APPU Vs. KOCHUNNY NAIR

JUDGEMENT

(1.) THE first respondent,who is the landlord,obtained the decree in O.S.275 of 1941 dated the 19th October 1943,for eviction of the appellants,who are the tenants and in execution took delivery of the properties on the 19th June 1945.Afterwards the appellants applied under section 52(1)of Act 33 of 1951 for the restoration of possession of the properties to them.Their application now stands disallowed by the two courts below.The preliminary objection taken for the respondents,to the maintainability of this appeal has to be overruled,on the authority of the decision of the Full Bench in Vaman Namboodiripad v. Narayana Kurup I.L.R.1964(2)Kerala 341 .

(2.) It was contended that the appellants are cult General Salestax Act,1963(Kerala Act 15 of 1963) - ivating verumpattamdars,that the decree for eviction which was passed u General Salestax Act,1963(Kerala Act 15 of 1963) - nder clause(5)of section 14 of Act 14 of 1930 would not have been passed,if that Act as amended later had been in force and that therefore the application for restoration of possession has to be allowed.It has been found concurrently by the lower courts,that the appellants have not been cultivating all the lands comprised in the holding.For this reason,I am of the view,that they are not "cultivating verumpattamdars "of the holding.A "verumpattamdar "simpliciter is defined in section 3(w )(1)of the Act,as "a tenant other than a kanamdar or kuzhikanamdar of a holding,for agricultural purposes,which includes wet lands,and may or may not include other lands " and a "cultivating verumpattamdar in respect of a holding "is defined in section 3(w )(2 ),as a "verumpattamdar who,not being a jenmi,intermediary,or customary verumpattamdar of the holding has,expressly or impliedly,contracted to cultivate the lands in that holding,either as a tenant -at -will or during a fixed term,and actually cultivates the same." In order to be a "cultivating verumpattamdar in respect of a holding "it seems to me that the verumpattamdar must not only have contracted to cultivate,but must actually,that is,directly cultivate,all the lands in the holding and that if he does not cultivate a land in the holding he is not to be considered as a "cultivating verum­pattamdar in respect of a holding " ;.The expression "the lands in that holding "occurring in the definition extracted above,has reference to all the lands in the holding and not to some of the lands only in the holding and the term "same "occurring at the end of the definition has that connotation.A "holding "is defined as "a parcel or parcels of land held under a single engagement by a tenant from a landlord " the rest of the definition being omitted as inapplicable.I cannot accept the argument of learned counsel for the appellants,that a verumpattamdar who cultivates one of the lands only or a portion thereof,in a holding,is to be regarded as a "cultivating verumpattamdar "of the holding.The use of the term "the lands "in the plural is significant.The term "cultivating verumpattamdar "is defined and is referred to in the Act,in relation to a holding,the relevant words being "cultivating verum­pattamdar in respect of a holding " ;.It is therefore im­possible to think of a "cultivating verumpattamdar of a land in a holding " ;.The appellants are not cultivating verumpattamdars of the holding.It follows that the decree for eviction as passed,was not under section 14 at all. Assuming that section 14 is applicable,the decree was passed not only under clause(5)but also under clause(3)of section 14.This is clear from the aver­ments in the plaint and from the judgment.The question to decide in these proceedings is whether such decree,would not have been passed,if the amended Act had been in force at the time.Even though clause(5)of section 14 had been amended,clause(3)had not been amended,and so the decree for eviction could still be sustained under that clause.It was also contended,that the words "such decree "in section 52(1)of Act 33 of 1951 must be understood,not as referring to the decree for eviction as actually passed,but only in relation to clause(5)of section 14 or any of the other clauses mentioned in the section,and that whatever may be the other clauses or grounds on which the suit may have been decreed,they are all irrelevant to the application of section 52(1 ).In my opinion,the term "such decree "refers to the decree for eviction,in execution of which the landlord was put in possession of the property.A decree is whole and entire and is not to be dissected or understood in parts in relation to the grounds on which it is based.The intendment of the legislature in enacting section 52(1)of Act 33 of 1951 and section 5(2)of Act 22 of 1956 was to give retros­pective effect to the amendments introduced by the later Acts in the concerned clauses of sections 14 and 20 of the main Act.But where the decree for eviction can stand or be supported on other grounds on which also the decree was based,and which are not affected by the amendments,restoration of possession is not to be allowed. This second appeal is without merit and is dismissed with costs to the contesting respondents,one set only.