ABDULKHANI MYTHEENKAN Vs. KAMALA BAI

JUDGEMENT

(1.) The 1st defendant in O S. No. 308 of 1963, 1st Additional Munsiff's Court, Neyyattinkara, is the appellant. The suit was one for redemption of Ext. P1 mortgage dated 30-3-1936 (17-8-1111). Ext P1 is styled as Otti Kuzhikanam. The extent of the property was 13/4 cents. The suit had a chequered career. The minimal facts necessary for the disposal of this appeal are as follows:

(2.) At the time of admission, the following question of law was formulated as a substantial question of law arising for consideration in the Second Appeal:

(3.) Appellant's counsel Mr. B Reghunathan contended that on a perusal of Ext. P1 mortgage deed, it will be evident that the subject matter of the mortgage was 13/4 cents of land. There is no evidence to show that there were trees in the land mortgaged. The appellant has constructed a substantial building in such land before 1-1-1970 On these premises, it is contended that S.4A (1) (c) of the Kerala Land Reforms Act is squarely applicable. The courts below were in error in negativing the said plea. Respondents' counsel, Mr. B. Krishnamoni, contended that having regard to the situation and lie of the property, which abuts on a public road and the purpose for which the land was mortgaged, namely to construct a building, it cannot be stated that the land comprised in the mortgage was waste land at the time of mortgage. Mr. Krishnamoni contended that it may even be that at the time of the mortgage the land was a vacant land, but it is a far cry to say that it is waste land at the time of mortgage. So, the appellant is not entitled to the benefit of S.4A(1) (c) of the KLR Act.