PALAYI KIZHAKKEKARA MATHAIY'S SON K.M. MATHEW & ANR.versusPOTHIYILL MOMMUTTYS SON HAMSA HAJI & ORS.

      PALAYI KIZHAKKEKARA MATHAIY'S SON                                   A
              K.M. MATHEW & ANR.
                       v.
  POTHIYILL MOMMUTTY'S SON HAMSA HAJI & ORS.

                           APRIL 29, 1987
                                                                          B
       [A.P. SEN AND V. BALAKRISHNA ERADI, :J.]

      Kera/a 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 tres-
pass or forcible and unlawful entry-Not entitled to protection.
                                                                          c
      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 unsurveved 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 D
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 E
forcible and unlawful entry.

      In the appeal to this Court also the sole question concerning the
interpretation of s. 7D was raised.

      Dismissing the appeal and the special leave petitions,              F

      HELD: 1. On a careful scrutiny of the provisions contained 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 assign- G
ment 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 contem·
plation of the legislature to confer the benefit of protection on persons H
                                    109



                                              .,..
    110                      SUPREME COURT REPORTS          [1987) 3 S.C.R.

A   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. 70 must be
    construed as meaning "in lawful occupation". [114C]

B         3. 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 fully justified in holding that
    the appellant was not entitled to the protection ofs. 70. [1140]
c       [In view of the offer made by the respondents that they are pre-
  pared to pay to the appellant a sum of Rs.50,000 as ex-gratia payment .
  in full and final settlement of hi:; 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
D 'ame without furnishing any security. [114E)

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 165
    of 1974 etc.

       From the Judgment and Decree dated 22. 10.1973 of the Kerala
E High Court in S.A. No. 580 of 1970.

              T.S. Krishnamoorthy Iyer and N. Sudhakaran for the Appel-
    Ian ts.

         P.S. Poti, S.B. Saharya and Ms. Ratna Nair for the Res-
F   pondents.

              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
G Leave Petitions.

          The sole question raised before us in the appeal concerns the
    interpretation of Section 7D of the Kerala Land Reforms Act, 1963-
    Act I of 1964-as amended by Act, 35 of 1969. That section reads-

H                  "70. Certain persons occupying private forests or unsur-
            PALAY! KIZHAKKEKARA v. POTHIYILL {ERADI. J.J                  111


              veyed lands to be deemed tenants-Notwithstanding any- A
              thing to the contrary contained in section 52 or any other
              provi;ion 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 occupa-
              tion at the commencement of the Kerala Land Reforms
I             (Amendment) Act, 1969, of the land of another situate in B
t             Mal;,'. "u, to which the provisions of the Madras Preserva-
              tion or Private Forests Act, 1949 (XXVIJ 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 occu-
              pation of such land for not less than two years within a
              period of twelve years immediately preceding the 1lth day C
               of April, 1967."

          The High Court has taken the view that the benefit of the above
    section would apply only to persons whose occupation of the private
    forests or unsurveyed lands had a lawful origin and not to persons in D
    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 Sec-
    tion 7D, it is necessary to examine the setting and the context in which E
    the said section occurs in the Act. This will require a conjoint study of
    the provisions contained 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:-

               "7 A. Certain persons occupying land for not less than ten F
               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-
                                                                                 G
               (a) he or his predecessor-in-interest occupied such land be-
               lieving 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         H
               judgment, decree or order of any civil court, and


                                                                   - ---,:- --
     ! 12              SUPREME COURT REPORTS             [1987] 3 S.C.R.

A
            (c) such land has been in the continuous occupation of           +-
            such person for a period of not less than ten years preced-
            ing the commencement of the Kerala Land Reforms
            (Amendment) Act, 1969.

                  Explanation I-In computing the period of occupa-
B           tion of a person for the purpose of clause (c), the period
            during which the predecessor-in-interest or predecessors-
                                                                             1
            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
c           notwithstanding any order of court for delivery of posses-
            sion to another person or any court record of dispossession.

            7B. Certain persons occupying lands under leases granted
            by incompetent persons to be deemed tenants-{ I) Not-
D           withstanding 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 regis-
            tered deed purporting to be a lease deed, shall be deemed
E           to be a tenant if he or his predecessor-in-interest was in
            occupation of such land on the ! Ith 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.
                                                                             y
F'                (2) Notwithstanding anything to the contrary con-
            tained in any law, or in any contract, custom or usage, or in
            any judgment, decree or order of court, any person who on
            the I Ith 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 (Amend-
            ment) Act, 1969, shall be deemed to be a tenant if the court
G           has delivered a judgment or passed an order before the
            date of publication of the Kerala Land Reforms (Amend-
            ment) Bill, 1968, in the Gazette that the occupation by such
            person was on the basis of an oral permission or an unre-
            gistered deed purporting to be a lease deed granted by a
            person who had no right over the land or who was not
H
            competent to lease the land.
      PALAY! KIZHAKKEKARA v. POTHIYILL (ERADI. J.]                 113

       7C. Certain persons who have paid amounts for occu-
                                                                   A
       pation of land shall be deemed to be tenants:- Notwith-
       standing anything to the contrary contained in any law,
       or in any contract, custom or usage, or in any judg-
       ment, decree or order of court, any person who is in occu-
       pation of the land of another at the commencement of the
       Kerala Land Reforms (Amendment) Act, 1969, shall be B
I      deemed to be a tenant if he or his predecessor-in-interest
!      has paid within a period of ten years immediately preceding
       such commencement any amount in consideration of such
'J'    occupation or for the use and occupation of such land and
       has obtained 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 C
       modavaram or nashtavaram or modanashtavaram or a
       receipt described as M. R. receipt.

         xx                       xx                          xx
                                                                             D
                xx                                  xx
       8. Certain persons who were cultivating land on varam
       arrangement to be deemed tenants-Notwithstanding any-
       thing 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, by virtue of the provisions of
       section 6 of the Kerala Stay of Eviction Proceedings Act,



t      1957, was entitled to cultivate any nilam after the 11th day
       of April, 1957, and was cultivating the nilam at the com-
       mencement of this Act, shall be deemed to be a tenant,
       notwithstanding the expiry of the term fixed under the F
       varam arrangement.
             9. Certain persons who surrendered leasehold rights
       but continued in possession to be deemed tenants-Not-
       withstanding 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 G
       April, 1957, a tenant holding land less in extent than the
       ceiling area, had executed a deed surrendering his lease-
       hold right to the landlord, but had not actually transferred
       possession of the land to the landlord before the comm-
       encement of this Act, such deed shall be deemed to be
       invalid and such person shall be deemed to be a tenant."     H



                                                         --·...,...,.,-- -
    I 14                  SUPREME COURT REPORTS
                                                                          '
                                                           ( 1987] 3 S.C.R.

A       On a careful scrutiny of the aforesaid provisions, it becomes abun-
  dantly 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
B grant such leases or had come into possession 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 legislature
  to confer the benefit of protection on persons who had wilfully tres-
  passed upon lands belonging to others and whose occupation was un-
C lawful 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
D 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
E 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
F 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 deposited in the trial court by the
G Receiver may be withdrawn by the respondents herein.

    A.P.J.                                  Appeal & Petitions dismissed.