AYPU KUNCHERIA Vs. M S RAMACHANDRA IYER

JUDGEMENT

(1.) These Second Appeals arise out of O. S. 81 of 1959 and O. S. 85 of 1959 on the file of the Munsiff's Court, Alleppey. These suits are for recovery of properties scheduled to the plaint with arrears of rent based on lease deeds executed by the defendants in the respective suits in favour of the 1st plaintiff therein who is the same in both the suits. The properties involved in the suits are Kandukrishi lands. The suits were decreed by the courts below holding that Act I of 1957 is no bar to the passing of decrees as Kandukrishi lands are exempted from the operation of the said enactment. In these Second Appeals the learned counsel for the appellant submitted that in view of Act I of 1964 the decrees allowing recovery of possession have to be set aside. S.3(1) clause (i) of Act I of 1964 reads thus:

(2.) But the learned counsel for the plaintiffs pointed out that since the suit was instituted in 1959 the law in force on the date of the filing of the suit should apply and if on the date of the filing of the suit the plaintiffs had a right to recover possession of the plaint properties from the defendants that right cannot in any way be affected by the provisions of Act I of 1964 which came into force only subsequent to the disposal of the appeals by the lower appellate court. In support of his contention the learned counsel for the plaintiffs relied on the decision in Deiawati v. Inderjit AIR 1966 SC 1423 . Their Lordships observed at page 1426:

(3.) The fact that the plaintiffs took delivery of possession of the decree schedule property in execution of the Trial Court's decree during the pendency of the appeals cannot affect the question. Whether the appeals have to be decided in accordance with Act I of 1964 should depend upon its provisions. S.132(1)(a) of Act I of 1964 read with S.5 of Act 7 of 1963 will show that these proceedings have to be decided under Act I of 1964 and Act I of 1964 is retrospective. This is also clear from S.13 of the Act, under which if the provisions of Act I of 1964 apply, no recovery of possession is possible in execution of the decrees. This indicates that the Act is retrospective. In the result, I set aside the decrees and judgments of the court below in so far as they relate to the recovery of possession of the properties by the plaintiffs. The decrees and judgments for recovery of arrears of rent are confirmed. The Second Appeals are thus allowed. In the circumstances of the case the parties will bear their costs in this Court.