Lekshmy & Anr Vs. Nellachinkuniyil Govindan Nair & Ors  INSC 143
(19 April 1990)
S.R. (J) Pandian, S.R. (J) Ray, B.C. (J)
1990 SCR (2) 539 1990 SCC (3) 374 JT 1990 (3) 230 1990 SCALE (1)196
Land Reforms Act--Amended by 9 of 1967 & 35 of 1969-Section 13(B)--When the
tenant is entitled for restora- tion of possession or when the bona fide
purchaser is enti- tled for protection.
of India, 1950. Article 136--Interference of
Supreme Court--Where manifest injustice or grave miscarriage of Justice results.
appellants fried an Execution Application in 1970 in the Court of Munsiff under
Section 13(B) of the Land Reforms Act 1969 for the restoration of the
possession of the properties which were sold in Court auction in pursuance of a
decree for arrears of rent. The decree holder and Court auction purchasers were
close relatives. The sale took place on 26.11. 1962 and was confirmed on
14.8.1964. It is the 3rd Respondent a stranger in the present appeal who
purchased the property in the Court auction and got the possession of the same
on 9.1.1965 from the appellants. The appellants trespassed into the suit
property again and were ejected in 1966 pursuant to a decree in a suit.
Thereafter the 3rd Respondent i.e. the auction purchaser assigned the property
in favour of Respondents No. 1 & 2 who were the close rela- tives vide sale
deeds dated 5.12.1966 (Exts A2 and A3). The appellants had already filed
Execution Application, for restoration of possession after making necessary
deposit for the purchase money under section 6 of Act 9 of 1967. The same was
pending when Act 35 of 1969 came into force and so the appellants made an
application with a prayer that the earlier deposit be treated as a deposit
under section 13(B) of 1969 Act.
Court auction purchaser i.e. 3rd Respondent and his assignees Respondents No. 1
& 2 strongly contended that appellants have no interest in the properties.
The appel- lants attacked the validity of the sale deeds being made without
consideration. The trial Court held that the appel- lants were tenants when
they were dispossessed and also held that the deposit made by the appellants
was sufficient for restoration of possession, and Respondents No. 1 & 2 are
not bona fide purchasers for consideration, and hence set aside the sale.
Respondents No. 1 & 2 made application before the sub- court 540 and the
court held the petitioners were competent to main- tain the application and
were bona fide purchasers as per records such as revenue and tax receipts plus
the admission of the vendor and vendee as to the payment of consideration.
the deposit made by the appellants it was considered to be sufficient in case
they were found entitled for resto- ration of possession; set aside the Trial
Court order and allowed the appeal.
appellants therefore filed E.S.A. in the High Court and the High Court upheld
that the decision and the decree of the lower Appellate Court as per evidence,
and as circum- stances of the case complied with public records establish- ing
that Respondents 1 & 2 are the bona fide purchasers for consideration. But
the first appellate court concurred with the Trial Court regarding the deposit
already made to be sufficient and the interest accrued would be directed to be
deposited if the appellants were found entitled to restora- tion of possession.
The said finding has not been dislodged by the High Court.
the Special Leave Petition, this Court,
In the instant case, two substantial questions are involved i.e. (1) whether
respondents 1 & 2 are bona fide purchasers of the scheduled land in dispute
for adequate consideration and thereby entitled to the benefit of the proviso
inserted vide Act 35 of 1969 to sec. 13(B)(1). [547F]
Whether the appellants are entitled to the benefit of subsection (1) of section
13(B) of the Act. [547F-G] As per section 13(B)--where any holding has been
sold in execution of any decree for arrears of rent and the tenant has been
dispossessed of the holding after the 1st day of April 1964 and before the
commencement of the Kerala Land Reforms (Amendment) Act 1969, such sale shall
stand set aside and such tenant shall be entitled to restoration of possession
of the holding subject to the provisions of this section. [558 B-C] Provided
that nothing in this sub-section shah apply in any case where the holding has
been sold to a bona fide purchaser for consideration after the date of such dispos-
session and before the date of the publication of Kerala Land Reforms
(Amendment) Bill 1968 in the Gazettee. [554D-E] 541 The concurrent finding of
facts by both the appellate courts that Respondents No. 1 & 2 are bona fide
purchasers for consideration warrant interference because both the appellate
courts have conveniently ignored and excluded from consideration even the
relationship of the parties inter-se i.e. the decree bolder, court auction
purchaser are close relatives and have assigned the property in favour of their
close relatives and a stranger- This assumes much importance and significance
in evaluating the evidence in the light of the facts and circumstances of the
case for reaching satis- factory conclusion. The court has failed to render any
finding on substantial question of Law. The lack of recitals with regard to the
consideration has also been completely ignored- It seemed to have disposed of
the case summarily.
It is not merely the inadequacy of consideration as pointed out by the lower
appellate court but there is lack of evidence in substantiating the recitals of
the documents that Respondents No. 1 & 2 are bona fide purchasers. The
receipts for the payment of tax, rent or revenue are by themselves cannot
dispel the claims of the appellants.
The conclusion arrived at by both the courts is only backed by assertions
rather than by acceptable reasoning based on the proper evaluation of evidence.
So the evidence and circumstances of the case coupled with the evidence on
record do establish that the Respondents 1 & 2 are not bona fide purchasers
for consideration. [553E-F] Discretionary powers under Article 136 has to be exer-
cised sparingly but when there are exceptional and special circumstances
justifying the exercise of discretionary powers and where manifest injustice or
grave miscarriage of justice has resulted by overlooking or ignoring or
excluding material evidence resulting in undue hardships, this Court will be
justified in stepping in and interfering with the concurrent findings of facts
in the interest of justice and it is also the duty of this Court to remedy the
injustice so resulted. Dipak Baneriee v. Lilabatichakraborty,  4 SCC 161,
relied on. [552H; 553A-B] On the question whether the appellants are entitled
to the benefit of section 13(B)(1) of the Act, it was held:
The Kerala Land Reforms Act of 1963 came into force on 1.4.1964, Act 9 of 1967
was a temporary Act and remained in force till 31.12.1969, Act 35 of 1969 came
into force from 1.1.1970 and section 13(B) is substantially on the same terms
as section 6 of 1967 Act with a 542 proviso super-added. To invoke section
13(B) two conditions are sine qua non. (1) Any holding to which a tenant is
entitled to restoration of possession should have been sold in execution of any
decree for arrears of rent. (2) The tenant should have been dispossessed of the
holding after 1.4.1964 and before the commencement of 1969 Act. [553H;
Thus the tenant shall be entitled to restoration of possession under section
13(B) provided the holding is not sold to a bona fide purchaser for
consideration, after the date of dispossession and before the publication of
the Kerala Land Reforms (Amendment) Bill 1968 in the Gazettee.
appellants are entitled to have the benefit of sub- section (1) of section
13(B) only if they have made the deposit of the purchase money together with
interest at the rate of 6% Per Annum in the Court and applied to the Court for
setting aside the sale and for restoration of the hold- ing. The appellants in
the instant case had already made deposit under 1967 Act and it was pending
when Act 35 of 1969 came into force. So the appellants made an application with
a prayer to treat the said deposites continuation unaffected by the provisions
of 1969 Act. [554D-F] The Language of section 13(B) is plain, clear and unam- biguous
and the very purpose of the section is to vest rights on the displaced tenants,
which is the dominant purpose of the statute, which should be considered. [554G-H]
P. Rami Reddy & Ors. v. State of Andhra Pradesh & Ors.,  3 SCC
433: Skandia Insurance Co. Ltd..v. Kokilaben Chandravadan & Ors.,  2
SCC 654 and M/s. Doypack Systems Pvt. Ltd. v. Union of India & Ors., 
2 SCC 299. relied on.
sale of holdings of the appellants was in execution of the decree for arrears
of rent in O.S. No. 817 of 1943, and appellants are tenants who were
dispossessed of the holdings after 1.4.1964 and before the commencement of 1969
Act. They are therefore entitled to restoration of posses- sion of the
properties in dispute but without prejudice of the rights if any of the
Respondents Nos. 7 to 10 who are the wife and children of Gopalan Nambiar. The
amount under deposit made by the appellants is permitted to be withdrawn by
respondents 1 to 3. [558B-C]
APPELLATE JURISDICTION: Civil Appeal No. 1924 of 1990.
the Judgment and Order dated 6.8.1986 of the Kerala High Court in E.S.A. No. 15
K.K. Venugopa|, M.K. Sasidharan and P.K. Pillai for the Appellants.
Iyer, P.S. Poti, S. Balakrishnan, Deepak Nargoalkar, E.M.S. Anam, R.M. Keshwani,
M.K.D. Nam- boodiri and Irfan Ahmed for the Respondents.
Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. Special leave
unsuccessful appellants herein have preferred this appeal against the judgment
of the High Court of Kerala dated 6.8.1985 passed in E.S.A. (Execution Second
Appeal) No. 15 of 1979 whereby the High Court dismissed the said appeal filed
by the appellants. The relevant facts giving rise to this appeal are necessary
to be recapitulated and they are as follows:
Gopalan Nambiar (since dead) and Othayath Lekshmy Amma (who is the first
appellant herein) filed an Execution Application No. 556 of 1970 in Original
1943 in the court of the Munsiff of Badagara under Section 13(B) of the Land
Reforms Act, as amended by the Amending Act 35 of 1969 (hereinafter referred to
as the 'Act') for restoration of possession of the properties mentioned in the
schedule of the application, which were sold in court auction for arrears of
rent in pursuance of the decree made in O.S. No. 817 of 1943.1t seems that
during the pendency of the proceedings before the Munsiff, Othayath Gopalan Nambiar
died and thereafter the first appellant's son claiming to be the karnavan of
the tavazhi got himself impleaded as the third petitioner in the said Execution
Application, who is figuring as the second appellant herein.
order to decide the questions that arise for consid- eration, certain salient
and material facts may be recapitu- lated. The suit, O.S. 'No. 817 of 1943 was
filed for recov- ery of arrears of rent of Rs.815 for the Malayalam years 1116
to 1118, corresponding to English era 1941 to 1943.
were 11 defendants of whom Othayath Gopalan Nambiar and the first appellant
were the defendants 2 and 3. A preliminary decree was passed on 26.5.1944
followed by the final decree on 29.11. 1944. The decree-holder assigned the
decree to another member of his family, who in turn assigned it to one Kunhikannan.
The rights of Kunhikannan devolved on Respondents 2 to 4 in the Execution
Application who are Respondents 4 to 6 in this appeal and who brought the 544
property to sale. The sale took place on 26.11. 1962. One Thekkayil Kanaran who
was the first Respondent in the Execu- tion Application, i.e. the third
Respondent herein purchased the property in the Court auction held on
26.11.1962, which sale was confirmed on 14.8. 1964 and consequently obtained
delivery of the disputed scheduled property extending to 8.70 acres of double
crop wet land through court on 9.1. 1965 from the possession of the appellants.
Ex. C 3 is the delivery account and report submitted by the Amin. The remaining
extent of the property was in the possession of the sub-tenants in respect of
which there was resistence with which we are not concerned here.
the delivery has been effected, Gopalan Nambiar and the first appellant herein
trespassed into the suit property. Therefore, the Court auction purchaser filed
O.S. 6 of 1966 in the court of the Subordinate Judge of Badagara for recovery
of possession. The suit was decreed as per the judgment Ex. B 16 dated
27.7.1966. Ex. B 15 is the decree.
49 dated 25.8.1966 and Ex. B 50 dated 22.8.1966 are the respective certified
copies of the delivery account submit- ted by the Amin and the delivery warrant
issued to Amin in O.S. No. 6 of 1966. The auction purchaser, i.e. third re- spondent
in this appeal assigned portions of the property under sale-deeds Exts. A2 and
A3 dated 5.12.1966 to the 5th and 6th respondents in the Execution Application,
who are the first and second respondent in this appeal. 1t is stated that while
the first respondent is stranger, the second respondent is none other than the
wife of the fourth re- spondent. As we have pointed out earlier, this fourth
re- spondent is among the three respondents on whom the rights of Kunhikannan
it is so, Act 9 of 1967 came into force. So Gopa- lan Nambiar and the first
appellant filed Execution Applica- tion No. 1711 of 1967 for restoration of
possession under the said amended Act after making the necessary deposit.
this E.A. was pending, Act 35 of 1969 tame into force (Kerala Land Reforms
Amendment Act) repealing Act 9 of 1967.
appellants filed E.A. 556/70 under Section 13 B of the Act for restoration of
possession with a prayer that earlier deposit made under Act 9 of 1967 be
treated as a deposit under Act 35 of 1969 and also under took to pay the
balance, if any, as would be found by the Court. The third respondent (court
auction purchaser) and his assignees Respondents 1 and 2 contended that the
appellants have no interest in the properties and the delivery of the property
had already been taken. The appellants attacked the validity of Ex. A2 and A3
contending that the assignments in favour of Respondents 1 and 2 were made
without consideration and bona fides and that auction 545 purchaser Thekkayil Kanaran,
Respondent No. 3 was only a benamidar of the decree-holder in the matter of the
Court auction purchase. This application (E.A. 556/70) was stoutly opposed by
the respondents inter-alia contending that the properties did not belong to the
Tavazhi of the appellants and the appellants have no right to the suit
properties and are not entitled to apply for restoration of possession.
to the respondents, there is no valid deposit and after the delivery of the
property has been effected, Gopa- lan Nambiar trespassed into the properties
and he was eject- ed by recourse to a suit and thereafter the properties were
assigned to Respondents 1 and 2 for proper consideration and bona fides and
they are in possession of the properties on the strength of the said
sale-deeds. The Trial Court held that the appellants were the tenants of the
properties when they were dispossessed and the deposit made by the appel- lants
was sufficient and the Respondents 1 and 2 are not bona fide purchasers for
consideration. On the said finding it allowed E .A. 556/70 and set aside the
by the order of the Trial Court, the Respond- ents 1 and 2 filed A.S. 49/74
before the Sub Court, Badaga- ra, which for deciding the appeal posed the
following four points for its consideration, namely:
the Petitioners entitled to maintain the application?
the deposit sufficient?
the appellants bona fide purchaser for consideration?
Whether the court sale is liable to be set aside and the restoration of
possession claimed allowable? If so, are the petitioners liable to pay anything
by way of value of improvements? The learned Judge answered the first point--
"that the petitioners are competent to maintain the applica- tion,"
and the second point holding-- " ..... that the deposit when it was made
the interest accrued till date of the present appli- cation will be directed to
be deposited in case the peti- tioners are found entitled to restoration of
possession." 546 Coming to the third point it has been held thus--
"The first respondent (third respondent in S.L.P.) had absolutely no
necessity to execute any sham documents. The fact that respondents 5 and 6
(Respondents 1 and 2 in the SLP) came into possession and exercised their
rights under Exhibits A2 and A3 by payment of rent and revenue and pay- ment of
consideration spoken to by both the vendor and vendee are sufficient to hold
that they are bona fide pur- chasers for consideration." Under the fourth
point, the relief claimed by the appellants was held to be rejected. In the
result, the order of the Trial Court was set aside and the appeal was allowed dis-
missing E.A. 556/70.
learned Subordinate Judge has also expressed his opinion in his judgment that
in summary proceedings under Section 13B of the Act, the plea of the appellants
that the third respondent was a benamidar of the fourth respondent cannot be allowed
to be raised in the light of Section 66 of the Civil Procedure Code.
being dissatisfied with the judgment of the Subordi- nate Judge, the appellants
preferred E.S.A. No. 15/79. The respondents filed their cross objections.
Though the High Court admitted the appeal on being satisfied that the appeal
involves as many as 11 substantial questions of law, it disposed the appeal on
a short ground that the documents and the evidence adduced by the respondents 1
and 2 (Govindan Nair and Ambrolil Ammalu) clearly show that the respondents 1
and 2 are bona fide purchasers of the properties in ques- tion for
consideration and the plea of benami put forth by the appellants has to be negatived.
The contentions in the cross objections were that for filing an application
under Section 13(B)(1) of the Act, a deposit of the purchase money together
with the interest at the rate of 6 per cent per annum in the court is a
condition precedent and that the finding of the lower Appellate Court that the
earlier depos- it made under Act 9 of 1967 was sufficient and the interest
accrued till the date of the Execution Application under Act 35 of 1969 would
be directed to be deposited in case the appellants were found entitled to
restoration of possession of the property is erroneous. The High Court disposed
the contentions in the main appeal observing thus:
is not necessary for me to examine this question and finally adjudicate it,
since I have upheld the decision of the 547 lower appellate Court on other
grounds. I only indicate that the respondents' counsel thought to sustain the
conclusion of the lower appellate court on other grounds as well." In the
result, the High Court affirmed the decree of the lower Appellate Court and
dismissed the second Appeal with costs.
as the cross-objections are concerned, the High Court passed the following
is no need to dispose of the cross-objections on the merits. It is ordered
accordingly." Hence the appellants by this appeal are impunging the judg- ment
of the High Court.
K.K. Venugopal, Sr. Counsel appearing on behalf of the appellants, Mr. T.S.
Krishnamurthy lyer, Sr. Counsel and Mr. P.S. Poti, St. Counsel appearing on
behalf of the first and second respondents respectively took us very
meticulous- ly and scrupulously through the judgments of all the three courts
and put forth the case of their respective parties.
heard the learned counsel on either side for a considerable length of time, we
are clearly of the view on a conspectus of the relevant Section 13(B) of the
Act and on the factual matrix of the case that the result of the case would
depend upon the decision of two substantial questions involved, they being--
(1) Whether respondents 1 and 2 are bona fide purchasers of the scheduled land
in dispute for adequate consideration entitling to the benefit of the proviso
to Section 13(B)(1)? (2) Whether the appellants are entitled to the benefit of subSection
(1) of Section 13(B) of the Act? Before making a more detailed and searching
analysis on different aspects of the case, it would be necessary for proper
understanding of the issues involved to reproduce the relevant provisions of
Section 13(B)(1) of the Act, on the pivotal of which both the questions
13B: There is no requirement in any of the clauses 548 that an offer of
readiness to comply with any order for deposit of costs must be expressed in
any judgment, decree or order of court, where any holding has been sold in execu-
tion of any decree for arrears of rent, and the tenant has been dispossessed of
the holding after the 1st day of April, 1964 and before the commencement of the
Kerala Land Reforms (Amendment) Act, 1969, such sale shall stand set aside and
such tenant shall be entitled to restoration of possession of the holding,
subject to the provisions of this Section;
that nothing in this sub-Section shall apply in any case where the holding has
been sold to a bona fide purchas- er for Consideration after the date of such
dispossession and before the date of publication of the Kerala Land Re- forms
(Amendment) Bill, 1968 in the Gazette.
answer to the first question is in the affirma- tive, then there is no need to
consider the second question as it would be only academic. We, therefore, shall
now address ourselves in the first instance whether the concur- rent finding of
facts by both the Appellate Courts relating to the first question warrant
the Trial Court whilst the appellants examined PWs 1 to 4 and filed Exhibits A
1 to A22, the respondents examined RWs 1 to 4 and marked Exhibits B. 1 to B
Ex. X- 1, X-2, X-3, X-5 and X-6 and C. 1 to C.4 were also exhibited.
Respondents 4 to 6 admittedly are brothers. Though at the initial stage, Mr.
Krishnamurthy Iyer did not accept the relationship of the third Respondent with
Respondents 4 to 6 on the ground of lack of evidence, subsequently no serious
dispute was raised about the said relationship. The Trial Court has proceeded
on the ground that the Respondents 3 to 6 are brothers being the sons of Kunhikannan
in whose favour the decree had been assigned. However, it is admitted during
the course of hearing of this appeal that the third Respondent is not a direct
brother of Respondents 4 to 6, but son of the step-mother of Respondents 4 to
6. The second Respondent Ambrolil Ammalu is admittedly the wife of the fourth
Respondent Krishnan. The first Respondent Govindan Nair is a stranger. The
third Respondent, the Court auction purchaser sold the property extending 4.35
acres in favour of the first Respondent and the remaining half in favour of the
second Respondent under sale-deeds Exts. A.2 and A.3 dated 549 5.12. 1966.
Consideration mentioned in each of the sale- deeds Exts. A.2 and A.3 is Rs.3,000.
Out of Rs.3,000 shown as consideration for A.2 a sum of Rs.2,500 is said to
have been left with the first Respondent for payment of arrears of rent. In Ex.
A.3, it is recited that the third respondent is said to have already received
Rs.2,000 on a promissory note from the second Respondent for meeting the
expenses incurred by him for conducting O.S. No. 6/66. The said sum of Rs.2,000
is stated to have been adjusted towards the consideration under Ex. A3.
first Respondent has produced a receipt (Ex. B28) showing that out of the amount
of Rs.2,500 left with him he had paid a sum of Rs. 100. There is no other
document evi- dencing the discharge of the entire alleged arrears of rent
out-of Rs.2,400. When the third Respondent was questioned about the promissory
note on the strength of which he is stated to have borrowed a sum of Rs.2,000,
he has stated that he had returned the promissory note. This evidence as
rightly pointed out by Mr. Venugopal is highly unacceptable because in usual
practice whenever a debt, borrowed on a promissory note is discharged that
promissory note is re- turned to the borrower and never left with the lender.
the evidence of the third Respondent is contra- dicted by RW. 3, the son of the
second Respondent. According to RW. 3, when Ex. A.3 was executed, the
promissory note was returned to the third Respondent. According to Mr. Venugo-
pal, this contradictory version betwixt the evidence of the first Respondent
and RW. 3 clearly shows that the recital regarding payment of consideration to
the extent of Rs.2,000 in Ex. A.3 is not genuine and acceptable and that Ex.
A.3 is not fully supported by consideration. As per the recitals of
consideration under Exhibits A.2 and A.3 the total cash consideration received
by the third Respondent was only Rs.1,500 i.e. Rs.500 from the first Respondent
and Rs.1000 from the second Respondent. It is vehemently urged on behalf of the
appellants that the third Respondent after purchasing the property for Rs.815
in 1962 would not have parted with it after fighting several litigations for a
cash considera- tion of Rs.1,500 only. The evidence of the third Respondent
that he left a sum of Rs.2,500 with the first Respondent for discharging
arrears of rent and earlier received a sum of Rs.2,000 from the second
Respondent on a promissory note is not credit worthy in the absence of any
supporting contempo- rary documentary evidence. His assertion that he paid the
amount for the Court auction purchase in the year 1962 out of the money in his
possession as well as from borrowings shows that he was a man of slender means.
When he was con- fronted from whom he borrowed that amount, his answer was that
he did not remember from whom and how much he borrowed.
550 Trial Court has rightly pointed out in paragraph 19 of its Order that the
third Respondent did not leave any impression that he was conversant with the
various pending litigations regarding the present property.
drew out attention to another piece of evidence of RW3, deposing that his
father was never consult- ed with regard to Ex. A3 and assailed his evidence as
in- credible and bereft of truthfulness and trust worthiness.
to the sale-deed, Ex. A2 it is stated that the first Respondent is residing
about 11 miles away from Palayed Amson where the property is situated. He has
no other property in Amson. The reason given by him for purchasing this
property which was already riddled with litigation is not at all convincing.
first appellate Court while perfunctorily rejecting the reasoning of the Trial
Court with regard to the consid- eration part of Ex. A2 and A3 disposed of that
contention in a summary manner holding:
apparent inadequacy is no ground to think that there is no consideration .....
I don't think that the recitals in Exhibits A2 and A3 can be overlooked for
this or the other reasons stated by the learned Munsiff." Then relying on
Exhibits B 17, B28, B31, B41 and B45 and other documents it concluded:
the Respondents 1 and 2 came into possession of the properties and exercised
their rights under Exhibits A2 and A3 by payment of rent and revenue and
payment of considera- tion spoken to by both the vendor and vendee and as such
they are bona fide purchasers for consideration." The High Court accepting
the reasons given by the sub- Judge held thus:
of these documents are public records or registers kept in the respective
village office and proceedings in courts. There is no more of law in placing
reliance on such documents. The finding entered by the learned Subordinate
Judge that respondents 5 and 6 are bona fide purchasers for consideration is
based on substantial evidence. It cannot be said to be arbitrary or
unreasonable or perverse. ' ' 551 But both the Appellate Courts have
conveniently ignored even the relationship of the parties which assumes much
importance and significance in evaluating the evidence in the light of the
facts and circumstances of the case for reaching a satisfactory conclusion and
seem to have summari- ly disposed of the case of the appellants.
question is not the mere inadequacy of consideration as pointed by the lower
appellate Court, but lack of evi- dence in substantiating the recitals of both
next contention advanced by Mr. Venugopal is that though the High Court has
formulated as many as 11 substantial questions of law. it has not dealt with
any of them enumer- ated as (a) to (e) and examined the question No. (f) in the
proper perspective. Further the important question No. (g) reading "rs not
the admitted fact that the 6th respondent is the wife of the 2nd respondent
prima facie proof that she is not a bona .fide purchaser for value" is not
at all dealt with. It may be noted in this connection that the 6th re- spondent
and the 2nd respondent referred to in that question are Ambrolil Ammalu (2nd
respondent herein) and Krishnan (4th respondent herein). As pointed out supra
the High Court itself has expressed that it was inclined to dispose of the
appeal 'on a short ground'.
bone of contention of Mr. Krishnamurthy Iyer and Mr. Poti is that it is not
open to the appellants to reagitate the matter and request this Court to
disturb the concurrent finding of facts arrived at by both the appellate Courts
which had rendered their findings on the proper evaluation of the evidence and
there can be no justification to review or re-appreciate the evidence to take a
contrary view in the absence of any contemporaneous document in support of the
plea of the appellants. In addition to the above, Mr. Poti urged that the
appellants have not properly and satisfacto- rily discharged the onus of proof
cast upon them and the concurrent findings based on voluminous documents, the
copies of which are not annexed to the SLP for perusal of this Court, do not
call for interference.
reply to the above arguments, Mr. Venugopal has pointed out that none of the
documents referred to in the judgments of the appellate Courts would either
improve the case of the respondents or deny the claims of the appel- lants. Of
the documents relied upon by the appellate Courts, Ex. B 17 and B31 are the
true extracts showing payment of tax in the Village Officer Day Book. Ex. B28
is a rent receipt dated 23.2.1969 issued by the receiver appointed in O.S. 1/64
on the file of the Sub
appellate Court). B. 42 is a true extract 552 from the Foodgrains Cultivation
Register and B.46 is a true extract from the Peringathor Village Account.
Ex.B.41 to B.45 are the levy notices and revenue receipts for the years 1967,
1968. 1969 and 1973. Exhibits B.55 to B.59 are copies of orders in M.C. No.
rightly pointed out by Mr. Venugopal, it is but natural that the receipt for
the pay- ment of tax, rent receipt, revenue receipt etc., are in the names of
the persons in whose names the properties stand and therefore those documents
cannot by themselves dispel the claim of the appellants. Besides, urging with aH
emphasis that Exhibits A2 and A3 are only sham and nominal documents, it has
been incidentally urged by Mr. Venugopal that the transaction under these two
sale-deeds is benami in nature.
argument was stoutly resisted by Mr. Krishnamurthy Iyer stating that in the
teeth of Section 66 of the Code of Civil Procedure and in the absence of any
proceedings to set aside the sale in favour of respondents 5 and 6 on the
ground of fraud etc., the plea of benami transaction cannot be counte- nanced.
He also cited the decision in Mithilesh Kutnari and Another v. Prem Behari Khare,
 2 SCC 95. But Mr. Venugopal explained his argument that he has not
advanced that argument to set aside the sale-deeds on the ground of benami
transaction, but only for scrutinising the circum- stances of the transaction
in examining the validity of the sale-deeds. However, as the plea of benami
transaction is not pressed into service, it need not detain us any more.
shah now examine whether this Court would be justi- fied in interfering with
the concurrent finding of facts in exercise of its discretionary powers under
Article 136 of the Constitution of India. In a recent decision in Dipak Banerjee
v. Lilabati Chakraborty,  4 SCC 161 it has been observed thus:
jurisdiction (under Article 136 of the Constitution of India) has to be
exercised sparingly. But, that cannot mean thai injustice must be perpetuated
because it has been done two or three times in a case. The burden of showing
that a concurrent decision of two or more courts or tribunals is manifestly
unjust lies on the appellant. But once that burden is discharged, it is not
only the right but the duty of the Supreme Court to remedy the injustice."
No doubt, this discretionary power has to be exercised sparingly; Out when
there are exceptional and special cir- cumstances justifying the exercise of
the discretionary powers and where manifest injustice or grave miscarriage of
justice has resulted by overlooking or ignoring or 553 excluding material
evidence resulting in unduly excessive hardships, this Court will be justified
in stepping in and interfering with the concurrent finding of facts in the
interest of justice and it is also the duty of this Court to remedy the
injustice, so resulted. Vide Basudev Hazra v. Meutiar Rahaman Mandal,  3
SCR 378 and Bhanu Kumar Shastri v. Mohan Lal Sukhadia and Others,  1 SCC
370 at pages 385 and 386.
present case, in our view, suffers from the infirmi- ty of excluding, ignoring
and overlooking the abundant materials and the evidence, which if considered in
the proper perspective would have led to a conclusion contrary to the one taken
by both the appellate Courts. The relation- ship of the parties inter se has
been completely and conven- iently ignored and excluded from consideration. In
fact, the High Court has not rendered any finding on question No. (g) which is
one of the eleven substantial questions of law formulated in paragraph 3 of its
judgment. The lack of evidence in support of the recital in regard to the consid-
eration is completely overlooked. Therefore, in view of the above exceptional
and special circumstances appearing in this case, this Court will not be
justified in refusing to exercise its discretionary powers merely on the ground
that the conclusion of both the Courts is concurrent.
the discussions made above, we are of the view that the conclusion arrived at
by both the appellate Courts is only backed by assertions rather than by
acceptable reason- ing based on the proper evaluation of evidence and so we are
unable to subscribe to the concurrent finding that the respondents 1 and 2 are
bona fide purchasers of the proper- ties in dispute for consideration. On the
other hand, we hold that the evidence and circumstances of the case coupled
with the evidence on record do establish that the respond- ents 1 and 2 are not
bona fide purchasers for consideration.
result, we hold that the respondents 1 and 2 are not entitled to the benefit of
the proviso to sub-Section (1) of Section 13(B) of the Act and answer the first
ques- tion against the respondents and in favour of the appel- lants.
shall now pass on to the next question whether the appellants are entitled to
the benefit of Section 13(B)(1) of the Act.
Land Reforms Act of 1963 came into force on 1.4.1964. Amended Act 9 of 1967 was
a temporary enactment which 554 remained in force till 31.12. 1969. Thereafter,
Act 35 of 1969 came into force from, 1.1.1970 containing Section 13(B) which is
substantially on the same terms as Section 6 of Act 9 of 1967 with a proviso
superadded. To invoke this benevo- lent provision, the satisfaction of two
primary conditions are sine qua non. Those conditions are:
Any "holding" to which a tenant is entitled to resto- ration of
possession should have been sold in execution of any decree for arrears of
The tenant should have been dispossessed of the "holding" after the
first day of April 1964 and before the commencement of the Kerala Land Reforms
(Amendment) Act, 1969.
these two essential conditions are fulfilled, then the sale in execution of any
decree for arrears of rent shall stand set aside notwithstanding anything to
the con- trary contained in any law or in any judgment, decree or order of
court and the tenant shall be entitled to restora- tion of possession of such
holding, but subject to the provisions of this Section 13B. The only bar for
the resto- ration of possession under this Section 13(B)(1) is the sale of the
holding to a bona fide purchaser for consideration after the date of such
dispossession and before the date of publication of the Kerala Land Reforms
(Amendment) Bill 1968 in the Gazette. For invoking the benefit of sub-Section
(1) of section 13(B) the person entitled to restoration of possession of his
holding should within a period of 6 months from the commencement of the Kerala
Land Reforms (Amendment) Act, 1969 deposit the purchase money together with
interest at the rate of 6 percent per annum in the court and apply to the court
for setting aside the sale and for restoration of possession of his holding.
Once these legal formalities are satisfactorily complied with then the Court by
holding a summary enquiry shall set aside the sale and restore the applicant to
possession of his holding. The explanation to that section says that the term
'holding' includes a part of holding. The expression "holding" is
defined in Section 2(17) of the Act.
language of Section 13(B) is plain, clear and unam- biguous representing the
real intention of the legislature as reflected not only from the clear words
deployed but also from the very purpose of the vesting of rights on the dis-
placed tenants. To construe the provisions of a statute especially of a
benevolent provision like the one in ques- tion, we have to take into
consideration the dominant pur- pose of the statute, the intention of the
legislature and the policy underlying. Vide 555 P. Rami Reddy & Others v.
State of Andhra Pradesh & Others,  3 SCC 433; Skandia
Insurance Co. Ltd. v. Kokilaben Chandravadan & Others,  2 SCC 654 and
M/s Doypack Systems Pvt. Ltd. v. Union
of India & Others,  2 SCC 299.
the third respondent obtained delivery of the property in question through
court on 29.1.1965 from the possession of the appellants, who were the tenants
of the said property which was sold for arrears of rent and there- after the
appellants preferred a petition for restoration of possession of their holdings
in Execution Application No. 1711/67 under Section 6 of Act 9 of 1967 after
depositing the sale amount of Rs.815 and the interest of Rs.255. Thus the
appellants have satisfied the conditions for entitlement of the possession of
the property. While this proceeding was pending, Act 35 of 1969 came into force
repealing Act 9 of 1967. Therefore, the appellants filed the Execution Applica-
tion No. 566/70 in O.S. 817/43 praying that the present application should be
treated as a proceeding in continua- tion of the earlier Execution Application
and the amount deposited already in the previous Execution Application should
be treated as deposit for the present application with an undertaking to
deposit the balance, if any. Though it has been contended by the respondents
that the appellants have failed to establish that they were tenants at the time
of the dispossession, both the Trial Court as well as the first appellate Court
have concurrently found that the appellants were holding the property as
tenants and they were dispossessed. Before the High Court, it was contended
that at the time of dispossession of the holding, the appel- lants were not
tenants but only trespassers, that the dis- possesion was only pursuant to the
decree in O.S. No. 6/66 and that both the lower Courts have not applied their
minds to these salient and vital facts. The learned Judge of the High Court has
answered this contention in the penultimate paragraph of his judgment observing
This is a serious legal error. It is not necessary for me to examine this
question and finally adjudicate it, since I have upheld the decision of the
lower appellate court on other grounds." Suffice to mention here that the
High Court has not specifi- cally dislodged the findings of the lower Courts
that the appellants were tenants at the time of the dispossession.
we will deal with this question presently.
main thrust of the argument of Mr. Krishnamurthy Iyer is 556 that the
appellants are not entitled to restoration of the possession of their 'holding'
because of an intervening cause, that being, that the third respondent, got the
pos- session of the property which is now sought to be disturbed not in
execution of the decree for arrears of rent, but by filing a suit subsequent to
'the court auction purchase.
intervening cause is explained by the learned counsel 'stating that after the
property was delivered over to the third respondent on 29.1.1965, Gopalan Nambiar
(since dead) and the first appellant trespassed into the land which necessitated
the third respondent to institute a suit O.S. No. 6/66 in the Sub Court of Badagara
which was decreed on 27.7. 1966 as evidenced by the judgment (Ex. B16). He con-
tinues to state that the third respondent, only in pursuance of the execution
of this decree in O.S. 6/66 obtained pos- session of the property on 23.8. 1966
and therefore Section 13(B)(1) in view of the said intervening cause cannot be
availed of since the third respondent though 'got possession earlier by the
auction purchase was dispossessed by the subsequent event of trespass by the
appellants and got possession by instituting the suit O.S. 6/66. One other
argument of the learned' counsel is that as the sales under Exhibits A2 and A3
are only subsequent to the decree in O.S. No. 6/66, these transactions cannot
be brought into the dragnet of Section 13(B) and the said provision will have
no application to the facts of the present case. We are afraid, we cannot
permit this inconceivable argument to be advanced.
the third respondent purchased the property in court auction sale in pursuance
of the decree for arrears of rent in O.S. No. 817/43 and obtained the
possession by dispossessing the tenants, namely, the appellants. It was only
thereafter there was trespass by the appellants. There- fore, the subsequent
event of obtaining possession of the property in pursuance of the decree in
O.S. No. 6/66 will not in any way alter the position that the appellants had
been dispossessed in pursuance of the decree for arrears of rent. The decree in
O.S. No. 6/66 for obtaining possession from the trespassers does not confer any
new right or title over the property in favour of the third respondent. Mr. Venugopal
countered this argument stating that this new plea should not be allowed to be
raised because this plea was never taken both before the trial and the first
appellate Courts. The reply given by Mr. Krishnamurthy Iyer is that since it is
a question of law, it is permissible to raise this question even at this stage.
As we have said earlier, even assuming that this plea could be raised, it has
no substance in any way affecting the claim of the appellants for the reasons
after giving a brief note about the legislative history that Act 4 of 1961 was
declared as void on 5.12.
in respect of certain 557 provisions and that thereafter Act 1 of 1964 was
enacted which came into force on 1.4.1964 repealing earlier Act 4 of 1961
advanced a hesitant argument that the application is liable to be dismissed as
the entire amount has not been deposited in compliance with sub-Section (2) of
Section 13(B) which is a condition precedent to claim the restora- tion of the
possession of the property. Admittedly the appellants filed an application in
the year 1967 for resto- ration of the possession of the property under Section
6 of Act. 9 of 1967 and during the pendency of that application, Act 35 of 1969
came into force. The applicant who had al- ready deposited the purchase amount
together with interest has made the request to treat that application as the
one in continuation of the later proceeding and undertook to pay the deficiency
of the amount, if any. The lower appellate Court in paragraph 6 of its judgment
found that the deposit already made was sufficient and that the interest
accrued thereafter would be directed to be deposited in case the appellants
were found entitled to restoration of possession.
finding of the first appellate Court concurring with the Trial Court has not
been dislodged by the High Court. It may not be out of place to mention that on
account of cer- tain divergent views expressed by Judges of the Kerala High
Court on this point the question was referred to a Division Bench of that Court
which drawing strength on the ratio laid down by this Court in State of Punjab
v. Mohar Singh,  1 SCR 893 :AIR 1955 SC 84 observing:
line of enquiry would be, not whether the new Act expressly keeps alive old
rights and liabilities but whether it manifests an intention to destroy
them." and agreeing with the view expressed by Krishnamurthy Iyer, J (as
he then was and who is now appearing before us for the first respondent in
different capacity) in Civil Revision Petition Nos. 1090 and 109 1 of 1972
wherein this precise question came up for consideration held that the
application filed under Section 6 of Act 9 of 1967 which was pending on the
date of the commencement of the Act 35 of 1969 was liable to be continued and
dealt with under the provisions of the earlier Act, untrammelled by the
provisions of the later Act. We approve the view taken in the above Parameswa-
ran Narnbudiri's case and hold that the deposit made in the earlier application
under Section 6 of Act 9 of 1967 which was pending on the date of commencement
of Act 35 of 1969 was liable to be continued uneffected by the provisions of
the later Act.
for the aforementioned discussion, disagree with the findings of the High
Court, set aside the impugned judgment and restore the judgment of the Trial
Court holding that the sale of the 'holdings' of the appellants was in
execution of the decree in O.S. No. 817/43 for arrears of rent and the
appellants who are tenants were dispossessed of the holdings after 1.4.64 and
before the commencement of the Kerala Land Reforms (Amendment) Act, 1969 and
the respondents 1 and 2 are not bona fide purchasers for consideration. In view
of our above conclusion the appellants are entitled to recover possession of
the properties in dispute, but without preju- dice to the rights, if any, of
the respondents 7 to 10 who are the wife and children of Gopalan Nambiar and
who have got themselves impleaded as parties to the present proceed- ings. The
amount under deposit made by the appellants is permitted to be withdrawn by the
respondents 1 to 3.
result, the appeal is allowed with costs.
Appeal al- lowed.