KARAYIL AYISA Vs. ABDULLA

JUDGEMENT

(1.) The revision petition under S.103 of the Kerala Land Reforms Act, 1 of 1964, arises from proceedings before the Land Tribunal, Nileshwar, under S.72B of the Act. The revision petitioner has filed O.A. No. 4725/75 before the Land Tribunal, Nileswar, claiming that 75 cents of lend in R.S. No. 226/3 of Pulikkode Village of Hosdurg Taluk is in the direct possession of the revision petitioner as tenant, that he is entitled to fixity of tenure and entitled to purchase the landlord's right. The petitioner claimed that the property is in her possession and enjoyment since 31-8-1960, that she constructed a residential building investing about Rs. 35000/-, that Exts. A1 and A2 registered documents were produced in support of the claim besides Ext. A3 series basic tax receipts. As per Ext.A1, the landlord Ibrayin granted a Kuzhikkanam lease in favour of Mammadbunhi who has assigned the right under Ext. A2 in favour of the revision petitioner on 31-8-1960.

(2.) The claim of the revision petitioner was resisted by the 2nd respondent mainly on the ground that the lease granted under Ext. A1 falls within the mischief of S.3(1)(vi) of the Act. It was stated that Ibrayin who granted the lease had only a life interest in the property and the tenant or the assignee are not entitled to fixity of tenure. The Land Tribunal by order dated 4-11-1976 upheld the claim of the petitioner and directed the assignment of the landlord's right in respect of the 75 cents fixing the purchase price as Rs. 45/-. The 2nd respondent preferred an appeal before the appellate authority. The appeal was allowed on 5-5-1981 holding that the tenancy is one created by person having limited interest, that the landlord had only the right to take usufructs from the property under Ext. B1 maintenance udampadi. In this view it was held that the petitioner is not entitled to the benefits as cultivating tenant provided under S.72 of the Act. Being aggrieved the revision has been preferred.

(3.) The main point in controversy is that the tenancy evidenced by Exts. A1 and A2 falls under the exempted category mentioned in clause (vi) of the sub-s.(1) of S.3. S.3(1) of the Act provides in clause (vi) that nothing in Chapter II shall apply to tenancy in respect of the lands created by persons having only life interest or other limited interest in the land. The proviso under S.3(1)(vii) substituted by Act 35 of 1969 with effect from 1-1-1970 reads: "provided that nothing in clauses (i) to (vii) shall apply in the cases of persons who were entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force or persons claiming under such persons". The land in question is 75 cents in R. S 226/3 of Pulikkode Village of Hosdurg Taluk. The case of the revision petitioner is that the schedule property is in her possession and enjoyment since 31-8-1960 and that the petitioner is a cultivating tenant. Under Ext. B1 Nischayarekha dated 30-1-1935 this property was included as item No. 4 in schedule A, set apart to the Tavazhy of one Ibrayin a member of a Mappila Marumakkathayam Tarwad. It was provided in Ext. B1 that the properties belonging to the common tarwad are being allotted to the different tavazhies for maintenance. It was further provided that the property in A schedule shall be enjoyed by the Tavazhi that consisted of part Nos. 2 to 10 with the stipulation that item No 4 in A schedule shall be in the exclusive possession of the third party during his life time with no right to encumber or alienate the same. This item was outstanding on oral lease when Ext. A1 registered lease deed styled as 'Kuzhikanam' was executed by Ibrayin in favour of one Mammedkunhi in 1958. The petitioner has taken an assignment of the leasehold right under Ext. A2 in 1960. She is accordingly in possession. Ext. A3 series basic tax receipts, evidence such possession by the petitioner. In the face of these documents it cannot be disputed that the petitioner is in possession and enjoyment of the land on the basis of lease granted by a member of the tavazhi having exclusive possession under the provisions of Ext. B1. The lessor Ibrayin as a member of the tavazhi was also a joint owner of the land at the time, the lease was granted.