Mohamed Mytheen v. Sreedharan

1. The defendants in o. S. No. 51 of 1969 of the iind additional sub judge's court, Trivandrum are the appellants and the plaintiff therein is the respondent the respondent instituted a suit to set aside the order dated 31 - 5 - 1968, Ex. A8 passed in execution in o. S. 134 of 1952 of the same court on an application moved by the respondent to remove the obstruction of the appellants to the delivery of the property pursuant to the decree therein. That suit was one for partition and in the final decree the plaint items here as well as a larger extent of land had been allocated to the plaintiff decree - holder therein and the respondent herein is the assignee of that decree.

2. Two of the prayers in the present plaint were that it should be declared that the appellants were not kudikidappukars under the kerala land reforms act 1963 and that it should be held that the property scheduled to the plaint is liable to be recovered in execution of the decree in o. S. No 134 of 1952. The plaint property has been described as part of the property allotted to the plaintiff in o. S. No. 1:4 of 1952 in which buildings t c. 11/640 and 11/641 are situate and 10 cents of land including the site of those buildings as also 71/2 links of the building t. C. 11/630 and that part of the property on which that portion of the building in t. C. 11/630 is situate.

3. It was contended by the appellants that they were not liable to be evicted and that the order ext. A8 is not liable to be set aside. The first defendant, The first appellant laid claim to the buildings t. C. 11/640 and t. C. 11/641 and the 10 cents of land including the site of those buildings. His case was that he came into possession of the buildings in the site referred to, In 1952. The second defendant claimed kudikidappu right regarding the building t. C11/630.

4. The court below found that the first defendant came into possession only in or after 1958, On the basis of ext. A24, A document executed by one bronkhurst who was the defendant in o. S. 134 of 1952. It also found that the interests created and transferred by ext. A 24 cannot avail against the plaintiff in o. S. 134 of 1952 because the transfer was vitiated by the rule of lis pendens. It was further found that the first defendant cannot be termed to be a kudikidappukaran. The claim of the second defendant was also negatived on the ground that the permission alleged by him was also vitiated by the rule of lis pendens.

5. When the case came up before a division bench of this court, The following order of reference has been passed.

"this appeal raises an important question regarding the scope and interpretation of explanation ii - a to s. 2 (25) of the land reforms act (act 1 of 1964). Counsel for the appellant has attacked the correctness of the division bench ruling of this court in chinnan v. Gopinathan (1975 klt 50) on the ground that the division bench proceeded on the assumption that the explanation unless read and understood in a particular way would be unconstitutional and void, As offending art. 19 (1) (f) of the constitution. Counsel for the appellant pointed out that the division bench did not notice, And its attention was not drawn to, The fact that act 17 of 1972 which enacted the explanation had also been included in the ninth schedule to the constitution by the thirty fourth amendment dated 7 - 9 - 1974 which was before the decision by the division bench. This aspect of the matter apart, The question whether the explanation can cut d own the ambit of the definition itself raises an important question. We direct that notice be issued to the learned advocate general to assist the court in resolving the controversy, And settle the true scope and effect of explanation ii - a."

6. Counsel for the appellants did not seriously challenge before us the finding of the court below that the first defendant came into possession only on or after 19 - 8 under ext. A 24 there is ample evidence in the case to support the finding of the court below on this point and i see no reason to reverse the finding entered by that court. It was also not contended before us that the finding of the trial court that the second defendant was a trespasser is erroneous or that the permission alleged by the second defendant if true, Is not vitiated by lis pendens. The arguments turned on the question of the effect of explanation ii - a to s. 2 (25) of the kerala land reforms act. 1963. I shall extract the whole of the section.

"2 (25) "kudikidappukaran" means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, In possession either as owner or as tenant, On which he could erect a homestead and

(a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or

(b) who has been permitted by a person in lawful possession of any land to occupy, With or without an obligation to pay rent, A but belonging to such person and situate in the said land; and "kudikidappu" means the land and the homestead or the but so permitted to be erected or occupied together with the easement attached thereto.

explanation i. In calculating the total extent of the land of a kudikidappukaran for the purposes of this clause, Three cents in a city or major municipality, Shall be deemed to be equivalent to five cents in any either municipality, That three cents in a city or major municipality or five cents in any other municipality shall be deemed to be equivalent to ten cents in a panchayat area or township.

explanation ii. For the purposes of this clause,

(a) "hut" means any dwelling house constructed by a person other than the person permitted to occupy it

(i) at a cost, At the time of construction, Not exceeding seven hundred and fifty rupees; or

(ii) which could have at the time of construction yielded a monthly rent not exceeding five rupees, And includes any such dwelling houses reconstructed by the kudikidappukaran in accordance with the provisions of s 79; and

(b) "homesead" means, Unless the context otherwise requires, Any dwelling bouse erected by the person permitted to have the use and occupation of any land for the purpose of such erection, And includes any such dwelling house reconstructed by the kudikidappukaran in accordance with the provisions of s. 79.

explanation iia. Notwithstanding any judgment, Decree or order of any court, A person, Who, On the 16th day of august, 1968, Was in occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors - in - interest or belonging to any other person) and continued to be in such occupation till the 1st day of january, 1970, Shall be deemed to be a kudikidappukaran:

provided that no such person shall be deemed to be a kudikidappukaran -

(a) in cases where the dwelling house has not been constructed by such person or by any of his predecessors - in - interest, If

(i) such dwelling house was constructed at a cost, At the time of construction, Exceeding seven hundred and fifty rupees; or

(ii) such dwelling house could have, At the time of construction, Yielded a monthly rent exceeding five rupees; or

(b) if he has a building or is in possession of any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, Either as owner or as tenant, On which he could erect a building;"

7. The contention of the appellants is that if a person was in occupation of any land and the dwelling house thereon on the l0th day of august, 1968 and continued to be in such occupation till the 1st day of january, 1970, By virtue of the force of explanation iia to s 2 (25), He would have to be deemed to be a kudikidappukaran unless the proviso to the explanation is attracted. There being no contention that the proviso applies to the facts of the case the legal fiction enunciated in the explanation must apply. According to counsel the legal fiction must apply even in cases where the transfer, On the basis of which the occupation of the land and the dwelling house is claimed, For the purpose of explanation iia was during the pendency of a suit. In other words, The explanation will apply notwithstanding the rule of lis pendens. There is also a further contention that the explanation would apply even if the occupation of the land and the dwelling house was on the basis of a trespass. I shall now deal with these two contentions.

8. There are a number of decisions of this court from 1961 wherein the view has been consistently taken that the rule of lis pendens has not been abrogated by the provisions of the kerala land reforms act, 1963. In sankaran nambiar v. Pilliathiri amma 1961 klt. 639 it was held that act 4 of 1961 does not purport to override the provisions of s. 52 of the transfer of property act, Or the laws relating to validity of contracts. It was observed that agrarian reform does not contemplate legalisation of every illegal transaction entered into by tenants. This decision was rendered on the 16th june 1961. The question arose in kochappu alias devassy v. Mani & company ltd. 1963 klt. 709 whether a lessee claiming under a lease arrangement entered into after the property was attached could put forward the rights under the lease. The contention was that those rights are void as against claims enforceable under the attachment. This contention was accepted and it was ruled that leases entered into after the attachment would be affected by the provisions in s. 64 of the code of civil procedure. A similar question again came up for consideration in p. I. Idicula v. Padmanabhan nair 1967 klt. 1060 with reference to s 106 of the kerala land reforms act 1963 vis - a - vis s. 52 of the transfer of property act. S. 106 of the kerala land reforms act started with the non - obstante clause that

"notwithstanding anything contained in this act, Or in any other law, Or in any contract, Or in any order or decree of court"

relying on this provision it was urged that a transferee of a land for commercial or industrial purposes pendente lite is entitled to claim the benefit of s. 106 of the kerala land reforms act, 1963, If the other conditions of the section are satisfied this court negatived the contention. It was observed in p. I. Idicula v. Padmanabhan nair 1967 klt. 1060 as follows:

"the non - obstante clause with which s. 106 opens does not, In my view, Enable a transferee pendente lite to put forward any defence which the judgment - debtor himself could not have put forward."

a division bench of this court in kattil raman kunhi's sons chathu and others v. Vadakke poduvath devaki amma's daughter janaki amma air. 1969 kerala 121 had occasion to consider the question with reference to s. 7 and 13 of the kerala land reforms act as these sections stood at that time. S. 7 and 13 which have been extracted in that judgment contained the non - obstante clause that

"notwithstanding anything to the contrary contained in any law, Custom, Usage or contract, Or in any decree or or order of court,"

it was urged that the rule of lis pendens is also abrogated by the non - obstante clause. After referring to the earlier decisions the contention was negatived. The same view has also been taken in augusti versus ramakrishna panicker 1969 klt. 326 and chacko john v. Varkey chacko 1974 klt 895. It was submitted that these decisions have not specifically referred to the provision in s. 127 of the act or the corresponding provision in the earlier act. S. 127 of the act is in these terms:

"act to override other laws, Etc. The provisions of this act shall have effect notwithstanding anything in any other law or any custom or usage or in any contract, Express or implied, Inconsistent with the provisions of this act."

9. This argument has not much force because s. 106 which was considered in the decision in p. I. Idicula v. Padmanabhan nair 1967 klt. 1060 and s. 7 and 13 were considered in kattil raman kunhi's sons chathu and others v. Vadakke poduvath devaki amma's daughter janaki amma air. 1969 kerala 121 contained non - obstante clauses identically worded as the non - obstante clause in s. 127. So the weight of those decisions are not in any way reduced by the fact that there has been no specific advertence to s. 127.

10. I would like to add that though the kerala land reforms act has been amended several times after the decision in sankaran nambiar v. Pilliathiri amma 1961 klt. 639 no attempt has been made by the legislature to clarify that the non - obstante clause will abrogate the provisions in s. 52 of the transfer of property act except in certain specified cases such as the amendments introduced by act 35 of 1969 to s. 7, 7a and 7d. It is significant that act 35 of 1969 was passed after the decision in kattil raman kunhi's sons chathu and others v. Vadakke poduvath devaki amma's daughter janaki amma air. 1969 kerala 121 on 7 21968. In that decision it was held that the non - obstante clause in s. 13 will not abrogate the rule of lis pendens. Yet no amendment to s. 13 was made though s. 7, 7a and 7d were specifically amended so as to abrogate the provisions in s. 52 of the transfer of property act. The legislative intent is thus clear, As it must be presumed to be aware of the judicial pronouncements on the interpretation of the statute, That it did not want by the non - obstante clause to abrogate the rule of lis pendens except in given cases such as that contained in s. 7, 7a and 7d. There is thus no justification in interpreting s. 127 in a manner different from the interpretation placed on s. 13 in kattil raman kunhi's sons chathu and others v. Vadakke poduvath devaki amma's daughter janaki. Amma air. 1969 kerala 121. I would like to add that the rule of lis pendens is based on public policy. It contains a salutary principle that a transferee pendente lite shall not be in a better position than the judgment debtor who effected the transfer. I discern a purpose in this rule. It is meant for giving finality to judicial pronouncements. Apart from it there can be cases where a judgment debtor or defendant purposely and with a view to defeat the decree holder or the plaintiff transferred the property in the suit the law provides that such transfer shall not prevail as against the plaintiff or the decree holder. This provision must apply with equal force to leases that are created during the pendency of the suit. For, A disgruntled defendant can well take up the attitude that if he cannot have the property let someone else have it so that the plaintiff may be spited. This should not be allowed to follow unless the legislature has is very clear terms expressed unequivocally that the rule of lis pendens shall not apply as has been done by enacting s. 7,7a and 7d. The general words "notwithstanding any law" should not be taken to abrogate every rule of law which is intended to serve different purposes and which have no similarity and affinity to laws such as those introduced for agrarian reforms as in the case of the provisions of the kerala land reforms act. It would be prudent to construe the general words as intended to achieve the objects and purposes sought to be ensured by the kerala land reforms act. In other words the non - obstante clause must not a so read as to abrogate every conceivable principle of law embodied in any statute whatever and for any reason whatever. The approach i think must be to find out whether the law which is said to be abrogated by such non - obstante clause occupied the same field or dealt with the same object. Laws which fall under that category must certainly be abrogated by the nonobstante clause. This principle should not however be extended to other laws enacted on the basis of public policy meant for protection of interests and for finality of pronouncement of courts which have nothing to do with the objects and the purposes sought to be achieved by the statute. I am therefore unable to accept the first contention that by the wording of explanation iia read with the s. 127, If the occupation of the land and the dwelling house between the dates mentioned in the explanation is satisfied the occupant must be held to be a kudikidappukaran if the transfer which gave rise to such occupation was pendente lite.

11. I don't think it is necessary to interpret explanation iia to section 2 (25) in this case. Nor is it necessary to consider whether the decision in chinnan v. Gopinathan 1975 klt 50 requires reconsideration in view of the fact that it was no! noticed therein that act 17 of 1972 which enacted the explanation had also been included in the ninth schedule. The inclusion in the ninth

schedule will have only the effect of immunity from attack the question of the interpretation of the explanation would arise even after the inclusion in the ixth schedule. But v. E do not propose to interpret the scope and ambit of the explanation as it is unnecessary for the purpose of the case.

12. As far as defendant 1 is concerned ext. A24 shows that he took the land on tharapattam and also that he purchased a building which was situate on that land and which at that time was owned by the defendant. There is no scope for applying s 2 (25) of the act to defendant 1 as he had not been permitted to occupy the land in possession of another or to erect a but therein or given permission to occupy a but therein. He was a transferee pendente lite. He cannot therefore claim any rights of a kudikidappukaran.

13. As far as the second defendant is concerned it is clear from the evidence in the case that he came on the property on which the building bearing tc. 11/630 is situate by virtue of the transfer and permission granted by pw. 3, Bronkhurst, Who was one of the sharers who got the plot on which the building stands in accordance with the final decree. That transfer was in the year 1956 during the pendency of o. S. 134. Though the transferor at that time was a defendant, Being a sharer, Who had claimed a share in a partition suit be was in the position of a plaintiff and any transfer by him cannot adversely affect the rights of the other sharers including the plaintiff and the transfer will be hit by the rule of lis pendens. The transfer therefore cannot adversely affect the plaintiff in the present suit. As far as the claim against the second defendant in this suit is concerned the prayer is only for the removal of an intrusion into the property which has been allotted to the plaintiff in o. S. 134. The intrusion is said to be to an extent of 71/2 links in width. And this is a protuberance from the structure in the adjacent property bearing t. C. 11/630. This part of the extension cannot be treated as a but or homestead and the second defendant cannot be termed to be a kudikidappukaran with reference to this extension and so no question of the rights of a kudikidappukaran arises in the suit. That portion of the building which has been extended into the property allotted to the plaintiff in o. S 134 will have to be removed. It may be necessary to ascertain by the issue of a commission in execution the actual extent of the intrusion. This will be done by the

execution court.

14. Counsel on behalf of the appellant contended that para. 1 of the plaint indicates that the plaintiff had asserted that the plaintiff has got right to the plot on which the building t. C. 11/630 is situate. Even so the prayer in the plaint is confined to the removal of that part of the structure which has been extended by the second defendant so as to encroach upon the property allotted to the plaintiff in o. S. 134. The question therefore to be considered is only whether this extension should be directed to be removed. We see no reason why this should not be done. The decree for removal of that portion of the building must therefore stand. I see no reason to allow the appeal of the second defendant either. In the result, This appeal is dismissed with costs.