Full Judgment Text
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PETITIONER:
PALAYI KIZHAKKEKARA MATHAIY’S SONK.M. MATHEW & ANR.
Vs.
RESPONDENT:
POTHIYILL MOMMUTTY’S SON HAMSA HAJI & ORS.
DATE OF JUDGMENT29/04/1987
BENCH:
ERADI, V. BALAKRISHNA (J)
BENCH:
ERADI, V. BALAKRISHNA (J)
SEN, A.P. (J)
CITATION:
1987 AIR 1326 1987 SCR (3) 109
1987 SCC (3) 326 JT 1987 (2) 520
1987 SCALE (1)1245
CITATOR INFO :
D 1988 SC 587 (16,17)
ACT:
Kerala Land Reforms Act, 1963--Section 7D--Persons whose
occupation of private forests or unsurveyed lands has a
lawful origin-Entitled to protection--Persons in unlawful
occupation based on trespass or forcible and unlawful
entry--Not entitled to protection.
HEADNOTE:
Section 7D of the Kerala Land Reforms Act, 1963--Act 1
of 1964--as amended by Act 35 of 1969 provides that a person
occupying private forests or unsurveyed lands shall be
deemed to be a tenant if he or his predecessor-in-interest
was continuously in occupation of such land for not less
than two years within a period of 12 years immediately
precedings the 11th day of April, 1969.
In the instant case, the High Court while interpreting
s. 7D took the view that the benefit of s. 7D would apply
only to persons whose occupation of the private forests or
unsurveyed lands had a lawful origin and not to persons in
unlawful occupation based on trespass or forcible and unlaw-
ful entry.
In the appeal to this Court also the so1e question
concerning the interpretation of s. 7D was raised.
Dismissing the appeal and the special leave petitions,
HELD: 1. On a careful scrutiny of the provisions con-
tained In ss. 7A to 7C and ss. 8 and 9 of the Act it is
clear that the intention of the legislature was to grant
protection only to persons whose possession had a lawful
origin in the sense that they had either bona fide believed
the lands to be Government’s lands of which they could later
seek assignment or had taken the lands on lease from persons
whom they bona fide believed to be competent to grant such
leases or had come into possession with the intention of
attorning to the lawful owners or on the basis of arrange-
ments like varam etc. which were only in the nature of
licences and fell short of a leasehold right. It was not
within the contemplation of the legislature to confer the
benefit of protection on persons
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who had wilfully trespassed upon lands belonging to others
and whose occupation was unlawful in its origin. [114A-C]
2. -The expression "in occupation" occurring in s. 7D
must be construed as meaning ’ ’in lawful occupation".
[114C]
3. In the present case, the finding of fact entered by
the High Court is that the appellant had come into posses-
sion of the lands by trespass. His plea before the Courts
below was that he was himself the owner of the area having
acquired title to it by adverse possession. In such circum-
stances the High Court was fully justified in holding that
the appellant was not entitled to the protection ors. 7D.
[114D]
[In view of the offer made by the respondents that they
are prepared to pay to the appellant a sum of Rs.50,000 as
ex-gratia payment in full and final settlement of his
claim, the Court directed that an amount of Rs.50,000 shall
be deposited by the respondents in trial Court within three
months with liberty to appellant to withdraw the same with-
out furnishing any security. [114E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 165 of
1974 etc.
From the Judgment and Decree dated 22.10.1973 of the
Kerala High Court in S.A. No. 580 of 1970.
T.S. Krishnamoorthy Iyer and N. Sudhakaran for the
Appellants.
P.S. Poti, S.B. Saharya and Ms. Ratna Nair for the
Respondents.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. After hearing Counsel appearing on
both sides we do not find any merit in this appeal and the
Special Leave Petitions.
The sole question raised before us in the appeal con-
cerns the interpretation of Section 7D of the Kerala Land
Reforms Act, 1963-Act 1 of 1964--as amended by Act, 35 of
1969. That section reads--
"7D. Certain persons occupying private forests
or unsur-
111
veyed lands to be deemed tenants--Notwith-
standing anything to the contrary contained in
section 52 or any other provision of the
Transfer of Property Act, 1882, or any other
law, or in any contract, custom or usage, or
in any judgment, decree or order of court, any
person in occupation at the commencement of
the Kerala Land Reforms (Amendment) Act, 1969,
of the land of another situate in Malabar to
which the provisions of the Madras Preserva-
tion or Private Forests Act, 1949 (XXVII of
1949), were applicable on the 11th day of
April, 1955 or which was unsurveyed on that
date, shall be deemed to be a tenant if he or
his predecessor-in-interest was continuously
in occupation of such land for not less than
two years within a period of twelve years
immediately preceding the 11th day of April,
1967."
The High Court has taken the view that the benefit of
the above section would apply only to persons whose occupa-
tion of the private forests or unsurveyed lands had a lawful
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origin and not to persons m unlawful occupation based on
trespass or forcible and unlawful entry. We are of opinion
that the said interpretation placed by the High Court on the
section is perfectly correct.
For a proper understanding of the scope and intendment
of Section 7D, it is necessary to examine the setting and
the context in which the said section occurs in the Act.
This will require a conjoint study of the provisions con-
tained in Section 7A to 7C and Sections 8 and 9 of the Act
which immediately precede and succeed Section 7D. Those
sections are in the following terms:-
"7A. Certain persons occupying land for not
less than ten years to be deemed tenants-
notwithstanding anything to the contrary
contained in section 52 or any other provision
of the Transfer of Property Act, 1882, or any
other law, or in any contract, custom or
usage, or in any judgment, decree or order of
court, a person shall be deemed to be a tenant
in respect of the land of another in his
occupation if-
(a) he or his predecessor-in-interest occupied
such land believing it to be the property of
the Government;
(b) subsequent to such occupation such land
has become the property of such other person
as a consequence of any judgment, decree or
order of any civil court, and
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(c) such land has been in the continuous
occupation of such person for a period of not
less than ten years preceding the commencement
of the Kerala Land Reforms (Amendment) Act,
1969.
Explanation I--In computing the
period of occupation of a person for the
purpose of clause (c), the period during which
the predecessor-in-interest or predecessors
in-interest of such person was or were in
occupation shall also be taken into account.
Explanation II--For the purpose of
this section, a person shall be deemed to be
in continuous occupation notwithstanding any
order of court for delivery of possession to
another person or any court record of dispos-
session.
7B. Certain persons occupying lands under
leases granted by incompetent persons 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, any person
in occupation of the land of another at the
commencement of the Kerala Land Reforms
(Amendment) Act, 1969, on the basis of a
registered deed purporting to be a lease deed,
shall be deemed to be a tenant if he or his
predecessor-in-interest was in occupation of
such land on the 11th day of April, 1957, on
the basis of that deed, notwithstanding the
fact that the lease was granted by a person
who had no right over the land or who was not
competent to lease the land.
(2) Notwithstanding anything to the
contrary contained in any law, or in any
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contract, custom or usage, or in any judgment,
decree or order of court, any person who on
the 11th day of April, 1957, was in occupation
of the land of another and continued to be in
occupation of such land till the commencement
of the Kerala Land Reforms (Amendment) Act,
1969, shall be deemed to be a tenant if the
court has delivered a judgment or passed an
order before the date of publication of the
Kerala Land Reforms (Amendment) Bill, 1968, in
the Gazette that the occupation by such person
was on the basis of an oral permission or an
unregistered deed purporting to be a lease
deed granted by a persOn who had no right over
the land or who was not competent to lease the
land.
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7C. Certain persons who have paid amounts for
occupation of land shall be deemed to be
tenants:- Notwithstanding anything to the
contrary contained in any law, or in any con-
tract, custom or usage, or in any judgment,
decree or order of court, any person who is in
occupation of the land of another at the
commencement of the Kerala Land Reforms
(Amendment) Act, 1969, shall be deemed to be a
tenant if he or his predecessor-in-interest
has paid within a period of ten years immedi-
ately preceding such commencement any amount
in consideration of such occupation or for the
use and occupation of such land and has ob-
tained a receipt for such payment from any
person entitled to lease that land or his
authorised agent or a receiver appointed by a
court describing the payment as modavaram or
nashtavaram or modanashtavaram or a receipt
described as M.R. receipt.
XX XX XX
XX XX
8. Certain persons who were cultivating land
on varam arrangement 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, any person who, by virtue of
the provisions of section 6 of the Kerala Stay
of Eviction Proceedings Act, 1957, was enti-
tled to cultivate any nilam after the 11th day
of April, 1957, and was cultivating the nilam
at the commencement of this Act, shall be
deemed to be a tenant, notwithstanding the
expiry of the term fixed under the varam
arrangement.
9. Certain persons who surrendered lease-
hold rights but continued in possession 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, where, on or after
the 11th day of April, 1957, a tenant holding
land less in extent than the ceiling area, had
executed a deed surrendering his leasehold
right to the landlord, but had not actually
transferred possession of the land to the
landlord before the commencement of this Act,
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such deed shall be deemed to be invalid and
such person shall be deemed to be a tenant."
114
On a careful scrutiny of the aforesaid provisions, it
becomes abundantly clear that the intention of the legisla-
ture was to grant protection only to persons whose posses-
sion had a lawful origin in the sense that they had either
bona fide believed the lands to be Government’s lands of
which they could later seek assignment or had taken the
lands on lease from persons whom they bona fide believed to
be competent to grant such leases or had come into posses-
sion with the intention of attorning to the lawful owners or
on the basis of arrangements like varam etc. which were only
in the nature of licences and fell short of a leasehold
right. It was not within the contemplation of the legisla-
ture to confer the benefit of protection on persons who had
wilfully trespassed upon lands belonging to others and whose
occupation was unlawful in its origin. The expression "in
occupation" occurring in Section 7D must be construed as
meaning "in lawful occupation."
In the present case the finding of fact entered by the
High Court is that the appellant had come into possession of
the lands by trespass. His plea before the Courts below was
that he was himself the owner of the area having acquired
title to it by adverse possession. In such circumstances the
High Court was in our opinion fully justified in holding
that the appellant was not entitled to the protection of
Section 7D. The appeal, is, therefore, devoid of merits.
Shri P.S. Potti, learned Senior Counsel appearing on
behalf of the respondents has very fairly submitted before
us that his clients-respondents-are prepared to pay to the
appellant a sum of Rs.50,000 as ex-gratia payment in full
and final settlement of whatever claims the appellant may
have towards the value of the rubber trees standing in
plots. A, B and C or in any other respect. We record this
submission and direct that an amount of Rs.50,000 shall be
deposited by the respondents in the trial Court within a
period of three months from today, whereupon the appellant
will be at liberty to withdraw the said amount from Court
without furnishing any security.
Subject to the aforesaid observation and direction, the
appeal and the Special Leave Petitions. are dismissed. The
parties will bear their respective costs. The amounts depos-
ited in the trial court by the Receiver may be withdrawn by
the respondents herein.
A.P.J. Appeal & Petitions
dismissed.
115