VELAYUDHAN Vs. NARAYANAN NAMBUDIRIPAD

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of, possession of immovable properties with profits, past and future, on the strength of title. The defendant is the appellant. The plaintiff, a life interest holder, claimed recovery of possession of the plaint lands on the allegation that the appellant was not entitled to fixity ;of tenure under the provisions of the Kerala Land Reforms Act (Act I of 1964), hereinafter referred to as the Act. The respondent plaintiff admitted in the plaint that the appellant had cultivated the land on pankuvaram arrangement till 1137 (1961-1962). But, according to the respondent, the appellant had set up verumpattom tenancy in the land and was continuing in possession without paying rent.

(2.) The appellant contended in the lower Court that he was a verumpattom tenant. This contention was found against. His further contention that even if he was only a varomdar he was a deemed tenant and was therefore entitled to fixity of tenure was negatived by the lower Court and it is the correctness of this finding that is attacked in this appeal. The lower Court disposed of this question on an interpretation of S.13 and clause (vi) of S.3(1) of the Act. It held that S.3(1)(vi) specifically excluded the application of Chap.2 of the Act to tenancies created by persons having only life interest. According to the lower Court the first proviso to S.3(1) would also not apply as that speaks of only S.13 to 26 in Chap.2 and not S.8 and 10. On this basis the Trial Court held that the appellant could not be considered as a deemed tenant.

(3.) Under S.2(57) of the Act, a tenant includes a person who is deemed to be a tenant under S.8 or 10 of the Act. S.8 of the Act read with S.6 of the Kerala Stay of Eviction Proceedings Act, 1957, makes it clear that any person who is a varomdar and who is entitled to cultivate the land after the 11th day of April, 1957, will be deemed to be a tenant, provided that he was cultivating the land at the commencement of the Act. On the allegations in Para.3 in the plaint the appellant has been cultivating the land as a varomdar some years before 1959-60 so that it is reasonable to infer that in 1957 he must have been cultivating the land as a varomdar. The contention of the learned counsel for the respondent is that the appellant was not cultivating the nilam as a varomdar at the commencement of the Act, and therefore, be cannot be classified as a deemed tenant. We are not prepared to accept this plea in view of the specific recitals in Para.6 and 7 of the plaint. The last sentence in Para.6 specifically mentions that in 1138, 1139 and 1140 although the defendant harvested the entire crops, he had not been giving the proportionate share due to the plaintiff. The year 1140 would correspond to 1964-65 and it is clear that the plaintiff has the grievance that the share due to him for that year had not been paid. The claim of the plaintiff that he was entitled to a share of the yield is consistent only with the plea that the appellant is a varomdar and it is not open to the respondent now to say that he was not cultivating the land as a varomdar. Similarly in Para.6 there is also a definite allegation that although the plaintiff would be justified in claiming profits repudiating the varom arrangement still he was only claiming the share due to him under the said arrangement. In the face of these recitals in the plaint, the inference is irresistible that in 1964 when the Act came into force, the appellant was cultivating the land as a varomdar.