Lekshmi Amma vs Kunkichi and Another

S. Velu Pillai, J.—These four second appeals by four landlords have been referred to a Division Bench and they raise certain common questions. Broadly stated, the facts in these appeals are of the same pattern. They arise out of four suits instituted by four landlords against their respective tenants or alleged tenants, for eviction from their holdings under the Malabar Tenancy Act, 1929, which was then in force. In them, decrees were passed for eviction which were followed by delivery of possession pending appeals from such decrees by the tenants. The appeals were disposed of by the lower appellate courts in accordance with the provisions of the Kerala Agrarian Relations Act, 1960, Act IV of 1961, setting aside the decree for eviction. Act IV of 1961 having been declared to be void, the disposal of the appeals by the lower courts cannot now be maintained. The first question raised is whether these appeals have to be disposed of in accordance with the Malabar Tenancy Act, 1929, or with the Kerala Land Reforms Act, 1963, Act I of 1964, which is now in force. Section 132(1)(a) of Act I of 1964 reads thus:

The Proclamation XVI of 1122 (Cochin), dated the 14th February, 1947, the Proclamation VI of 1124 (Cochin), dated the 12th January, 1949, the Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962 and the Kerala Tenants and Kudikidappukars Protection Act, 1963, are hereby repealed, and all suits, appeals, revisions, reviews and proceedings in execution of decrees stayed by the said enactments may be disposed of by the courts in which they were pending at the commencement of this Act, in accordance with the provisions of this Act.

The suits for eviction were liable to be stayed under the Kerala Tenants and Kudikidappukars Protection Act, 1963, Act VII of 1963, because Section 5 of that Act provided:

Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any custom, usage or contract, or in any decree or order of court, with effect on and from the commencement of this Act, no suit or other proceedings for eviction of a tenant from his holding or of a kudikidappukaran from his kudikidappu shall lie in any court, and all suits, proceedings in execution of decrees or orders and other proceedings pending in the courts at the commencement of this Act for such eviction shall be stayed.

This Section contemplates a statutory stay, a stay of proceedings by its own force, and not by reason of an order of court passed by applying it. It was not in dispute, that the suits as laid were all liable to be stayed u/s 5 of Act VII of 1963, but there was a contention before us for the appellant in second appeal 1141 of 1961, that Section 5 has no application to appeals pending in any court. At the time Act VII of 1963 was enacted, these second appeals were pending in this court. The word ''proceedings'' in Section 5 is of general application and includes proceedings by way of appeal in the absence of anything to the contrary, and the latter part of that Section speaks of suits, proceedings in execution of decrees or orders and other proceedings pending in the courts at the commencement of this Act for such eviction. More or less similar language was used in Section 4 of the Kerala Stay of Eviction Proceedings Act, 1957, Act I of 1957, under which these suits had been stayed, as also the appeals for a time. The argument suggests, that though suits were liable to be stayed u/s 5 of Act VII of 1963, the appeals in such suits might have been heard and disposed of and eviction ordered, thereby defeating the very object of the enactment.

The language of Section 5 was also contrasted by learned counsel with the enumeration in the latter part of Section 132(1)(a), viz., "all suits, appeals, revisions, reviews and proceedings in execution of decrees". The corresponding provision in Section 95(2)(a) of Act IV of 1961 was more or less on the same lines, as Section 132(1)(a), the reference being to Act I of 1957 instead of to Act VII of 1963 for obvious reasons. These words, "all suits, appeals......stayed by the said enactments" are by themselves clear and conclusive, that the enactments referred to apply to appeals also. We entertain no doubt, that u/s 5 of Act VII of 1963, the second appeals were liable to be stayed. Learned counsel had also another argument, that the tenant ceased to be a tenant, because he had been deprived of possession of his holding in execution of the decree of the trial court pending the appeal from that decree. The subsistence of a tenancy cannot be made to depend on such a process in execution, liable in certain events to the reverse process by way of restitution, the decree itself not having become final. We hold that Section 132(1)(a) of Act I of 1964, is applicable to these appeals.

This Section provides, that the appeals to which it applies, are to be disposed of in accordance with the provisions of that Act. In the face of this express provision, it is unnecessary to consider whether the landlords had, prior to the Act a vested right to evict their tenants and if so, whether there is anything in the Act to defeat such a right. The reliance on clauses (d) and (e) of Section 4 of the Travancore-Cochin Interpretation and General Clauses Act, 1125, Act VII of 1125, which is applicable to the whole State, was misplaced, for they are subject to a contrary intention, which in the present case is mainfest by the express provision in Section 132(1)(a).

Learned counsel for the appellant in second appeal 927 of 1961 also contended, that in Indian law the decree of a court of first instance is final, notwithstanding that an appeal may have been preferred against it and reliance was placed on the observations in State of U. P. v. Mohammad Nooh (A. I. R. 1958 S. C. 86). That case arose under different circumstances. The question for decision there was whether in respect of an order of dismissal of a Government servant passed before the Constitution came into force, the power subsequently conferred by Article 226 of the Constitution, could not be availed of for quashing the dismissal, on the ground that the appeal and later proceedings against the order of dismissal were subsequent to the Constitution. The Supreme Court held that "even if the order of dismissal of the respondent was a nullity on the ground that it was passed by disregarding the rules of natural justice, the High Court could not properly be asked to exercise its newly acquired jurisdiction and powers under Article 226 to correct errors, irregularities or illegalities committed by the inferior departmental tribunal before the commencement of the Constitution..........". We fail to see any analogy with the case before us, because of the specific provision in Section 132(1)(a) as we have construed it, that the appeals have to be disposed of in accordance with the provisions of the Act.

It is plain that under Act I of 1964 landlords are not entitled to evict their tenants from their holdings. It was suggested that landlords may in certain cases be entitled to resumption u/s 14 to 22 of the Act. But that is by a procedure with which this court is not concerned and there is no motion before us within the prescriptions in Section 132(3)(c) for resumption. It follows that by the application of Section 132(l)(a) to the cases before us, the landlords are not entitled to evict their tenants.

The second question in these appeals turns on the true meaning and interpretation of Section 132(3)(a) of the Act, which reads:

(3) Notwithstanding the repeal of the enactments mentioned in sub-section (2),--

(a) any decree passed before the commencement of this Act for the eviction of a tenant from his holding, pursuant to which eviction has not been effected, may, on the application of the tenant or the landlord, be reopened and the matter may be disposed of in accordance with the provisions of this Act;

The contention based on the above provision was, that eviction having been obtained in execution of the decrees of the primary court, the only remedy which the tenants had, of reopening the decrees for eviction had become lost to them and they are now without a remedy. At the time of delivery of possession in execution, the decree had not become final, because appeals had been preferred against them. In the language of the Federal Court in AIR 1941 5 (Federal Court) :

Once the decree of the High Court had been appealed against, the matter became sub judice again and thereafter this court had seisin of the whole case, though for certain purposes, e.g., execution, the decree was regarded as final and the Courts below retained jurisdiction.

It cannot be, as already indicated, that there is an eviction of the tenant simply by the process in execution pending appeal from the decree. If the appeal is allowed, the property would be re-delivered. The Section contemplates a stage at which the decree for eviction had become final, either by the decree having been challenged by way of appeal and the appeal dismissed or by no appeal having been taken against it. Otherwise, there is no question of reopening the decree. If after the decree had become final, eviction had not taken place, the tenant or the landlord, as the case may be, is given a right to reopen the decree, though the purpose of such reopening is not quite clear, for u/s 13 of the Act, so far as the tenant is concerned, notwithstanding any decree for eviction he is not liable to be evicted. However that be, it is sufficient to hold, that sub-section (3) (a) does not contemplate delivery of possession as in these cases in execution of decrees which had not become final.

Learned counsel in S. A. 927 of 1961 had a further argument, that the suit itself for eviction may be treated as an application for resumption u/s 132(3)(c) of the Act. This prescribes an application for resumption, presumably alleging that the landlord is a small holder entitled to resumption, and setting forth the grounds of resumption, which is to be made within one year of the commencement of the Act. The suit filed years ago on different allegations and on different grounds can, by no stretch of imagination, be construed to be an application for resumption under the aforesaid provision. The contention has to be over-ruled.

In S. A. 927 of 1961 and S. A. 1141 of 1961 no other question arises, and so the appeals are dismissed; the parties shall bear their costs in this court.

In S. A. 1095 of 1961 both parties had agreed before the lower appellate court, that the decree for eviction may be set aside without prejudice to their right and remedies under Act IV of 1961. This means that they might initiate fresh proceedings as are open to them, under Act IV of 1961 and after its supersession by Act I of 1964, under the latter. Contrary to this, the appellant landlord has chosen to file this appeal questioning the appellate decree itself. We hold that he has no right to do so. S. A. 1095 of 1961 is dismissed with costs. In S. A. 1113 of 1961, the document sued on purports to be a kanam in respect of items 1 and 2. Apart from the contention, that by the delivery of possession in execution of the decree of the first court, pending further appeal, the appellant is entitled to retain the property, he has a further contention that the document sued on is in substance a mortgage. The Subordinate Judge considered this question only with reference to the provisions of Act IV of 1961. Now that Act IV of 1961 has been declared to be void, we think that the question may be considered afresh by the trial court under the relevant provisions in Act I of 1964 which are applicable. Therefore, over-ruling all other contentions, we send back this case to the trial court, for decision afresh as to whether Ext. A1 is a kanam or a mortgage with respect to items 1 and 2 and to pass a revised decree on that basis. The suit for recovery of item 3 has been dismissed and that part of the decree has become final. The parties shall bear their costs in this court.