KURIAN Vs. CHACKO

JUDGEMENT

(1.) S. 13 of the Act", and another application, I. A. No. 986 of 1965 in O. S. No. 18 of 1961, before the Subordinate Judge "for stay of the Commissioner's proceedings" to assess compensation for his improvements. It is the dismissal of the latter application that is sought to be revised here.

(2.) COUNSEL relied on S. 12 and 13 of the Kerala Land reforms Act, 1963. S. 13 concedes fixity of tenure to tenants; but the definition of a 'tenant' in the Act would not take in possessory mortgagees. COUNSEL therefore asserted that the transaction under the 'otti Adharam' might be shown to be a Kanom in reality and that though such a plea had once been negatived by the Court by a finding which had become final, the petitioner is still entitled under S. 12 of the Kerala Land Reforms Act, 1963, to re-agitate the question. That Section, in its material part, reads: "12 (1 ). Notwithstanding anything in the Indian evidence Act, 1872, or in any other law for the time being in force, any person interested in any land may prove that a transaction purporting to be a mortgage, otti,. . . of that land is in substance a transaction by way of kanam,. . . under which the transferee is entitled to fixity of tenure in accordance with the provisions of S. 13 and to the other rights of a tenant under this Act. " It is significant to note that the non-obstanti clause in the above provision does not cover a judgment of Court. In the preceding Sections of the Act, namely, S. 4, 5, 6, 7, 8, 9 and 10 of the Act, the provision is "notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgment, decree or order of court", while that in S. 12 is only "notwithstanding anything in the Evidence Act, 1872, or in any other law for the time being in force". The expression 'in any other law for the time being in force' cannot comprehend judgments of court. It is clear that the privilege conferred by S. 12 does not entitle a party to reopen a finding of Court become final and binding on him. It follows that the subsisting finding that the transaction between the petitioner and the counter-petitioner - defendant and plaintiff in the suit - is a redeemable mortgage concludes the matter, and that the petitioner is not entitled to call upon the Court to construe the document afresh under S. 12 of the Kerala Land reforms Act, 1963.