PARVATHY BHAGINI Vs. KESAVAN VELUKUTTY

JUDGEMENT

(1.) The Kerala Land Reforms Act (Act 1 of 1964 as amended by Act 35 of 1969) brought about comprehensive land reforms in the State. As per S.72 of the Act all right, title and interest of the landowners and intermediaries in respect of the holding held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure subject to certain exceptions, vest in the Government free from all encumbrances. S.72B of the Act enables the cultivating tenant to purchase the landlord's right, title and interest vested in the Government. S.17 of the Act allowed a small holder to resume from bis tenant a portion of the holding not exceeding a half. 'Small holder' is defined under S.2(52) of the Act. Procedure for resumption has been prescribed under S.22 of the Act. For resumption the landlord shall apply to the Land Tribunal within whose jurisdiction the land is situate. S.132 of the Act deals with repeal and savings. Under S.132(3)(c) in respect of the pending proceedings the Civil Court also has been given power to deal with the application for resumption. The question that arises for consideration is whether the Civil Court or the Land Tribunal is the competent forum for allowing resumption Before the learned single Judge, the learned counsel for the appellant contended that S.132(3)(c) may not be applicable to the instant case and the Civil Court has no jurisdiction. The learned Single Judge entertains doubt regarding the correctness of the Division Bench decision in Balachandra Panicker v. Ibravil ( ILR 1978 (1) Ker. 293 ) for the reason that the attention of the court was not drawn to the non obstante clause in S.132(2) of the Act. Therefore the matter has been referred to the Division Bench.

(2.) The brief facts of the case are as follows: Defendants 2, 3, 4, 6, 8, 9, 10 and 13 are the appellants. The suit was originally filed for redemption of an Otti kuzhikanom The plaint schedule property originally belonged to one K. Padmanabhan. He executed an otti-kuzhikanom on 1-5-1089 in favour of one Ummini. Subsequently. Govindan, the husband of the first defendant and father of defendants 2 to 14 got assignment of the mortgage, This mortgage right devolved on defendants 1 to 14 after the death of Govindan. There was a partition in the Jenmi tarwad in 1094 among the legal heirs of Padmanabhan. Plaint property was allotted to his children Thaivani, Kochappi, Pachi and Valley. The 2nd plaintiff is the senior most member of the branch of Pachi and the first plaintiff is the senior most member of the branch of Valley. These two plaintiffs filed O. S.579/1115 for redemption. The suit was decreed, but the decree was not executed. Thereafter the present suit was filed for redemption of the otti-kuzhikanom. The plaintiffs alternatively contended that in case the redemption cannot be allowed, they may be allowed to resume half of the property. The defendants contested the suit by claiming fixity of tenure. They also alleged that they had effected improvements in the property. The Trial Court held that the defendants have fixity of tenure and the plaintiffs being small holders are entitled to get resumption of half of the plaint schedule property on deposit of proportionate mortgage amount. The defendants filed appeal and the appeal also was dismissed. Hence this second appeal.

(3.) The finding that the plaintiffs are small holders is not disputed. It is also not disputed that the defendants are tenants in respect of the plaint schedule property by virtue of the inclusive definition of S.2(57) of the Land Reforms Act. The Trial Court as well as the lower appellate court held that the Civil Court has jurisdiction to entertain the application for resumption. However, the argument now advanced by the learned counsel for the appellant is that S.132(3)(c) of the Land Reforms Act does not empower the Civil Court to entertain an application for resumption and that provision does not apply to any suit of this nature.