PARUKUTTY AMMA Vs. KOCHUNNY
LAWS(KER)-1978-7-2
HIGH COURT OF KERALA
Decided on July 31,1978

PARUKUTTY AMMA Appellant
VERSUS
KOCHUNNY Respondents

JUDGEMENT

- (1.) A "small holder" applied to the Land tribunal, Trichur in the year 1964, for resuming half of the holding from his tenant, under S. 17 of Kerala Act 1 of 1964. The Tribunal allowed it in August, 1965. The identity of the portion to be resumed was fixed in accordance with the tenant's option, and the solatium to be paid, at Rs, 592/83. Under S. 20 of the Act, as it then stood, the solatium payable was an amount equal to one year's rent; and the Tribunal had committed a mistake in taking into account the rent for the whole of the holding, instead of one half thereof. The small holder ("landlord") and the tenant appealed to the Appellate Authority. The tenant's appeal was dismissed, while in the landlord's appeal, the solatium was reduced by 50%. The appeals were disposed of in August, 1966. The tenant did not take up the matter in revision The landlord, who had deposited the whole amount much earlier, then withdrew half of it, and filed an application (E. P. No. 242/67) before the Munsiff's Court for executing the resumption order. Under S. 22 (7) of the Act, as it stood at that time, an order for resumption had to be executed through the civil court, "as if the order were a decree passed by it". The order of the Land Tribunal had thus become final, the solatium had been deposited, and all that remained to be done was to put the landlord in possession of the portion specified.
(2.) FURTHER proceedings were however held up by reason of ordinance 4 of 1967, subsequently replaced by Act 9 of 1967, till the latter was repealed by Act 35/69. Thereafter, the landlord filed E. P. No. 159/70 before the Munsiff's Court for obtaining delivery. The tenant objected on the ground that the order for resumption passed in 1965 was wrong, as he was a tenant entitled for fixity before 21st January, 1961. The learned Munsiff accepted this contention and dismissed the E. P; but on appeal by the landlord, in A. S. No. 28/71, the District Court, Trichur observed: "there can be no doubt that the order passed by the lower court is wrong. Once the Land Tribunal has passed an order for resumption, its validity can be challenged only in the manner prescribed by the provisions of Act 1/64. The lower court, as an executing court, cannot go behind the order and come to a different conclusion on the facts and refuse to execute the order if it is otherwise bound to execute the order". However, the District Court did not allow the appeal for the reason that after 1170, the forum for executing a resumption order was the land Tribunal, and not the civil court. The landlord then moved T. A. 6/73 before the Munsiff land Tribunal. The tenant reiterated that he was entitled to fixity prior to 21 161. He also filed another application as MP. 131/74 for reopening the earlier order and for re-fixation of solatium under the provisions of S. 20, as amended by Act 35/69. The Tribunal held: " (i) S. 108 (3) of Act 35/69 did not empower it to reopen a resumption order which bad become final; (ii) the tenant was a varamdar with no fixity of tenure before 21161; (Hi) if reopening was permissible, the solatium payable under the amended provision would be Rs. 1680/-". In the view taken that there was no scope for reopening the earlier order, the tenant was directed to put the landlord "in possession of the application schedule property" without any further deposit. Against this order, the tenant filed an appeal before the Appellate authority (L R.) as A. A. No 1707/75. By judgment dated 12-11-76. the Appellate authority allowed the appeal in part, holding that solatium was payable at the higher rate prescribed by S. 20 after its amendment by Act 35/69 This higher amount was fixed as Rs. 3360/ -. C. R. P. No. 5521/76 is filed by the landlord against the aforesaid order in the A A, on the ground that the refixation of solatium is illegal and beyond jurisdiction; and CRY No. 5690/76 is by the tenant, complaining that the Appellate Authority should have accepted his case regarding fixity. The tenant's revision can easily be disposed of. He was admittedly a varamdar, and did not have fixity prior to 21 11961. There were certain Ordinances and enactments staying proceedings for eviction of varamdars prior to the aforesaid date; but those had not conferred fixity. Even before its amendment by Act 35/69, S. 17 of Act 1/64 contained the provision that no resumption could be made from those with fixity before 2111961. This was therefore a matter the tenant could have agitated before the Land Tribunal in 1964, before the resumption order was passed in 1965. Assuming that he could have reserved this plea to a later stage, and also assuming that Act 35/69 enabled him to raise it after 1170, there is nothing to show even now that he could successfully resist resumption. C. R. P. No. 5690/ 76 has therefore to be dismissed.
(3.) FOR holding that solatium could be refixed at the enhanced rate prescribed by the 1969 amendment, the Appellate Authority adopted the following reasoning. The resumption order had not become final before 1170; it became final only with the judgment in A. S No. 28/71. Under S. 20, solatium was payable to a tenant from whom land "is resumed", and the point of time was therefore the time of delivery and not the passing of an order of resumption. Since delivery had not been effected before 1170, the resumption had not become final. There was therefore nothing to be reopened, and all that was required was to give effect to S. 108 (3) in the pending proceedings. I am referring to the reasoning somewhat in detail only to show that even according to the Appellate Authority, no reopening of a final order passed before 1170 was possible, in proceedings for execution, under S. 108 (3) of Act 35/69. In my view, the point in issue before the Appellate authority was not whether the resumption had become final and complete in the sense that delivery had also been effected before 1170; for, had this been so, the question would have been one of restoring possession, and not one of reopening a final order. The question was whether the order of resumption had become final, and if so, whether it could have been reopened in the I. A. proceedings, on the strength of S. 108 (3 ). The resumption order passed by the Land tribunal in August, 1965 had really become final when the appeals against it were disposed of in August, 1966 and the tenant had decided not to question the appellate order by proceedings in revision. The judgment of the District Court in A. S No. 28/71 had nothing to do with the finality of the 1965 order of the land Tribunal; if at all, the learned District Judge had only observed that the executing court had no power to meddle with it Nor does the inference drawn from the use of the words "is resumed" in S. 20 appeal to me. The section does not deal with the point of time with reference to which "resumption" is to be treated as complete or final; it does not also fix the time of delivery. The latter is the subject matter of S. 18 (2), under which the order of resumption is to be given effect to at the end of the agricultural year. S. 20 only confers a right on the tenant for solatium; and read with S 22, it is absolutely clear that fixation of its quantum and deposit of the same should precede actual delivery. The Appellate Authority has therefore erred in holding that there was nothing final and nothing to be reopened in the I A proceedings.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.