Pappu vs Board of Trustees of the Ramakrishna Mutt, Belur and others

T.C. Raghavan, J.—Respondents 1 to 19, representing the Sree Ramaksrishna Advaitha Asramam, Kalady, filed the suit giving rise to the appeal for recovery of possession of the suit property with arrears of varam and mesne profits against the appellant, the third defendant, and respondents 20 and 21 (defendants 1 and 2). The suit property formed part of over 128 acres of forest land given to the Asramam on kuthakapattom by the Government. Defendants 1 and 2 took 1� acres out of this from the Asramam on varam agreeing to pay a fourth of the wield to the Asramam. They kept the varam in arrears from 1963, and ultimately, sold their varam right under Ex. P6 dated 26th April 1965 to the appellant for Rs. 1,500/- in the document of transfer the extent shown was six acres. The appellant also kept the varam in arrears; according to the Asramam, the defendants trespassed upon 4� acres of land belonging to and in the possession of the Asramam. The suit was resisted by the appellant. Defendants 1 and 2 also filed a written statement alleging that they were in possession of only 1� acres and that extent alone they assigned and gave possession to the appellant. They alleged further that the appellant fraudulently mentioned the extent of the property as six acres in the document without their knowledge; and that the price of Rs. 1,500/- under Ex. P. 6 was for 1� acres at the rate of Rs. 1,000/- per acre. It was also averred that the Asramam was not entitled to evict either defendants 1 and 2 or the appellant. The appellant contended that he was put in possession of six acres and not l� acres as alleged by defendants 1 and 2 and that he did not commit any trespass. He contended further that he was not lialble to be evicted by the Asramam. The contentions of the defendants were overruled; and the Subordinate Judge passed a decree for eviction with arrears of varam and mesne profits. The appeal is against that.

The counsel of the appellant has urged that the appeal has to be stayed under Kerala Act 20 of 1970. The counsel of the Asramam has pointed out that the Act can apply only to a case of lease or tenancy to which the provisions of the Kerala Land Reforms Act, 1963 applied. The counsel has drawn our attention to section 7 of Act 20 of 1970 which provides that nothing in the Act shall apply in respect of any lease or tenancy exempted from the provisions of the Kerala Land Reforms Act, 1963 by section 3 thereof. Therefore, the question to be considered is whether section 3 exempts or excludes the suit land from the operation of the Land Reforms Act. In other words, stay can be ordered only if the provisions of the Land Reforms Act apply to the case, in which event the appellant is not liable to be evicted too from the 1� acres. We, therefore, proceed to consider the main question in the case--whether the Land Reforms Act applies to the case.

It is argued, on merits, that the appellant has fixity of tenure. The argument is that varam is a tenancy, and the appellant being a varam-holder, is a tenant and such a tenant has fixity of tenure under the Land Reforms Act. The contention, on the other hand, by the counsel of the Asramam is that u/s 3(1)(i) nothing in Chapter II of the Land Reforms Act shall apply to leases of lands or of buildings or of both belonging to or vested in the Government of Kerala, etc. (The provision for fixity of tenure is in this Chapter), There is a proviso to this clause, which lays down that, in the case of a sub-lease of kandukrishi lands or a mortgage of such lands granted or created by a tenant holding such lands under the Government, the provisions of sections 13 to 26 shall, so long as the lease granted by the Government subsists, apply to the tenant or mortgagee holding under the sub-lease or mortgage, as they apply to a tenant holding lands other than Government lands. Explanation I to this clause defines "Lands belonging to or vested in the Government of Kerala". The Explanation says that this expression will have the same meaning as "Government lands" under sub-section (1) of section 2 of the Kerala Government Land Assignment Act. The rest of this Explanation and the other Explanations are not relevant for this case.

Now, section 2 (I) (iv) (d) of the Land Assignment Act is the relevant provision for the purpose of this case; and it reads, omitting the unnecessary words,

The following, that is to say, all lands wherever situated, save in so far as the same are the property of any person holding land under grant from the Government otherwise than by way of lease or licence, are Government lands.

Under this definition, Government lands are lands, save in so far as the same are the property of any person holding land under grant from the Government otherwise than by way of lease or licence: that is, all lands held by way of lease or licence under the Government by any person are Government lands,. The suit land is part of lands given on kuthakapattom to the Asramam: the land is this land held by the Asramam on lease under the Government; the result is that the suit land is land belonging to the Government: the sub-lease in favour of the appellant cannot alter the nature of the land. It then follows that, u/s 3 (1) (i) of the Land Reforms Act, the provisions of Chapter II of the said Act are not applicable to such land. The appellant is therefore not entitled to fixity of tenure and is not also entitled to get the suit stayed under Act 20 of 1970.

The only plausible way of meeting this position is by contending that the exclusion contemplated by section 3(1)(i) is intended to benefit the Government and not the Asramam, a tenant of the Government--in other words, by contending that the appellant car claim relief under the Act against the Asramam and is precluded from claiming relief only when the Government seeks to evict him. The wording of section 3 (1)(i) is clear that the exclusion or exemption applies to leases of lands or of buildings or of both belonging to or vested in the Government of Kerala. The exclusion is not in favour of the Government as such: the exemption is in favour of lands belonging to the Government: to be more precise, the exemption is of leases of lands belonging to the Government and not of leases by the Government of lands belonging to the Government.

In this connection, the counsel of the Asramam has drawn our attention to the decision of this Court by Joseph J. in Kesavan Govindan v. Janardhanan Damodaran Plappalli (1958 KLT 449). The learned Judge was considering the question whether a similar exemption contained in the Kerala Stay of Eviction Proceedings Act (Act 1 of 1957) applied to kandukrishi lands. The learned Judge, following the observation of the Supreme Court in Bhatia Co-operative Housing Society Ltd. Vs. D.C. Patel, , has held that the exemption applied to the land and was not confined to the Government alone. The Supreme Court was considering section 4 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act (Act 47 of 1947): and the relevant portion of section 4(1) provided.

This Act shall not apply to any premises belonging to the Government or a local authority--

Interpreting this provision, the Supreme Court has said that the exemption applied to the land and was not in favour of the Government alone. Joseph J. has followed this decision in Kesavan Govindan''s case: and we feel that this decision applies to the case before us. (Of course, the effect of the decision of Joseph J. regarding kandukrishi lands has been nullified by the proviso to section 3 (1)(i): but, there is no such provisio regarding kuthakapattom lands.) Therefore, this contention cannot also avail. We add that to the portion of the suit land trespassed upon by the defendants, the position of the Asramam is still stronger.

The second defendant has been examined as Dw. 1; and he has stated that defendants 1 and 2 put the appellant in possession of only 1� acres and that they were in possession of only 1� acres too. They have alleged so in their written statement and Dw. 1 has stated so in the box too. Dw. 1, has stated further that, if there was any trespass, it must have been after Ex. P6, the trespass being by the appellant and not by defendants 1 and 2. Ex. P3 is a plan prepared in another case; but, that gives a good idea of the 128 odd acres of land given on kuthakapattom to the Asramam. The 1� acres leased out to defendants 1 and 2 on varam lie on the Western extremity of the kuthakapattom lands, and the finding by the Subordinate Judge is that the trespass was of the 4� acres lying immediately to the east of this, the trespassed portion being then in the possession of the Asramam. The Subordinate Judge has also found that the trespass was by defendants 1 and 2. We are not satisfied that this last finding is correct. We are inclined to think that the trespass might have taken place after Ex. P 6; and we are also not sure as to when exactly the trespass took place. Therefore, some modification is called for regarding the arrears of varam and the mesne profits. The appeal is dismissed relating to the main prayer for eviction; and regarding the decree for arrears of varam and meane profits, the following variations are made. Defendants 1 and 2 are liable for arrerars of varam from 1963 to the date of Ex. P. 6 (26th April 1965) for the 1� acres. For the subsequent period upto the date of suit, the appellant is liable for arrears of varam for the same 1� acres. After the filing of the suit, the appellant will be liable for mesne profits at the rate of Rs. 700/- per year for all the six acres together. The arrears of varam payable is 15 paras of paddy valued at Rs. 3 50 p. per para as fixed by the lower court. The Asramam will get half their costs in the appeal from the appellant.