C J ABRAHAM Vs. N P THOMAS

JUDGEMENT

(1.) The petitioner applied for purchases of 98 1/4 cents of land, under S.72 B of Act I of 1964. This item, along with others, was in the possession of the 1st respondent's father under a usufructuary mortgage executed by the jenmies in 1078 M. E. In a family arrangement of the year 1117 M. E., the mortgage right (over the land in question) was allotted to the 1st respondent and he was in possession and enjoyment thereafter. In 1962, he gave the 981/4 cents on otti to the present petitioner.

(2.) In the proceedings before the Tribunal, tenancy was claimed on the basis of S.4A(1)(a). The petitioner was admittedly a sub mortgagee in possession from 1962 only; but it was urged that his mortgagor was in possession from 1078 M. E., and that this period could also be tacked on to make up the "continuous period of not less than fifty years" required under the statute. Explanation II was pressed into service to contend that the 1st respondent was "predecessor in interest" to the petitioner and that the former's possession could also be taken into account. This approach found favour with the Land Tribunal. It held that the otti of 1962 amounted to a transfer by the 1st respondent, of "whatever right he had over the property" in favour of the petitioner, and that there was no residuary right left with the former.

(3.) The Appellate Authority however differed. It preferred to maintain the distinction between assignment of a mortgage right and creation of a sub mortgage; in its opinion, a mortgagee could not be considered as predecessor in interest to a sub mortgagee. And as regards the scope of S.4A(1)(a), this is what the Appellate Authority said:-