MOHAMMED Vs. RUKKIYA

JUDGEMENT

(1.) THE defendant is the appellant. THE suit filed by the respondent was for recovery of possession of the plaint schedule property. According to the plaintiff, the property was held by the defendant under an entrustment by the plaintiff. THE plaintiff claimed title to the property and in para. 4 of the plaint specifically pleaded that while she was in possession, the defendant had been entrusted with the property for the purpose of cultivation in Makaram 1144 M. E. (January - February 1969) with the liability to pay 40 paras of paddy to the plaintiff on an undertaking that he will surrender the property on demand. Notwithstanding the expiry of the period, the defendant continued in possession. It was pleaded in para. 7 of the plaint that the defendant had paid the profits due for the years inclusive of 1147 M. E. (1972) and had thereafter failed to pay the same. THE plaintiff claimed recovery of possession with past profits for two years prior to the suit. In para. 8 of the plaint it was pleaded that since the entrustment in favour of the defendant was in January-February 1969, the defendant was not entitled to any protection on the basis that he is a tenant under the Kerala Land Reforms Act. THE plaint did not indicate if and when the entrustment was terminated and whether any notice was issued in that behalf. THE defendant resisted the suit by pleading that the transaction really amounted to an assignment and in fact was not a lease. THE defendant put the plaintiff to proof of her title and put forward a case that it was really a case of an assignment of the tenancy right of the plaintiff in favour of the defendant. THE liability to pay profits and to surrender possession were denied. It was claimed that the defendant had tenancy right over the property and he had applied to the concerned Land Tribunal claiming an assignment of the right, title and interest of the landlord. He sought a reference of the question as to whether he is a tenant entitled to fixity of tenure or not under the Kerala Land Reforms Act to the Land Tribunal in terms of S. 125 (3) of the Kerala Land Reforms Act. In short, the defendant denied any liability to be evicted.

(2.) THE trial court refused to refer the question of tenancy to the Land Tribunal under S. 125 (3) of the Kerala Land Reforms Act. THE trial court held that the defendant was a tenant and satisfied the definition of a tenant contained in S. 2 (57) of the Kerala Land Reforms Act. But the trial court held that since the tenancy originated in the year 1969, the same was hit by S. 74 of the Kerala Land Reforms Act and hence the defendant was not entitled to fixity of tenure under that Act. THE trial court further found that the plaintiff had failed to prove her title to the plaint schedule property, that the oral assignment set up by the defendant was not true, that the suit was one on an entrustment and even though no notice under S. 106 of the Transfer of property Act was issued terminating the tenancy since the defendant had no case that he was holding over on tenancy, the absence of a termination of tenancy would not matter. THE trial court ultimately dismissed the suit on its finding that the plaintiff has failed to prove her title. On appeal by the plaintiff, the lower appellate court held that the finding of the trial court that the defendant had no fixity of tenure under the Kerala Land Reforms Act was correct though it erroneously stated that the said finding had become final 'since the defendant had not filed any appeal against that finding. Since the suit was dismissed there was no need for the defendant to file any appeal. THE lower appellate court held that the trial court was in error in holding that the plaintiff has not proved her title to the property. In the view of the lower appellate court since there was no fixity of tenure available to the defendant under the Kerala Land Reforms Act the plaintiff was entitled to recover possession on the strength of title. In that view the lower appellate court reversed the decree of the trial court and decreed the suit. THE lower appellate court did not consider the question whether the defendant had not been let in by the plaintiff as a tenant and whether the tenancy did not require to be terminated before the plaintiff could claim recovery of possession. It also did not consider the other aspects that arose in its view that the prayer for recovery should not be disallowed on'flimsy technical grounds'. It is this decree mat is challenged before me by the defendant.

(3.) SECTION 74 of the Kerala Land Reforms Act reads thus: "74. Prohibition of future tenancies: - (1) After the commencement of this Act, no tenancy shall be created in respect of any land. (2) Any tenancy created in contravention of the provisions of sub-section (1) shall be invalid". It is interesting to note that prior to the amendment of this section by S. 56 of the Kerala Land Reforms (Amendment) Act, Act 35 of 1969 mere was a proviso to sub-section 1 of S. 74 of the Act enabling certain landlords who could be said to be suffering from some sort of disability from the rigour of this section with a further provision that the tenant under a transaction created by those persons would not be entitled to any right conferred on a tenant by Chapter II of the Kerala Land Reforms Act. In other words, certain persons labouring under some disability specified in the proviso could grant a lease without it becoming invalid but without the said transaction conferring fixity of tenure on the tenants under such tenancies. Obviously the policy of the law that mere shall be no tenancy created in respect of any land after 1-4-1964 has been clearly manifested by the legislature by omitting the proviso which saved certain tenancies from the rigour of the rule. The scope of this section fell to be considered by His lordship Mr. Subramonian Poti, Acting Chief Justice in the decision in C. M. A. No. 199 of 1980 short noted in Kannan v. Kunhabdulla (1981 KLT SN. 95 Case No. 169 ). His Lordship held that the provision in S. 74 is a provision reflecting a wholesome policy, the policy of terminating feudal relationship in the State in regard to lands falling within the scope of the Kerala Land Reforms Act. It is the relationship of landlord and tenant in regard to such land that is sought to be put an end to and it is for the promotion of such a policy that while conferring rights on the tenants in respect of tenancies subsisting on the date of commencement of the Act simultaneously the Act prohibits further creation of tenancies. Therefore the prohibition in the section is absolute and operates to nullify and leases that may be purported to be created". The scope of S. 74 came up for consideration before His Lordship Mr. Pareed Pillay, J. in S. A. 864 of 1982. Therein the claim by the defendant was that even though the lease in his favour was hit by S. 74 of the Act, he was entitled to value of improvements effected on the strength of that lease. His Lordship held that S. 74 of the Act prohibits leases after the commencement of the Act. S. 74 (2) suggests that any tenancy created in contravention of sub-section 1 shall be invalid. After referring to S. 23 of the Indian Contract Act, his Lordship held that the lease in that case was one which was clearly forbidden by the Land Reforms Act and hence the court could not accept it. His Lordship proceeded to observe that acceptance of such a lease would certainly amount to the court being a party to an illegal act. His Lordship referred to the principle of public policy ex dolo malo non oritur actio and held that as the very case of the defendant in that case stemped from a lease which was statutorily interdicted, the lessee could not legally claim any rights flowing from that transaction. These two decisions do indicate that no rights could be rested upon on a transaction of lease purporting to be created by the parties in violation of S. 74.