PAILY GEEVARGHESE Vs. PAILY VARKEY

JUDGEMENT

(1.) THIS case was referred to a Bench by one of us (Krishnamoorthy, J.) as it was felt that there is a conflict between the dictum laid down in Rajagopalan Nair v. Kuppunni (1975 KLT Sh. Note Case No. 163, page 63) and in the order in C. R. P. No. 3115 of 1976, between the same parties in the case. So also, it was felt by the learned Single Judge that the question as to whether subsequent acquisitions after the date of application can be taken into account in determining the extent of land entitled to be resumed under S. 17 of the Kerala Land Reforms Act is an important question to be decided by a Bench.

(2.) REVISION petitioner is the applicant in O. A. No. 199 of 1971 on the file of the Land Tribunal, Ernakulam (which was originally filed as o. A. No. 417 of 1965 on the file of the Land Tribunal, Muvattupuzha and later transferred to the Land Tribunal, Ernakulam and renumbered as O. A. 199 of 1971)which was an application under S. 17 of the Kerala Land Reforms Act, for resumption of one-half of the property namely,1 acre 33 cents of nilam in Sy. Nos. 538/1a, 538/1b, 538/2a and 538/2b2 and 7 cents of purayidom in Sy. No. 545/3 of Vengoor Village, Kunnathunad Taluk. The petitioner alleged that he is a small-holder as defined in the Land Reforms Act and that he is entitled to resume the land. The 1st respondent denied that the petitioner is a small-holder and contended that he is not entitled to resume the land. During the pendency of the petition, the revision petitioner sold 95 cents of land under Ext. P3 dated 26-3-1966 and on the same day he purchased 1 acre 78 cents of land. Accordingly it was contended by the 1st respondent that the petitioner is disentitled from resuming any land under the proviso to S. 17 of the Act.

(3.) POINT No 1-It is conclusively proved by the revision petitioner-applicant as also found by the authorities below that the total extent of land in the ownership of the applicant comes to 5. 91 acres, out of which 1. 33 acres of nilam and 7 cents of purayidom are not in his possession. Thus the property in the direct possession of the applicant as on the date of application or even as on 18-12-1957 (which alone has to be taken into account under Explanation to S. 2 (52) is 4. 51 ordinary acres of land. The classifications of the lands are different which will be dealt with later. S. 2 (52) of the kerala' Land Reforms Act which defines a small holder reads as follows: " (52) "small holder" means a landlord who does not have interest in land exceeding eight standard acres or ten acres in extent, whichever is less, as owner, intermediary, or cultivating tenant, or in two or more of the above capacities, so however that the extent of non-resumable land in his possession as owner or as cultivating tenant, or partly as owner and partly as cultivating tenant, does not exceed (i) two and a half standard acres; or (ii) four acres in extent, whichever is greater. Explanation:-For the purposes of this clause a person who was in possession of, or had interest in land exceeding the limits specified in this clause immediately before the 18th December, 1957, but such extent of land was reduced to the said limits or below by partition or transfer effected after the date mentioned above, shall not be demed to be a small holder nor shall such partition or transfer entitle the allottee or transferee to exercise the rights of a small holder in respect of the land allotted or transferred to him"' We have already held that the land in the possession of the applicant as on 18th December, 1957 as also on the date of the application is the same. From the main part of the Section it is clear that the ingredients necessary for a person to become a small holder are: i) that he should not have interest in land exceeding 8 standard acres or 10 acres in extent, whichever is less; and ii) that the extent of non-resumable land in his possession as owner or as cultivating tenant, or partly as owner and partly as cultivating tenant shall not exceed 21/2 standard acres or 4 acres in extent, whichever is greater. There is no dispute that the applicant is not having interest in land exceeding 8 standard acres or 10 acres. But the main controversy between the parties is as to whether he is having land in excess of 21/2 standard acres of 4 acres in extent. Counsel for the revision petitioner contended that though the revision petitioner is in possession of land in excess of 4 ordinary acres in extent, if on conversion it is less than 21/2 standard acres, he will be a small holder. On the other hand, counsel for the respondents contended that if a person is having land in excess of 4 ordinary acres, he will not come within the purview of a small holder as defined in S. 2 (52) of the Act. Counsel for the revision petitioner relied on a decision of this court in 1975 kltsh. Notecaseno. 163 at p. 6. 3. It is true that in that case there is a statement to the following effect:- "it is not necessary to quantify extent in terms of standard acres, for, the definition of a 'small holder will take a person out of that category if that person has more than 4 ordinary acres in possession as owner or as cultivating tenant. The joint family is also treated as a person. " At the first blush it may appear as if the learned judge has taken the view that if a person is having land more than 4 acres in extent, lie will be out of the definition of a small holder irrespective of the question whether he is having more land than 21/2 standard acres. But on going through the full text of the decision, we are clear in our mind that the learned judge has not meant that in all cases it is not necessary to compute the extent in standard acres to find out whether the person concerned is in possession of land exceeding 21/2 standard acres or 4 acres whichever is greater. On the facts of that case it was not necessary to compute the extent in standard acres as the facts are clear that on computation the extent will exceed 21/2standard acres. Reading the decision as a whole, it is clear that the Short Note report has quoted one sentence from the judgment out of context. The same view has been taken by another learned judge of this Court in Jaiiaki amma and Ors. v. State of Kerala& Ors. (1981 KLN 783 ). A reading of S. 2 (52)makes it absolutely clear that in order to disentitle a person being a small holder the extent of nonresumable land in his possession either as owner or as cultivating tenant, or partly as owner and partly as cultivating tenant, should be above 21/2 standard acres or 4 acres, whichever is greater. In other words, even if a person is having land more than 4 ordinary acres in extent but less than 21/2 standard acres or vice versa he will still be a small holder entitled to the benefits conferred on them.