MATHAI VARKEY Vs. MARIAM

JUDGEMENT

(1.) THE only point that really arises in this revision petition is as to the applicability of S. 4a which was introduced by Act 9 of 1967 into Act 1 of 1964. THE suit out of which this revision arises is one for redemption of a possessory mortgage. THE mortgagee, encouraged by S. 4a, requested that the proceedings be stayed because he claimed to be a deemed tenant within the meaning of S. 4a. It is trite law that before a person can claim to be a tenant within the meaning of S. 4 A he must fulfil four conditions, three of which are, at any rate, prima facie answers in favour of the mortgagee in the present case THE disputed qualification is the one relating to the property comprised in the mortgage being waste land at the time of the mortgage.

(2.) EVEN at the outset I may state that the learned munsiff was in error in pronouncing finally on the question as to whether the defendants were tenants under the Kerala Land Reforms Act because that was a conclusion to be reached after detailed investigation at the trial of the suit. All that the Court has to consider in a stay petition is a prima facie case as to whether the petitioner before it is a tenant or not. It has been so held by a Division Bench of this Court and so the observation of the learned Munsiff "after hearing the parties and looking into the fresh evidence adduced in the case, I have come to the conclusion that the transaction in the present case is a tenure and defendants 1 and 2 are tenants and not mortgagees is inept. He can only come to a tentative conclusion, a primafacie finding, and cannot foreclose his mind by these observations when the suit comes on for trial at a late r stage. I dare say the court when it tries the suit will dispose of the issue regarding tenancy untrammelled by the observations made by the learned Munsiff in these proceedings.

(3.) WASTE land, according to the Shorter Oxford Dictionary means: "waste or desert land, inhabited (or sparsely inhabited), an uncultivated country; a wild and desolate region, a wilderness. &quot ; It also means: "a piece of land not cultivated or used for any purpose, and producing little or no herbage or wood. In legal use a piece of such land not in any man's occupation, but lying common". In the present case the circumstance that there ate few scattered trees cannot, having due regard to the explanation to S. 4a (a), nullify the case that the mortgaged land is waste land But, independently of these few scattered trees, can we call it waste land in the sense in which I have explained above. On this, there is no evidence adverted to by the trial court. Nor is there such an approach to the question. All that the Court has done is to find out whether there are trees on the land; if so, whether they are few or scattered, and treated the presence of scattered trees as the test of waste land.