Decided on November 12,1968



- (1.) The principal question raised in this appeal is whether the appellant who took a lease of an item of property pending a suit for partition of a Marumakkathayam tarwad from one of the parties to that suit is entitled to the benefits of Act 1 of 1964, the Kerala Land Reforms Act, and Act 29 of 1958, the Kerala Compensation for Tenants Improvements Act.
(2.) Stated in its barest essentials the position which the facts disclose is as follows: The suit for partition was filed in the year 1102 M.E The preliminary decree was passed on 2nd Vrischigam 1108 M.E. corresponding to 12th December 1932. The 43rd defendant, a member of the tarwad, leased out in 1113 M.E an item of property covered by the decree schedule and in his possession to the appellant who was not a party to the suit. A commission was issued pursuant to the preliminary decree. Accepting the report, Ext. IX, of the commissioner, the property in dispute was allotted by the final decree which was passed on 28th February 1958 to the share of the deceased 1st defendant whose heirs are respondents 1 to 4 in this appeal. The final decree provided that if in respect of any items it had been found in Ext. IX that improvements had been effected the value for the same should be paid by the person to whom the property was allotted to the person from whom he took possession of the same. In respect of the property in dispute it was not found in Ext. IX that any improvement had been effected on it by any person and so no value was fixed in it as compensation for improvements. When respondents 1 to 4 applied for delivery of possession of the property the appellant obstructed. Then they applied for delivery of the property after removal of the obstruction. The appellant filed his objections to it. According to him he was in possession of the property as a lessee from the year 1100 M. E. onwards and it was during the currency of it that the lease deed of 1113 M.E. was executed. He contended that he was a lessee entitled to fixity of tenure under Act I of 1964, that he had effected valuable improvements on the property, that in any event, he should be paid compensation for those improvements under Act 29 of 1958 and that the application for delivery of possession of property was barred by limitation. The lower court found that the appellant's case that he was in possession of the property as a lessee from 1100 M. E. was not true and that he came into possession of the property only under the lease deed of 1113 M.E. After dismissing his objections the court ordered delivery of the property to respondents 1 to 4. It is from that order that the present appeal has been filed.
(3.) The correctness of the finding entered by the Judge below that the appellant came into possession of the property only as lessee of the 43rd defendant under the lease deed of 1113 M. E. was not disputed by the learned counsel appearing for him. Therefore we have to proceed on the assumption that that finding is correct.;

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