THANKAPPAN Vs. VELAYUDHAN NADAR NARAYAN NADAR

JUDGEMENT

(1.) These revisions arise from the order of Land Reforms Appellate Authority, Alappuzha (for short, "the Appellate Authority") in A.A. Nos. 22 of 2009 and 92 of 2005 confirming the order passed by the Deputy Collector (Land Tribunal), Alappuzha (for short, "the Land Tribunal") in O.A. No. 658 of 1976. Question raised for a decision is whether in the case of a deemed tenant who was found so by the Civil Court after the expiry of six months from the date of commencement of Act 35 of 1969, an application for resumption under Section 17 of Kerala Land Reforms Act (for short, "the Act") could be filed within six months from the date of decision of the Civil Court regarding deemed tenancy

(2.) Short facts necessary for a decision of the question are:

(3.) At the time of hearing learned Counsel for Petitioners did not challenge finding of the lower authorities that Respondent No. 1 is a 'small holder' as referred to in Section 17 of the Act. Hence it is not necessary to go into that question in these revisions. It is contended by learned Counsel for Petitioners that O.A. No. 658 of 1976 is filed beyond the prescribed time and hence is barred under Section 72(4) of the Act. According to the learned Counsel right, title and interest of Respondent No. 1 in the schedule property vested with the Government on the expiry of six months from 01.01.1970 and hence any application for resumption under Section 17 of the Act ought to have been filed before such vesting. O.A. No. 658 of 1976 was filed only in the year 1976, i.e, much after the right, title and interest of Respondent No. 1 vested with the Government by virtue of Section 72(4) of the Act. Learned Counsel placed reliance on the decision of the Full Bench of this Court in Parameswara Pillai v. Kunchali Lekshmi, 1987 2 KerLT 349. It is also contended that lower authorities were not justified legally or factually in trying to get over the decision of the Full Bench by reference to the decision of the Supreme Court in Sankaranarayanan Potti (Dead) by L.Rs. v. K Sreedevi and Ors. (supra), which learned Counsel argued, has no bearing on the facts of the case. In response, it is contended by learned Counsel for Respondent No. 1 that issue regarding deemed tenancy arose only when the second appeals were disposed of by this Court on 6.2.1976. Until then, Respondent No. 1 was a mortgagor entitled to redeem the mortgage as held by the trial and First Appellate Courts and hence the contention that Respondent No. 1 ought to have filed the application for resumption within six months from 1.1.1970 cannot be accepted. According to the learned Counsel right of Respondent No. 1 to seek resumption under Section 17 of the Act arose only on this Court holding on 6.2.1976 that Defendant No. 1, predecessor-in-interest of Petitioners is a deemed tenant. Respondent No. 1 could not move an application for resumption before the Land Tribunal when the issue whether the mortgage is redeemable or not was pending consideration of the Civil Court. The Land Tribunal could not also decide the question then. Hence lower authorities are justified in holding that the application filed within six months from 6.2.1976 is not barred. Learned Counsel argued that Respondent No. 1 could not be expected to move an application for resumption under Section 17 of the Act at a time when he was holding a confirmed decree for redemption of mortgage.