JEROME FERNANDES Vs. BE-BE-RUBBER ESTATE LTD

JUDGEMENT

(1.) This second appeal arises out of a suit filed by the appellant herein for recovery of possession of the plaint schedule property with arrears of rent up to the date of suit and future mesne profits. The suit is in respect of an extent of 224 acres 56 cents which forms part of a larger area of 259 acres 56 cents which had best) leased out by the plaintiff's predecessor in office in favour of one A.C.M. Anthraper (deceased) as per a lease deed dated the 17th December, 1926, evidenced by Ext. P. 1. The leasehold right of Anthraper in respect of 224 acres 56 cents included in the plaint schedule was transferred to the defendant company on the 8th May, 1937. under the assignment deed Ext. P2. The lease Ext. P1 was for a term of 35 years and the said period expired on the 17th December. 1961. Thereafter the plaintiff made demands on the defendant for surrender of possession and since the defendant did not comply with the said demand the present suit has been instituted seeking the reliefs aforementioned.

(2.) The defendant company pleaded that it is entitled to fixity of tenure in respect of the holding under the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), hereinafter referred to as the Act, and that therefore the suit for recovery of possession is not maintainable. In the alternative, it was also contended that extensive improvements exceeding Rs. 30 lakhs in value have been effected on the property and that in any event the defendant is entitled to be paid full compensation in respect of those Improvements as a condition before it is called upon to surrender possession of the property.

(3.) Both the lower courts disallowed the plaintiff's prayer for recovery of possession and granted him a decree only for arrears of rent and future rent till date of passing the decree. They concurrently held that the defendant respondent is entitled to fixity of tenure under S.13 of the Act and that the transaction of lease, under which the property is held by the defendant, is not taken out of the purview of Chapter II of the Act since it does not fall within any of the exempted categories enumerated in S.53 of the Act. In this second appeal the plaintiff challenges the correctness of the aforesaid conclusion arrived at by the courts below. Though the Trial Court rejected the plaintiff's prayer for the relief of recovery of possession it entered a finding on issue 2 relating to the defendant's claim for value of improvements, that if the prayer for recovery of possession was to be granted the defendant would be entitled to be paid compensation only in respect of the improvements effected on the property subsequent to 31-10-1956 on which date the Compensation for Tenants Improvements Act (TC. Act 10 of 1956) came into force and that the defendant is not entitled to the value of any improvements effected on the property prior to that date. Though a memorandum of cross objections was filed by the defendant before the lower appellate court challenging the said finding of the Trial Court the learned Additional District Judge considered it unnecessary to go into the said question in view of his conclusion that the plaintiff is not entitled to recover possession of the suit property. Since the question of recoverability of the property is being agitated by the plaintiff before this court in second appeal, the defendant also has filed a memorandum of cross objections challenging the finding entered by the Trial Court disallowing compensation in respect of improvements effected prior to 31 10 1956.