SUBBIAH PILLAI Vs. GOPALA PILLAI

JUDGEMENT

(1.) In this appeal in execution, the second defend, ant (the judgment debtor) is the appellant and the plaintiff the contesting first respondent. The first defendant, the second respondent in the appeal (who was removed from the party array at the instance of the appellant), took on lease in 1122 M. E. the property involved in the appeal consisting of two buildings and 64 cents of land agreeing to construct further buildings thereon with amounts advanced by the first respondent. The buildings had to be constructed within three months of the lease deed: and that stipulation was not complied with. There was another stipulation in the lease deed that the leasehold should not be assigned. Ignoring this latter stipulation, the leasehold was assigned by the second respondent to the appellant in 1124. Then the first respondent filed a suit for evicting the appellant and the second respondent and obtained a decree too in 1958. The appellant took up the matter in appeal before Ibis Court and the appeal was dismissed. And then commenced execution proceedings; and in execution as well, the matter came to this Court twice before.

(2.) The first contention urged by the counsel of the appellant is that the appeal has to be stayed under S.3 of the Kerala Cultivators and Tenants (Temporary Protection) Act, 1970 (Act XX of 1970). In this connection, it is relevant to note the decision of this Court in Choyi v. Kunhiraman ( 1971 KLT 563 ), wherein how Act XX of 1970 came to be passed and to whom all that Act applied have been considered. And it has been laid down that S.3 applies to tenants or persons coming within S.7 and 7B of Act I of 1964 as amended by Act 35 of 1969. Therefore, what we have to consider is whether the appellant will come within S.7 or 7B of Act I of 1964.

(3.) The counsel of the appellant has not made much of an attempt to establish that the appellant came within S.7 or 7B (1): his attempt has been to contend that the appellant came within S.7B(2). We may observe that even this contention cannot be sustained (even if Act XX of 1970 applied to such a case), because S.7B(2) relates to unregistered deeds purporting to be lease deeds granted by persons who had no right over the land or who was not competent to lease the land. The argument before us is that the assignment by the second respondent to the appellant should be treated as a lease by the former to the latter and it should also be treated as a lease by a person who was not competent to grant such a lease. As we have already pointed out, the lease in favour of the second respondent prohibited an assignment of the leasehold to anybody. The deed of assignment is product before us; and it is a registered deed. The deed is not a deed purporting to be a lease: it is an assignment. Therefore, even if that deed was by a person who was not competent to grant a lease, S.7B(2) cannot apply to the case. It may also be noted that S.7 of Act XX of 1970 states in specific terms that nothing in the Act shall apply to any lease or tenancy exempted from the provisions of the Kerala Land Reforms Act by S.3 thereof about which more will be said hereinafter. For these reasons, the appeal is not liable to be stayed.