KAISHORE AMOZ Vs. LEKSHMI AMMA MADHAVI AMMA

JUDGEMENT

(1.) The appeal is directed against the decree and judgment in A.S.No. 22/1994 on the file of Sub Court, Neyyattinkara, by which the dismissal of a suit for redemption, O.S.No. 767/1981, by the First Additional Munsiff Court, Neyyattinkara was reversed, and the case was remitted for fixing the value of improvements, after holding that the plaintiff is entitled to redeem the property and the defendants, not entitled to fixity of tenure. The order of remand passed in the case should have been challenged only by way of a first appeal, but, it has been numbered and received as a Second Appeal. Having regard to the time lag, that more than a decade had passed after the appeal received on the file of this court, I find renumbering of the appeal, at this stage, is not warranted, and after hearing the counsel on both sides, it is disposed on merits.

(2.) The short question emerging for consideration in the appeal is whether there was implied surrender of tenancy by the first defendant in respect of suit property which formed part of the lease hold enjoyed by him, when the plaintiffs executed a mortgage (Ext. A1) over that property in his favour. Facts relevant to the question are illustrated thus: Plaintiffs, husband and wife, are the owners of the suit property, having an extent of one acre. They had executed a lease deed (Ext. B1) over two acres of land, which takes in the one acre of land referred to above, in favour of one Lookose Nadar Esaya Nadar, the first defendant in the suit. While that lease was subsisting, Ext. A1 mortgage deed was executed in respect of a portion of the lease hold, one acre land, in favour of the first defendant/lessee, offering another property of the plaintiffs also as security for the mortgage debt. Suit was laid to redeem the mortgage over the plaint property. The second defendant, daughter of the first defendant, was impleaded as one who claimed some right over the suit property. That defendant remained exparte and the first defendant alone contested the case. The first defendant claimed tenancy right over the suit property contending that as a tenant he has got fixity of tenure over the land under the Kerala Land Reforms Act. He also contended that the property was transferred to him for enjoyment under Ext. B1 lease and that is a superior right than what Is covered by Ext. A1 mortgage deed. In the alternative, he also pleaded for value of improvements to the tune of Rs. 10,000/- and also reimbursement of the expenses incurred, Rs. 10,000/-, for making a canal in the property, in the event of redemption.

(3.) The trial court referred the issue raised over the claim of fixity of tenure canvassed by the first defendant to the Land Tribunal as mandated by Section 125(3) of the Kerala Land Reforms Act. The tribunal, after inquiry, upholding the claim of tenancy over the land by the first defendant answered the reference. Accepting the finding of the tribunal, the trial court dismissed the suit. Plaintiffs challenged the dismissal of the suit, and the lower appellate court, after reappreciation of the materials, reversed the finding entered by the tribunal holding that under the terms of Ext. A1, parties have only creditor - debtor relationship and the suit property had been offered as security for a loan. Setting aside the finding on fixity of tenure entered in favour of the first defendant and holding that the plaintiffs are entitled to redeem the suit property the dismissal of the suit was reversed, and the case was remitted for fixing the value of improvements. That order of remission is challenged in the appeal.