SANKARAN ASARI Vs. MUTHUMEERAN THAMPI ROWTHER

JUDGEMENT

(1.) This second appeal arises out of a final decree proceedings in a suit for partition. The defendant is the appellant in the second appeal. The suit for partition was laid on the basis that a Vechupakuthy arrangement evidenced by Ext. A dated 8-10-1111 had been entered into by the plaintiff with the defendant for a term of eight years under which one half of the pepper income and Rs. 2/- per year was to be paid to the plaintiff for a period of five years, and thereafter the payment was to be at the rate of Re. 1/- per acre and half the income from pepper. There was a clause in Ext. A that at the end of the term of the Vechupakuthy, one half of the property at the option of the landlord was to be his and the remaining half of the property with the improvements thereon was to be surrendered by document by the plaintiff to the defendant. The suit was laid after the expiry of the term and on the footing that in the light of the above stipulation the plaintiff was entitled to a half share in the property. A preliminary decree for partition of the half share was passed. In the final decree proceedings, the Trial Court disallowed recovery of possession on the ground that the defendant was a tenant under the provisions of Act IV of 1961. On appeal, the lower appellate Court held that by virtue of the provision in Ext. A referred to earlier, the parties had become coowners at the end of the term with the result that the plaintiff was entitled to recover one half of the property with proportionate mesne profits. This second appeal is directed against the said judgment of the lower appellate Court.

(2.) The contention urged is that by reason of the definition under S.2(61) read with S.10(iv) of the Kerala Land Reforms Act, Vechupakuthidar is a tenant and that under S.13 of the Act, notwithstanding anything to the contrary contained in any contract or in any decree or order of court every tenant shall have fixity of tenure. It is therefore contended that despite and irrespective of the term of Ext. A which provides for a share in the property in equal halves between the landlord and the tenant and despite the preliminary and final decrees for partition, the Vechupakuthidar is entitled to fixity of tenure as per the terms of S.13. The amplitude of the non obstante clause and the language of the Section support the contention of the appellant. But counsel for the respondent stressed that under S.13, fixity of tenure is conferred on every tenant only "in respect of his holding". He drew my attention to the definition of the term holding in S.2(17) of the Act, and in particular to Explanations I and II to the said definition.

(3.) Regarding the decree for mesne profits, there was no controversy that in view of the fact that the defendant continued as Vechupakuthidar and as a tenant, the plaintiff respondent would be entitled to recover only the arrears of rent at the rate of Re. 1/- per acre for a period of three years prior to the institution of the suit, and thereafter.