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Judges : P.K.BALASUBRAMANYAN
Mohammed - Appellant
Versus
Rukkiya - Respondent
Case No : S.A.No. 202 of 1987
Decided On : 09/07/1994
Advocates Appeared :
P.K. Misra For Appellants Prabha R. Menon For Respondents
Land Reforms Act - Recovery of Possession - S.74 of the Kerala Land Reforms Act - The court held that the defendant was not entitled to fixity of tenure under the Kerala Land Reforms Act due to S.74, and the plaintiff was entitled to recover possession on the strength of title. The court also discussed the prohibition of future tenancies under S.74 and its implications on the transaction between the parties.
Fact of the Case:
The plaintiff filed a suit for recovery of possession of a property held by the defendant under an entrustment. The defendant claimed tenancy rights and protection under the Kerala Land Reforms Act. The trial court dismissed the suit, but the lower appellate court reversed the decree and granted the plaintiff a decree for recovery of possession.
Finding of the Court:
The court found that the defendant was not entitled to fixity of tenure under the Kerala Land Reforms Act and the plaintiff was entitled to recover possession on the strength of title. The court also denied the plaintiff a decree for arrears of rent based on the illegal transaction but granted a decree for future profits from a specific date.
Issues: The issues included the defendant's tenancy rights under the Kerala Land Reforms Act, the validity of the transaction under S.74, and the plaintiff's entitlement to recovery of possession and future profits.
Ratio Decidendi: The court relied on the provisions of S.74 of the Kerala Land Reforms Act to determine the defendant's tenancy rights and the plaintiff's entitlement to recovery of possession. The court also considered the principle of ex turpi causa non oritur actio in relation to the illegal transaction between the parties.
Final Decision: The court allowed the Second Appeal in part, modified the decree, and granted the plaintiff a decree for recovery of possession with future profits from a specific date.
The primary point of the judgment was to clarify that a tenancy created after the commencement of the Kerala Land Reforms Act (in this case, in 1969) is invalid under Section 74, depriving the defendant of fixity of tenure or any tenant protections under the Act, thereby allowing the plaintiff to recover possession based solely on the strength of her title without needing to terminate the tenancy via notice under Section 106 of the Transfer of Property Act.[judgement_subject][judgement_act_referred] (!) [15000091300001][15000091300002][15000091300003] (!) (!) [15000091300004][15000091300005][15000091300006]
Despite both parties participating in the invalid transaction, the plaintiff could still succeed in recovering possession (and future profits from the date of the lower appellate court's decree) on title, as her cause of action did not rely on enforcing the illegal entrustment/lease; however, she was denied arrears of rent/profits, as that claim directly stemmed from the prohibited transaction.[15000091300003][15000091300007][15000091300011][15000091300012][15000091300013] (!)
This upheld the policy against post-commencement tenancies to abolish landlord-tenant relationships, treating such transactions as lacking legal efficacy while permitting proprietary recovery untainted by the illegality. (!) [15000091300004][15000091300005][15000091300006]
The defendant is the appellant. The suit filed by the respondent was for recovery of possession of the plaint schedule property. According to the plaintiff, the property was held by the defendant under an entrustment by the plaintiff. The plaintiff claimed title to the property and in para.4 of the plaint specifically pleaded that while she was in possession, the defendant had been entrusted with the property for the purpose of cultivation in Makaram 1144 M.E. (January - February 1969) with the liability to pay 40 paras of paddy to the plaintiff on an undertaking that he will surrender the property on demand. Notwithstanding the expiry of the period, the defendant continued in possession. It was pleaded in para. 7 of the plaint that the defendant had paid the profits due for the years inclusive of 1147 M.E. (1972) and had thereafter failed to pay the same. The plaintiff claimed recovery of possession with past profits for two years prior to the suit. In para.8 of the plaint it was pleaded that since the entrustment in favour of the defendant was in January-February 1969, the defendant was not entitled to any protection on the basis that he is a tenant under the Kerala Land Reforms Act. The plaint did not indicate if and when the entrustment was terminated and whether any notice was issued in that behalf. The defendant resisted the suit by pleading that the transaction really amounted to an assignment and in fact was not a lease. The defendant put the plaintiff to proof of her title and put forward a case that it was really a case of an assignment of the tenancy right of the plaintiff in favour of the defendant. The liability to pay profits and to surrender possession were denied. It was claimed that the defendant had tenancy right over the property and he had applied to the concerned Land Tribunal claiming an assignment of the right, title and interest of the landlord. He sought a reference of the question as to whether he is a tenant entitled to fixity of tenure or not under the Kerala Land Reforms Act to the Land Tribunal in terms of S.125(3) of the Kerala Land Reforms Act. In short, the defendant denied any liability to be evicted.
2. The trial court refused to refer the question of tenancy to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act. The trial court held that the defendant was a tenant and satisfied the definition of a tenant contained in S.2(57) of the Kerala Land Reforms Act. But the trial court held that since the tenancy originated in the year 1969, the same was hit by S.74 of the Kerala Land Reforms Act and hence the defendant was not entitled to fixity of tenure under that Act. The trial court further found that the plaintiff had failed to prove her title to the plaint schedule property, that the oral assignment set up by the defendant was not true, that the suit was one on an entrustment and even though no notice under S.106 of the Transfer of Property Act was issued terminating the tenancy since the defendant had no case that he was holding over on tenancy, the absence of a termination of tenancy would not matter. The trial court ultimately dismissed the suit on its finding that the plaintiff has failed to prove her title. On appeal by the plaintiff, the lower appellate court held that the finding of the trial court that the defendant had no fixity of tenure under the Kerala Land Reforms Act was correct though it erroneously stated that the said finding had become final 'since the defendant had not filed any appeal against that finding. Since the suit was dismissed there was no need for the defendant to file any appeal. The lower appellate court held that the trial court was in error in holding that the plaintiff has not proved her title to the property. In the view of the lower appellate court since there was no fixity of tenure available to the defendant under the Kerala Land Reforms Act the plaintiff was entitled to recover possession on the strength of title. In that view the l
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