OUSEPH LONAN Vs. KOCHUNARAYANA PISHARADY

JUDGEMENT

(1.) This is a second appeal filed by the 4th defendant and the legal representatives of the 1st defendant from the appellate order passed in execution of the decree for recovery of possession of the plaint property in O. S.91/1121 on the basis of the 1st plaintiff's title to it.

(2.) Item No. 1 of the plaint schedule belonged to the predecessor in interest of the 1st plaintiff. It was leased by him to the father of the 1st defendant and grandfather of the 4th defendant in 1070. The lease was subsequently terminated and a suit instituted as O.S. 164/1100 for recovery of possession of the property based on the determination of the lease. The suit was decreed by the Trial Court in the year 1102. The appeal preferred from the decree was dismissed by the lower appellate court, and in SA. No. 702/1107 the High Court on 2-6-1110 confirmed the decrees of the courts below by Ext. C decree. This decree was not executed and it became barred by limitation on 2-6-1116. Thereafter the plaintiffs instituted OS. 91/1121 for recovery of possession of the property on the basis of the 1st plaintiff's title to it alleging that the lease in favour of defendants 1 and 4 had terminated by the decree in OS. 164/1100 and that they were trespassers on the property. That was decreed on 18-2-1121 corresponding to 3-8-1946. When the 1st plaintiff applied for delivery of the property in execution of the decree, defendants 1 and 4 filed CMP. 2881/62 on 31-10-1962 claiming the benefit of Act 4 of 1961, and subsequently CMP. No. 823/63 on 27-2-1963 claiming that they were tenants within the meaning of the term 'tenant' in S.3 of Act 7 of 1963 and were therefore entitled to fixity of tenure. The execution court overruled their contention. They filed an appeal from the order to the District Court of Alleppey, and claimed that they were tenants coming within the ambit of the definition of the term 'tenant' in S.2(57) of Act 1 of 1964 and was entitled to fixity of tenure under S.13 of that Act, since Act 7 of 1963 was repealed by that time. The court came to the conclusion that since defendants 1 and 4 were contending in OS. 91/1121 that they were trespassers with no liability to pay rent, and had prescribed for title to the property by adverse possession, and since those contentions were overruled and the suit decreed on the basis of the title of the 1st plaintiff with past and future mesne profits, they were not tenants, and so were not entitled to fixity of tenure under S.13 of Act 1 of 1964. Accordingly it dismissed the appeal. It is against this order that the second appeal has been filed, The learned Judge before whom the second appeal came up for hearing, referred the case to a Division Bench and the Division Bench referred the case to a Full Bench on the ground that this is a case where two views are possible; and that is how it has come before us.

(3.) We are of the view that notwithstanding the decree in OS. 91/1121 for recovery of possession of the property on the basis of the title of the 1st plaintiff and the contention of defendants 4 and 5 in that suit that they had prescribed for title to the property by adverse possession, the appellants are entitled to fixity of tenure under S.13 of Act 1 of 1964 as amended by Act 35 of 1969.