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Ouseph Lonan v. Kochunarayana Pisharady .
Factual and Procedural Background
This second appeal arises from an execution proceeding under a decree for recovery of possession in O.S. 91/1121. Item No. 1 of the plaint schedule originally belonged to the predecessor-in-interest of the 1st plaintiff and was leased in 1070 to the ancestors of defendants 1 and 4. That lease was terminated and the landlord sued in O.S. 164/1100 for recovery of possession; the trial court decreed that suit in 1102 and the appellate courts confirmed the decree (Ext. C) in S.A. No. 702/1107 on 2-6-1110. The decree in O.S. 164/1100 was not executed and became barred by limitation on 2-6-1116.
The plaintiffs thereafter instituted O.S. 91/1121 seeking recovery of possession on the basis of the 1st plaintiff's title, alleging the lease had been determined by the earlier decree and the defendants were trespassers. That suit was decreed on 18-12-1121 (3-8-1946). When the 1st plaintiff moved for execution of that decree, defendants 1 and 4 filed pleadings and applications (C.M.P. 2881/62 and C.M.P. 823/63) claiming protection under successive landlord-and-tenant statutes (initially Act 4 of 1961 and Act 7 of 1963 and later Section 2(57) and Section 13 of Act 1 of 1964 after repeal). The execution court and a District Court dismissed their contentions and appeals. The matter was referred upwards and eventually reached this Court on second appeal, where a Division Bench and then a Full Bench considered the question.
Legal Issues Presented
- Whether defendants (appellants), who originally entered as tenants but remained in possession after a decree for possession given in O.S. 164/1100 (which later became time-barred), are entitled to "fixity of tenure" under Section 13 of Act 1 of 1964 (as amended by Act 35 of 1969).
- Whether the fact that the plaintiffs later obtained a decree in O.S. 91/1121 for possession on the basis of title (and that defendants had contended they were trespassers or had acquired title by adverse possession in that suit) prevents those defendants from claiming protection under Section 13.
- Whether allowing the earlier decree (O.S. 164/1100) to lapse by limitation, or obtaining a subsequent decree on the strength of title, changes the character of the defendants' possession such that Section 13 would not apply.
Arguments of the Parties
Appellants' Arguments
- The appellants asserted entitlement to statutory protection (fixity of tenure) under the relevant tenant-protecting statutes. They originally claimed benefit under Act 4 of 1961 and Section 3 of Act 7 of 1963, and later relied on the definition of "tenant" in Section 2(57) of Act 1 of 1964 and on Section 13 of Act 1 of 1964 (the latter being the operative provision for fixity of tenure after repeal of Act 7 of 1963).
- Implicit in their position was that, although decrees had been obtained against them, their possession originated in tenancy and therefore Section 13 should protect their continued possession despite decrees classifying them, technically, as trespassers after termination of tenancy.
Respondent's Arguments
- The respondent (1st plaintiff), represented by Mr. Bhoothalinga Iyer, submitted that in O.S. 91/1121 the defendants had argued they had become owners by adverse possession and had contended they were trespassers, not tenants continuing with obligation to pay rent. On that basis, the respondent argued they could not be treated as tenants entitled to the benefit of Section 13.
- Earlier, the execution court and a District Court had found against the appellants on their statutory-tenancy contentions and treated them as not entitled to fixity of tenure based on their pleadings in the earlier suit(s).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gopinatha Panicker v. Joseph, 1965 Ker LT 870 | Holds that Section 13 of Act 1 of 1964 (fixity of tenure) operates "notwithstanding anything to the contrary" and includes a quondam tenant (a former tenant continuing in possession) so as to prevent eviction even in the face of decrees. | The Court relied on this decision to interpret the phrase "tenant" in Section 13 to include quondam tenants continuing in possession, thereby supporting the appellants' entitlement to fixity of tenure despite prior decrees. |
| Ayissabi v. Choyi, 1966 Ker LT 757 | Holds that it is not necessary for a tenancy to be subsisting on the date when fixity of tenure is claimed; a quondam tenant can still obtain the protection of Section 13. | The Court cited this case to reinforce the principle that a tenancy need not be subsisting at the time of claim and to support the view that even after termination (including after decree) a person who entered as a tenant may be covered by Section 13. |
Court's Reasoning and Analysis
The Court began by construing Section 13 of Act 1 of 1964, which states (as quoted in the opinion) that "Notwithstanding anything to the contrary contained in any law, custom, usage or contract, or in any decree or order of court, every tenant shall have fixity of tenure in respect of his holding, and no land forming part of the holding shall be resumed except as provided in Sections 14 to 22." The Court placed emphasis on the opening non-obstante clause and on the meaning of the word "tenant" employed by the statute.
Relying on the authority of Gopinatha Panicker v. Joseph and Ayissabi v. Choyi, the Court accepted that the term "tenant" in Section 13 must include a quondam tenant (a former tenant who continues in occupation). The Court explained the policy: if a quondam tenant were excluded, the non-obstante clause would be rendered meaningless so far as decrees are concerned, because eviction decrees can be founded only upon termination of the tenancy. Thus, the protectable class under Section 13 extends to those who entered by tenancy and remained in occupation thereafter.
The Court then examined the factual sequence: after the decree in O.S. 164/1100 (which terminated the tenancy) the plaintiffs did not execute the decree and it became time-barred; later plaintiffs filed O.S. 91/1121 based on title and obtained a decree on that basis. The crucial analytical question was whether the appellants' character of possession — described as trespass after the decree — precluded them from invoking Section 13 when eviction was sought in execution of the later decree.
The Court accepted the legal proposition (citing doctrinal authority from Hill and Redman) that after determination of the tenancy and an unequivocal demand by the landlord, the tenant's possession assumes the character of trespass. However, the Court distinguished (and reconciled) this legal characterization with the statutory object of Section 13: although technically trespassers after the decree, the appellants' possession remained referable to their original lawful entry as tenants. Consequently, the statutory protection was intended to cover such persons.
The Court analyzed the possible counterfactual: if, after the decree in O.S. 164/1100, the appellants had been actually dispossessed in execution and had later re-entered as trespassers, their present possession would not be traceable to tenancy and Section 13 protection would not apply. But there was no finding or claim of any execution dispossession; the appellants remained in continuous possession. The Court therefore concluded that allowing the earlier decree to lapse by limitation or obtaining a subsequent decree based on title did not alter the appellants' right to claim fixity under Section 13, so long as their possession continued to be referable to the original tenancy.
The Court also considered the respondent's contention that the appellants had pleaded adverse possession and claimed to be trespassers in O.S. 91/1121. The Court held that such pleadings were immaterial to the statutory question where possession originated in tenancy and was never interrupted by dispossession; claiming to be trespassers in pleadings did not negate the statutory protection if the factual predicate (possession tracing to tenancy and continuous occupation) remained.
Holding and Implications
Holding: APPEAL ALLOWED. The Court held that the appellants (defendants 1 and 4) are entitled to fixity of tenure under Section 13 of Act 1 of 1964 as amended by Act 35 of 1969, notwithstanding the decree in O.S. 91/1121 passed on the basis of the 1st plaintiff's title. The appellants' objections to delivery of Item No. 1 of the plaint property were upheld. The Court made no order as to costs.
Implications: The direct effect is that the appellants cannot be evicted in execution of the decree in O.S. 91/1121 because they qualify for statutory fixity of tenure under Section 13. The Court applied existing authorities interpreting Section 13 (Gopinatha Panicker and Ayissabi) and did not purport to lay down any novel rule beyond applying those precedents to the facts. The opinion does not discuss broader policy consequences beyond the parties; it confines itself to the legal question whether the appellants fall within the statutory protection and decides in their favour.
The Judgment of the Court was delivered by
Mathew, J.:— This is a second appeal filed by the 4th defendant and the legal representatives of the 1st defendant from the appellate order passed in execution of the decree for recovery of possession of the plaint property in O.S 91/1121 on the basis of the 1st plaintiff's title to it.
2. Item No. 1 of the plaint schedule belonged to the predecessor-in-interest of the 1st plaintiff. It was leased by him to the father of the 1st defendant and grandfather of the 4th defendant in 1070. The lease was subsequently terminated and a suit instituted as O.S 164/1100 for recovery of possession of the property based on the determination of the lease. The suit was decreed by the trial court in the year 1102. The appeal preferred from the decree was dismissed by the lower appellate court, and in S.A No. 702/1107 the High Court on 2-6-1110 confirmed the decrees of the courts below by Ext. C decree. This decree was not executed and it became barred by limitation on 2-6-1116. Thereafter the plaintiffs instituted O.S 91/1121 for recovery of possession of the property on the basis of the 1st plaintiff's title to it alleging that the lease in favour of defendants 1 and 4 had terminated by the decree in O.S 164/1100 and that they were trespassers on the property. That was decreed on 18-12-1121 corresponding to 3-8-1946. When the 1st plaintiff applied for delivery of the property in execution of the decree, defendants 1 and 4 filed C.M.P 2881/62 on 31-10-1962 (Ker) claiming the benefit of Act 4 of 1961, and subsequently C.M.P No. 823/63 on 27-2-1963 (Ker.) claiming that they were tenants within the meaning of the term ‘tenant’ in Section 3 of Act 7 of 1963 and were therefore entitled to fixity of tenure. The execution court overruled their contention. They filed an appeal from the order to the District Court of Alleppey, and claimed that they were tenants coming within the ambit of the definition of the term ‘tenant’ in Section 2(57) of Act 1 of 1964 and entitled to fixity of tenure under Section 13 of that Act, since Act 7 of 1963 was repealed by that time. The court came to the conclusion that since defendants 1 and 4 were contending in O.S 91/1121 that they were trespassers with no liability to pay rent, and had prescribed for title to the property by advance possession, and since those contentions were overruled and the suit decreed on the basis of the title of the 1st plaintiff with past and future mesne profits, they were not tenants, and so were not entitled to fixity of tenure under Section 13 of Act 1 of 1964. Accordingly it dismissed the appeal. It is against this order that the second appeal has been filed. The learned Judge before whom the second appeal came up for hearing referred the case to a Division Bench and the Division Bench referred the case to a Full Bench on the grounds that this is a case where two views are possible; and that is how it has come before us.
3. We are of the view that notwithstanding the decree in O.S 91/1121 for recovery of possession of the property on the basis of the title of the 1st plaintiff and the contention of defendants 4 and 5 in that suit that they had prescribed for title to the property by adverse possession, the appellants are entitled to fixity of tenure under Section 13 of Act 1 of 1964 as amended by Act 35 of 1969.
4. Section 13 reads:
“Notwithstanding anything to the contrary contained in any law, custom, usage or contract, or in any decree or order of court, every tenant shall have fixity of tenure in respect of his holding, and no land from the holding shall be resumed except as provided in Sections 14 to 22.”
5. In Gopinatha Panicker v. Joseph, 1965 Ker LT 870 a Division Bench of this Court held that S. 13 of Act 1 of 1964 was a bar to eviction of a tenant from the holding “notwithstanding anything to the contrary contained in any law, custom, usage contract or in any decree or order of Court.” The Court said that the word ‘tenant’ is used in the Act to include a quondam tenant continuing in possession; otherwise a tenant would cease to get protection when a decree is passed for eviction. For, there can be no question of a suit for eviction being instituted much less decreed except after the determination of the lease, and the non-obstante clause with which the section opens would be meaningless in so far as it embraces decrees if a quondam tenant were not included within the scope of the section. On the basis of this ruling Raghavan, J., held in Ayissabi v. Choyi, 1966 Ker LT 757 that in order to get fixity of tenure under Section 13 of the Act it is not necessary that the tenancy should be subsisting on the date when fixity of tenure is claimed. We think that even though a tenancy has been determined by efflux of time or by notice to quit and a decree obtained by the landlord for recovery of possession of the property, the quondam tenant remaining in possession will get fixity of tenure by virtue of Section 13 of Act 1 of 1964.
6. Therefore, the further question for consideration is whether it would make any difference in a case, like the present, where a landlord after having obtained a decree for possession on the basis of the termination of the tenancy allows that decree to get barred and obtains a decree on the basis of his title to the property and seeks delivery of possession in execution of that decree.
7. It was argued that when the decree in O.S 91 of 1121 was passed on the basis of the title of the 1st plaintiff to the property, the possession of defendants 1 and 4 was no longer referable to the quondam tenancy, that they were in possession as trespassers, as contended by them in O.S 91/1121, and therefore, they cannot now turn round and claim that they are tenants entitled to the benefit of Section 13. When the decree in O.S 164/1100 was passed foe recovery of possession of the property on the basis that the tenancy has been terminated, the possession of defendants 1 and 4 became that of trespassers. Although these defendants came into possession of the property as legal representatives of the original tenants, and were therefore tenants, that relationship was sundered by the decree passed in that case, and they became trespassers after the decree. In ‘Landlord and Tenant’ by Hill and Redman, 11th Edn., page 498 it is stated:
“After the determination of the tenancy any act of the landlord showing an intention to take possession is sufficient to revest possession in him so that the tenant becomes a trespasser.”
8. When a tenancy terminates by efflux of time, the tenant becomes a tenant on sufferance. He occupies that position because the landlord has not expressed his agreement or disagreement with the tenant continuing in possession. It might be that the landlord by accepting rent or otherwise assenting to his continuance in possession, creates a tenancy by holding over. It is not necessary for the purpose of this case to express any opinion on the question whether a valid notice to quit without anything more would make an erstwhile tenant a trespasser. But when once there is an unequivocal demand for possession by the landlord after the termination of the tenancy either by efflux of time or by a legal notice to quit, the possession of the tenant, if he has no other valid claim to remain in possession, would assume the charecter of trespass. There can, therefore, be no doubt that after the decree in O.S 164/1100, which could have been passed only after terminating the tenancy and by an unequivocal demand by the landlord in the form of a plaint in court, the possession of the erstwhile tenants, since they had no valid claim after the decree to remain in possession, became that of trespassers. But the scheme of Section 13 is to confer fixity of tenure on such ‘trespassers’ for the reason that they came into possession of the property as tenants and not by trespass, their continuance in possession notwithstanding the determination of the tenancy though technically a trespass being clearly referable to their lawful entry as tenants. This is the view taken in 1965 Ker LT 870 and 1966 Ker LT 757, as to the scope and purpose of the section. We think that these decisions lay down the law correctly.
9. If that be so, the fact that the plaintiffs allowed the decree in O.S 164/1100 to become barred and instituted a fresh suit to recover possession of the property on the strength of the 1st plaintiff's title and obtained a decree on that basis and sought delivery in execution of that decree would not make any difference to the character of the possession of these defendants. They were trespassers on the property after the decree in O.S 164/1100 and they continued to be trespassers after the decree in O.S 91/1121. Even if the plaintiffs did not in the first instance sue in their mere character as landlords, but sued on the basis of their title, after determination of the tenancy, to recover possession of the property and obtained a decree on the basis of title, then also the character of the possession of these defendants after the decree would have been the same, namely that of trespassers, and that would not in any way have disabled these defendants from claiming the benefit of Section 13, as they came into possession of the property as tenants. Therefore, we think that it makes no difference that the plaintiffs allowed the decree in O.S 164/1100 to become barred and obtained a decree on the basis of title in O.S 91/1121. In either case, the possession of the erstwhile tenants after the decree would, strictly, speaking, be that of trespassers. If, after passing the decree in O.S 164/1100 these defendants, although trespassers on the property, could claim the benefit of Section 13, we perceive no reason why they cannot claim the benefit of the section after the decree in O.S 91/1121.
10. Mr. Bhoothalinga Iyer, appearing for the respondent 1st plaintiff, submitted that defendants 1 and 4 were contending in O.S 91/1121 that they had become the owners of the property by adverse possession, that there was no contention on the part of these defendants that they were tenants or that they were continuing in possession after the termination of the tenancy with obligation to pay rent, and so they cannot be considered as tenants. We do not think that the contention has any substance. As we have already stated, the character of the possession of these defendants after the decree either in O.S 164/1100 or O.S 91/1121 is quite immaterial if their possession originated in a tenancy and they have not been divested of that possession at any time. If in execution of the decree in O.S 164/1100 these defendants had been dispossessed and they trespassed on the property subsequently and a decree had been obtained thereafter on the basis of title, the matter would have stood on a different footing. In such a case, these defendants could not have traced their present possession to the tenancy, but only to the trespass after dispossession in execution of the decree for recovery of possession after terminating the lease. There is no case that these defendants were at any time dispossessed in execution of that decree or otherwise, or that they discontinued possession of the property. They remained in possession of the property even after the decree in O.S 164/1100, and it is quite immaterial that they claimed to remain in possession not as tenants, but as trespassers in O.S 91/1121.
11. We think that the appellants are entitled to fixity of tenure under Section 13 of Act 1 of 1964 even though the decree in O.S 91/1121, in execution of which they are sought to be evicted, was one passed on the basis of the title of the respondent-1st plaintiff and even though defendants 4 and 5 contended in that suit that they were trespassers on the property, and had prescribed for title to it by adverse possession. As the appellants are entitled to fixity of tenure under Section 13 of Act 1 of 1964 as amended by Act 35 of 1969, the objections of the appellants to the delivery of Item No. 1 of the plaint property have to be upheld and the appeal allowed. We do so. We make no order as to costs.
12. Appeal allowed.
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