AYPU KUNCHERIA Vs. M S RAMACHANDRA IYER
HIGH COURT OF KERALA
M.S. RAMACHANDRA IYER
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(1.) These Second Appeals arise out of O. S. 81 of 1959 and O. S. 85 of 1959 on the file of the Munsiff's Court, Alleppey. These suits are for recovery of properties scheduled to the plaint with arrears of rent based on lease deeds executed by the defendants in the respective suits in favour of the 1st plaintiff therein who is the same in both the suits. The properties involved in the suits are Kandukrishi lands. The suits were decreed by the courts below holding that Act I of 1957 is no bar to the passing of decrees as Kandukrishi lands are exempted from the operation of the said enactment. In these Second Appeals the learned counsel for the appellant submitted that in view of Act I of 1964 the decrees allowing recovery of possession have to be set aside. S.3(1) clause (i) of Act I of 1964 reads thus:
"Nothing in this Chapter shall apply to--
(i) leases of lands or of buildings or of both belonging to or vested in the Government of Kerala or the Government of any other State in India or the Government of India or a local authority or a corporation owned or controlled by the Government of Kerala or the Government of any other State in India or the Government of India:
Provided that in the case of kandukrishi lands subleased by a tenant holding such lands under the Government, the provisions of S.13 to 26 shall, so long as the lease granted by the Government subsists, apply to the tenants holding under the sublease as they apply to tenants holding lands other than Government lands.
Explanation I. ..................................
Explanation II. For the purposes of this clause, 'kandukrishi lands' means lands covered by the Kandukrishi Proclamation, 1124, and includes kandukrishi pattom and kandukrishi thanathu lands, but shall not include lands, assigned on registry under the Kandukrishi Land Assignment Rules, 1958;"
It is agreed that the plaint properties are kandukrishi lands covered by the Kandukrishi Proclamation, 1124, and as between the plaintiffs and defendants, provisions of Act I of 1964 will therefore apply.
(2.) But the learned counsel for the plaintiffs pointed out that since the suit was instituted in 1959 the law in force on the date of the filing of the suit should apply and if on the date of the filing of the suit the plaintiffs had a right to recover possession of the plaint properties from the defendants that right cannot in any way be affected by the provisions of Act I of 1964 which came into force only subsequent to the disposal of the appeals by the lower appellate court. In support of his contention the learned counsel for the plaintiffs relied on the decision in Deiawati v. Inderjit AIR 1966 SC 1423 . Their Lordships observed at page 1426:
"Now as a general proposition, it may be admitted that ordinarily a Court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit. Even before the days of Coke, whose maxim a new law ought to be prospective, not retrospective in its operation is oft quoted, Courts have looked with disfavour upon laws which take away vested rights or affect pending cases. Matters of procedure are, however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance. The distinction between laws affecting procedure and those affecting vested rights does not matter when the Court is invited by law to take away from a successful plaintiff, what he has obtained under a judgment. See Quitter v. Mapleson, 1882 (9) QBD 672 and Stovin v. Fairbrass, (1919) 88 LJKB 1004, which are instances of new laws being applied. In the former the vested rights of the landlord to recover possession and in the latter the vested right of the statutory tenant to remain in possession were taken away after judgment."
In Govindan v. Damodara Plappalli 1958 KLT 449 , it was no doubt decided by Joseph, J. that there is complete exclusion of lands owned by the Government from the operation of Act I of 1957 and therefore there is no fixity of tenure in favour of a sublessee of kandukrishi lands. On the date when the judgments of the Trial Court and the lower appellate court were pronounced the plaintiffs are entitled to a decree for recovery of possession. The question that has to be considered therefore is whether there is anything expressly or by implication in the language of Act I of 1964 to make the provisions applicable to the cases on hand In the lower appellate court when the appeals were disposed of Act 7 of 1963 was in force. Though there was a plea to stay the proceedings under the said enactment the court refused the relief on the ground that the landlord took possession of the property in execution of the decree of the Trial Court
(3.) The fact that the plaintiffs took delivery of possession of the decree schedule property in execution of the Trial Court's decree during the pendency of the appeals cannot affect the question. Whether the appeals have to be decided in accordance with Act I of 1964 should depend upon its provisions. S.132(1)(a) of Act I of 1964 read with S.5 of Act 7 of 1963 will show that these proceedings have to be decided under Act I of 1964 and Act I of 1964 is retrospective. This is also clear from S.13 of the Act, under which if the provisions of Act I of 1964 apply, no recovery of possession is possible in execution of the decrees. This indicates that the Act is retrospective. In the result, I set aside the decrees and judgments of the court below in so far as they relate to the recovery of possession of the properties by the plaintiffs. The decrees and judgments for recovery of arrears of rent are confirmed. The Second Appeals are thus allowed. In the circumstances of the case the parties will bear their costs in this Court.;
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