AYISSABI Vs. CHOYI

JUDGEMENT

(1.) Sri. T. L. Viswanatha Iyer, the counsel of the appellant, contends that the reasoning of Velu Pillai J. in Moideen Haji v. Moosa Haji ( 1965 KLT 784 ) will apply to this case. In that case the appellant, who was a purchaser from defendants 1 to 7, claimed benefits of S.106 of Act I of 1964. The landlord, the respondent, issued a notice to defendants 1 to 7 terminating their tenancy; and the appellant purchased from them thereafter. My learned brother has said that for claiming benefits under S.106 a subsisting tenancy has to be predicated; and that there is a distinction between a "tenant" and a "lessee". These are the two grounds on which my learned brother has held that the appellant was not entitled to benefits of S.106.

(2.) Sri. K. N. Karunakaran, the counsel of the respondent, on the other hand, brings to my notice the Division Bench ruling of this Court in Gopinatha Panicker v. Joseph ( 1965 KLT 870 ). In the Division Bench case a decree for eviction was passed against a tenant; and some of the items covered by the decree were also taken delivery by the landlord before Act I of 1964 came into force. Regarding one item there was dispute; and that dispute came up for consideration after the Act came into force, when the judgment debtor claimed that the item was a "holding" and that by virtue of S.132(3) of Act I of 1964 he was entitled to benefits of the Act. It was urged on the side of the landlord that since a decree was passed against the tenant and since the tenant even drew the amount of compensation deposited in court by the landlord, there was no subsisting tenancy, so that he could not have claimed relief under the Act. This contention was overruled by Madhavan Nair J. in second appeal; and that decision was confirmed by the Division Bench. The Division Bench has held that the word ''tenant" is used in the Act to include quondam tenants as well.

(3.) The decision of Velu Pillai J. was rendered only on 23rd June 1965, while the decision of the Division Bench was given on 31st March 1965. Still, neither the Division Bench ruling nor the decision of Madhavan Nair J. which was questioned before the Division Bench appears to have been brought to the notice of Velu Pillai J. In view of the Division Bench ruling, it is clear that the decision of Velu Pillai J. is not correct.