Muhammad Shaheer vs Nanu Vidyadharan

K P. Radhakrishna Menon J.

The short question arising for consideration in these appeals is this : Are the defendants in the suits from out of which these appeals arise, who admittedly are claiming the benefit of section 106 of The Kerala Land Reforms Act, entitled to have the question relating to the said tenancy referred to the Land Tribunal u/s 125 (3) of the K. L. R. Act. Before we go into the merits of this point, it is necessary to understand the content of Section 106. Section 106 provides that notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years. On a reading of this section it can be seen that it is a code by itself. That means the rights of the parties are to be determined only with reference to the provisions contained in this Section. That that is the intention of the legislature can be seen from the non-obstante clause employed in the Section, namely "notwithstanding anything contained in this Act". If the tenant proves that he constructed the building for the commercial and industrial purpose for which the rand has been taken on lease, and the said construction was before the 20th May, 1967, the tenant is not liable to be evicted from such land though he will be liable to pay rent under the contract of tenancy. The rent that is liable to be paid under the contract of tenancy however is liable to the varied every twelve years.

The only issue thus arising for consideration in the suit is whether the suit for eviction is maintainable in view of Section 106 K. L. R. Act. The defendants in view of the decision of this court in Musthaffa v. Bombay Rural Trading Corp. Ltd. (1989 (1) K. L. T. 236) cannot setup an alternative plea that they are entitled to fixity of tenure within the meaning of Section 13 of The K. L. R Act. Only in the event of their establishing that they are entitled to fixity of tenure, Section 12 which confers on a tenant the right to prove the real nature of the transaction under which he is holding the land, will be attracted. The language employed in the Section makes it clear that it enables a person interested in any land to prove that the transaction purporting to be a mortgage, otti, karipanayam panayam, nerpanayam or licence of that land is in substance a transaction by way of kanam, kanam-kuzhikakam, kuzhikanam, verumpattam or other lease, underwhich the transferee is entitled to fixity of tenure in accordance with the provisions of Section 13 and to the other rights of a tenant under this Act. The defendants under no circumstance can claim that the transaction underwhich they bold the land partakes of the character of any of the transactions enumerated in that section and if that be so they are not entitled to fixity of tenure. Section 106 in fact disentitles the tenant to set up any plea other than the plea that the land lord cannot evict him from the land. This is an aspect, and that is the only aspect that arises for consideration in the suit, that can be considered by the civil court without getting a report in regard to this aspect from the Land Tribunal.

The appellate court nonetheless has set aside the judgment and decree and remanded the case to the trial court with a direction that the trial court shall refer the question, whether the defendants are entitled to the benefit of Sec. 106, to the Land Tribunal. It may in this connection be borne in mind that only questions which can be considered and decided by the Land Tribunal need be referred to the Land Tribunal u/s 125(3). A tenant who is entitled to the benefit Of Section 106 continues to be a tenant unlike in the case of the tenants entitled to fixity of tenure. It should in this connection be remembered that on and from 1-1-1970 the only tenancy recognised under the K.L R. Act is the one governed by Section 106

In the circumstances the common judgment under attack is set aside and accordingly the lower appellate court is directed to dispose of the appeals in accordance with law.

The appeals are allowed. No costs.

It is made clear that the question as to whether the appellants are entitled to the benefit of Section 106 has to be considered afresh on merits.