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PETITIONER: MATHEVAN PILLAI PADMANABHA PILLAI

       Vs.

RESPONDENT: ARULAPPAN NADAR YOVAN NADAR AND ORHERS

DATE OF JUDGMENT:       04/09/1998

BENCH: K.T. THOMAS, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T SRINIVASAN. J. The only question which arises for  consideration  in this  appeal  is  whether the respondents can be deemed to be tenants within the meaning of Section 4A of the  Kerala  Land Reforms  Act  1  of 1964 (for short, ’the Act’) as amended by Act 35 of 1969. 2.The  appellant’s  predecessor executed a usufructuary mortgage in favour of the respondents in the year  1094  M.E. corresponding to 1919.  In the year 1119 ME (1944) a document was executed in which it was recited that the mortgage amount had  been  received  by  the  mortgagees  and  the  land  was surrendered to  the  mortgagor.      Simultaneously   another document  was  executed  by  the  same  mortgagor to the same mortgagees.  In the year 1122 ME (1947)  a  further  mortgage was  given  by  the  mortgagor to the mortgagees for a larger amount inclusive of the amount of the earlier mortgage. 3.On  30.1.1974  the  appellant  filed   a   suit   for redemption of  the  mortgage of the year 1122 ME (1947).  The suit was resisted by  the  respondents  on  several  grounds, chief  among them being that they had become tenants entitled to fixity of tenure by virtue of Section 4A of the Act.   The trial  Court  rejected the contentions of the respondents and passed a decree for redemption in favour of the appellant. 4.On  appeal by defendants 3,4,5,6, and 8 the Principal Subordinate Judge, Trivandrum held that  the  defendants  had been  holding  the  land  continuously for more than 50 years prior to the relevant date i.e.   1.1.1970  and  consequently the  relief  of  redemption  could  not  be  granted  to  the plaintiff.  Thus the appeal was  allowed  and  the  suit  was dismissed.  The appellant approached the High Court of Kerala with  a  second  appeal which ended in dismissal on 28.11.85. Hence, the appellant is before us. 5.According  to the appellant the recitals of Ex.A-3 by which the first mortgage of 1094 ME was discharged prove that possession was handed over to the mortgagor and when a  fresh mortgage  was  executed  by  the  mortgagor to the mortgagee, there was  a  break  in  the  continuity  of  possession  and therefore  the  period  of  50 years mentioned in the Section should be calculated from 4.8.1119 ME, the date on which  the

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earlier  mortgage  was  terminated and the later mortgage was executed. 6.The relevant part of the Section in the Act reads  as follows :         " Section 4A:  Certain mortgagees         and lessees of mortgagees  to  be  deemed         tenants :-         (1)  Notwithstanding  anything to         the contrary contained in ant law  or  in         any contract, custom, or usage, or in any         judgment,  decree  or  order  of court, a         mortgagee with possession of land,  other         than land principally planted with lessee         of a mortgagee of cardamom, or the lessee         of  a  mortgagee  of  such  land shall be         deemed to be a tenant if :         (a) the  mortgagee  or   lessee   was         holding   the   land   comprised  in  the         mortgage for a continuous period  of  not         less   than   fifty   years   immediately         preceding the commencement of the  Kerala         Land  Reforms  (Amendment)  Act, 1969; or         ...." 7.The  Section  requires  only  the holding of the land comprised in the mortgage for a continuous period of not less than fifty years by the mortgagee or  lessee.    The  Section does not insist upon there being only one mortgage throughout the period  of  fifty  years.  The language of the Section is wide enough to show that there can be more than one  mortgage but  the  mortgagee  shall  hold  the  land  comprised in the mortgages continuously for a period of not  less  than  fifty years. 8.The Principal Subordinate Judge, Trivandrum has found as a fact that possession did not pass no to the mortgagor on the date  of Ex.A-3.  The relevant passage in his judgment is as follows :         "It is true that  Ex.    A-3  has         been  got  executed purporting to release         the mortgage evidenced by A-2 on  payment         of  the  mortgage  amount  and  value  of         improvements.  But Ex.B-2 would show that         in fact no  payment  of  mortgage  amount         adjustment  of  the  consideration of A-2         mortgage for B-2 otti.  It is  seen  that         the  executants  of  A-3 are the ottidars         under B-2, A-3 and A-2 have been executed         by one after the other on the  same  day.         Excepting  the statement in A-3 regarding         surrender  of  possession  there  is   no         evidence  of  actual possession and it is         not probable to think there had  been  in         fact  a  factual  surrender of possession         under A-3 as per B-2.  Under  Ex.B-2  the         owner  is purported to receive a slightly         larger consideration than under A-2 otti.         Under the circumstances despite  A-3  the         appellant’s  predecessor should have been         found to continue in otti  sought  to  be         redeemed is one evidenced by A-1 which is         of the  year  1122.  It is clear from A-1         that possession was not given under  that         otti  but it is directed therein that the         ottidars are to  continue  in  possession         granted under B-2." 9.That finding was accepted by the High Court in second

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appeal  and  confirmed.  We do not find any error whatever in the  view  taken  by  the  Principal  Subordinate  Judge  and affirmed  by  the High Court. Hence there is no merit in this appeal and it is hearby dismissed. There will be no order  as to costs.