SANKARAN SARNGADHARAN Vs. J. SARADA PILLAI

JUDGEMENT

(1.) THIS is a revision petition filed under section 103 of the Kerala Land Reforms Act(hereinafter called the Act)against the order of the Appellate Authority(Land Reforms)Alleppey allowing an appeal filed by the respond­ent herein and dismissing O.A.No.1187 of 1970 filed by the revision petitioner before the Land Tribunal,Quilon,under 13A of the Act praying for restoration of possession of the petition scheduled properties.The property in question was outstanding with the revision petitioner under an ottikuzhikanom transaction.The respondent herein,in whom the equity of redemption vested,filed O.S.No.389 of 1966 in the Munsiff's Court,Attingal for redemption of the mortgage and recovery of possession of the property.A preliminary decree for redemption was passed by the Munsiff's Court on 25th February 1969.Subsequent thereto the matter was compromised between the parties out of court and the revision petitioner surrendered possession of the property to the respondent on 19th March 1969.A memorandum of statement setting out the terms of the com­promise and the factum of surrender of the property was jointly filed into court by the revision petitioner and the respondent.

(2.) AFTER the coming into force of Kerala Act 35 of 1969,whereby section 13A was introducted into the Act the revision petitioner filed O.A.No.1187 of 1970 before the Land Tribunal,Quilon contending that he was entitled to be restored to the possession of the holding under section 13A of the Act.That application was allowed by the Land Tribunal by its order dated 16th November 1971.The Land Tribunal took the view that even though the properties had been surrendered by the revision petitioner to the respondent on the basis of the compromise entered into between them,the said compromise must be taken to have been effected because the decree was already passed in the suit and hence the petitioner should be regarded as having been "dispossessed of the land in his occupation on or after the 1st day of April,1964 "within the meaning of the said expression as used in section 13 A of the Act.This view of the land tribunal did not find favour with the appellate authority.The Appellate Authority held that the term 'dispossession 'implies an eviction of a person against his will,and a voluntary surrender,whether it be before or after the decree for redemption,cannot,therefore,be treated as dispossession.Inasmuch as the petitioner in this case had voluntarily surrendered the property to the respondent on the basis of the agreement reached between them,the Appellate Authority held that the provisions of section 13A were not attracted to the case.Accordingly it allowed the appeal and dismissed the application filed by the petitioner under section 13A of the Act.The legality and correctness of the said view taken by the Appellate Authority are under challenge in this revision petition.

(3.) IN the case before us the compromise was entered into between the parties at a time when only a preliminary decree for redemption was passed.It cannot be said that the surrender of the property by the revision petitioner to the respondent was effected otherwise than in a purely voluntary fashion based on the mutual agreement reached between the parties.The Appellate Authority was,there­fore,perfectly right in holding that the revision petitioner could not be said to have been dispossessed of the land in his occupation so as to entitle him to the relief of restoration of possession under section 13A of the Act.