Tenant's heirs sued for declaration of leasehold rights and possession. The Supreme Court held that the assignment deed was in substance a void surrender under Section 51, and that Section 13A did not bar a civil suit; SLPs were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
[2010] 12 S.C.R. 1084
A
AMINA BEEVI
v.
THACHI & ORS.
(Special Leave Petition (Civil) No. 15221 of 2007 Etc.)
B
OCTOBER 27, 2010
[D.K. JAIN AND A.K. PATNAIK, JJ.]
KERALA LAND REFORMS ACT, 1963:
c s.51, proviso - Surrender by tenant of his interests in the leasehold land to landlord - HELD: Being in contravention of s. 51, was void.
ss. 13-A and 125 - Restoration of possession of tenants dispossessed after 1.4.1964 - Jurisdiction of civil court - D Held: Suit for recovery of possession by a tenant is neither barred expressly nor impliedly bys. 13-A - Further, s.125 makes it clear that in any suit regarding rights of a tenant the issues of rights of tenant and whether a person is tenant will have to be referred to the civil court.
E
'MS', the owner of the suit property (agricultural lands) leased out the same to 'K' in the year 1945-46. 'MS' died on 24.7.1968. His legal heirs, namely, his wife, son and daughter, executed sale deeds, Ext. A-1 and Ext. A- F 2 in respect of a part of the suit land. On 29. 7 .1968, 'K' executed a leasehold assignment deed, Ext. A-3, in favour of the son of 'MS'. The purchasers of the suit property under Ext. A-1 and A-2 obtained loans from State Bank of Travancore and in turn mortgaged to the Bank G the properties under Exts. A-1 and A-2. After the death of 'K', his legal heirs filed a civil suit in the year 1980 against the landlords, the purchasers and the Bank. The trial court decreed the suit declaring that the plaintiffs had leasehold rights over the suit property and were entitled
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AMINA BEEVI v. THACH I & ORS.
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to recover possession thereof. The appeals filed by the Bank and the purchasers were dismissed and so also their second appeals.
In the instant petitions for special leave to appeal, the questions for consideration before the Court were: (1) whether the High Court was right in holding that Ext.A3, though styled as assignment of leasehold right, was in fact a surrender of the leasehold right by the lessee in favour of landlord and, therefore, hit bys. 51 of the Kerala Land Reforms Act, 1963 which prohibited surrender of interest of a tenant except in favour of the Government; and (2) whether the suit filed by the tenants for declaration of their tenancy rights in respect of the suit land and for recovery of possession thereof was expressly or impliedly barred by s.13A of the Act.
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B
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D
Dismissing the SLPs, the Court
HELD: 1. In view of the proviso to s.51 of the Kerala Land Reforms Act, 1963, any surrender by the tenant of his interest to any person other than the Government is prohibited. Ext.A3, being a surrender by the tenant of his interest in favour of a person other than the Government, was in contravention of s.51 and was void. This Court is, therefore, not inclined to disturb the finding of the High Court that Ext.A3 though styled as a leasehold assignment deed was in fact a surrender of the interest of the tenant and was prohibited by s.51 of the Act. [para 6] [1091-G-H; 1092-A]
2.1 Section 9 of the Code of Civil Procedure, 1908 provides that civil courts have jurisdiction to try all suits of a civil nature excepting suits which are either expressly or impliedly barred. A plain reading of sub-s. (1) of s.13A of the Act would show that a person who has been dispossessed of his land in his occupation on or
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1086 SUPREME COURT REPORTS [2010] 12 S.C.R.
2.2 The provisions of s.125 make it amply clear that in any suit regarding rights of a tenant, the rights of the D tenant including a question whether a person is a tenant will have to be referred by the Civil Court to the Land Tribunal and after the Land Tribunal decides the question, the Civil Court will decide the suit in accordance with the decision of the Land Tribunal. Considering these clear E provisions of s.125 of the Act, this Court is of the considered opinion that the suit of the plaintiffsrespondents for declaration that they were tenants in respect of the suit property and for recovery of possession of the suit property from the defendants and F for mesne profit was not barred either expressly or impliedly by s.13A of the Act. [para 1 O] [1096-C-E]
Koyappathodi Puthiyedath Ahammedkutty v. State of Kera/a and Others 1987 (Supp) SCC 158 - held G inapplicable.
3.1 It cannot be said that the Land Tribunal, to which the claim of tenancy of the plaintiffs-respondents was referred, has not considered the claim properly. A perusal of the order dated 13.11.1984 of the Land Tribunal shows H that it has dealt with the oral evidence of several
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1087
witnesses and a large number of documents filed on behalf of the parties and, in the light of the available evidence, has come to the conclusion that the father of the plaintiffs-respondents and after him the plaintiffsrespondents had leasehold rights. The trial court has accepted this finding of the Land Tribunal. The finding of the Land Tribunal and the trial court on this point is a finding of fact based on oral and documentary evidence and this Court is not inclined to disturb this finding in this Special Leave Petition. [para 11] [1096-G-H; 1097-A-B]
3.2 Further, the issue whether the purchasers under C Exts. A-1 and A-2 were bona fide purchasers of the suit property, having not been raised before the trial court, it has not recorded a finding in this regard. Therefore, it is not necessary to decide, in the instant case, whether a tenant could or could not recover the land which was under his occupation from a bona fide purchaser by virtue of proviso (a) to sub-s. (1) of s.13A of the Act. [para 12] [1097 -C-D]
Case Law Reference:
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1987 (Supp) SCC 158 held inapplicable para 3
CIVIL APPELLATE JURISDICTION : SLP (Civil) No. 15221 of 2007.
From the Judgment & Order dated 28.03.2007 of the High Court of Kerala at Ernakulam in S.A. No. 517 of 1988.
F
WITH
SLP (Civil) No. 19320 of 2007.
G
Parag P. Tripathi, ASG, C.S. Rajan, K.N. Madhusoodanan, T.G. Narayanan Nair, A.V. rangam, Shadan Farasat, Amey Nargolkar, Buddy A. Rangadhan for the Petitioner.
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SUPREME COURT REPORTS [2010] 12 S.C.R.
1088
A C.S. Vaidyanathan, Haris Beeran, S. Sreekumar, Siraj Karoly, Radha Shyam Jena for the Respondents.
The Judgment of the Court was delivered by
A. K. PATNAIK, J. 1. These Special Leave Petitions have B been filed against the common judgment and decree dated 28.03.2007 passed by the Kerala High Court in Second Appeal Nos. 517 of 1988 and 311 of 1988.
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AMINA BE:EVI v. THACH I & ORS. [A.K. PATNAIK, J.] 1089
Howa. Thachi, Sulaiman, Aisha, Pathu and Howa (Plaintiffs) A filed a suit, O.S. No.129 of 1980, against Mariyumma, Kochu Pathu, Abdul Kadar, Fathima Beevi, Amina Beevi, Aisu, V.K. Kesavan, Janaky and the State Bank of Travancore (defendant nos. 1 to 9) and the Trial Court decreed the suit declaring that the plaintiffs have leasehold right over the suit property and are B entitled to recover possession of the suit property from defendants no. 1 to 9 and are also entitled to mesne profit from the date of suit till recovery of the possession or till expiry of period of 3 years whichever was earlier. Aggrieved, the State Bank of Travancore, Amina Beevi, V.K. Kesavan and Janaky c filed three appeals, A.S. Nos. 111, 117 and 121 of 1986. By a judgment and decree dated 30.10.1987, the Additional District Judge, Parur, dismissed the appeals. Against the judgment and decree of the Additional District Judge, Parur, Amina Beevi and the State Bank of Travancore filed Second Appeal Nos. 517 D of 1988 and 311 of 1988 under Section 100 of the Code of Civil Procedure, 1908 and by the impugned common judgment and decree dated 28.03.2007, the High Court dismissed the second appeals.
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AMINA BEEVI v. THACH I & ORS. [A.K. PATNAIK, J.] 1091
suit in a civil court, he submitted that Section 13A of the Act A was an additional remedy given to the tenant who is dispossessed of his land and did not bar a civil suit for declaration of right of tenancy and for recovery of the possession of land covered by the tenancy. He submitted that Aisu, Fathima Beevi and Amina Beevi who were impleaded B as defendants No.4, 5 and 6 in the suit have not taken any plea in their written statement that they were bona fide purchasers of the suit property and hence the contention of Mr. Parag Tripathi that the Act protected bona fide purchasers of land does not arise for decision in this case. He relied on the order c passed by the Land Tribunal to show that the Land Tribunal has gone into the evidence at length and decided that the plaintiffsrespondents were tenants in respect of the suit property.
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[201 OJ 12 S.C.R.
1092 SUPREME COURT REPORTS
A and was void. We are, therefore, not inclined to disturb the finding of the High Court that Ext.A3 though styled as a leasehold assignment deed was in fact a surrender of the interest of the tenant and was prohibited by Section 51 of the Act.
B
E
F
"13A. 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) G 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-
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(a) apply in any case where the said land has been
AMINA BEEVI v. THACH I & ORS. [A.K. PATNAIK, J.] 1093
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.
(2) Any person entitled to restoration of possession under sub-section (1) may, within a period of six months from the commencement of the Kerala Land Reforms (Amendment) Act, 1969, apply to the Land Tribunal for the restoration of possession of the land,
(3) The Land Tribunal may, after such inquiry as it deems fit, pass an order allowing the application for restoration and directing the applicant to deposit the compensation, if any, received by the applicant under any decree or order of Court towards value of improvements or otherwise and the value of improvements, if any effected on the land after the dispossession as may be determined by the Land Tribunal, within such period as may be specified in the order.
(4) On the deposit of the compensation and value of improvements as required in the order under sub-section (3), the Land Tribunal shall restore the applicant to possession of the land, if need be by removing any person who refuses to vacate the same.
125. Bar of jurisdiction of Civil Coutts - (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board [or the Taluk Land Board] or the Government or an officer of the Government;
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1094 SUPREME COURT REPORTS
[2010] 12 S.C.R.
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Provided that nothing contained in this sub-section shall apply to proceedings pending in any Court at the commencement of the Kerala Land Reforms Amendment Act, 1969.
(2) No order of the Land Tribunal or the appellate authority B or the Land Board [or the Taluk Land Board] or the Government or an officer of the Government made under this Act shall be questioned in any Civil Court, except as provided in this Act.
(5) The Civil Court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it.
F
(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Civil Court.
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AMINA BEEVI v. THACH I & ORS. [A.K. PATNAIK, J.] 1095
by the Land Tribunal, and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or before such question has arisen, shall stand cancelled.
(8) In this Section, "Civil Court" shall include a Rent Control Court as defined in the Kerala Buildings (Lease and Rent Control) Act, 1965."
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SUPREME COURT REPORTS (2010] 12 S.C.R.
1096
A tenant arises, the Civil Court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only. Sub-Section (4) of Section 125 further states that B the Land Tribunal shall decide the question referred to it under sub-Section (3) and return the records together with its decision to the Civil Court and under sub-section (5) of Section 125 the Civil Court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the c question referred to it. These provisions make it amply clear that in any suit regarding rights of a tenant, the rights of the tenant including a question whether a person is a tenant will have to be referred by the Civil Court to the Land Tribunal and after the Land Tribunal decides the question, the Civil Court will 0decide the suitinaccordance with the decision of the Land Tribunal. Considering these clear provisions of Section 125 of the Act, we are of the considered opinion that the suit of the plaintiffs-respondents for declaration that they were tenants in respect of the suit property and for recovery of possession of the suit property from the defendants and for mesne profit was E not barred either expressly or impliedly by Section 13A of the Act. This Court has also not held in Koyappathodi Puthiyedath Ahammedkutty v. State of Kera/a and Others (supra) cited by Mr. Rajan that the tenant cannot institute a suit in a Civil Court for declaration of his tenancy in respect of a land and for F recovery of possession of the land covered by the tenancy.
AMINA BEEVI v. THACH! & ORS. [A.K. PATNAIK, J.)1097
the conclusion that the father of the plaintiffs-respondents and after him the plaintiffs-respondents had leasehold rights in the light of the available evidence. We also find that the Trial Court has accepted this finding of the Land Tribunal upholding the leasehold right of the plaintiffs-respondents and has decided Issue No.1 in the suit accordingly. The finding of the Land Tribunal and the Trial Court on this point is a finding of fact based on oral and documentary evidence and we are not inclined to disturb this finding in this Special Leave Petition.
R.P.
SLPs dismissed.
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2 issues framed by the court
Was Ext.A3 a surrender of tenancy rights prohibited and void under Section 51 of the Kerala Land Reforms Act, 1963?
Whether a tenant's suit for declaration of tenancy and recovery of possession was barred by Section 13A of the Act.
Colour shows how this judgement treated each authority
Koyappathodi Puthiyedath Ahammedkutty v. State of Kerala and OthersDistinguished¶10
1987 (Supp) SCC 158 · Who else cites this
5 provisions across 2 enactments
Amina Beevi
Thachi & Ors.
D.K. Jain
A.K. Patnaik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
