PARUKUTTY AMMA Vs. KOCHUNNY

JUDGEMENT

(1.) A "small holder" applied to the Land tribunal, Trichur in the year 1964, for resuming half of the holding from his tenant, under S. 17 of Kerala Act 1 of 1964. The Tribunal allowed it in August, 1965. The identity of the portion to be resumed was fixed in accordance with the tenant's option, and the solatium to be paid, at Rs, 592/83. Under S. 20 of the Act, as it then stood, the solatium payable was an amount equal to one year's rent; and the Tribunal had committed a mistake in taking into account the rent for the whole of the holding, instead of one half thereof. The small holder ("landlord") and the tenant appealed to the Appellate Authority. The tenant's appeal was dismissed, while in the landlord's appeal, the solatium was reduced by 50%. The appeals were disposed of in August, 1966. The tenant did not take up the matter in revision The landlord, who had deposited the whole amount much earlier, then withdrew half of it, and filed an application (E. P. No. 242/67) before the Munsiff's Court for executing the resumption order. Under S. 22 (7) of the Act, as it stood at that time, an order for resumption had to be executed through the civil court, "as if the order were a decree passed by it". The order of the Land Tribunal had thus become final, the solatium had been deposited, and all that remained to be done was to put the landlord in possession of the portion specified.

(2.) FURTHER proceedings were however held up by reason of ordinance 4 of 1967, subsequently replaced by Act 9 of 1967, till the latter was repealed by Act 35/69. Thereafter, the landlord filed E. P. No. 159/70 before the Munsiff's Court for obtaining delivery. The tenant objected on the ground that the order for resumption passed in 1965 was wrong, as he was a tenant entitled for fixity before 21st January, 1961. The learned Munsiff accepted this contention and dismissed the E. P; but on appeal by the landlord, in A. S. No. 28/71, the District Court, Trichur observed: "there can be no doubt that the order passed by the lower court is wrong. Once the Land Tribunal has passed an order for resumption, its validity can be challenged only in the manner prescribed by the provisions of Act 1/64. The lower court, as an executing court, cannot go behind the order and come to a different conclusion on the facts and refuse to execute the order if it is otherwise bound to execute the order". However, the District Court did not allow the appeal for the reason that after 1170, the forum for executing a resumption order was the land Tribunal, and not the civil court. The landlord then moved T. A. 6/73 before the Munsiff land Tribunal. The tenant reiterated that he was entitled to fixity prior to 21 161. He also filed another application as MP. 131/74 for reopening the earlier order and for re-fixation of solatium under the provisions of S. 20, as amended by Act 35/69. The Tribunal held: " (i) S. 108 (3) of Act 35/69 did not empower it to reopen a resumption order which bad become final; (ii) the tenant was a varamdar with no fixity of tenure before 21161; (Hi) if reopening was permissible, the solatium payable under the amended provision would be Rs. 1680/-". In the view taken that there was no scope for reopening the earlier order, the tenant was directed to put the landlord "in possession of the application schedule property" without any further deposit. Against this order, the tenant filed an appeal before the Appellate authority (L R.) as A. A. No 1707/75. By judgment dated 12-11-76. the Appellate authority allowed the appeal in part, holding that solatium was payable at the higher rate prescribed by S. 20 after its amendment by Act 35/69 This higher amount was fixed as Rs. 3360/ -.

(3.) FOR holding that solatium could be refixed at the enhanced rate prescribed by the 1969 amendment, the Appellate Authority adopted the following reasoning. The resumption order had not become final before 1170; it became final only with the judgment in A. S No. 28/71. Under S. 20, solatium was payable to a tenant from whom land "is resumed", and the point of time was therefore the time of delivery and not the passing of an order of resumption. Since delivery had not been effected before 1170, the resumption had not become final. There was therefore nothing to be reopened, and all that was required was to give effect to S. 108 (3) in the pending proceedings. I am referring to the reasoning somewhat in detail only to show that even according to the Appellate Authority, no reopening of a final order passed before 1170 was possible, in proceedings for execution, under S. 108 (3) of Act 35/69.