Point of Law: Section 4A of KLR Act says that presence of scattered trees cannot alter character of land.

JUDGMENT :

1. Additional defendants 9 to 13 in O.S.No.419 of 1994 on the file of the Munsiff’s Court, Karunagappally are the appellants. The plaintiff and the other defendants are the respondents. The suit relates to the redemption of a mortgage dated 18.8.1096 M.E. in respect of 1 acre 31 cents of land. The redemption was claimed in respect of 96 cents of land. The plaintiff instituted the suit in 1962. A preliminary decree was passed in the suit on 17.2.1964 by the Munsiff’s Court, Adoor. The preliminary decree was challenged in A.S.No.265 of 1965 before the Sub Court Pathanamthitta. On 19.8.1966 the appeal was partly allowed modifying the preliminary decree. The matter came in appeal in S.A.No.92 of 1967 before this Court. In the second appeal decree for redemption was granted.

2. On 25.1.1973 final decree was passed allowing the plaintiff to recover possession of 96 cents of land. The final decree was challenged in A.S.No.60 of 1973 before the Sub Court, Pathanamthitta. The matter was remanded to the trial Court as per judgment dated 13.10.1974 for considering the question whether the contesting defendants are entitled to fixity of tenure as provided in Section 4A(1)(c) of the Kerala Land Reforms Act (for short ‘the KLR Act’). The trial Court found that the contesting defendants were entitled to fixity of tenure and as such the plaintiff was not entitled to redemption of the mortgage in respect of 96 cents of land.

3. This decree was again challenged in A.S.No.19 of 1977 before the Sub Court, Pathanamthitta. On 11.1.1980 the First Appellate Court set aside the final decree passed and remanded the matter for disposal afresh. On 19.8.1981 the Munsiff’s Court, Adoor passed a final decree holding that the contesting defendants were entitled to fixity of tenure based on the finding that the land involved was waste land at the time of the mortgage. This decree was challenged in A.S.No.69 of 1981 before the Sub Court, Pathanamthitta, which confirmed the decree of the trial Court. The decree of the First Appellate Court was challenged in S.A.No.675 of 1984 before this Court. The original suit was again remanded to the trial Court for considering the only question as to whether the contesting defendants were deemed tenants as provided in Section 4A(1)(c) of the KLR Act. The trial Court found that the contesting defendants were not entitled to fixity of tenure under the KLR Act. The decree was challenged in A.S.No.159 of 1996 before the District Court, Kollam. The First Appellate Court confirmed the decree of the trial Court holding that the contesting defendants were not entitled to fixity of tenure essentially on the ground that the land involved was not waste land as required by Section 4A(1)(c) of the KLR Act. The additional defendant Nos.9 to 13 are in appeal, invoking Section 100 of the Code of Civil Procedure before this Court.

4. This Court reformulated the substantial questions of law as follows:-

1. Can the benefit of Section 4A(1)(c) of the KLR Act be extended to the holding situated in the erstwhile Travancore State?

2. Has the Court below drawn the necessary inferences and presumptions in accordance with law, while holding that the land involved was not waste land as provided in Section 4A(1)(c) of the KLR Act?

5. Heard Sri.P.Viswanathan, the learned Senior Counsel appearing for the appellants/defendants 9 to 13 and Sri.K.G.Balasubramanian, the learned counsel appearing for respondent No.1/plaintiff.

6. The essential question that requires consideration is whether the contesting defendants are entitled to fixity of tenure in terms of Section 4A(1)(c) of the KLR Act.

7. The learned Senior Counsel contended that the defendants could establish the ingredients required under Section 4A(1)(c) to sustain the claim for fixity of tenure in terms of the KLR Act. The learned Senior Counsel submitted that the admission of the plaintiff to the effect that at the time of mortgage there was no improvement in the land is sufficient to