GEORGE Vs. VAREED

JUDGEMENT

(1.) This appeal arises in execution and has been referred to a Full Bench in view of the importance of the questions involved. The Division Bench has not stated the points of importance. The learned Single Judge who referred the case to a Division Bench referred to the decision of the Supreme Court in Eapen Chacko v. Provident Investment Co. (p) Ltd., ( 1977 KLT 1 ) and observed that the decision gave no indication as to whether an execution proceeding can be regarded as a continuation of the suit so as to make it a pending proceeding in a case where the suit was decreed prior to 1-1-1970, (the relevant date for the purposes of this case), and the execution commenced after that date. The learned Judge referred to a number of decisions as having been cited by Counsel in support of the contention that although the suit was itself decreed prior to 1-1-1970 the execution proceeding had to be regarded as pending even if initiated only after that date As against this, the learned Judge noticed the decision of Raman Nayar J. of this Court cited on the other side, in New Model Bank Ltd. v. P.A. Thomas ( AIR 1960 Ker. 243 ), where the learned Judge's observations sound in a different direction. It was in view of this that the reference was made to a Division Bench.

(2.) The decree holder in O. S 559 of 1960 on the file of the Wadakkencherry Munsiff's Court is the appellant in this Second Appeal. The suit was as a reversioner of a limited owner, for recovery of possession of an item of property on title. The defendant claimed fixity of tenure under the proviso at the end of S.3(1)(vii) of the Act, to the effect that nothing in clauses (i) to (vii) shall apply to persons who were entitled to fixity of tenure immediately before 21st January 1961 under any law then in force. His contention was that he was entitled to fixity of tenure under the Cochin Verumpattomdars Act 1118 M.E. Overruling the contention the suit was decreed on 7-2-1964. An appeal against the decision was dismissed on 15-2-1965; and S. A. No. 916 of 1965 was also dismissed by a Division Bench of this Court on 20 8 1969. (vide Cheru Vareed v. Chakunny ( 1970 KLT 739 ). This Court held that the defendant was not entitled to fixity. E P No. 143 of 1971 for execution was filed on 10-8- 1971 and delivery was taken on 18-8-1971 (without notice, as provided in the Civil Procedure Code). A.S. No. 164 of 1971 was filed against the order directing delivery of possession By that time the Kerala Act 35 of 1969 had come into force on 1-1-1970 It had effected substantial amendments to the provisions of the Kerala Land Reforms Act. Among them was the introduction of a new Section dealing with "deemed tenants" viz. S.7B. The provision stated that any person in occupation of the land of another on the date of commencement of Act 35 of 1969 on the basis of a registered deed purporting to be a lease deed shall be deemed to be a tenant, if he or his predecessor was in occupation on 11th April 1957 on the basis of the deed. despite the fact that the lease was by a person who had no right over the land or was not competent to grant the same. By judgment dated 2-10-1973, A.S. No.164 of 1971 was allowed, and the execution court was asked to consider the respondent's claim of tenancy under the amended Act. It considered and negatived the claim On appeal, the appellate court remanded the matter back to the execution court holding that in view of the provisions of Act 35 of 1969, and in particular of the amendments effected by it to S.125 of the Land Reforms Act, the question whether the defendant is a tenant under Act 1 of 1964 or not had to be referred for decision of the Land Tribunal After this remand, the execution court again ruled that the defendant was not entitled to fixity and that he is bound to deliver possession. On appeal, the lower appellate court allowed the appeal and vacated the finding of the execution court and directed the execution court to refer that question for decision to the concerned Land Tribunal under S.125(3) of the Act. This appeal is against the said judgment.

(3.) We quote S.125 of the Land Reforms Act: