PARAMESWARAN PILLAI Vs. NARAYANAN NAIR

JUDGEMENT

(1.) Second Appeal 1021 is by the 1st defendant in O. S. No. 1081 of the Principal Munsiff's Court, Trivandrum, and Second Appeal 1022 is by the same person who was the 4th defendant in O. S. No. 187 of 1965 of the same Munsiff's court. The two suits, O. S. No. 187 of 1965 and O.S. No. 1081 of 1966, were suits for redumption of parts of the property scheduled as A schedule property in O.S. 1081 of 1966 which was a suit for redumption of the B schedule item in the plaint which is only a part of the property described in the A schedule therein. The other suit, O. S. 187 of 1965, was for redumption of another part of the A schedule property in O. S. 1081. The property in O. S. 187 of 1965 was in the possession of the first defendant in that suit. The 4th defendant therein, the appellant in S. A. 1022, was only a proforma party in that suit. The suits were tried together and preliminary decrees for redumption of the properties in the two suits were passed in the cases. Appeals were taken and it was con tended before the appellate court that by virtue of S.4A of the Kerala Land Reforms Act, Act 1 of 1964 after its amendment by Act 35 of 1969 (hereinafter referred to as the Act) the mortgagees will have to be deemed tenants and so were entitled to fixity of tenure and that therefore the suits should have been dismissed. The appellate court dealt with the matter in the last paragraph of its judgment and the relevant part of that paragraph reads thus:

(2.) The main contention raised by counsel on behalf of the appellant is that it is unnecessary that the land should be agricultural land in order that the Act may apply to the land. Even for getting the protection of Art.31A of the Constitution, it was submitted that only two conditions need be satisfied. (1) that the legislation must be a measure of agrarian reform, and (2), that it must relate to an estate as defined in Art.31A. Before we proceed to deal with this aspect we shall extract S.4A as well as the exemption section, S.3(1)(ii) on which reliance was placed by the plaintiffs respondents in support of the contention that the Act would not apply to the cases.

(3.) We shall first deal with the exemption provision in S.3(1)(ii) for, if the Act did not apply to the transaction, no further question would arise. A reading of the provision relied on clearly indicates that the exemption will apply in cases where the lease referred to is that of the building alone. The building includes a house, shop or warehouse, but the lease must relate to a building and the site thereof with the land, if any, appurtenant thereto. A reading of the mortgage document indicates that it is a mortgage of land, of a building that is situate in a part of the land and of the well and the trees thereon as well as of other structures in the property. It is not possible to understand the mortgage as relating to a building with its site and land appurtenant thereto. We have, of course, assumed that in view of the deeming provision in S.4A when its conditions are satisfied the mortgage will have to be understood as a lease. Otherwise the exemption will not be attracted at all.