(1.) THIS case was originally filed as a civil revision petition to revise an order of the appellate Authority (Land Reforms), Trichur in A. A. No. 100 of 1971 passed on 28-4-1972. Subsequently by an order of this Court dated 10-1-1973 it has been converted as an Original Petition under Articles 226 and 227 of the Constitution.
(2.) IT is necessary to briefly state the facts of the case. The petitioners herein obtained the property concerned in this case pursuant to a final decree passed in a partition suit in O. S. No. 402 of 1938 in the Alathur Munsiff's Court. There was a receiver appointed for all the suit properties in that case. The receiver was managing this property by auctioning the right to take its income from year to year. For the year 1134 M. E. , it appears that the respondent purchased that right. In an auction conducted for the year 1135, the right was purchased by a third party from whom it was taken by the respondent, who conducted the cultivation in that year. It is seen from Ext. B-1 dated 5-3-1960 that, consequent on the termination of the aforesaid arrangement, the Receiver, who had possession of the property, handed over the same to the first petitioner on behalf of the petitioners. But the respondent trespassed on the property on 10-5-1960. Thereupon the first petitioner instituted a suit O. S. 172 of 1960 in the Munsiffs Court, Alathur for recovery of the possession of the property with mesne profits. That suit was decreed by the trial court. Ext. B-3 dated 14-2-1964 is the judgment. There was an appeal to the Subordinate Judge's Court, Palghat. The appeal was dismissed; and Ext. B-4 dated 4-7-1967 is the judgment of the appellate court. The first petitioner then applied for execution of the decree; and he took actual possession of the property from the respondent on 6-11-1967. In the meanwhile, the respondent had filed O. A. No. 382 of 1962 before the Land Tribunal. Palghat for fixation of fair rent for the property alleging that he was a lessee thereof. That was consistent with the case which he had pleaded in O. S. No. 172 of 1960 above referred to. That application was dismissed by the Land Tribunal holding that the respondent was not a tenant. Subsequently in the light of the Kerala Land Reforms (Amendment) Act, (Act 35 of 1969), the respondent filed an application under section 13-A of the Act for restoration of possession of the property stating that he would be a tenant as defined in the Amendment Act, that he was dispossessed after 1-4-1964, and that he was, therefore, entitled to restoration of possession. The petition was dismissed by the Land Tribunal, from whose order, the respondent filed an appeal before the Appellate Authority (Land Reforms), Trichur. The Appellate Authority held that the property was in the occupation of the respondent under a licence granted by the first petitioner as per Ext. A-1 dated 20-2-1959, that the respondent was thereafter dispossessed only after 1-4-1964, and that by virtue of the provisions in the Amendment Act 35 of 1969, the respondent would be a tenant entitled to restoration of possession of the property under Section 13-A. It is this order that is sought to be set aside in this Original petition.
(3.) THE question for decision is whether, on the facts of the case, the respondent would be entitled to the benefits of Sub-section (1) of Section 13-A of the Act. This sub-section reads,-
"13-A. Restoration of possession of persons dispossessed on or after 1st april, 1964.- (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, where any person has been dispossessed of the land in his occupation on or after the 1st day of April, 1964, such person shall, if he would have been a tenant under this Act as amended by the Kerala Land Reforms (Amendment) Act, 1969, at the time of such dispossession, be entitled subject to the provisions of this section to restoration of possession of the land : provided that nothing in this sub-section shall- (a) apply in any case where the said land has been sold to a bona fide purchaser for consideration before the date of publication of the Kerala Land Reforms (Amendment)Bill, 1968, in the Gazette; or (b) entitle any person to restoration of possession of any land which has been resumed under the provisions of this Act. " Two conditions are necessary to avail of the benefit of the above provision. One is that the person claiming restoration should be one who is dispossessed of the land in his occupation on or after 1-4-64. The second is that he would have been a tenant under the Act as amended in 1969 at the time of his dispossession. The first condition is admittedly satisfied. The controversy is regarding the second condition. According to the respondent, he was in possession of the land as a licensee at the time of dispossession; and he would have been a tenant under Section 10 of the Act. Section 10 reads,-
"10. Certain other persons to be deemed tenants,-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, the following classes of persons shall be deemed to be tenants:- (i) a punam or kumri cultivator; (ii) a licensee; (iii) a varamdar; (iv) a vechupakuthidar; and (v) a person holding land situated in any part of the taluk of hosdrug or Ka-saragod to which the Malabar tenancy Act, 1929 did not extend, under a transaction described in the document evidencing it as bhogye, otti, nattotti, arwar, illidarwar or krithasartha illidarwar. ,. but not being a usufructuary mortgage as defined in the Transfer of property Act, 1882. " The finding of the appellate authority was that the respondent would have been a licensee at the time of his dispossession. This finding is just the opposite of the finding in O. S. 172 of 1960 in the file of the alathur Munsiff's Court, which held that the respondent was a trespasser. That decision, as already stated, was also affirmed puzhakkal Edam alias Puthen Edon and Ors. vs. Kunchappan (25. 03. 1974 -KERHC) Page 5 of 9 ppan (25. 03. 1974 -KERHC) Page 5 of 9 by the Appellate Court. The appellate Authority has totally ignored the above finding, which has become conclusive as regards the parties to that litigation. A trespasser cannot automatically become a licensee. The term "licensee" is defined in section 2 (30) of the Act as follows:--
" 'licensee' means any person who is in occupation of any nilam belonging to another and who, under any local custom or usage or under an agreement, cultivates that nilam with paddy for a remuneration and with risk of cultivation, but does not include a person who cultivates the nilam of another merely as an agent or servant;" The above definition would indicate that a person who is in occupation of a nilam i. e. paddy land under the circumstances mentioned therein alone is recognised as "licensee" under the Act. It is contended that the respondent would not be a licensee within the above definition. I do not propose to consider this contention, since it has not specifically been raised in this petition, and it is also unnecessary for me to express any view on that question, in the light of my finding that the respondent is not a licensee in any sense of that term. Puzhakkal Edam alias Puthen Edon and Ors. vs. Kunchappan (25. 03. 1974 -KERHC) Page 6 of 9 ppan (25. 03. 1974 -KERHC) Page 6 of 9;