2015 Supreme(SC) 682

SUPREME COURT OF INDIA
M.Y. EQBAL, AMITAVA ROY, JJ.
N.K.RAJENDRA MOHAN – APPELLANT
Vs.
THIRVAMADI RUBBER CO. LTD & ORS – RESPONDENTS
CIVIL APPEAL NO. 5163/2012
Decided On : 02-07-2015

IMPORTANT POINTS
Plea cannot be raised for the first time before higher forum, that too without a foundation in the plaint.
By afflux of time a lessee cannot become a tenant.
When the lessee held over even after expiry of lease and continued to pay rent and grew plantation which existed on coming into force of the Act 1963, exemption provisions u/s 3 would not apply. The Act would apply to such area entitling the lessee to fixity of tenure.

Headnote:(a) Kerala Land Reforms Act, 1963 – Section 2(44) and (47) – Lease deed encompassing land admeasuring 963-1/2 acres which included hills, water channels, poyils lands etc – Only 925 acres fit for cultivation – Thus no plantation or private forest on the leasehold land – Deed not putting any restriction or regulation on the nature of cultivation/plantation by the lessee. (Para 18)

       (b) Administration of Justice – Judicial Propriety – Plaint not referring to any plantation on the date of lease deed – The plea based on Section 3(1)(viii), Kerala Land Reforms Act, 1963 without foundation in the plaint – That too, raised for the first time before the High Court – Ought not to have been entertained by High Court. (Para 19)

       (c) Transfer of Property Act 1882 – Section 116 – Lease deed – Renewed year after year – Respondent company, a lessee – Not a tenant for plantation – Cannot be contended that by afflux of time the status of the company changed from lease to tenancy having an area more than 30 acres of plantation. (Para 20)

       1949-50 FCR 262; (1972) 1 SCC 388; AIR 1973 SC 2520 – Relied upon

       (d) Administration of Justice – Judicial propriety – Issue raised for the first time before Supreme Court – Not permissible and entertainable. (Para 21)

       (e) Kerala Land Reforms Act, 1963 – Section 3(1)(vii)/(viii) and 13 r/w section 2, Malabar Tenancy Act 1929 – Plantation not existing on the lease land on the date of lease – However plantation did exist on the date of coming into force of the Act – Section 2 of Act 1929 not applicable – Lease deed executed for 36 years in 1918 – Lessee respondent company holding over after 1954 – Continuing as lessee and paying lease rent till 1978 – Raising plantation to which neither section 3(1)(vii) nor 3(1)(viii) applies – Hence the Act applies to the case – Therefore respondent company held entitled to fixity of tenure u/s 13 – As to consequences of applicability of the Act, it is matter between the State and the respondent company – Appellant would have no role. (Para 32, 34)

       1972 KLT 613 – Approved

       (1962) Suppl. 1 SCR 829; 1972 KLT 914; (1972) 2 SCC 492 – Distinguished

       (2005) 10 SCC 566; (1997) 4 SCC 114; (2003) 8 SCC 526 – Referred

       Facts of the case:

       The appellant alongwith others instituted a suit against the Respondent No. 1 praying for its eviction from the suit land and realization of arrear rent, damages etc. on the ground that the suit land had belonged to their Tarwad and was a private forest an area of 963.75 acres of which was leased out on 21.6.1918 to one Mr. Campbell Hunt for a period of thirty six years whereunder, the lessee was liable to pay a sum of Rs. 693.75 per annum towards annual rent. Eventually the respondent-company stood inducted to the suit land with the same status.

       The plaintiffs, the joint owners of the property, asserted that neither the original lessee Mr. Campbell Hunt nor his successors did derive fixity of tenure or right of ownership either under the lease deed or the provisions of the Kerala Land Reforms Act 1964 or any other tenancy laws prior thereto.

       The Plaintiffs admitted that it (respondent-company) had raised a rubber estate on the suit land. It was alleged that the respondent-company also did not pay the lease rent as fixed i.e. Rs. 693.75 per annum for the year 1979, 1980 and thereafter.

       The suit was dismissed. The appeal preferred by the plaintiffs met the same fate. Being still aggrieved, they (appellants) did take the challenge before the High Court of Kerala. By the judgment impugned, the High Court has sustained the adjudication of the Courts below.

       Finding of the Court:

       The concurrent findings of forums below do not require interference.

       Result: Appeal dismissed.