BALAKRISHNA MENON Vs. RAJAGOPALA MENON

JUDGEMENT

(1.) The petitioner before me is the 5th defendant in O. S. No. 52 of 1964. That was a suit for partition of the properties of a Marumakkathayam tarwad. In that suit the petitioner who is a member of the family had put forward a claim that several of the items included in the plaint schedule were being held by him as a tenant under the family and on this basis it was contended that his leasehold right over those items should be reserved while effecting the partition. This contention was fully gone into by the court which tried the suit and it was found that the claim advanced by the 5th defendant was not tenable or true. The court held that the 5th defendant was in possession of the concerned items only for and on behalf of the other members of the family under an arrangement whereby he had been entrusted with the task of cultivating those items on behalf of the members. The Trial Court accordingly passed a preliminary decree for partition of the properties without any reservation of the alleged tenancy rights put forward by the 5th defendant. Defendants Nos. 4 and 5 preferred an appeal before the Sub Court, Palghat challenging the legality and correctness of the preliminary decree passed by the Trial Court. The appellate court found that items 20 to 23 of the plaint schedule were not divisible as tarwad properties and that they were liable to be divided only among the persons who are parties to the document Ext. B1 in proportion to the purchase money contributed by each. Excepting for the aforesaid modification the appellate court confirmed the finding of the Trial Court that all the other items included in the plaint schedule are liable to be partitioned without any reservation of the alleged tenancy right put forward by the petitioner. The Trial Court's judgment and decree were thus varied only in regard to items 20 to 23 of the plaint A schedule to the extent indicated above.

(2.) While the proceedings for passing of a final decree were pending before the Trial Court, the 5th defendant filed I. A. No. 1219 of 1971 before that court under S.108(2) of the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) praying that the preliminary decree passed in the suit should be reopened and the questions raised by him in the suit should be decided afresh in accordance with the provisions of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) as amended by Act 35 of 1969. The principal contention advanced by him in respect of the said prayer was that the decree is one for his dispossession and that under the Kerala Land Reforms Act as amended by Act 35 of 1969 be Ss not liable to be dispossessed from the properties as he is entitled to be treated as a deemed tenant under S.7 of the said Act read with Explanation to the said section as amended by Act 35 of 1969. The lower court dismissed the said application holding that the decree passed in the partition suit on the basis of the finding that the petitioner 5th defendant was in possession of the properties only in his capacity as a member of the family, cannot be regarded as one for the dispossession of the petitioner and that, in any event, the petitioner is not a tenant coming within S.7 of Act 1 of 1964 as amended by Act 35 of 1959. This civil revision petition has been preferred by the 5th defendant challenging the order so passed by the learned Munsiff.

(3.) S.108(2) of Act 35 of 1969 is in the following terms: --