VENKETESWARA IYER Vs. VASUDEVA PAI

JUDGEMENT

(1.) This Civil Revision Petition has been preferred by the plaintiff in a suit for recovery of possession of property with arrears of pattom. During the pendency of the suit the Kerala Stay of Eviction Proceedings Act 1 of 1957 was passed and the defendant applied for stay of the trial proceedings under the provisions of the said Act. This was opposed by the plaintiff on the ground that the property sought to be recovered was a building with the site thereof together with the land appertinent thereto and that he could claim exemption from the operation of the Act under S.3 cl. (c). The Trial Court held that this was a case of lease of land and that it would not fall under S.3 Cl. (c). The proceedings were accordingly stayed The plaintiff has come up in revision.

(2.) It was urged that the provision in S.3 Cl.(c) was exactly similar to those in the Cochin Verumpattomdars Act XVIII of 1118 and the Holdings Stay of Execution Proceedings Act VIII of 1950 and that this provision of the said Acts had come up for construction in certain decisions the latest of which is Nanu Nair v. Krishnan Nair ( 1957 KLT 286 ). It was held by a Bench of this Court that the question whether a particular lease concerns a building and its site together with the gardens or land appertaining thereto or whether it is in respect of a land or garden with a building appertaining thereto was a question of fact depending upon various considerations such as .extent and the nature of the land, the nature of the building, the income from the land and the probable rent of the building It was found on the facts of that case that the land being one with an extent of 1 1/2 acres with a large number of yielding trees thereon and a building attached thereto, S.3(c) of the Verumpattadars Act did not apply. In view of this decision it is unnecessary to consider the earlier decisions as it is seen that each case was decided on its facts. So far as this case is concerned the lessee was in possession of the land and the building even prior to the year 1113 when the lease deed sued on was executed. The lease deed shows that he had valuable improvements even on that day, such as yielding cocoanut trees etc. He was also directed to plant more trees on the land From the description of the building it appears to be a small one. In view of the provisions in the deed regarding improvements already existing and to be made thereafter on the land I have no hesitation in holding that S.3 Cl. (c) is not applicable to this case.

(3.) It was also contended that since there was an issue in the suit covering this question the suit should not have been stayed before entering a finding on the issue. The procedure adopted by the Trial Court cannot be said to be irregular as it was open for the defendant to urge that the suit should be stayed under the provisions of Act I of 1957.