A member of a tarwad in possession of tarwad property cannot be considered to be in occupation of 'the land of another' and is not entitled to claim the benefits of S.7 and 7-B of Kerala Act I of 1964.

1. A common question as to the correctness of the decision of a learned single judge of this Court reported in Balakrishna Menon v. Rajagopla Menon & others (1974 KLT. 85) is raised in both these Second Appeals.

2. Defendants 2 and 5 are the appellants in SA. No. 749 of 1977. The suit is for partition of one item of property as belonging to the Manari tavazhi of Nellikkal tarwad. Plaintiffs and defendants 1 to 5 are the members of the tavazhi and the Ist defendant is its karanavan. The plaintiffs seek partition ignoring Ext. B3 lease dated 13-1-1958, granted by the prior karanavan Kannan Nair to his niece the 2nd defendant. The suit was contested by defendants 3 and 5. According to them the plaintiffs are not members of the Manari tavazhi. The lease Ext. B3 is valid and that in any event, the 2nd defendant is entitled to the benefits of S.7 of Kerala Act I of 1964 as amended by Act 35 of 1969. Both the courts below have concurrently found that the plaintiffs are members of the Manari Tavazhi. Ext. B3 lease is invalid as opposed to S.33 of the Madras Marumakkathayam Act, and the 2nd defendant being a member of the tavazhi in possession of the suit property is not entitled to the benefits of S.7 of Kerala Act 1 of 1964 as amended by Act 35 of 1969. On the question as to the applicability of S.7 the courts below have relied on the decision of this Court in Balakrishna Menon v. Rajagopala Menon & Others (1974 KLT. 85).

3. Defendants 2 to 5 are the appellants in S. A. No. 1121 of 1977. The suit is for recovery of two items of properties on behalf of the tavazhi consisting of the plaintiffs and defendants 1 to 5. Both the items were allotted to the tavazhi as per Ext. Al karar in the main tarwad. The prior karanavan Rama Kurup granted a lease of a portion of item 1 to the 2nd defendant as per Ext. B3 dated 23-9-1952. Ext. A2 is the counter-part of Ext. B3 executed by the 2nd defendant in favour of Rama Kurup. The documents recite a prior oral lease of item 1 by Rama Kurup, to the 2nd defendant. The remaining portion of item I was assigned by the 2nd defendant to defendants 3 to 5 as per Ext. B32 dated 6-3-1952. Rama Kurup granted a renewal of the oral lease relating to the portion covered by Ext. B32, as per Ext. B33 dated 11-11-1952. Ext. A3 is the counter-part of Ext. B33 lease granted by Rama Kurup, to defendants 3 to 5 in renewal of the prior oral lease. Item 2 was outstanding in possession of tenants and Rama Kurup the prior karanavan executed a kanam deed Ext. A4 dated 22-12-1952, in favour of defendants 1 and 2. The plaintiffs seek recovery of possession of both the items on behalf of the tavazhi ignoring the leases granted by Rama Kurup as bey on of his powers, under the Madras Marumakkathayam Act.

4. Both the courts below have concurrently found that there was no oral lease of item 1 in favour of the 2nd defendant. The trial court granted a declaratory decree that Ext. A4 kanam of item 2 is invalid as beyond the powers of the karanavan under S.33 of the Madras Marumakkathayam Act. Ext. B3 and B33 leases of item 1 were also found invalid, as opposed to S.33 of the Madras Marumakkathayam Act. The suit was however dismissed by the trial court in so far as it relates to item 1 on the finding that defendants 2 to 5 are deemed tenants under S.7B, of the Kerala Land Reforms Act. In appeal by the plaintiffs the lower appellate court has reversed the decision of the trial court and has granted a decree for recovery of possession of item 1 on payment of value of improvements effected by defendants 2 to 5. Defendants 3 to 5 who had constructed a house in a portion of item 1, and had been living there are however permitted to retain possession of the bouse as members of the tavazhi. The court below has held that defendants 2 to S being members of the tavazhi are not entitled to protection of Ss.7 or 7-B of the amended Kerala Land Reforms Act, in view of the decision of this Court in 1974 KLT. 85. It is against this that defend