RAMAN Vs. RAGHAVAN NAIR

JUDGEMENT

(1.) The short point that arises for consideration in this execution second appeal is this: what was originally a single holding was split into three separate holdings by the act of parties. The holdings were sold in court auction in execution of a decree for arrears of rent and the decree holder purchased the same and delivery of possession taken in 1965 and 1966. The tenant of one of the holdings applied for restoration of possession under S.13B of the Kerala Land Reforms Act, 1964, for short the Act, complying with the conditions imposed by sub-s.(2) thereof and impleading the tenants of the other two holdings as respondents. Are the tenants of these two holdings who did not either make the applications under S.13B(2) of the Act or make the necessary deposits, entitled to restoration of possession of their holdings under S.13B of the Act. A question whether, in a case where the decree holder purchaser has put the properties in the possession of mortgagees, the application for restoration is maintainable without impleading those mortgagees also arises for consideration. The plaintiff decree holder in O. S No. 63 of 1961 and the first respondent in E. A. No. 662 of 1970 in E. P. No. 363 of 1964 on the file of the Munsiff Court, Tirur is the appellant in this execution second appeal. O. S. No. 63 of 1961 was a suit for arrears of rent in respect of eleven items of properties given on kanom to one Kadungoth Narayani Amma. The first defendant got an assignment of the kanam right in respect of items 1 to 9 while the 2nd defendant got an assignment of the same right in respect of item 10. The kanom right in respect of item 11 devolved on defendants 3 to 5. In execution of the decree for arrears of rent all the properties were sold in court auction and delivery of possession taken in 1965 and 1966. The appellant decree holder gave items 1 to 9 on usufructuary mortgages to strangers. When the Kerala Stay of Eviction Proceedings Act 9 of 1967 came into force, the 2nd defendant filed E. A. No. 935 of 1967 under S.6 of that Act for setting aside the sale and redelivery. A similar application was filed by the 1st defendant as E. A. No. 1170 of 1967. The 2nd defendant died pending the application, and his legal representatives, respondents 5 to 8 here, were not impleaded as they did not apply in time. When the Kerala Land Reforms (Amendment) Act 35 of 1969 came into force, the 1st defendant filed E.A. No 662 of 1970 under S.13B of the Act impleading defendants 3 to 5 and the legal representatives of the 2nd defendant and allowed E. A. No. 1170 of 1967 to be dismissed as not pressed. Overruling the objections of the appellant the learned Munsiff ordered redelivery of items 1 to 9 to the 1st respondent, item 10 to respondents 5 to 8 and item 11 to respondents 2 to 4. The court below dismissed the appeal against the above order of the learned Munsiff. In this execution second appeal the challenge is against the above judgment of the court below.

(2.) S.13B of the Kerala Land Reforms Act, 1964 as inserted by the amendment Act, 35 of 1969. reads:

(3.) Learned counsel appearing on both sides have raised other contentions and relied on a number of decisions. But in view of the above findings I am not dealing with those contentions