THOTI AMMA Vs. APPA ALIAS KRISHNA MENON

JUDGEMENT

(1.) This appeal arises out of a suit for partition filed in 1936. Final decree for partition was passed on 1st December 1943; and under that decree, the legal representatives of the plaintiff who in the meanwhile had died, took possession of certain items of properties. The appellants before me took on karaima portions of the said properties from the legal representatives of the plaintiff in 1952 under registered deeds. Some of the defendants filed an appeal from the final decree. The appellate court modified the decree of the original court, as a result of which the properties allotted to the legal representatives of the plaintiff happened to be allotted to the share of defendants 2, 3, 7 and 8. Thereafter they filed an execution petition for delivery of the properties allotted to them: but delivery was resisted by the karaima holders in respect of properties in their possession. Defendants 2, 3, 7 and 8 then filed E. A. No. 1 of 1959 in the District Court of Kozhikode, where the matter was then pending, to remove the obstruction and for being put in possession of the said properties in accordance with the final decree. The karaima holders contended that they were entitled to fixity of tenure, and at any rate, to value of improvements. The claim was put forward under the Malabar Tenancy Act, 1929, and the Kerala Land Reforms Act, 1963. It was upheld by the learned District Judge; but defendants 2, 3, 7 and 8 filed A. S.244 of 1960 from his decision. This Court, by judgment dated 22nd March 1965, held that the Karaima rights set up by the obstructors were vitiated by lis pendens, and they were not, therefore, entitled to fixity of tenure under any of the aforesaid Acts. The case was remanded to the lower court to decide the question whether the obstructors were entitled to value of improvements and if so how much. Accordingly, the case went back to the District Court. In the meanwhile, the Kerala Land Reforms Act, 1963 was amended by Act 5 of 1969. The obstructors availed of the provisions of the amending Act; and they contended that under S.2E thereof, they were entitled to fixity. The learned District Judge overruled that contention. He also held that they were not entitled to any value of improvements in the light of the decision of this Court in Augusti v. Ramakrishna Panicker 1969 KLT 326 . The present appeal has been filed by respondents 3 to 8 in E. A. No. 1 of 1959, who obstructed the delivery of the properties in favour of defendants 2, 3, 7 and 8.

(2.) The learned counsel for the appellants submitted that, in view of the clear protection available to his clients under S.7 of the Kerala Land Reforms Act, 1963 as amended by Act 35 of 1969, they were entitled to fixity of tenure, and that it was therefore unnecessary to consider the other questions arising in this appeal. He also referred to Sub-s.(3) of S.108 of Act 35 of 1969, which provides that all suits, applications, appeals, revisions, reviews proceedings in execution of decrees, and other proceedings with respect to any matter arising under and provided for by the principal Act pending before courts, tribunals, officers or other authorities at the commencement of this section shall be disposed of in accordance with the provisions of the principal Act, as amended by Act 35 of 1969. I am, therefore, bound to decide the matter in the light of the provisions contained in the amending Act.

(3.) S.7 reads as follows: --