AMMUKUTTY Vs. MURUGAN ALIAS APPU

JUDGEMENT

(1.) The question in this Civil Revision Petition is whether the heirs of a landlord who was not a small holder, could claim resumption on the allegation that on partition of the deceased's estate they have obtained small bits making them small holders. The property belonged originally to one Ramakrishnan. He was possessed in all, of more than 5 acres of dry land. He died leaving his widow and two sons Narayanan and Gopalakrishnan. Narayanan also died subsequently, leaving his widow and son. The widow of Ramakrishnan, the widow and son of Narayanan, and Gopalakrishnan, the surviving son of Ramakrishnan, all applied under S.15 read with S.22 of Act 1 of 1964 for resumption of an extent of 20 cents, in each case for the purpose of constructing buildings thereon for their residence. The petitions are O. A. Nos. 384 of 1965 by Gopalakrishnan; 226 of 1965 by the widow of Ramakrishnan and 401 of 1965 by the widow and son of Narayanan. All these petitions were resisted by the tenant on the ground that the estate must be presumed to continue as a single unit in spite of the death of the original landlord. The learned Tribunal dismissed O. As. 384 and 401 holding that the petitioners therein are not small holders. O. A. 226 of 1965 preferred by the widow of Ramakrishnan was however allowed and the 20 cents claimed by her was directed to be separated and given to her. On appeal, the learned appellate authority reversed that decision and ordered the dismissal of O.A. 226 of 1965 also. It is against that judgment of the appellate authority that this revision has been preferred.

(2.) I think, the view taken by the learned appellate authority is the correct one. Petitioner in O. A. 226 of 1965 cannot be treated as a landlord for purpose of S.15 of the Act. He is only the bolder of a fractional share in the right of the landlord namely, Ramakrishnan. The position is that there in only one holding in the case and right of presumption can be exercised only once. All the legal representatives of deceased Ramakrishnan can join together and exercise their right of resumption rather than preferring separate applications on the ground that they are entitled only to fractional shares and in that view, they should be treated as small holders. Gopalakrishnan and Narayanan were admittedly possessed of more than 2 acres each, of dry land. The land possessed by the petitioners in O. A. Nos. 384 of 1965 and 401 of 1965, therefore, must also be considered in deciding the question whether the petitioner in O. A. 226 of 1965 is possessed of land in excess of 2 acres. In other words, the dry land possessed by all the three petitioners should be pooled together and considered, to see whether the petitioners would come under the category of 'small holders'. They can only be treated as coowners and it is settled law that