SULAIKHA BEEVI Vs. K C MATHEW

JUDGEMENT

(1.) The prime question involved in this appeal is whether the first respondent tenant is entitled to protection under S.106 of the Kerala Land Reforms Act, 1963 (for short 'the Act'). The first respondent claimed permanent tenancy in the suit filed by the appellant landlord under S.24 and O.7 R.1 of the Code of Civil Procedure for eviction under the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Rent Control Act'). The eviction was claimed under S.11(3), 11(4)(i) and (iii) of the Rent Control Act. The Land Tribunal to which the question of tenancy was referred under S.125(3) of the Act, found that the first respondent is entitled to protection under S.106 of the Act placing reliance on the lease deed dated 14.4.1956 produced before it (hereinafter referred to as 'Ext. B9'). The contention of the appellant is that the leasehold right under Ext. B9 was specifically surrendered and a fresh lease deed was executed on 1.1.1962 (hereinafter referred to as 'Ext. A2'). Therefore, the question whether there is surrender of the leasehold right in favour of the appellant also arises for decision in this appeal.

(2.) The relevant facts involved in this appeal are summarised thus: The suit building and appurtenant land originally belonged to deceased father of the appellant. It was demised under Ext. B9 lease deed dated 14.4.1956 executed by him in favour of the first respondent for a period of 5 years on a monthly rent of Rs. 100/-. The said lease was terminated and the property was surrendered on 1st January, 1962. On the same day, the first respondent executed a fresh lease deed as per Ext. A2 in favour of the owner for a period upto 30th April, 1966 agreeing to pay the rent at specified rate for different periods. The rent fixed for the period from 1.1.1962 to 30.4.1962 was at the rate of Rs. 120/- per month and thereafter there was increase in the rent at the rate of Rs. 5/- per month in every succeeding year. On expiry of the term of lease the first respondent had agreed to surrender possession; however, he continued to hold the possession even after 30.4.1966. While so, the owner of the leased premises died on 20.7.1974. As per the decree in O.S. No. 177/1973 of the Sub Court, Trivandrum the appellant, the daughter of the deceased land owner, became the owner of the suit property. Since the tenant had defaulted in payment of the rent from 1.5.1974 the appellant issued a notice under S.106 of the Transfer of Property Act to him terminating the lease from 31.5.1976. The first respondent however refused to vacate the premises and therefore, a petition for eviction OP (BRC) No. 176 of 1976 was filed under S.11(3) and 11(4)(iii) of the Rent Control Act. The first respondent resisted the application claiming permanent tenancy alleging that the building was constructed by him and the timber business in the leased building was being carried on by the firm called M/s. K.C. Mathew and Son (second respondent). In view of this claim, the Rent Control Court rejected the application for eviction. In the aforesaid background, the present suit O.S. 113/77 was filed for eviction of respondents from the plaint schedule building and appurtenant land with arrears of rent under S.11(3) and 11(4)(i) and (iii) of the Rent Control Act. The suit was resisted by the first respondent by denying title of the appellant and also on the ground that he is entitled to get protection under S.106 of the Act. In view of this claim of permanent tenancy, the question was referred to the Land Tribunal, Alleppey under S.125(3) of the Act. The Land Tribunal numbered the reference as OA No. 1175 of 1978 and conducted the enquiry. The Tribunal however placed reliance on the recitals contained in Para.2 of Ext. B9 and found that the building was constructed by the first respondent at his own cost using some articles belonging to the appellant. It further found that the building was constructed prior to 30.5.1967. Thus, the Tribunal held that the respondent is entitled to get the benefit under S.106 of the Act. The learned Munsiff accepted the finding of the Land Tribunal as required to do under S.125(5) of the Act and refused order of eviction. However, while upholding the title of the appellant the Trial Court passed a decree for realisation of rent. Both the appellant and respondents filed appeals before the District Court, Trivandrum. The lower appellate Court dismissed both the appeals holding that the respondents are entitled to get benefits under S.106 of the Act but they are liable to pay arrears of rent to the appellant as decreed by the Trial Court. It is against the judgment and decree in AS No. 432 of 1982 passed by the lower appellate Court the present second Appeal has been filed.

(3.) What are the requirements to be established in order to sustain a plea of immunity from eviction under S.106 of the Land Reforms Act Firstly the land in respect of which the immunity from eviction is claimed shall be one leased for commercial or industrial purpose. Secondly, lessee had constructed building for such purposes before 20th May, 1967. When these requirements are proved, the lessee shall not be liable to be evicted from the land notwithstanding anything contained in the Act, or any other law or in any contract or in any order or decree of court. In case the immunity from eviction is thus established, the lessee shall however be liable to pay rent under the contract of tenancy and such rent shall be liable to be varied every twelve years. This is what actually the first respondent claims in this case. The question to be decided in this context is whether the first respondent has succeeded in establishing the aforesaid requirements under S.106 of the Act. This question can only be answered after analysing the nature of the leased hold right claimed by the first respondent by virtue of Ext. B9 dated. 14.4.1956 and Ext. A2 dated 1.1.1962.