRS. IMPLEADED. 3. V.I.DEVADANAM. 4. V.I.EDISON. 5. V.I.ALPHONSON. 6. V.I.BABY DANIAL. ALL ARE RESIDING AT PULLUVILA PUTHENVEEDU, MADATHUVILAKOM, THIRUVANANTHAPURAM. *IT IS RECORDED THAT RESPONDENTS 2 TO 6 ARE THE LEGAL HEIRS OF THE DECEASED R1 AS PER ORDER DTD.7/10/14 IN MEMO CF.1201/10 DTD.19/3/2010 ADDL.R7 TO R10 IMPLEADED: ADDL.R7. GLORY, WIDOW OF V.I.STEPHENSON ADDL.R8. DEVA PRASANNA, D/O.LATE V.I.STEPHENSON ADDL.R9. DEVA PRASAD, S/O.LATE V.I.STEPHENSON ADDL.R10. DEVA PRADEEP, S/O.LATE V.I.STEPHENSON ADDL.R7 TO R10 ARE RESIDING AT BHADRADEEPAM, ESTATE P.O., POZHIKUNNU, THIRUVANANTHAPURAM. CRP NO.1037/2007 2 **ADDL.RESPONDENTS 7 TO 10 ARE IMPLEADED THE LEGAL HEIRS OF THE DECEASED R2 AS PER ORDER DATED 7.10.14 IN IA NO.1810/2010. ## ADDL.R11 & R12 IMPLEADED: ADDL.R11. NELSON CROMPTAN (WRONGLY SHOWN AS NELSON KRAVITTAN IN ORDER OF THE COURT BELOW), T.C.4/2168, PATTOM, THIRUVANANTHAPURAM-4. ADDL.R12. SANTHOSH WILSON, RESIDING IN DO. DO. DO. ADDL.RESPONDENTS R11 & R12 ARE IMPLEADED AS PER ORDER DTD.19//11/15 IN IA 2285/2010. ADDL.R13 TO R16 IMPLEADED: ADDL.R13. THELMA PREMKUMAR, NELLI NILAYAM, T.C.4/2168, MARAPALAM, PATTOM, THIRUVANANTHAPURAM-4. ADDL.R14. NELSON HAMILTON, RESIDING IN DO. DO. ADDL.R15. PRAMEELA ARJUNAN, RESIDING IN DO. DO. ADDL.R16. ELIZABETH CHELLASWAMY, T.C.NO.4/2169, MARAPALAM, PATTOM, THIRUVANANTHAPURAM. ADDL.RESPONDENTS R13 TO R16 ARE IMPLEADED AS PER ORDER DTD.19//11/15 IN IA 217/11. ADDL.R9 TO 12 BY ADVS.SRI.P.B.KRISHNAN SRI.N.AJITH SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON R3 TO R6 BY ADVS. SRI.S.SREEKUMAR (SENIOR ADVOCATE) SRI.V.SURESH SRI.G.SUDHEER THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29.06.2017 ALONG WITH CRP NO.1118 OF 2007, THE COURT ON 25-07-2017 PASSED THE FOLLOWING: ## **A.HARIPRASAD, J. -------------------------------------C.R.P. Nos.1037 & 1118 of 2007** ## **-------------------------------------Dated this the 25[th] day of July, 2017** ## **COMMON ORDER** Revision petitioner has approached this Court with the above captioned cases challenging the orders passed in two execution proceedings. 2. Heard Sri.R.D.Shenoy, the learned Senior Counsel appearing for the revision petitioner and Sri. S.Sreekumar, the learned Senior Counsel appearing for the contesting respondents. 3. Short facts relevant are as stated below:Revision petitioner is the 2[nd] decree holder. A suit for partition, redemption of various mortgages and lease arrangements was filed as O.S.No.59 of 1950 before the Court of I Additional Sub Judge, Thiruvananthapuram. A preliminary decree was passed on 15.09.1958 and a final decree, on 05.04.1969. Plaintiff was found to be entitled to get 1/9[th] share over the plaint schedule properties comprising of 32 items, subject to certain mortgages. The defendants were also entitled to various shares over the property. Two appeals were filed against the final decree as A.S.No.9 of 1970 by defendants 2, 39 and 89 and A.S.No.552 of 1969 by the 23[rd] defendant. A.S.No.9 of 1970 was decided on 15.03.1977. A.S.No.552 of 1969 was initially decided on 2 CRP Nos.1037 & 1118 of 2007 20.02.1975. Later a second appeal was preferred and after remand a revised judgment was pronounced on 08.08.1983. 23[rd] defendant died pending the appeal and his legal heirs are the judgment debtors 1 to 6 in this proceedings. 4. 23[rd] defendant was a mortgagee under Ext.D document dated 19.03.1088 M.E. which covered items 4 and 5 properties shown in the decree schedule. 23[rd] defendant also claimed absolute right over 1.34 acres in item 5 property purchased by the 19[th] defendant. 9[th] defendant had been found entitled to get a share. Legal heirs of deceased 23[rd] defendant claimed benefit under Section 4A(1)(a) of the Kerala Land Reforms Act, 1963 (in short, “the Act”) in the final decree proceedings. 5. An advocate commissioner deputed in the final decree proceedings submitted Exts.C2(a) to C2(h) plans. The dispute in this case centres around plots I and III in Ext.C2(d) plan. Plot II in Ext.C2(d) plan was allotted to the 23[rd] defendant as an assignee from the 19[th] defendant which was carved out from item 5 property. Plot III in Ext.C2(d) plan was allotted to the 40[th] defendant, who was the predecessor-in-interest of the petitioner and respondents 78 to 81 and 92 to 95 in the execution petitions. E.P.No.417 of 1994, from which C.R.P.No.1037 of 2007 arises, was filed by the revision petitioner as a co-owner and also on behalf of other co-owners for delivery of plot III in Ext.C2(d) plan. E.P.No.747 of 1994, from which 3 CRP Nos.1037 & 1118 of 2007 C.R.P.No.1118 of 2007 arises, was filed by the revision petitioner as assignee from the 2[nd] judgment debtor through two sale deeds seeking delivery of plot I in Ext.C2(d) plan. 6. Revision petitioner obtained assignment of the rights of 2[nd] judgment debtor by registered sale deeds dated 06.02.1992 and 02.11.1992 during pendency of the second appeal, viz., S.A.No.1058 of 1983 before this Court. Second appeal was disposed of on 06.10.1993. Prior to that a revised judgment dated 08.08.1983 was passed by the lower appellate court pursuant to an order of remand in the previous second appeal. Legal heirs of the 23[rd] defendant did raise the plea of deemed tenancy under Section 4A(1)(a) of the Act in A.S.No.552 of 1969 before the lower appellate court. The lower appellate court observed that the plea was barred by res judicata in view of the judgment in A.S.No.9 of 1970. Second appeal numbered as S.A.No.1058 of 1983 filed by the legal heirs of 23[rd] defendant was also dismissed confirming the finding of the lower appellate court. It is the contention of the revision petitioner that neither the 23[rd] defendant nor his legal heirs are entitled to raise a plea of deemed tenancy. The court below considered the two execution petitions together and disposed them by a common order. Court below found that the legal heirs of 23[rd] defendant are entitled to claim benefit under Section 4A(1)(a) of the Act and as such they cannot be legally evicted. That order is 4 CRP Nos.1037 & 1118 of 2007 challenged in these revision petitions. 7. The contesting respondents (judgment debtors 1 to 6 in the execution petition) contended that they inherited property from their predecessor-in-interest, the 23[rd] defendant in the suit. He was holding the property as a possessory mortgagee and therefore, his legal heirs are entitled to retain their respective items in view of the aforementioned provision in the Act. As the preliminary decree in the suit was passed on 15.09.1958 and final decree on 05.04.1969, in view of the amended provisions of the Act, which came into force on 01.01.1970, their predecessor was entitled to the benefit of Section 4A of the Act. Therefore they resisted the execution claiming non-evictability by virtue of the provisions in the Act. 8. Main ground urged in the revision petitions is that the 23[rd] defendant, being an assignee from 19[th] defendant and who in turn is an assignee of a larger extent from a sharer, the 9[th] defendant, stepped into the shoe of a co-owner, and therefore, his plea of fixity of tenure was inconsistent with co-ownership. However, at the time of hearing, Sri.R.D.Shenoy did not seriously press those contentions. Instead, it is strongly contended that the court below should have considered that the plea raised by the contesting respondents (legal heirs of deceased 23[rd] defendant) is barred by res judicata in view of the binding pronouncements 5 CRP Nos.1037 & 1118 of 2007 between the parties. 9. Ext.A3 is the certified copy of the preliminary judgment passed in the partition suit, O.S.No.59 of 1950. Ext.A5 is the certified copy of the final decree in the above suit. Admittedly both the preliminary decree and final decree in the above suit were passed after 01.01.1970. Sri.R.D.Shenoy strongly contended that benefit of Section 4A of the Act cannot be claimed by the contesting respondents for legal reasons. In order to clearly appreciate that contention, extraction of Section 4A of the Act is necessary: ## _“_ _**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 principal by planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land shall be deemed to be a tenant if-_ _(a) the mortgagee or lessee was holding the land comprised in the mortgage for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; or_ _(b) the mortgagee or lessee has constructed a building for his own residence in the_ 6 CRP Nos.1037 & 1118 of 2007 _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; or_ _(c) the land comprised in the mortgage was waste land at the time of mortgage or land to which the Madras Preservation of Private Forests Act 1949, would have applied if that Act had been in force at the time of mortgage, and_ _(i) the mortgagee or lessee was holding such land for a continuous period of not less than thirty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; and_ _(ii) the mortgagee or lessee has effected substantial improvements on such land before such commencement._ _**Explanation I** - For the purposes of this sub-section, in computing the period of continuous possession or occupation by a lessee, the period during which the mortgagee was in possession or_ 7 CRP Nos.1037 & 1118 of 2007 _occupation, as the case may be shall also be, taken into account._ _**Explanation II** - In computing the period of fifty years referred to in clause (a) or the period of thirty years referred to in clause (c), the period during which the predecessor-in-interest or predecessors-ininterest of the mortgagee or lessee was or were holding the property shall also be taken into account._ _**Explanation III** - For the purposes 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" includes 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._ _**Explanation V** . - In calculating the extent of land held by a family for the purposes of clause (b), all the lands held individually by the members of the family or jointly by some or all of the members of such family shall be deemed to be held by the family._ _**Explanation VI** . - For the purposes of sub-clause (ii) of clause (c),-_ 8 CRP Nos.1037 & 1118 of 2007 _(i) Improvements made by the mortgagee shall be deemed to be improvements made by the lessee;_ _(ii) "mortgagee" or "lessee" shall include a predecessor-in-interest of the mortgagee or lessee, as the case may be._ _**Explanation VII** . - For the purposes of clause (c)-_ _(i) improvements shall be deemed to be substantial improvements if the value thereof on the date of commencement of the Kerala Land Reforms (Amendment) Act, 1969, is not less than twenty five per cent of the market value of the land on that date;_ _(ii) a land shall be deemed to be waste land notwithstanding the existence of scattered trees thereon._ _(2) Nothing contained in sub-section (1) shall apply to a lessee if the lessee was granted on or after the commencement of this Act."_ This provision was substituted by Act 35 of 1969 which came into force with effect from 01.01.1970. Admittedly, Ext.D mortgage document was executed on 19.03.1088 M.E., corresponding Christian era will be 1913. Normally such mortgagee in possession should get protection from eviction as provided under Section 4A(1)(a) of the Act. 10. Nevertheless the question for determination is whether the CRP Nos.1037 & 1118 of 2007 9 contesting respondents are entitled to raise such a plea in view of the various binding judicial pronouncements in the suit? Sri.R.D.Shenoy contended that 23[rd] defendant was a party to Ext.B5 judgment in A.S.No.9 of 1970 before the District Court, Thiruvananthapuram. He could have raised a plea of tenancy under Section 4A of the Act. But, he failed to do so and thereby his claim is barred by constructive res judicata. On a perusal of Ext.B5 judgment, it can be seen that the appeal was preferred against a final decree and judgment in the above suit. It was preferred by the defendants 2, 39 and 89. The appeal was dismissed in favour of the respondents confirming the final decree and judgment subject to the reservation that question of tenancy raised by the appellants and certain respondents before the court could be determined in the execution proceedings. Sri.S.Sreekumar would contend on behalf of the contesting respondents that as the ultimate decision was in favour of the contesting respondents in A.S.No.9 of 1970 (decided as per Ext.B5), they had no right of appeal against Ext.B5 judgment. 11. Ext.B6 is a judgment by the District Court, Thiruvananthapuram in A.S.No.552 of 1969 preferred by the 23[rd] defendant himself. After institution of this appeal, 23[rd] defendant died and subsequently appellants 2 to 7 (contesting respondents) were impleaded as legal heirs. 23[rd] defendant had challenged the final decree and 10 CRP Nos.1037 & 1118 of 2007 judgment in the same suit. It was observed by the lower appellate court that Ext.B6 should have been considered and disposed along with Ext.B5. It is also held that in view of the findings in Ext.B5 judgment that question of tenancy raised by some of the respondents could be decided in the execution proceedings and the parties were relegated to raise the contentions at the stage of execution, the learned Judge held in A.S.No.552 of 1969 (Ext.B6) that the plea raised by the predecessor-ininterest of the contesting respondents (23[rd] defendant) could not be decided in view of res judicata by virtue of the decision in Ext.B5. 12. In the light of the above facts, Sri.R.D.Shenoy would contend that the contesting respondents are legally precluded from raising a plea of tenancy under Section 4A of the Act since it has been held in Ext.B6 that their contentions are barred by res judicata. In answer to this contention, Sri.S.Sreekumar would contend that the lower appellate court, while disposing of A.S.No.552 of 1969, has only mentioned that it would have been proper to hear and dispose of both the appeals, viz., A.S.No.9 of 1970 and A.S.No.552 of 1969, preferred against the same final decree, together and on account of the decision in A.S.No.9 of 1970 on an early date, the contentions had become barred by res judicata. However, it is clearly stated in the judgment in A.S.No.9 of 1970 (Ext.B5) that the question of tenancy could be considered in the execution proceedings. CRP Nos.1037 & 1118 of 2007 11 Therefore, it is clear that by operation of Ext.B5 judgment what is barred is only raising the question of tenancy over and again in a challenge against the final decree before the appellate court and remedy of the 23[rd] defendant's legal representatives was to take up the issue at the stage of execution. Findings in Ext.B6 never prohibited the appellants therein from raising a claim under Section 4A of the Act in the execution proceedings. Findings therein only barred the appellants from re-agitating the issue of tenancy in a regular appeal filed against the final decree. Therefore, this contention of the revision petitioner cannot be sustained. 13. Ext.B6 judgment was taken up in S.A.No.1058 of 1983 and it was dismissed by this Court. Ext.B7 is the decree in the second appeal. However, the dismissal of second appeal will not preclude the contesting respondents from raising a plea of tenancy at the stage of execution as provided in Ext.B5 judgment. The executing court rightly considered this issue and found that the contesting respondents are entitled to fixity of tenure in the light of the materials produced before the court below. 14. Next contention raised by Sri.R.D.Shenoy is regarding the sustainability of a claim under Section 4A of the Act on legal grounds. The provision quoted above would show that it starts with a non-obstante clause. It is clearly mentioned in the opening words of the Section that notwithstanding anything to the contrary contained in any law or in any 12 CRP Nos.1037 & 1118 of 2007 contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession of land shall be deemed to be a tenant under certain circumstances. According to the learned Senior Counsel Sri.R.D.Shenoy, to claim the benefit under Section 4A of the Act, a mortgagee in possession must have suffered a judgment or decree as on 01.01.1970, the date of commencement of the provision. Stated differently, a person who suffered a decree after 01.01.1970 cannot claim protection of non-evictability. This contention is strongly refuted by the learned Senior Counsel Sri.S.Sreekumar for the contesting respondents. 15. In order to appreciate this contention, some other provisions in the Act have to be considered. Section 108 of the Kerala Land Reforms (Amendment) Act, 1969 (in short, “Amendment Act”) reads thus: _“_ _**108. Transitory provisions** .- (1) Where, before the commencement of this section, fair rent has been determined under the principal Act in respect of any holding, the Land Tribunal may, of its own motion or on application by the cultivating tenant, by order, revise the fair rent in accordance with the provisions of the principal Act as amended by this Act, and such order shall take effect from the beginning of the agricultural year in which that order is passed:_ _Provided that no order prejudicial to any person shall be passed under this sub-section_ 13 CRP Nos.1037 & 1118 of 2007 _without giving him an opportunity of being heard._ _(2) Any decree passed before the commencement of this section for the dispossession of a person from the land in his possession, pursuant to which dispossession has not been effected, may, on the application of such person to the Court which passed the decree be reopened and the matter may be disposed of in accordance with the provisions of the principal Act as amended by this Act._ _(3) If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any Court, Tribunal, officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act, such suit, application, appeal, revision, review, proceedings in execution or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by this Act._ _(4) Where any direction has been issued by a Court under Section 8 of the Kerala Prevention of Eviction Act, 1966, before the commencement of this section to the Revenue Divisional Officer for the preparation of the record of rights in respect of a holding or a register of kudikidappukars and_ 14 CRP Nos.1037 & 1118 of 2007 _before the preparation of the record of rights or the register of kudikidappukars, as the case may be, the area in which the holding is situate or for which the register of kudikidappukars is to be prepared is notified under sub-section (1) of Section 3 of the Kerala Record of Rights Act, 1968, the Revenue Divisional Officer shall not proceed with the preparation of the record of rights or the register of kudikidappukars, but shall transfer the proceedings to the prescribed officer under the Kerala Record of Rights Act, 1968; and thereupon the direction to the Revenue Divisional Officer shall be deemed to be a direction to such prescribed officer for the preparation of a record of rights in accordance with the provisions of that Act._ _(5) All appeals from the orders of Land Tribunals under the principal Act and all proceedings in connection therewith, pending before any Subordinate Judge at the commencement of this section, shall be transferred to the appellate authority having jurisdiction, and the appellate authority shall dispose of such appeals and proceedings in accordance with the provisions of the principal Act as amended by this Act.”_ What is relevant for our purpose is Sub-section (3) of Section 108 of the Amendment Act. The Sub-section says that in any suit, application, appeal, 15 CRP Nos.1037 & 1118 of 2007 revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of the Section before any court, tribunal, officer or other authority and if any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by the Amendment Act of 1969, such suit, application, appeal, revision, review, etc. shall be disposed of in accordance with the provisions of the principal Act as amended by the Amendment Act. A cumulative reading of Section 4A of the Act and Section 108(3) of the Amendment Act, it will make it clear that a suit or proceeding pending against a person who qualifies the prescriptions under Section 4A of the Act can raise the question in the suit even though there was no decree against him as on 01.01.1970 and the proceedings shall be disposed with reference to the provisions in the principal Act as amended by the Amendment Act of 1969. The contention raised on behalf of the revision petitioner that the respondents cannot claim benefit of Section 4A of the Act as there was no judgment or decree in the case as on 01.10.1970 is not legally sustainable. 16. Court below rightly relied on the above provision to find that the question of fixity of tenure can be considered in favour of the respondents in the execution proceedings. 17. Supreme Court in **Ahmed v. Kuthiravattom Estate Receiver** 16 CRP Nos.1037 & 1118 of 2007 **(AIR 1997 SC 208)** has enumerated the essential condition to sustain a claim under Section 4A of the Act in the following words: _“A mere look at the said provision shows that the said Section will operate notwithstanding any judgment, decree or order of any court against the concerned mortgagee in possession if the following conditions are satisfied:_ _1. He must be a mortgagee in possession of the land on the date of the coming into force of that Section which is not retrospective in nature meaning thereby the person who wants the benefit of Section 4A must be a mortgagee in possession of land on 1-1-1970. As we are not concerned with other types of excluded lands we need not refer to them._ _2. Such a mortgagee in possession on 1-1-1970 must satisfy the further condition that he was holding the land comprised in the mortgage for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969 meaning thereby for a period of not less than fifty years immediately before 1-1-1970. As we are not concerned with clause (b) and (c) in the present proceedings we need riot dilate thereon. “_ It is clear that if mortgagor-mortgagee relationship is not in existence and CRP Nos.1037 & 1118 of 2007 17 the mortgagee is not in possession of the property, there is no question of applying the provisions under Section 4A of the Act. But, in this case the fact situation is completely different. After considering the rival contentions with reference to the records available, I am of the view that the court below has correctly analysed the issue and arrived at the correct conclusion. The contentions raised in the revision petitions are not sustainable. Hence they are dismissed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**