Perumal Smaraka Nidhi v Harrisons Malayalam Limited and Stephen Abraham

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 31ST DAY OF JANUARY 2013/11TH MAGHA 1934** **RFA.No. 336 of 2011 (D)** **----------------------AGAINST THE ORDER/JUDGMENT IN OS.NO.112/2004 of SUB COURT, PATHANAMTHITTA DATED 09-07-2010** **..........** ## **APPELLANT/LR OF PLAINTIFF::** **------------------------------------------------PERUMAL SMARAKA NIDHI, BHAJANAMADOM,PERUMPUZHA,RANNI VILLAGE, REPRESENTED BY ITS PRESIDENT,G.NATARAJA PILLAI, S/O.GOPALAKRISHNA PILLAI,RESIDING AT KOTTARATHIL HOUSE,44/963,L.F.C.ROAD, KALOOR, KOCHI - 682 017.** **BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE BY ADVS.SRI.P.B.KRISHNAN** **SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN** ## **RESPONDENT(S)/DEFENDANT::** **------------------------------------------------** ## **1. M/S. HARRISONS MALAYALAM LIMITED,** - **REGISTERED OFFICE: 24/1624,BRISTOW ROAD, WILLINGDON ISLAND,KOCHI,ERNAKULAM DISTRICT.** ## **2. STEPHEN ABRAHAM, S/O.M.K.ABRAHAM,** - **RESIDING AT MUNDUKOTTAKAL,MANNAMARUTHY, PAZHAVANGADI VILLAGE,RANNI.** **COVEATOR BY ADV. SRI.JACOB P.ALEX R1 BY ADV. SRI.E.K.NANDAKUMAR R1 BY ADV. SRI.A.K.JAYASANKAR NAMBIAR R1 BY ADV. SRI.K.JOHN MATHAI R1 BY ADV. SRI.P.BENNY THOMAS R1 BY ADV. SRI.P.GOPINATH BY ADV. SRI.JOSON MANAVALAN R2 BY ADV. SRI.M.P.SREEKRISHNAN** **R2 BY ADV. SMT.SHAHNA KARTHIKEYAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **K.M.JOSEPH & K. HARILAL, JJ.** ------------------------------------------------------------ ## R.F.A.No.336 of 2011 ----------------------------------------Dated, this the 31[st] day of January, 2013 J U D G M E N T ## K.M.Joseph, J. Appellant is the legal representative of the original plaintiff in O.S.112/2004 on the file of the Sub Court, Pathanamthitta. The said suit was filed seeking declaration of plaintiff's title over the plaint schedule properties and to allow the plaintiff to recover possession of the plaint schedule properties from the defendants or any person claiming under them. Plaintiff also sought recovery of arrears of rent. Besides it, mesne profit was also claimed. The case of the plaintiff in brief is as follows: The plaint schedule properties originally belonged to late Sasthavu Pillai Perumal Pillai, Kottarathil. The plaintiff is a Trust. By Deed No.1373/1978 of SRO, Ranni that property has been transferred to the plaint schedule properties. The following statements in the plaint are relevant. _“2. Plaint schedule properties belonged to the above said Sasthavu Pillai Perumal Pillai, Kottarathil he had created a lease arrangement with one late Charles Brandoo for 236 Acres 3 cents of land by virtue of_ RFA 336/2011 -2- _Deed No.3155/1910 of the Sub Registry, Thiruvananthapuram. The properties covered in the above referred deed is scheduled hereunder as plaint item No.1 property. A photocopy of the said lease deed is produced herewith._ _3. Later this plaint item No.1 property came into the possession of the Ist defendant company._ _4. Thereafter in 1923 by deed No.567/1923 of the Sub Registry, Pathanamthitta another 18.16 Acres of land belonging to late Sasthavu Pillai Perumal Pillai was also given to the Ist defendant on lease. This property is scheduled hereunder as plaint item No.2 property. A photocopy of the said deed is produced herewith._ _5. Thus the Ist defendant has became the lessee of the plaint schedule properties. These properties were taken on lease mainly for planting Rubber, Teak etc. In furtherance to these deeds these properties were planted with rubber and teak mainly._ _6. As per the terms of the lease the period is for 99 years from 28.12.1909. The rent fixed as per the deed is to be paid regularly by 30[th] day of August in every year. The lease deed contains all the terms and conditions of the lease._ _7. While the Ist defendant was in enjoyment of the above said lease arrangement they have transferred 47.65 Acres of land out of the plaint_ RFA 336/2011 -3- _scheduled properties to M.K.Abraham, Mundukottackal, Ranni by conveyance dated 18.9.1963. The said M.K.Abraham is no more. This property is in the possession of his successor the 2[nd] defendant._ _8. The defendants were paying the rent fixed regularly to the plaintiffs till 1995. Thereafter the rent is in arrears. Even after repeated demands the defendant failed to pay the arrears of rent. The non payment of rent in time is a violation of the terms and conditions stipulated in the above said deeds and which is sufficient enough to terminate the lease during the lease period itself. “_ Thereafter, it is stated that the plaintiff issued a notice to the defendants by demanding them to clear the arrears of rent or to give vacant possession. It is contended that the defendants have replied to the notice by contending that the lease arrangements are not in effect as the lease hold right of the defendants have been riped into fixity of tenure under the provisions of the Kerala Land Reforms Act,1963 ('the Act' for short). Hence the suit. The defendants _inter alia_ contended that they have got fixity of tenure under the Act. 2. The learned Sub Judge accepted the request of the defendants for referring the matter under Section 125 (3) of RFA 336/2011 -4- the Act. The Land Tribunal found that the defendants are entitled to fixity of tenure. In view of the finding of the Land Tribunal, the suit was dismissed. Hence, the appeal. 3. We heard the learned senior counsel appearing for the appellant, learned counsel for the 2[nd] respondent and also the learned counsel for the Ist respondent. 4. The learned senior counsel for the appellant would submit that, while it is true that the original lease was in the year 1910 and 1923 the plaint schedule properties were not plantations. The relevant date to decide the question of exemption contained in Section 3 would be 1.1.1970. If it is found to be plantation on 1.1.1970 then Section 3 (1) (viii) will come into force which means that the defendants would not be entitled to the benefit of fixity of tenure. He would also submit that the title of the plaintiff is not lost and the trial court should not have dismissed the suit as such at any rate and the plaintiff is entitled to recover arrears of rent. He would further call in question the manner in which the Land Tribunal has passed the order. According to him, the Land Tribunal has not dealt with the matter as a Tribunal is expected to. 5. Per contra, the learned counsel for the RFA 336/2011 -5- respondents would submit that on the admitted case of the plaintiff no other result can follow. It is submitted that the terms of lease entered in 1910 and 1923 would show that the plaint schedule properties which is the subject matter of the leases were given to the predecessor of the first defendant in respect of 236 Acres 3 cents and 18.16 Acres respectively which were not plantations. The lands were given on lease for the purpose of raising plantations in the properties and therefore the principle enunciated by the Full Bench of this Court in _**Rt.Rev.Dr.Jerome Fernandez v. Be-Be Rubber Estate Ltd. (1972 KLT 613 (F.B.)**_ would squarely apply. It is pointed out by them that by virtue of Section 72 of the Kerala Land Reforms Act the fact that they have not got purchase certificate does not mean that there is no vesting of the landlord's rights in respect of a lease not exempted under Section 3. They would also point out that there were ceiling proceedings. It was found that these lands are liable to be exempted under Section 81 (1) (e) of the Kerala Land Reforms Act being plantations. Therefore, they would contend that none of the reliefs sought by the plaintiff could be granted. As far as the unsatisfactory manner in which the Land Tribunal has proceeded to pass the order is concerned, they would contend that in the RFA 336/2011 -6- facts of this case, namely, in particular the pleadings of the plaintiff there is no need for a remand. 6. Admittedly, by Deed No.3155/1910 of SRO, Thiruvananthapuram 236 acres 3 cents of land which is scheduled in plaint as Item No.1 which belonged to Sasthavu Pillai Perumal Pillai, Kottarathil was leased to one Charles Brandoo. The said property, going by paragraph 3 of the plaint came to be in the possession of the Ist defendant company. Again in 1923 by Deed No.567/1923 of the SRO Pathanamthitta another 18.16 acres of land belonging to Sasthavu Pillai Perumal Pillai was given to the Ist defendant. This is Item No.2 in the plaint. It is specifically averred in paragraph 5 that these properties were taken on lease mainly for planting rubber, teak etc and in furtherance to these deeds these properties were planted with rubber and teak mainly. 7. Section 3 of the Kerala Land Reforms Act falls in Chapter II of the said Act. It deals with exemptions. Section 3 (viii) provides that nothing in the Chapter shall apply _inter alia_ to tenancies in respect of plantations exceeding thirty acres in extent: There is a proviso which we need not refer to. Section 13 of the Act provides for fixity of tenure in favour of tenants. Section 72 of the Act which also falls in Chapter II provides inter RFA 336/2011 -7- alia as follows: ## _**“ 72.Vesting of landlord's rights in**_ _**Government** .--(1) On a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the land owners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 and in respect of which certificates of purchase under sub-section (2) of Section 59 have not been issued, shall subject to the provisions of this section, vest in the Government free from encumbrances created by the landowners and intermediaries and subsisting thereon on the said date:_ _Provided that nothing contained in this sub-section shall apply to a holding or part of a holding in respect of which an application for resumption under the provisions of this Act is pending on such date before any Court or Tribunal or in appeal or revision.”_ ## 8. A Full Bench of this Court in _**Rt.Rev.Dr.Jerome Fernandez v. Be-Be Rubber Estate Ltd. (1972 KLT 613 (F.B.)**_ had occasion to deal with the ambit of Section 3 (1) (viii) of the Act. The Court held as follows: _“No special significance can be attached to the_ RFA 336/2011 -8- _occurrence of either the word “tenancies” or the expression “in respect of” in Cl. (viii). The said expressions have been employed in some of the other clauses also wherein the context is such that the reference can only be to a transaction whereby property satisfying the description given in the concerned clause has been leased out. There is no warrant for assuming that the legislature intended to use the same words “tenancies in respect of” in any different sense while enacting clause (viii) which forms part of the same section. It is only reasonable to think that there must clearly have been a definite purpose in departing from the wording that had been used in the same context in the earlier enactments and in couching the exemption clause in totally different terminology. It appears that the legislative intent underlying the change of wording is to confine the scope of the exemption to transactions whereunder lands satisfying the statutory definition of “plantation” and having an extent of more than 30 acres have been let out to tenants. It may well be that the legislature thought that it will not be fair or proper to deny the benefit of fixity of tenure to lessees who might have taken on lease extensive parambas or waste lands and might_ RFA 336/2011 -9- _have in course of time by their hard toil developed them into plantations. There can be no doubt that the exemption granted under cl. (viii) will be attracted only if the transaction of tenancy was even at its inception one in relation to property of the nature specified therein. Going by the clues furnished by the statutory history preceding this legislation and also by the express language used in S.3 (1) (viii) it is clear that the intention of the legislature was to restrict the scope of the exemption to leases of land which were already “plantations” on the date of the transactions. It follows that the transaction whereunder the suit property is held by the defendant does not fall within the scope of S.3 (1) (viii) of the Act.”_ 9. Therefore, if we apply the said dictum to the facts of this case even though the lease under Deed No.3155/1910 was in relation to 236 acres 3 cents and at first blush may attract Section 3 (1) (viii) being in excess of 30 acres, going by the dicta of the judgment of the Full Bench unless it is a plantation as on the date of lease there will be no exemption under Section 3 (1) (viii). As far as Item No.2, namely the second lease covered by Deed No.567/1923 of the SRO Pathanamthitta is concerned it relates only to 18.16 acres and at any rate also it is not in relation RFA 336/2011 -10- to plantation. If that be so clearly defendants were entitled to the benefits contained in Chapter II of the Kerala Land Reforms Act. 10. We have already extracted Section 72 of the Act. In view of the fact that exemption claimed under Section 3 (1) (viii) is not applicable, the rights of the landlord would vest in the Government. Section 72 of the Act would appear to contemplate vesting when there is no certificate of purchase issued under Section 59 (2). No certificate of purchase has been issued under Section 59 (2) of the Act. Therefore, irrespective of whether the tenants have applied under Section 72 if other conditions are satisfied there will be vesting. If that be so, the plaintiff who claims to be the successor in interest of the original landlord cannot establish the existence of any right upon extinguishment of right of the landlord by virtue of the provisions contained in Section 72 of the Act. This would necessarily also mean that the plaintiff would also not have the right to maintain a claim for arrears of rent or for mesne profits. In other words, none of the reliefs sought by the plaintiff could possibly be granted. 11. Then there remains the question as to whether the manner in which the Special Tribunal constituted under the Act, namely, the Land Tribunal has dealt with the matter in the RFA 336/2011 -11- manner in which a Tribunal is expected to deal with. What the Tribunal has done is that it has referred to the pleadings of both the parties and it has written a rather cryptic order. It reads as follows: _“In the circumstances stated above I hold the view that the first petitioner Harrisons Malayalam Ltd. and the second petitioner Stephen Abraham (the plaint schedule properties mentioned in document No.2925/1963) and their predecessors and successors have possessed and are cultivating the Rubber Plantation of the plaint schedule properties uninterruptedly from 1910 onwards and entitled to fixity of tenure.”_ 12. We are also not very much satisfied with the way in which the Land Tribunal has written the order. But, at the same time, we cannot overlook the fact that this is a case where the leases are of the years 1910 and 1923 in respect of plaint Item Nos.1 and 2 respectively as evidenced by documents. What is more these documents are pleaded by the plaintiff itself. Therefore, on the admitted pleadings of the plaintiff and the legal position flowing from the pronouncement of the law by the Full Bench of this Court (supra) and also other provisions contained in RFA 336/2011 -12- the Act, we would think that this is not a case where we should remand the matter back as we would think that no other result is likely to emerge other than what is decided by the Land Tribunal which we have adverted to. In the upshot of the above discussion there is no merit in the appeal. The appeal is dismissed. The parties are directed to bear their respective costs. (K.M.JOSEPH) JUDGE. ( K. HARILAL) JUDGE. MS