AYISOMMA Vs. ABDUL RAHIMAN

JUDGEMENT

(1.) The short question in this revision is whether the decree holders are entitled to recover possession of items 1, 3, 7, 9 and one half of item 8 of the suit property. The claim by the first respondent is one of possession under S.7B of the Kerala Land Reforms Act. That claim having been accepted by the court below this revision has been filed.

(2.) One half of the suit properties belong to the first defendant's tavazhi and the other half belong to two other persons who are predecessors-in-interest of the plaintiffs. One Chathan took a Kuzhikanom lease of one half of the first defendant's tavazhi and also obtained a kuzhikanom lease over the other half. He transferred his leasehold right to one Nani in 1930. In the year 1944 the first defendant granted a melcharth to the second defendant in the suit who is the first respondent in this revision. On the basis of such melcharth the second defendant instituted a suit O. S. 551 of 1944 for recovering the entire property from Nani. He obtained a decree and in execution of the decree took possession of the entire property on 15-7-1945. Thereafter, in 1946, the predecessor-in-interest of the petitioner here original plaintiff in the suit filed the suit for partition" of the one half right and recovery of such one half from the second defendant who had by that time recovered the entire property from Nani apparently on the basis of melcharth given by the first defendant who had only right to one half share. Whether the second defendant would get the rights of a lessee by reason of recovering the property from the lessee Nani and would hold the plaintiffs' one half as the lessee in place of Nani was the main question in controversy in the suit. Ultimately the matter came to this court in second appeal and in S. A. 331 of 1958 this court held that by reason of recovering the property from Nani the second defendant who took the melcharth from the first defendant would not get lessee's right in regard to plaintiff's one half. Therefore a decree for partition was granted. This was confirmed in an appeal against the second appeal. A. S. 68 of 1963. When the matter came up before the execution court for delivery benefit of S.7B of the Kerala Land Reforms Act was urged and that plea succeeded. The petitioners here who challenge that order are the successors-in-interest of the original plaintiff.

(3.) The elements required to apply S.7B are: (1) A person who claims the benefit of the section must be in occupation of land of another on 1-1-1970. (2) Such occupation must be on the basis of a registered deed purporting to be a lease deed. (3) He or his predecessor-in-interest must have been in occupation of such land on 11th day of April, 1957. It is immaterial whether the lease was granted by a person who bad no right over the land or who was not competent to lease the land.