Puthiya
Purayil Kannan's Widow Kozipurath Chemmarathi Vs. Patinhare Koyyattan Balan
& Ors [1997] INSC 330 (21 March 1997)
K.
RAMASWAMY, K.T. THOMAS
ACT:
HEADNOTE:
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
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.
Back
Pages: 1 2
