- (1.) This appeal by special leave is against the judgment of the Kerala High Court dated 25-11-1980 by which CRP No. 2034/ 80-E filed by the appellant was dismissed by the High Court. The short question involved for decision is the meaning and scope of Section 4A of the Kerala Land Reforms Act, 1964 inserted therein by the Amending Act 35 of 1969.
(2.) The predecessor-in-interest of respondents effected a mortgage with possession of the disputed land on 13-3-1919 in favour of the predecessor-in-interest of the appellant. The mortgagee remained in possession except for the period between 29-1-1940 to 17-6-1942 during which the lessee of the mortgagee was in possession. The mortgagee's cultivating possession of the disputed land was, therefore, disrupted between 29-1-1940 and 17-6-1942. The mortgagee, the appellants herein, claim the right as a deemed tenant by virtue of Section 4A of the Act, material part of which reads as under:- "4A. Certain mortgagees and lessees of mortgagees to be deemed tenants - (1) Notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land shall be deemed to be tenant if - (a) the mortgagee or lessee was holding the land comprised in the mortgage for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; or (b) the mortgagee or lessee has constructed a building for his own residence in the land comprised in the mortgage and he was occupying such building for such purpose for a continuous period of not less than twenty years immediately preceding such commencement: Provided that a mortgagee or lessee falling under this clause shall not be deemed to be a tenant if he, or, where he is a member of family, such family was holding any other land exceeding two acres in extent on the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette; or (c) the land comprised in the mortgage was waste land at the time of mortgage or land to which the Madras Preservation of Private Forests Act, 1949, would have applied if that Act has been in force at the time of mortgage, and - (i) the mortgagee or lessee was holding such land for a continuous period of not less than thirty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969; and- (ii) the mortgagee or lessee has effected substantial improvements on such land before such commencement. Explanation I.- For the purposes of this sub-section, in computing the period of continuous possession or occupation by a lessee, the period during which the mortgagee was in possession or occupation, as the case may be shall also be taken into account. Explanation II.- In computing the period of fifty years referred to in clause (a) or the period of thirty years referred to in clause (c), the period during which the predecessor-in-interest or predecessor-in-interest of the mortgagee or lessee was or were holding the property shall also be taken into account. xxx xxx xxx" (Emphasis supplied)
(3.) The High Court has taken the view that the appellants-mortgagee were not in possession for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969 which came into force on 1-1-1970 and, therefore, the right of a deemed tenant claimed under clause (a) of sub-sec. (1) of Section 4A was not available to the appellants. This view has been taken on the ground that there was disruption in the continuous cultivating possession of the mortgagee for the period between 29-1-1940 to 17-6-1942 when the disputed land was under cultivation of the lessee.;