Decided on November 27,1978

KADIJA Appellant
ATHRUMAN Respondents


- (1.) The common petitioner in these revisions filed 6 applications in 1965 against as many tenants under S.17 of the Land Reforms Act for resumption on the footing that she was a small holder. The respondents are two of the tenants. Apart from taking other defences, the tenants challenged the petitioner's status as a small holder. By a common order dated June 26, 1972 the Land Tribunal upheld the petitioner's claim and granted her application. From this order three appeals were taken, one by the petitioner disputing the amount of compensation and two by tenants who are the first respondent in these revisions repeating their denial of the petitioner's status as small holder. The Appellate Authority (Land Reforms) sustained this objection and reversing the decision of the Land Tribunal dismissed the two applications. The petitioner challenges the order of the Appellate Authority.
(2.) Under the law as it stood in 1965 when the applications were instituted the petitioner was a small holder. However she alienated a few items of properties subsequent to December 18,1957 and before the applications. But these alienations whether bona fide or not have to be left out in view of the Explanation to S.2(52), in determining whether the petitioner is a small holder, in the light of the law as amended by Act 35 of 1969: See 1976 KLT 547 . Counsel for the petitioner however contended that the petitioner's status should be determined as in 1965 ignoring the change in the law made during the pendency of the applications and that so determined she is clearly a small holder whose application should be allowed. The argument, in other words, was that the petitioner had a vested right in her status as small holder and that it has not been, even if it could be taken away by Act 35 1969 which reduced the extent of the lands that would qualify for a small holder. The amendment of the law was obviously designed to reduce the number of small holders and the attempt at resumptions from tenants with a view to protect a larger number of tenants. There is no reason to think that vested rights of small holders were sought to be saved or irrespective of the change in the definition of small holder, the petitioner could ask for resumption on the strength of her holding before the amendment of the law. Only those who satisfy the definition of the small holder under the law as amended could, ask for resumption despite the circumstance that applications were instituted before the law was amended. That result follows also from S.108(3) of Act 35 of 1969 which enacts, so far as material, that applications; pending at its commencement in which any benefit, right or remedy conferred by the provisions "of the principal Act or the principal Act as amended by Act 35 of 1969 shall be disposed of in" accordance: with the provisions of the principal Act as" amended by Act 35 of 1969. I reject this contention.
(3.) The next contention and that was the point more strongly urged although it had not been urged before either of the authorities below was based on the definition of "small holder" in S.2(52). The definition reads: 'small holder' means a landlord who does not have interest in land exceeding eight standard acres or ten acres in extent whichever is less, as owner, intermediary, or cultivating tenant, or in two or more of the above capacities, so however that the extent of non resumable land in his possession; as owner, or as cultivating tenant, or partly as owner and partly as cultivating tenant, does not exceed-- (i) two and a half standard acres; or (ii) four acres in extent, whichever is greater." It was argued that a person ceases to be a "small holder" if only the requirements of both the limbs of the definition are satisfied and that the petitioner is a "small holder" as she satisfies the first requirement, even though she does not satisfy the second. Now the first limb depends upon the extent of land in which a person has interest while the second upon "the extent of non resumable land in his possession." This contention must fail for the simple reason that the petitioner has not raised or invited a finding on the extent of lands in her possession; but that is perhaps of no moment as it is admitted that lands in her possession exceed the prescribed limit. Even otherwise it must fail, for on the terms of the definition if she exceeds either limit the limit of the lands in which she has interest or of the non resumable lands in her possession she does not qualify as a "small holder". As admittedly she does not satisfy the second requirement the test of possession her applications are liable to dismissal, although the Appellate Authority has dismissed them on a different ground. I dismiss the revisions but in the circumstances without costs.;

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