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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 110

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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                112               (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.               113               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