The sub-mortgagee in possession of land is entitled to invoke the provisions of S.4A of the Kerala Land Reforms Act, 1963, if he satisfies the other conditions contemplated therein.

1. This appeal is directed against the remand order in A. S. No. 38 of 1980 of the District court, Trivandrum.

2. The facts can be summarised as follows: The property of which the suit property was a portion originally belonged to Ayyan Velutha. He executed Ottikuzhikanam deed in favour of Ceelia Ummal on 1-2-1062. The mortgage right devolved on one P.K. Muhammed Ali. Velutha Ayyan, a heir of Ayyan Velutha executed another Ottikuzhikanam in 1077 in favour of P. K Mohammed Ali in renewal. The mortgage right was assigned in favour of Mytheenkunju under Ext. D in 1085 However, in 1113 Mohammed Ali executed Ottikuzhikanam which under Ext. I assignment of 1119 came to vest in the defendants. Meanwhile Velutha Ayyan and his children under Ext. H of 1089 sold the properties to Aysha Ummal, who in turn, sold her right in 3 03 acres of land in favour of the plaintiffs under Ext. A of 1120. Plaintiffs along with Aysha Ummal filed a suit, O. S. No. 1392 of 1120 for redemption of the mortgage. The suit was decreed. At the stage of execution the property involved therein except the present suit property was delivered. In regard to the present suit property (2/3 of 19 cents in survey no. 1879/6- i.e., 12 2/3 cents) the guardian of minor second defendant offered obstruction. The second defendant was claiming possession under the Otti of 1113. The trial court upheld the obstruction. Thereupon the plaintiffs filed the present suit for declaration of their title to the suit property and recovery of possession with mesne profits.

3. The second defendant in his written statement contended that the decree was not binding on him as he was not represented in the suit, that the suit property did not belong to Ayyan Velutha, that it was government land not included in the plaintiffs' document or prior documents relied on by the plaintiffs, that P. K. Mohammad Ali continued to be is possession after the execution of Ext. D assignment of 1085 and be executed a mortgage deed in 1113 in favour of the predecessor of the second defendant and the plaintiff's right, if any, is barred by limitation and adverse possession,

4. The trial court originally upheld the second defendant's contention and dismissed the suit with costs. In appeal, the judgment was reversed and the suit was decreed for recovery of possession and mesne profits upholding the plaintiffs' title. In S.A. No. 1462/60 a learned judge of this court set aside the decree of the appellate court and restored the judgment of the trial court. In appeal against this judgment, A.S. No. 422/1964, a Division Bench of this court upheld the plaintiff's title and found that the suit property was included in the mortgage and the defendants cannot deny title of the successors in interest of the mortgagor, but then defendants were not bound by the redemption decree. It was found that Mohammed Ali's rights had been redeemed in the earlier decree and defendants were sub-mortgagees is possession under Mohammed Ali. Accordingly a decree was granted in favour of the plaintiffs directing to recover possession of the property on payment of the proportionate mortgage amount due under 1113 mortgage and value of improvements to be decided in the final decree proceedings as well as costs of the proceedings.

5. Final decree proceedings were initiated at the instance of the plaintiffs. Second defendant claimed to be a deemed tenant under S.4A(1)(b) of the Kerala Land Reforms Act, 1963. The trial court held that second defendant is not entitled to value of improvements or to any protection under the Act and passed a final decree allowing the second defendant to recover possession on payment of the proportionate mortgage amount. The trial court took the view that the second defendant is only sub mortgagee in possession and therefore cannot be treated as tenant under the provisions of S.4A(1) (b) of the Act. In appeal the appellate court held that S.4A(1)(b) of the Act will apply to a sub mortgagee in possession also. T