Sankaran vs Andy

Krishnaswami Nayudu, J.—The first defendant is the appellant. He is a Kuzhikanomdar under Ex. P. 2. dated 26th March 1881, he being the assignee of the Kuzhikanom interest under Ex P. 2 by virtue of a document Ex. D. 1 dated 3rd April 1925. The property originally belonged in jenm right to one Cherunni, who granted an othi to Kurup, who assigned his othi rights to the plaintiff under Ex. P. 4, dated 26th November 1942. The suit was instituted on the 21st January 1943, for possession, on the basis that it was a kuzhikanom lease and that under S. 20 (5) of the Malabar Tenancy Act of 1930 the plaintiff required it bona fide for his cultivation. Both the Courts held in favor of the plaintiffs A decree for possession was granted on the 9th October 1944, by the District Munsif of Calicut, and this was confirmed in appeal by the Subordinate Judge of South Malabar on the 22nd July 1945. In support of the contention that the suit is not maintainable under the provisions of the Malabar Tenancy Act as amended by Act VII of 1954 two arguments were adduced. Firstly, it was urged that the plaintiff, being an assignee and his right to evict having arisen out of the assignment Ex. P. 4, dated 26th November 1942, he will not be entitled to sue for eviction, on the grounds specified in Cls. 5 and 6 of S. 23, by virtue of Sub-Cl. (iii) of Cl. 7 of S. 23 which provides that no person whose right to evict arises under an instrument of transfer inter vivo shall be entitled to sue for eviction on the ground specified in Cl. 5 or Cl. 6, until the expiry of two years from the date of the instrument. Secondly, it was urged that the first defendant has been continuously in occupation as a tenant, being in actual possession of the suit properties ever since 3rd April 1925, the date of Ex. D 1, and that, therefore, the plaintiff cannot invoke to his aid Cl. 5 of S. 23, stating that he needs the holding bona fide, since the exception to Cl. 5 of S. 23 provides that nothing in Cl. 5 shall apply to any holding which has been in the continuous occupation of the tenant for not less than six years, and that the first defendant having been in continuous occupation for more than six years, he cannot be evicted on the ground that the plaintiff requires the holding bona fide for his purposes. It may be mentioned that this prohibition against the right of suit until after the expiry of two years by a transferee from a person who has got the right to evict is also provided under S.25 which deals with suits for eviction of a customary verumpattamdar, kanomdar, kanom kuzhikanomdar or kuzhikanomdar. It is contended on behalf of the plaintiff that the suit property is held under a kuzhikanam tenure, and that the first defendant cannot be considered to be a cultivating verumpattamdar. But, as regards the objection as to the non maintainability of the suit on the ground that the suit being by an assignee, could not be instituted within two years from the date of his assignment, the fact whether he is a cultivating verumpattamdar or kuzhikanomdar, would not matter, as the prohibition covers all cases relating to eviction. By virtue of Cl. 2 of S. 25 of the Amending Act VII of 1954, all suits, appeals and other proceedings which are pending at the commencement of Act VII of 1954, shall be disposed of in accordance with the provisions of the Malabar Tenancy Act, 1929, as amended by Madras Act XXXIII of 1951 and Act VII of 1954. Prima facie therefore, the contention of the appellant has to be upheld.

But it is contended by Mr. K. P Ramakrishna Ayer that the provisions limiting the right of suit till after the expiry of two years in the case of an assignee or transferee would only apply to suits to be instituted in future and not to a suit instituted in 1943, long before the coming into force of Act VII of 1954. It is difficult to accept that contention in view of the specific provision made in Cl. 2 of S. 25 of Act VII of 1954 and this being an appeal, I have no other option but to apply the provisions of the Act as amended by Act VII of 1954. S. 23 (7) (iii) and S. 25 (6) (iii) are provisions of the present Act which have to be applied to pending proceedings like an appeal, as in the present case. If these provisions are applied, the suit must be held to be not maintainable and must be dismissed. Mr. Ramakrishna Ayer urges that the provisions which restrict the right of suit should not be so construed as to take away vested rights, and the right to sue for eviction is a vested right which could not be taken away by making the provisions of the Act retrospective in operation. I have no doubt that CL 2 of S. 25 of Act VII of 1954 gives retrospective effect to the provisions of the Amended Act, and the question is whether any vested rights had been taken away. The right of suit is still there. It has been only postponed for a period of two years from the time the plaintiff had obtained his assignment, and it has not been taken away absolutely in the sense that the assignee is totally debarred from instituting a suit for eviction. The learned Counsel referred me to a decision of a Full Bench in Gopeshwarpal v. Jiran Chandra Chandra 41 Cal. 1125, where it was held that where the application of the provisions of an amending Act makes it impossible to exercise a vested right of suit, the Act should be construed as not being applicable to such cases. As observed, the right of suit has not been taken away and the provisions had not made it impossible to exercise the right of suit, hut only put off that right for a period of two years from the date of assignment. The passage at page 1140 is relevant and it is as follows:

It is an established axiom of construction that though procedure may be regulated by the Act for the time being in force, still the intention to take away a vested right without compensation or any saving, is not to be imputed to the. Legislature, unless it be expressed in unequivocal terms.

After referring to decisions in The Commissioner of Public Works (Cape Colony) v. Logan (1908) A.C. 855. and Gurupadapa Basapa VirbhadrapaIrasangapa7 Bom. 459., the learned Judges further observed that that view was not limited to those cases where rights of property in the limited sense are involved. The case in the Colonial Sugar Refining Co, v. Irwin (1905) A.C. 369 laid down the proposition that an Act ought not to be so construed as to deprive a suitor of an appeal in a pending act which belonged to him as of right on the date of the passing of the Act. The right of suit is no doubt, a vested right, but unless it is taken away absolutely and for ever it cannot be said that the vested right has been interfered with. The provision which is under consideration is only to regulate the institution and not to do away with the right and to quote the words of the Full Bench in Copeshwar Pal v. jiranchandra Chandra 41 Cal. 1125 , "the effect is to regulate and not to confiscate". The object of the enactment being to grant to the tenants such security as is possible, any provision in the way of not disturbing the possession of any tenant for a limited period could not be held to be taking away any vested right of the landlords. The object of the provision apparently is not to enable persons to obtain assignments of leases with a view to disturb the possession of existing tenants. There is nothing illegal Or contrary to law in the enforcement of such a provision, and applying the provision it has to be held that the suit is not maintainable and is liable to be dismissed.

Regard the other argument based on the Exception to Cl. 5 of S. 23, though the facts of the case would show that the first defendant has been in continuous occupation for more than six years, the question would arise as to whether the first defendant was a cultivating verumpat'' tamdar or not. There is some difficulty arising in this case, as Ex. P.2 is described as verumpattam kuzhikanom kudiyiruppu. It comprises two different kinds of tenancies. But it is, however, unnecessary to go into this matter in the present case, as I have already held that the suit was not maintainable on other grounds as urged that, in any event, though the suit was instituted within a period of two years after the assignment, if a decree is passed after two years, there is no need to dismiss the action, since two years must have elapsed before a decree is passed in the suit. But even that contention cannot be upheld on the facts of this case, as the decree also is within the period of two years, the decree for possession having been passed on the 9th October1944, which is within two years from 26th November 1942. result is, the second appeal is allowed. The plaintiff will pay the costs of the first defendant through, out. Leave granted Since the provision regarding renewals in Chapter IV of the Act has been deleted by the Amending Act XXXIII of 1951, C. M. S. A. has become infructuous and is dismissed.