EMMUNNI PANICKER Vs. KRISHNA PANICKER
HIGH COURT OF KERALA
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(1.) This is a petition under S.108(2) of Act 35 of 1969 to reopen the decree passed in the second appeal. The second appeal was disposed of and a decree for redemption and recovery of possession was passed on 29th May, 1968 on holding that the transaction sued on, namely Ext. A1 dated 2 4 1944, is only a possessory mortgage. On review that decree was directed to be treated as a preliminary decree only and a final decree was directed to be passed after fixing the redemption price and mesne profits. Then the plaintiff applied in the Trial Court for passing a final decree and when that was pending Act 35 of 1969 came into force. The petitioner herein filed an application in the Trial Court to reopen the decree as he claimed to be a tenant having fixity of tenure as per the new provisions added to Act 1 of, 1964 by Act 35 of 1969. The Trial Court was of the view that such an application is maintainable, only before the court which passed the decree, namely this Court, and hence dismissed the application. The present petition is filed by the petitioner after that. He claims to be a tenant under one or more of four provisions in the Act. He claims to be a kanorndar under S.2(22)(b) of Act 1 of 1964. Again, he claims to be a deemed tenant under S.4A, 6A and 6B of the amended Act. If he is found to be a tenant under any one of these provisions, the decree has to be reopened and he must be held to be entitled to fixity of tenure. According to the plaintiff respondent, none of the above provisions of the Act applies to the facts of this case. To appreciate the rival contentions it is necessary to state some more facts.
(2.) Plaint schedule properties belonged in jenm to the tarwad of plaintiffs 2 to 4. A possessory mortgage, Ext. A6 dated 10-5-1918, was granted from the tarwad in favour of the uncle and karanavan of the petitioner. Ext. A6 was for Rs. 1,800/- and it comprised other items of properties as well. There was a partition in the mortgagee tarwad and in that the possessory mortgage right under Ext. A6 was also partitioned; the suit properties were allotted to the tavazhi of the petitioner for a mortgage amount of Rs. 1,350/- and a annual purapad of 106 paras of paddy. The jenmi tarwad thereafter executed a fresh mortgage for the above amount under Ext. A1 to the petitioner. The 1st plaintiff on getting a melcharthu filed the suit for redemption impleading the jenmies also as coplaintiffs 2 to 4. The petitioner contended that the transaction evidenced by Ext. A1 is only a lease and that he is not liable to be evicted. His plea was accepted and the suit was dismissed by the Trial Court and confirmed in first appeal. But, on second appeal, this Court on a proper construction of Ext. A1 held that it is only a possessory mortgage and so granted the decree referred to above.
(3.) In view of the finding of this Court that Ext. Al is only a mortgage, the first contention of the petitioner under S.2(22)(b) must fall to the ground. Under that provision there must be a transfer of an interest for enjoyment and the incidents of transfer must have one or more of the three incidents referred to in that provision. This same plea was raised by the petitioner before this Court at the second appellate stage. This Court found that the transfer was not for enjoyment but only to secure the amount mentioned in the deed. There is no change in this provision of the Act by Act 35 of 1969. Similarly, the relief claimed under S.6A also must fail. The petitioner has no case that Ext. A6 is not a mortgage. Even in the affidavit in support of the present petition he claims Ext. A6 to be only a mortgage. S.6A requires the person in possession or his predecessor in interest to be a tenant on or after the 1st day of December, 1930, and such tenancy must have been terminated after that date and before the commencement of Act 35 of 1969. The facts in this case do not satisfy the conditions mentioned in the Section. Therefore, benefit under S.6A is also not available to the petitioner. The same must be the fate of the claim under S.6B. In Ext. A1 no amount is mentioned as payable by way of customary dues. No amount is specified in the document as michavaram. There is no provision for renewal of the document after expiry of a specified period. The absence of any one of these requirements in Ext. Al negatives the claim for benefit under S.6B.;
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