ACHUTAN Vs. CHOYI

JUDGEMENT

(1.) ACCORDINGLY, a decree was passed in favour of the plaintiff for recovery of possession of the properties from the defendant on payment of the mortgage amount and the value of the improvements effected by the mortgagee. The 1st defendant took the matter in appeal to the Sub-Court at Calicut. During the pendency of that appeal he died and his legal representatives who are the present petitioners, were impleaded as additional appellants. The appeal went against them. They took the matter in second appeal to the Madras high Court where also the decree for redemption of Ext. A2 was confirmed. Exts. BI and B2 are copies of the judgments in these two appeals. Thus all the three courts concurred in the finding that Ext. A2 was only a possessory mortgage. In execution of the decree in that suit, the plaintiff obtained possession of the properties on 22-6-1950 and thus the decree was satisfied. Subsequently, the Malabar Tenancy Act was amended by the passing of Act XXXIII of 1951 and under S. 52 of the Amended Act a special right was created in favour of a tenant to get back possession of the properties from a decree-holder under certain specified circumstances. The legal representatives of the 1st defendant wanted to take advantage of this section and accordingly they filed Execution application No. 199/1953 praying for redelivery of the properties to them on payment to the decree-holder-plaintiff of all the amounts that may be found to be legally due to him. This application was opposed by the plaintiff on several grounds the most important of these being that the conditions prescribed by s. 52 are not satisfied in the present instance and therefore the petitioners are not entitled to invoke the aid of that section. The lower court upheld this contention and dismissed the petition for re-delivery. The revision petition is directed against that order.

(2.) THE question whether the petitioners are entitled to seek the aid of S. 52 of Act XXXIII of 1951 has to be examined in the light of the conditions incorporated in the section itself. THE section runs as follows "52 (1 ). Where before the commencement of this Act, a landlord in the District of Malabar has obtained possession of a holding in execution of a decree passed by a court on or after the 1st July 1942, under Clause. 5 or Clause. 6 of S. 14 or under Clause. 5 or clause. 6 of S. 20 of the said Act and such decree would not have been passed if this Act had been in force at the time, the tenant shall be entitled to be restored to the possession of the holding with all the rights and subject to all the liabilities of a tenant if he makes an application in that behalf to the court which passed the decree, within 12 months from the commencement of this Act: Provided that before such restoration is effected, the tenant shall be bound to return to the landlord (1) the value, if any, paid by the landlord to the tenant for his improvements (2) the kanartham, if any, and (3) the value of the improvements, if any, effected bonafide by the landlord between the date on which he obtained possession of the holding and the date on which possession thereof is restored to the tenant. (2) If a landlord has obtained possession of a holding in the circumstances specified in sub-section (1) and if at the time he obtained such possession there were intermediaries between him and the tenant, then the provisions of sub-section (2) of S. 43 of the said act shall apply to such intermediaries as they apply "in relation to the intermediaries referred to in that sub-section. (3) Nothing contained in this section shall affect the rights of any bona fide transferee from the landlord" It is obvious that the section is intended to confer a special right on a tenant under certain special circumstances to the prejudice of the right which had already become vested in the landlord. Naturally therefore the section has to be very strictly construed and every one of the conditions incorporated therein must be proved to be satisfied before the relief contemplated can be granted to the tenant.