SIVADASAN Vs. GOVTNDANKUTTY NAIR

JUDGEMENT

(1.) The question to be considered in the C. R. P. is whether the application under S.72 B of the Kerala Land Reforms Act with regard to a tank or pond is maintainable. The Land Tribunal allowed the application and it has been confirmed by the Appellate Authority. Contention of the revision petitioner is that the property scheduled in the Original Application is not part of the leasehold property and as the tank alone is scheduled in the O. A., first respondent cannot purchase right, title and interest in respect of it.

(2.) First respondent claimed the property under a will executed by Parukutty Amma. Item No. 1 property in the will was set apart to Ramunni Nair. Item No. 5 was set apart to Narayani Amma. First respondent is the son of Narayani Amma. In Para.8 of the will Narayani Amma is given possession and the right to repair the chola (tank or pond) in item No. 1. On the basis of the said recitals first respondent claims exclusive right and possession over the tank. It is contended by the revision petitioner that the tank is situated in item No. 1 property and as possession and right to maintain it alone were given to Narayani Amma there exists no landlord - tenant relationship between the parties and so the first respondent cannot invoke S.72 B of the Act. It is further contended by the revision petitioner that the property scheduled in the Original Application is only a tank which is unfit for cultivation and so no relief can be granted to the first respondent under S.72B, even if he has the right to keep possession of the tank and maintain it for agricultural purposes.

(3.) In the Original Application the first respondent does not have a case that the tank is part of his leasehold property. S.72 provides that all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of Karaimas) entitled to fixity of tenure under S.13 and in respect of which certificates of purchase under sub-s. (2) of S.59 have not been issued, shall, subject to the provisions of the section vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date. "Holding" is defined under S.2(17) as a parcel of land held under a single transaction by a tenant from a landlord. The definition is indicative of the fact that there must be landlord - tenant relationship between the parties to claim benefit under S.72B. "Tenant" is defined under S.2 (57). "Tenant" is a person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and enjoy any land by a person entitled to lease that land. S.2(8) defines a "cultivating tenant". Cultivating tenant means a tenant who is in actual possession of, and is entitled to cultivate the land comprised in his holding. The word cultivate is also defined under S.2 (7) of the Act. A tank which does not form part of the land leased will not be a holding as defined under S.2 (17) of the Act.