Sree Chathankulangara Bhagavathi Devaswom v. Nair Service Society

**C. R.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945** **RFA NO. 58 OF 2016** **AGAINST THE JUDGMENT AND DECREE DATED 13.10.2015 IN OS 166/1997 OF ADDITIONAL SUB COURT, PALAKKAD** **-----** ## **APPELLANT IN RFA – PLAINTIFF IN SUIT:** SREE CHATHANKULANGARA BHAGAVATHI DEVASWOM REPRESENTED BY ITS MANAGER, AKATHETHARA AMSOM, DESOM, PALAKKAD TALUK AND DISTRICT 678 014. BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.S.NITHIN ANCHAL SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN ## **RESPONDENT IN RFA – DEFENDANT IN SUIT:** NAIR SERVICE SOCIETY REPRESENTED BY ITS GENERAL SECRETARY, N.S.S.HEADQUARTERS, CHANGANACHERRY, KOTTAYAM DISTRICT - 686 102. BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH V.VIJULAL P.VISWANATHAN (SR.) THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 11.12.2023, ALONG WITH CRP(LR) Nos.33/2020 & 36/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C. R.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945** **CRP(LR) NO. 33 OF 2020** **AGAINST THE ORDER AA 22/2015 OF A.A.(LR),THRISSUR** **-----** ## **PETITIONER IN CRP – APPELLANT IN AA/LANDLORD:** CHATHANKULANGARA BHAGAVATHY DEVASWOM, AKATHETHARA, PALAKKAD, PIN-678 008. BY ADVS. P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SMT.B.ANUSREE SRI.MANU VYASAN PETER SMT.MEERA P. ## **RESPONDENTS IN CRP – RESPONDENT IN AA & NOT PARTY IN AA/CLAIMED** ## **TENANT & NOT PARTY IN SM:** 1 GENERAL SECRETARY, NAIR SERVICE SOCIETY, PERUNNA, CHANGANASSERY, PIN-686 102. 2 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADVS. R.T.PRADEEP M.BINDUDAS V.VIJULAL K.C.HARISH P.VISWANATHAN (SR.) THIS CRP (LAND REFORMS ACT) HAVING COME UP FOR HEARING ON 11.12.2023, ALONG WITH RFA.58/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C. R.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945** ## **CRP(LR) NO. 36 OF 2020** **AGAINST THE ORDER AA 16/2016 OF A.A.(LR),THRISSUR** ## **-----** ## **PETITIONER IN C.R.P – APPELLANT IN AA/LANDLORD:** CHATHANKULANGARA BHAGAVATHY DEVASWOM, AKATHETHARA, PALAKKAD, PIN-678 008. BY ADVS. P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SMT.MEERA P. ## **- RESPONDENTS IN CRP RESPONDENT IN AA & NOT PARTY IN AA/CLAIMED TENANT & NOT PARTY IN SM:** 1 GENERAL SECRETARY, NAIR SERVICE SOCIETY, PERUNNA, CHANGANASSERY, PIN-686 102 2 THE STATE OF KERALA REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 BY ADVS. R.T.PRADEEP M.BINDUDAS V.VIJULAL K.C.HARISH P.VISWANATHAN (SR.) THIS CRP (LAND REFORMS ACT) HAVING COME UP FOR HEARING ON 11.12.2023, ALONG WITH RFA.58/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** ## **C. R.** **= = = = = = = = = = = = = = = = = = R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 = = = = = = = = = = = = = = = = = = Dated this the 11[th] day of December, 2023** ## **J U D G M E N T** The suit by the landlord for recovery of property on expiry of lease and for mesne profits was dismissed by the trial court. The plaintiff is in appeal. 2. The plaint schedule property has an extent of 50 acres. It is a private forest. On 13.09.1960, the property was demised on lease by the plaintiff to the defendant for establishing an Engineering College. The lease was created after obtaining prior sanction from the Commissioner of HR & CE and also under the Madras Preservation of Private Forest Act, 1949(MPPF Act). The term of lease was 36 years. Since the term of lease expired, the plaintiff is entitled to get back possession. It is the term of the lease that, the defendants are entitled to market value of the buildings that may be put up in the property. The plaintiff is R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 2 :- willing to pay the said amount. However, the defendants refuse to accede. It is thereupon that the suit is filed. 3. The contention of the defendant is one of deemed tenancy under Section 7D, fixity of tenure under Section 13 of the Kerala Land Reforms Act (KLR Act) and consequent right of non-evictability. 4. The trial court referred the defence plea to the Land Tribunal in terms of Section 125(3) of the KLR Act. In the meanwhile, two SM proceedings in relation to the very same claim were registered, as SM Nos.74/91 and 75/91, and were pending before the Land Tribunal. The three proceedings were considered together by the Tribunal and a common order was passed holding that the defendants are entitled for the benefit of Section 7D of the Kerala Land Reforms Act. R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 3 :- 5. On receipt of the finding of the Land Tribunal, the trial court dismissed the suit. Challenging the decree and judgment, this appeal has been filed. As against the order in SM Nos.74/91, the plaintiff preferred appeal as AA 16/2016 accompanied by an application to condone the delay. Though initially on 11.01.2018 the delay was condoned, subsequently the Tribunal purported to suo motu review the order on 26.12.2019 and dismissed the delay condonation application and the appeal. The same is under challenge in CRP(LR) 36/2020. Challenging the order in SM 75/91, the plaintiff filed AA 22/16. The appellate authority allowed the appeal in part and directed the Land Tribunal to issue fresh purchase certificate. The said order is under challenge by the plaintiff in CRP(LR) 33/2020. R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 4 :- ## 6. The point that arises for determination in the appeal is :- “ _Whether the defendant is entitled for the benefit of the status of a deemed tenant and fixity of tenure under Section 7D and Section 13 of the Kerala Land Reforms Act ?”_ 7. I have heard Sri.P.B.Krishnan, the learned counsel for the appellant-plaintiff and learned senior counsel Sri.P.Viswanathan and learned counsel Sri.R.T.Pradeep for the respondent. 8. It is the contention of the learned counsel for the appellant that, Section 13 of the KLR Act contained in chapter II of KLR Act provides for fixity of tenure for tenants. The defendant is a contractual tenant and not a deemed tenant. Hence Section 7D of the KLR Act which confers the status of a deemed tenant is not attracted. Even if it is attracted and the defendant is considered as a deemed tenant, since admittedly the R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 5 :- defendant is in possession under a lease of private forest, in the light of Section 3(1)(vii) which exempts leases of private forests from the applicability of Chapter II of the KLR Act, the defendant is not entitled for fixity under Section 13 of the KLR Act. 9. The respondent would on the other hand contend that, the definition of private forests in the KLR Act, as it originally stood was, forests to which the Madras Preservation of Private Forests Act(MPPF Act) applied. Later, by virtue of the amendment to the KLR Act (Act 35 of 1969), the forests under the MPPF Act was taken away and the definition was substituted. By the same amending Act, occupants of a particular category of forests under the MPPF Act were given the status of ‘deemed tenants’. The defendant is undisputedly within that category. Therefore they are entitled to fixity of tenure, it is argued. R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 6 :- 10. Sections 3 and 7D fall within Chapter II of the KLR Act. The provisions providing for fixity of tenure(Section 13) is also under Chapter II. The relevant portion of Section 3(vii) reads thus:- _“_ _**Exemptions.⸺** (1) Nothing in this Chapter shall apply to-”_ _xxxxx xxxxx xxxxx xxxxx_ _(vii) leases of private forests:_ _Provided that nothing in Clauses (i) to (vii) shall apply in the cases of persons who were entitled to fixity of tenure immediately before the 21[st] January, 1961, under any law then in force or persons claiming under such persons.”_ Therefore, leases of private forests are exempted from the applicability of the Chapter. So, in the cases where the chapter does not apply, the benefit of fixity of tenure under Section 13 is not attracted. ‘Private Forest’ is defined in Section 2(47) of the Act. The definition as it originally stood reads thus, R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 7 :- _“Private forests” means forests to which the Madras_ _Preservation of Private Forests Act, 1949 (Act XXVII of 1949),_ _applies, excluding—_ _(i) areas which are waste and are not enclaves within wooded areas;_ _(ii) areas which are gardens or nilams;_ _(iii) areas which are planted with tea, coffee, cocoa, rubber, cardamom or cinnamon; and_ _(iii) other areas which are cultivated with pepper, arecanut, coconut, cashew or other fruit-bearing trees or are cultivated with any other agricultural crop.”_ The said definition was substituted in the year 1969 as :- “ _A forest which is not owned by the Government, but_ — _does not include_ _(i) areas which are waste and are not enclaves within wooded areas;_ _(ii) areas which are gardens or nilams;_ _(iii) areas which are planted with tea, coffee, cocoa, rubber, cardamom or cinnamon; and_ R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 8 :- _(iii) other areas which are cultivated with pepper, arecanut, coconut, cashew or other fruit-bearing trees or are cultivated with any other agricultural crop.”_ MPPF Act excluded certain categories of forests from its applicability including private forests with a contiguous area of less than 100 acres. The amendment of 1969 brought within the definition, all forests not owned by the Government whether it is a private forest under the MPPF Act or not. Therefore, by virtue of the 1969 amendment, the definition of the word “private forest” has in fact been widened or broadened and not narrowed down as contended by the respondent. 11. Section 7D, the benefit of which is claimed by the defendant reads thus:- _“_ _**7D. Certain persons occupying private forests or unsurveyed lands 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_ R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 9 :- _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, to which the provisions of the Madras Preservation of Private Forests Act, 1949 (XXVII of 1949), were applicable on the 11[th] day of April, 1955 or which was unsurveyed on that date, shall be deemed to be a tenant if he or his predecessor-in-interest was continuously in occupation of such land for not less than two years within a period of twelve years immediately preceding the 11[th] day of April, 1967.”_ 12. Much was argued as to whether the non-obstante clause in 7D of the Act operates against the very Act itself or only against other statutes since the words used in the Section are, _“Notwithstanding anything to the contrary contained in . . . . .any other law . . . . .”._ I do not think it necessary to go into the said controversy to answer the issues involved in the present _lis_ . It is sufficient to note that in _**Athura Seva Sanghom v. State of Kerala (2002(1) KLT**_ R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 10 :- ## _**317)**_ , a Division Bench of this Court held, _“. . . . . Though the non-obstante clause in S. 7D of the Act makes it applicable notwithstanding anything to the contrary contained in any other law, contract or custom, the nonobstante clause does not provide that the section would apply notwithstanding anything else contained in the Act itself. . . . . .”_ ## 13. Section 13(1) of the Act which confers fixity of tenure on tenants reads thus, _“13._ _**Right of tenants to fixity of tenure⸺** (1) Notwithstanding anything to the contrary contained in any law, custom, usage, or contract, or in any decree or order of Court, every tenant shall have fixity of tenure in respect of his holding, and no land from the holding shall be resumed except as provided in Sections 14 to 22._ - _(2) Nothing in sub-section (1) 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 a period of three months before he became a member of the Armed Forces or a seaman, or while he was serving as such_ R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 11 :- _member or seaman; or_ _(ii) who is the legal representative of the landlord referred to in clause (i)”_ So, every tenant under the Act is entitled for fixity of tenure which clothes with him a right of nonevictability. 14. Then the question is who is a ‘tenant’ under the Act. The word ‘tenant’ is defined in Section 2(57) of the Act as, _“(57) “tenant” means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease_ _**⸺** that land, and includes_ _(a) the heir, assignee or legal representative of, or any person deriving rights through, any such person who has paid or has agreed to pay rent or other consideration.”_ 15. The defendant in the present case indisputably falls within the main part of the Section itself; the R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 12 :- defendant being in possession under the plaintiff-owner, with the liability to pay rent. A person being already a tenant under the Act, there is no occasion for applying a deeming provision or a fiction to make him a tenant under the Act. It is only a person who is not a tenant under the Act but satisfies the criteria mentioned in the various deeming provisions in Sections 7, 7A to E, 8 and 9, who are by virtue of the provisions, though not tenants under the main part of the Section 2(57), deemed to be “tenants” for the purposes of the Act. A reference to the Statement of Objects and Reasons of the Amending Act 35 of 1969 is relevant. The same reads thus, _“There have been demands from the public for the amendment of the Kerala Land Reforms Act, 1963, on the ground that the provisions thereof are not really beneficial to the kudikidappukars and actual cultivators of land. Experience gained during the implementation of the Act has also revealed that it is difficult to implement a number of provisions of the Act. It is therefore considered necessary to suitably amend the_ R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 13 :- _Act mainly for the following purposes:_ _(1) to grant more benefits to tenants and kudikidappukars;_ _(2) to include certain classes of cultivators, who do not fall within the definition of “tenant”, within the category of deemed tenants;_ _(3) to provide for the compulsory vesting of the rights of Landlords in the Government on a date to be notified by the Government and for the assignment of those rights to the cultivating tenants;_ _(4) to provide for the constitution of a new fund of not less than Rs.1 crore called “the Kudikidappukars Benefit fund” for providing better facilities to kudikidappukars and to specify the minimum of the amount of the Agriculturist Rehabilitation Fund as_ ` _2 crores._ _The Bill seeks to achieve the above object.”_ ## 16. The Apex Court in _**K.M. Mathew v. Hamsa Haji** (_ _**AIR 1987**_ _**SC 1326),**_ construing Section 7D of the Act held that the intention of the legislature was to grant protection to persons whose possession was lawful but under a right R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 14 :- which was short of a lease. 17. In G.P.Singh on Interpretation of Statutes 14[th] edition at page 416 commented that a deeming provision is incorporated to assume the existence of a fact which does not really exist. The relevant portion of the text reads thus, _“The Legislature is quite competent to create a legal fiction, in other words, to enact a deeming provision for the purpose of assuming existence of a fact which does not really exist provided the declaration of non-existent facts as existing does not offend the constitution. . . . . . ”._ 18. This Court in _**Kaliyannan v. Narasimha Iyer 1974 KLT 286**_ , _**Kunhambu Nair v. Kunhammaru Amma (1973 KLT 1048)**_ , _**Kunhi v. Ammu Amma 1990(2) KLT SN 49,**_ has consistently held that a person claiming under a specific lease cannot raise a plea of deemed tenancy. 19. Therefore, when the defendant herein is already a tenant as defined under the Act, there is no scope for R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 15 :- applying the deeming provision under Section 7D. 20. Being a tenant under the Act, the defendant in the suit is entitled to all the benefits conferred on a tenant by the Act unless expressly excluded by the Statute. So, the defendant would ordinarily be entitled for the benefit of fixity of tenure under Section 13 of the Act. However here comes the application of the exemption clauses under Section 3(1) of the Act. Section 3(1)(vii), as noticed first above, **exempts** the applicability of Chapter II of the Act (the chapter which contains Section 13 providing for fixity of tenure) to, **leases of private forests** . 21. Admittedly the defendant is in possession of the plaint schedule property under a ‘lease of private forest’. The same is, in no ambiguous terms, stated in the written statement thus, _“4. The allegation contained in para 2 of the plaint to the effect that the plaint schedule property is a private forest is_ R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 16 :- _admitted; not only that, MPPF Act was applicable to the said forest as well, as set out in the lease deed and it was after obtaining permission from the District Collector as envisaged in the MPPF Act, that the lease deed was executed. True that there are recitals in the lease deed regarding surrender after 36 years and on payment of compensation regarding the value of improvements.”_ . Therefore, Chapter II does not apply to the case at hand. The defendant is thus, not entitled to claim the benefit of fixity of tenure under Section 13 of the Act. 22. Even assuming that Section 7D applies in the case of the defendant, it may not be of any avail. As noticed earlier, the benefit of deemed tenancy would enure to a person who is not a tenant. It implies that he is not in possession under any lease arrangement. In such case he would become a deemed tenant under the Act and thus would be entitled for the benefits under Chapter II of the Act. The benefits would accrue to a R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 17 :- deemed tenant who is thus in lawful possession but under an arrangement short of a lease. However, in the case of the defendant herein, the possession being admittedly under a lease of private forest, again, the application of Chapter II is excluded as noted above. 23. To sum up, viewed in any manner, the defendant is not entitled to claim the benefit of fixity of tenure under Section 13 of the Act. 24. The Land Tribunal relied on Section 98A of the KLR Act and held that the defendants are entitled for exemption from the ceiling provisions. It proceeded to hold that since the land in question is a private forest, the provisions of MPPF Act apply and therefore, the defendants are deemed tenants under Section 7D. The findings of the Tribunal are of no significance. The trial court was obliged to accept the findings of the Land Tribunal in terms of Section 125(5) of the KLR Act R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 18 :- and dismissed the suit. The SM proceedings were also ordered accordingly. As held above, the defendant is not entitled for the benefit of fixity of tenure. The term of the lease having expired, the defendants are bound to surrender possession and the plaintiff is entitled for recovery of possession. 25. The plaintiff had raised a claim for mesne profits, which was not adjudicated. So also, it is a term of the lease that, on termination of the lease the defendant shall be entitled for value of the buildings in the property. Such assessment has not been done. In the circumstances, it is deemed appropriate that a preliminary decree be passed and direct the claim for mesne profits and its quantum, and also the value of improvements to be assessed in the final decree proceedings. R.F.A. No.58 of 2016, C.R.P.(LR) Nos.33 & 36 of 2020 -: 19 :- 26. Resultantly, the Appeal and the Civil Revision Petitions are allowed. The decree and judgment of the trial court and the common order in the Reference Case and the SM proceedings 74/91 and 75/91, are set aside. A preliminary decree is passed allowing the plaintiff to recover possession of the plaint schedule property from the defendants. The question of mesne profits and value of improvements shall be assessed in the final decree proceedings. The SM proceedings will stand rejected. 27. Parties to appear before the trial court on 21.12.2023 to enable the court to proceed with final decree proceedings. The suit being one of the year 1997, I am sure that the trial court will expedite the final decree proceedings. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge