SUNDARAM Vs. GOPALAKRISHNA MENON

JUDGEMENT

(1.) The respondent in Application No. 265/1970 is the petitioner. I may call him the tenant, and the respondent as the landlord. The landlord entered military service sometime in 1959 and he was discharged on 13-3-1967. According to him he obtained the property involved in these proceedings in pursuance of Est. A3 dated 12-3-1962, and thereafter he leased out the property to the tenant under Ext. A4 dated 10-4-1962 on 26-6-1970 he filed an application for resumption of the holding presumably under S.13(2) of Act I of 1964. The tenant questioned the competency of the landlord to apply under S.13(2), and also contended that he was in possession of the property some 30 years back and not under Ext. A4 which, according to him, was a fabricated document. The Tribunal accepted the contentions of the tenant and dismissed the resumption application. On appeal by the landlord the appellate authority found that the application is maintainable and that Ext. A4 is genuine. The matter was nevertheless remitted back to the Tribunal for considering the other questions involved in these proceedings. Hence this revision by the tenant.

(2.) The first contention raised by the tenant is that the landlord has no locus standi to apply under S.13(2) of Act I of 1964 since he was not a member of the Armed Forces on the date on which Act 35 of 1969 came into force. Act 35 of 1969 came into force on 1-1-1970, and if the tenant's contention is right the petition under S.13(2) has to fail because admittedly the landlord was not a member of the Armed Forces on 1-1-1970. The question is whether that is the correct position at law. S.13(1) of Act 1 of 1964 confers fixity of tenure on tenants. But there was an exemption contained in sub-s.(2) of S.13 of the old Act which I may read as follows:

(3.) It was contended by the petitioner tenant that Ext. A4 lease is not genuine. It is in evidence that the paramount owner of this property is one Poomully Mana, which instituted O. S. 312/1948 for recovery of this and other properties with arrears of rent. Ext. A1 is the decree passed in that case and Ext. A2 is the delivery receipt. Ext. A2 is dated 11-10-1956. The tenant m this case has signed Ext. A2 delivery. It is, therefore, clear that his case that he was never dispossessed in pursuance of Ext. A1 decree is palpably false. According to the landlord subsequent to Ext. A2 his uncle obtained the property on lease from the Mana and later on assigned it to him under Ext. A3. Some evidence was let in by the tenant to show that subsequent to 1956 he was cultivating the property. It has to be remembered that the tenant has no case that after Ext. A2 he took the property again on lease from Pw. 1. the vendor under Ext. A3. It is in that background that the genuineness or otherwise of Ext. A4 has to be considered. One of the attestors to Ext. A4 was examined. In view of Exts. A2 and A3 I am inclined to believe the version of the landlord that Pw. 1 was cultivating the property. It is only natural that since the petitioner was serving in the armed Forces he thought of leasing out the property. I therefore agree with the appellate authority that Ext. A4 is genuine and that the tenant's possession commenced only from the date of Ext. A4. The appellate authority was, therefore, right in finding both the questions in favour of the landlord and remitting back the matter to the Tribunal for considering the other questions raised in these proceedings.