KAMALAKSHI AMMA THANKAMMA Vs. SICILY JOSEPH

JUDGEMENT

(1.) This C.R.P. is filed under S. 103 of the Kerala Land Reforms Act against the judgement in A.A No. 1049/77 on the file of the Appellate Authority (LR), Alleppey. According to petitioner, I acre of garden land comprised in survey No. 198/7 of Punnapra Village originally, belonged to the tarwad of the revision petitioner's husband. On 9-7-1078 M.E. the said land was mortgaged to one Ouseph Kochouseph for a consideration of Rs. 500/- and thousand Kallookadan paras of paddy for a term of ten years. The nomenclature of the deed is 'Otti'. The consideration was not received by the mortgagor. The mortgagee was directed to discharge a prior encumbrance on the land mortgaged with the money portion of the consideration reserved with him and to construct bunds and reclaim a portion of the mortgage property with the paddy portion of the consideration. A charge for the mortgage consideration was created on all the existing improvements on the mortgage property and the mortgagor undertook personally the liability for the consideration. The revision petitioner got the ownership of the property by gift deed dated 19-12-1957.

(2.) The mortgage right devolved on counter petitioners 2, 3 and 6 other persons. The revision petitioner filed O.S. 254/65 against them in the Munsiff's Court, Alleppey for redemption of the mortgage. After a hot contest, a preliminary decree for redemption was passed on 29-11-1969. Thereafter the revision petitioner applied for passing of the final decree in the suit.

(3.) On 29-6-1976 counter petitioners filed the original application namely O.A. No. 2741/76 under S.72B of the Kerala Land Reforms Act. The revision petitioner filed objections to the Original Application contending that the applications are not tenants as defined in the Act and in view of the pendency of O.S. 254/65, the Land Tribunal has no jurisdiction to decide the question. The land tribunal ignored the objection and held that the mortgage is a tenancy. It further held that the applicants are deemed tenants within the meaning of S.4A(1)(c) of the Act. The revision petitioner filed an appeal against the order of the Land Tribunal. The appellate authority upheld the finding of the land tribunal and dismissed the appeal. It is against the above decision, the present revision is filed.