RAJAPPA PILLAI Vs. PONNAMAL

JUDGEMENT

(1.) THIS Civil Revision Petition is for quashing an order of the Additional Subordinate Judge, Trivandrum, refusing the 1st defendant's prayer to stay the trial proceedings in a suit for recovery of possession of property. The plaintiff who is admittedly the owner of the property sued for cancellation of a lease deed executed by the 2nd defendant in favour of the 1st defendant and for recovery of possession of property with mesne profits past and future. According to the plaintiff the 2nd defendant who is her younger brother was looking after the property as care-taker during her absence and he unauthorisedly executed the lease deed in question. The defence set up by the 1st defendant was that the 2nd defendant was the plaintiff's agent and that he was competent to execute the lease deed. He had no case that the plaintiff had authorised the 2nd defendant in writing to enter into transactions in respect of the property. After filing the written statement, the 1st defendant applied for stay of, trial proceedings on the ground that the property was a holding as defined by the Kerala Stay of eviction Proceedings Act, I of 1957, that he was a lessee of the property and that trial proceedings were liable to be stayed under S. 4 of the Act. Holding that the Act would not apply to the suit, the court below dismissed the 1st defendant's application. He has therefore preferred this Civil revision petition Section 4 of the Act is as follows: "stay of eviction proceedings: - Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, with effect on and from the commencement of this Act, no suit or other proceedings for eviction of a person from his holding or for the recovery of arrears of rent in respect of, or for damages for use and occupation of, the holding accrued due before the commencement of the Kerala stay of Eviction Proceedings Ordinance, 1957, shall lie in any court and all suits, proceedings in execution of decrees or orders and other proceedings pending in the Courts at such commencement for such eviction or recovery of arrears of such rent or damages shall be stayed".

(2.) THE argument is that the Act does not provide that the lease should be by a person having an interest in the property and if a lease-hold interest is created and possession transferred, the property leased would satisfy the definition of a holding. I am unable to accept this argument. A lease of immoveable property creates an interest therein and this presupposes that the lessor has some interest in the property which would enable him to convey to the lessee an interest in the property. THE definition of "holding" in Act 1 of 1957 is the same as that in the Holdings Stay of Execution proceedings Act (VIII of 1950 T. C.) A Division Bench of the Travancore-Cochin high Court had to construe this definition in Easwara Kaimal Madhava Kaimal v. Narayana Pillai Krishna Pillai and another, (1951 K. L. T. 279 and it was held that the transaction contemplated is a legally valid transaction by which a leasehold right is created in the property. I agree with this view and hold that until it is established that a valid lease-hold interest has been created by the lease given by the 2nd defendant, it cannot be held that the property covered by the lease-deed is a "holding" as defined by the Act.