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PETITIONER: PUTHIYA PURAYIL KANNAN’S WIDOW KOZIPURATH CHEMMARATHIBY L.R.

       Vs.

RESPONDENT: PATINHARE KOYYATTAN BALAN & ORS.

DATE OF JUDGMENT:       21/03/1997

BENCH: K. RAMASWAMY, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This Court  by  order dated November 16, 1995 dismissed the special  leave petition  on the ground that the original petitioner had died on September 1, 1993 and the application to bring  the legal  representatives on  record was filed on January 27,  1994 and  , therefore,  the  application  stood abated. It  is not  in dispute  that the original petitioner died on  September 1,  1993. By  operation of Article 120 of the Schedule to the Limitation Act, 1963, the application to bring on  record the  legal representatives  of the  decease plaintiff or  defendant, should be filed within 90 days from the date  of the  death of  the plaintiff/defendant.  If the application is  not filed  within the  date,  the  abatement takes place.  As contemplated in Article 121 of the Schedule which envisages  that for  seeking an order to set aside the abatement, the  application need  to be filed within 60 days from the  date of  the adatement.  In this  case, since  the original  petitioner   died  on   September  1,   1993,  the application was required to be filed within 90 day from that date which,  no doubt,  was not  filed. So,  abatement  took place.  Thereafter,   the  application   to  set  aside  the adatement was  filed on  January 27, 1994 which is within 60 days. Though  at that  stage the  action had abated, for the reasons stated  in the application, the adatement stands set aside. The  Petition for  setting  aside  the  abatement  is accordingly allowed.      We have  heard the  case on  merits. The  case  of  the respondent is that the has come into possession by virtue of lease granted  by the landlord and he has been in possession for well  over 20  years. In  paragraph 7 of the judgment of the division  Bench of  the High Court dated August 29, 1990 made in  CRP No.  4171/75,  it  has  pointed  out  that  the respondent came into lawful possession of the property under a lease  deed though  the same  was found  to  be  defective Section 7-B the Kerala Land Reforms Act postulates thus:      "Notwithstanding  anything  to  the      contrary contained in any law or in      any contract,  custom or  usage, or      in any  judgment, custom  or usage,      or in any judgment, decree or order

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    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  of  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.      A    reading    thereof    clearly    envisages    that notwithstanding anything  to the  contrary contained  in any law or in any contract, custom or usage, or in any judgment, decree or  order of   the Court, any parson in occupation of the land..  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 the person who  had no  title over  the  land  or  who  was  not competent to  lease the  land. Thus,  it would be seen that, though there  is a  defect in  the conferment  of  right  to possession under  registered lease deed and in such a defect a person  who remained  in lawful  possession is entitled to occupancy right,  the High  Court has found, as a fact, that the respondent  having come  into lawful  possession of  the land by  virtue of  defective lease  deed his  possession is protected under  Section 7-B of the Kerala Land Reforms Act. Therefore, we do not find any merit warranting interference.      The special  leave petition  is accordingly  dismissed. The Review petition is allowed accoringly.