KALIYANNAN Vs. NARASIMHA IYER

JUDGEMENT

(1.) There is neither any merit nor bona fides in the contentions advanced by the revision petitioner in this case.

(2.) O. S. No. 20 of 1951 on the file of the Subordinate Judge's Court, Palghat was a suit instituted by the Ist respondent heroin against the 2nd respondent for partition and recovery of possession of a half share in the plaint schedule properties which were admittedly owned in common by respondents 1 and 2. That suit which was instituted on 9-2-1951 resulted in a preliminary decree for partition rendered on 31-3-1952. Subsequently, a final decree was also passed allotting specific portions of the properties towards the half share claimed by the Ist respondent plaintiff. When proceedings for delivery of possession in execution of that decree were initiated by the Ist respondent, the revision petitioner offered obstruction to the delivery contending that he had a leasehold right in respect of the property allotted to the plaintiff Ist respondent by virtue of an oral lease granted in his favour by the 2nd respondent on 6-2-1951 and a subsequent registered lease deed dated 20-6-1951 executed by the 2nd respondent. Since the order passed by the executing court on the application made before it by the Ist respondent for removal of obstruction was not favourable to him, the Ist respondent instituted O. S. No. 401 of 1961 in the Munsiff's Court, Palghat seeking a declaration of his right to recovery of possession of the property from the present revision petitioner. Though that suit was dismissed by the court of first instance, its judgment was set aside on appeal by the District Court, Palghat which granted the Ist respondent a decree as prayed for by him. The matter was then taken up by the revision petitioner to this Court by filing S. A. No. 796 of 1965. In the meantime, the Kerala Land Reforms Act -- Act 1 of 1964 had come into force and taking advantage of the provisions contained in S.7 of the said Act, a contention was put forward by the revision petitioner appellant in the second appeal that he is entitled to be regarded as a deemed tenant under S.7 of the Act. He also put forward a further plea based on S.2(e) of -- Act 5 of 1969 which provision corresponded substantially to the present S.7B of Act I of 1964 as amended by Act 35 of 1969 that he is entitled to the benefit of fixity of tenure by virtue of his having been in occupation of the land of the Ist respondent as on the 11th day of April 1957 on the basis of a registered document which purports to be a lease deed notwithstanding the fact that the person who granted the lease might not have been competent to lease out the land. Both these contentions were negatived by this Court and the second appeal was dismissed confirming the findings entered by the District Court.

(3.) Thereafter, when the 1st respondent decree holder attempted to take delivery of the property, the revision petitioner moved the executing court with an application for stay of the proceedings under S.3 of the Kerala Cultivators and Tenants Temporary Protection Act, 1970 (Act 20 of 1970). The executing court having rejected that application, the petitioner again came up to this Court by filing C. R. P. No. 33 of 1972. In that revision petition, he reiterated afresh his contentions based on S.7 as well as S.7B of Act 1 of 1964. The revision petition was heard by the very same learned Judge (T. S. Krishnamoorthy Iyer J.) who had previously disposed of S. A. No. 796 of 1965. After considering in detail the tenability of the contentions advanced by the petitioner based on S.7 and 7B of Act I of 1964, the learned Judge held that the petitioner is not entitled to the benefit of either of those sections and dismissed the revision petition.