Unnikrishnan Nair vs Narayanan Nair and Others

Janaki Amma, J.—The revision petition is filed against the order passed in E.A. No. 11 of 1970, on the file of the Munsiff''s Court, Perintalmanna, which was a petition filed u/s 13B of the Kerala Land Reforms Act I of 1964, for restoration of possession of a holding sold for arrears of rent. The first Respondent filed a suit, C.S. No. 761 of 1960, against the first Petitioner and Respondents 3 and 4 for arrears of rent. In execution of the decree the property was brought to sale and the second Respondent purchased the property in court auction on 18th January 1965. The sale was confirmed on 24th February 1965. The right of the first Petitioner and Respondents 3 and 4 had been purchased by the second Petitioner in the year 1961. The second Petitioner had got himself impleaded as the fourth responded in the execution proceedings. The petition was filed on the ground that u/s 13B of the Act the Petitioners were entitled to restoration of possession. Pending enquiry the second Petitioner assigned his rights to the third Petitioner. The third Petitioner got himself impleaded. The petition was amended seeking an order for restoration of possession in favour of the third Petitioner.

The Court held that the conditions required u/s 13B were satisfied, but that since the second Petitioner had already assigned his rights to the third Petitioner and the third Petitioner was not a tenant at the time of dispossession he was not entitled to restoration of possession. The petition was accordingly dismissed. The revision petition is filed challenging the above order.

The point to be considered is whether an assignee of the rights of a tenant is entitled to get restoration of possession u/s 13B of the Act in a case where the assignment is after the sale and delivery of possession of the property in execution of a decree for arrears of rent. The executing court has, in coming to the conclusion that he is not so entitled to, omitted to note the definition of the word "tenant" u/s 2(57) of the Act. A tenant, under the definition, includes his heir, assignee or legal representative and also any person deriving rights through any such person who has paid or has agreed to pay rent or other consideration. u/s 50 of the Act, all rights which a tenant has in his holding is heritable and alienable. In this case it was the second Petitioner who deposited the purchase price and interest at 6 per cent as directed in Section 13B of the Act. By such deposit he became entitled to restoration of possession. It was thereafter that he assigned his rights to the third Petitioner. The right transferred was thus not merely an actionable claim but a substantive right. Hence the third Petitioner, before the executing court, who is the revision Petitioner, stands in the shoes of the second Petitioner, his transferor and is entitled to all the rights that the transferor got by virtue of Section 13B.

A similar question arose in connection with Sections 5 and 6 of the Stay of Eviction Proceedings Act 9 of 1967. u/s 6 of the said Act a right was given to a tenant, who was dispossessed from his holding after 1st April 1964 and before the commencement of the Kerala Stay of Eviction Proceedings Ordinance, 1967, to get restoration of possession of the holding. The question arose as to whether an assignee from the original tenant was entitled to such restoration. This Court held in Swarnambal v. Abu 1977 KLT 44 that he was entitled to restoration. Reliance was placed on Sections 48 to 50 of the Kerala Land Reforms Act. This Court observed, that the indications available from those Sections would suggest that the principles embodied in Section 146 of the CPC are applicable to the case. The identical principles would apply in the instant case. The executing court overlooked the said provisions.

The revision petition is, accordingly, allowed, the order passed by the court below is set aside and the petition filed u/s 13B of the Kerala Land Reforms Act will stand allowed. The parties will bear their respective costs.