MERCINE SOUZA Vs. GANAPATHY BHATTA

JUDGEMENT

(1.) This appeal by special leave is against the judgment of the Kerala High Court dated 25-11-1980 by which CRP No. 2034/ 80-E filed by the appellant was dismissed by the High Court. The short question involved for decision is the meaning and scope of Section 4A of the Kerala Land Reforms Act, 1964 inserted therein by the Amending Act 35 of 1969.

(2.) The predecessor-in-interest of respondents effected a mortgage with possession of the disputed land on 13-3-1919 in favour of the predecessor-in-interest of the appellant. The mortgagee remained in possession except for the period between 29-1-1940 to 17-6-1942 during which the lessee of the mortgagee was in possession. The mortgagee's cultivating possession of the disputed land was, therefore, disrupted between 29-1-1940 and 17-6-1942. The mortgagee, the appellants herein, claim the right as a deemed tenant by virtue of Section 4A of the Act, material part of which reads as under:-

(3.) The High Court has taken the view that the appellants-mortgagee were not in possession for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969 which came into force on 1-1-1970 and, therefore, the right of a deemed tenant claimed under clause (a) of sub-sec. (1) of Section 4A was not available to the appellants. This view has been taken on the ground that there was disruption in the continuous cultivating possession of the mortgagee for the period between 29-1-1940 to 17-6-1942 when the disputed land was under cultivation of the lessee.