Ouseph Lonan v. Kochunarayana Pisharady

1. 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 plaintiffs 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 SA. 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 OS. 91/1121 for recovery of possession of the property on the basis of the 1st plaintiffs title to it alleging that the lease in favour of defendants 1 and 4 had terminated by the decree in OS. 164/1100 and that they were trespassers on the property. That was decreed on 18-2-1121 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 CMP. 2881/62 on 31-10-1962 claiming the benefit of Act 4 of 1961, and subsequently CMP. No. 823/63 on 27-2-1963 claiming that they were tenants within the meaning of the term tenant in S.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in S.2 (57) of Act 1 of 1964 and was entitled to fixity of tenure under S.13 of that Act, since Act 7 of 1963 was repealed by that time.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 OS. 91/1121 that they were trespassers with no liability to pay rent, and had prescribed for title to the property by adverse 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 S.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 ground 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 OS. 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 S.13 of Act 1 of 1964 as amended by Act 35 of 1969. S.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 S.14 of to 22."

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In Gopinatha Panicker v. Joseph 1965 KLT. 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 nonobstante 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 KLT. 757 that in order to get fixity of tenure under S.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 eventhough 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 S.13 of Act 1 of 1964.

4. 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.

It was argued that when thedecree 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 land 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 S.13. When the decree in O. S.164/1100 was passed for 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. InLandlord 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."

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 cotninuaence 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 character 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 S.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 is Gapinatha Panicker v. Joseph 1965 KLT. 870 ami Ayissabi v. Choyi 1965 K.LF.757, as to the scope and purpose of the section. We think that these decisions lay down the law correctly. If that be so, the fact that the plaintiffs allowed the decree in OS. 164/1100 to become barred and instituted a fresh suit to recover possession of the property on the strength of the 1st plaintiffs 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 OS. 164/1100 and they continued to be trespassers after the decree in OS. 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 S.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 OS. 164/1100 to become barred and obtained a decree on the basis of title in OS. 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 OS. 164/1100 these defendants, although trespassers on the property, could claim the benefit of S.13, we perceive no reason why they cannot claim the benefit of the section after the decree in OS. 91/1121.

5. Mr. Bhoothalinga Iyer, appearing for the respondent-1st plaintiff, submitted that defendants 1 and 4 were contending in OS. 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 defeandants after the decree either in OS. 164/1100 or OS. 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 OS. 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.

6. We think that the appellants are entitled to fixity of tenure under S.13 of Act 1 of 1964 even though the decree in OS. 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 eventhough 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 S.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. A.M.K. Allowed.