PRELUDE- [Dispute Involved in the Appeals]

1. Emoor Bhagavathy Devaswom, represented by its Executive Officer, instituted a suit, OS No.94/2001 on the files of Additional Sub Court, Palakkad, for recovery of possession based on the strength of the title. According to the Devaswom, the 30 years of period of lease had expired and that since the Government had not accorded sanction for renewal of the lease, eviction is inevitable. The defendants (lessees) also instituted various suits seeking specific performance and mandatory injunction directing the Devaswom to renew the lease after the expiry of the 30 years based on the clause which provided for renewal of the lease at the option of the lessee. Alternatively, a plea for compensation for the improvements made was also raised. The trial court decreed the suit filed by the Devaswom and dismissed the suits filed by the defendants. The defendants appealed against the decree in the suit for recovery of possession and the dismissal of the suits for specific performance. The first appellate court dismissed both the appeals, but however granted compensation for the improvements made by the tenants. The questions which this Court is required to address are as follows.

                  1.       Whether the appellants are entitled to fixity of tenure under Section 13(1) of the Kerala Land Reforms Act, 1963 ?

                  2.       Whether the compensation ordered by the first appellate court under the Kerala Compensation for Tenants Improvements Act, 1958 is sustainable?

                  3.       Are the tenants entitled for renewal of the lease as a matter of right?

                  While considering the above questions, this Court will have to answer certain incidental issues as well, which will be discussed in course of this judgment.

FACTS OF THE CASE

2. The Trustee of Emoor Bhagavathy Temple – Sekhari Varma Valiya Rajah Avargal- executed a registered lease in favour of Cecil Hall in the year 1907 by which 1000 acres of land, including private forest, was given on lease, primarily for rubber cultivation. The period of the lease was for 30 years. The deed of indenture was executed, incorporating all normal clauses of a lease deed. The lessee, Cecil Hall, was empowered to mortgage, transfer, assign and convey the right title and interest over the property. In the year 1925, Cecil Hall transferred the property to 1. M/s.Stanes & Co., 2. T.Krishna Chettiar, 3. V.Balakrishna Mudaliar, 4. V.S.Shencottiah, 5. S.Murugappa Chigateri, in favour of M/s.Elak Rubber Company Ltd. On expiry of the period of lease of 30 years, the assignee - M/s.Stanes and Company Limited, as agent of Elak Rubber Company, approached the trustee of the Temple for renewal of the lease and accordingly, the deed of indenture No.993/1937 dated 14.4.1937 was executed. During the currency of the said lease, M/s.Stanes and Company Ltd. transferred the property to one Thattil Kochuvareed, in the year 1944, who in turn transferred the property to M/s.Supreme Industries. M/s.Supreme Industries in turn by two deeds of indenture in the years 1963 and 1964 transferred the property to M/s. United Planters. Despite the assignment of leasehold rights, M/s. United Planters approached the Devaswom for renewal of the lease, since 30 years had expired in the year 1967. In view of the promulgation of the Madras Hindu Religious and Charitable Endowments Act, 1951, and that the Temple being managed by the Executive Officer, the parties were obliged to obtain the permission of the Commissioner of the HR&CE Department and after obtaining permission, on 22.12.1969 the lease was renewed for a period of 30 years.

                  2.1.    Accordingly, the lease was renewed in favour of M/s.United Planters. During the currency of the lease, it appears that several unauthorized acts were done by the lessee leading to several allegations of overreaching the terms and conditions of the lease by extensively undertaking cutting of valuable trees outside the leasehold areas. On the verge of expiry of the period of lease, in the year 1996, the lessees sought permission of the Commissioner of the HR&CE Department for renewal of the lease by making an application dated 11.9.1996. The same was rejected on 12.10.1996. In the meanwhile, the Commissioner, HR&CE (Admn.) Department issued a notice during 1993 to the lessees-defendants to show cause as to why the lease granted shall not be cancelled. Aggrieved by the action, the lessees preferred OP No.10355/1993. By the time the original petition was taken up for hearing, the period of lease had expired and therefore, this Court by judgment dated 17.3.1997 closed the original petition by granting liberty to the lessees to seek renewal.

                  2.2 In the meantime, the Devaswom issued notice on 9.4.1997 requiring them to vacate the leased premises. The lessees in turn alleged that they were entitled for protection under the provisions of the Kerala Land Reforms Act, 1963. Finding that the lessees were not intending to vacate the premises, OS No.495/1997 on the files of Munsiff's Court, Palakkad, was instituted by the plaintiff-Devaswom for recovery of possession on the strength of the title. Before filing of the suit, on 10.9.1996 and 12.9.1996, various lessees had issued notices to the Executive Officer of the Emoor Bhagavathy Devaswom to renew the lease. The said notice was under Section 80 of the Code of Civil Procedure, 1908. Immediately on the filing of the suit by the Devaswom for eviction, the lessees instituted suits for specific performance and for a mandatory injunction directing the Devaswom to renew the lease. On behalf of the plaintiff-Devaswom, Exts.A1 to A3 were marked and PW1 was examined and on behalf of the defendants-lessees, Exts.B1 to B18 were marked and no oral evidence was adduced. On institution of the suits for specific performance before the Additional Sub Court, the suit filed by the Devaswom was transferred to the Additional Sub Court, Palakkad and was re- numbered as OS No.94/2001 and was tried together. The defendants, namely the lessees, resisted the suit, contending that the right title and interest over the leasehold premises were transferred by M/s.Stanes and Company Limited to Thattil Kochuvareed and thereafter to M/s.Supreme Industries and then to M/s.United Planters. The partnership firm, M/s.United Planters, was dissolved and a partition deed was executed among the partners, whereby various properties held on leasehold right by the firm were distributed among the partners. It was thus contended that the defendants, being partners of the erstwhile firm, are entitled for fixity of tenure as deemed tenants under Section 6A read with Section 7D of the Kerala Land Reforms Act, 1963 and therefore the question of fixity of tenure should be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, 1963. The trial court held that inasmuch as the lease was over a property covered by a private forest, and further, by the time the property leased to M/s.United Planters, was converted to a rubber plantation, which is exempted under the provisions of the Kerala Land Reforms Act, 1963, the defendants are not entitled to claim fixity of tenure. Alternatively, the plea of the value of improvements effected by the defendants was rejected for want of evidence. Consequently, the suits for mandatory injunction and specific performance were also dismissed. Aggrieved, the tenants preferred first appeals against the judgment and decree of the trial court. The first appellate court permitted the defendants to take out a commission for assessing the value of improvements. Two reports were solicited, one from the Advocate Commissioner and another from the Rubber Board. The report of the Advocate Commissioner was accepted, and the appeals were partly allowed, allowing the appellants to claim the value of improvements effected by them. The decree for recovery of possession was affirmed. Thus, the defendants (lessees) are on second appeals against the decree for recovery of possession as well as the decree declining specific performance of renewal of the lease. The plaintiff-Devaswom has preferred Cross Objection Nos.47/2014, 48/2014 and 49/2014 in RSA Nos.515/2012, 446/2012 & 520/2012, respectively, stating that the grant of the value of improvements is without any basis and not supported by any independent evidence. Thus, all these matters are before this Court.

3. Heard Sri.T.Sethumadhavan, the learned Senior Counsel, assisted by Sri.Jacob Sebastian, the learned counsel, appearing for the appellants in RSA Nos.515/2012 and connected cases, except RSA Nos.1490/2011, 446/2012 & 1333/2012, and Sri.M.Gopikrishnan Nambiar, the learned counsel appearing for the appellants in RSA Nos.1490/2011 and 446/2012; Sri.P.B.Subramanyan, the learned counsel appearing for the Emoor Bhagavathy Devaswom-plaintiff and Sri.R.Lakshmi Narayan, the learned Standing Counsel for the Malabar Devaswom Board.

SUBMISSIONS ON BEHALF OF THE APPELLANTS (LESSEES)

4. Sri.T.Sethumadhavan, the learned Senior Counsel appearing for the appellants/defendants raised the following submissions:

                  i.        In a case, where the defendants (lessees) raise a claim for fixity of tenure under the provisions of the Kerala Land Reforms Act, 1963, the trial court is obliged to refer the question of fixity of tenure to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. In not doing so, the civil court abdicated its duties and assumed jurisdiction which it did not have while deciding the case on merits.

                  ii.       The proposal to cancel the order dated 21.11.1969 granting permission to renew the lease was challenged before this Court in OP No.10355/1993, which was disposed of by judgment dated 17.3.1997 directing the lessees to apply for renewal of the lease. That by itself will not preclude the tenants from contending that they are entitled for fixity of tenure and the said right cannot be waived by them.

                  iii.       Defendants would come directly within the definition of 'tenant' under Section 2(57) of the Kerala Land Reforms Act, 1963 and that the statutory right under Section 13 of the Act cannot be waived. Since Section 13(1) starts with a non-obstante clause, the tenants have got every right to resist the plea of eviction and thus attain immunity. The factum of immunity was pleaded in the written statement.

                  iv.      Courts below went wrong in holding that the lease in question is covered by the exemption under Section 3(1)(vii) and 3(1)(viii) of the Kerala Land Reforms Act, 1963. The learned Senior Counsel also pointed out that the exemption under Section 3(1)(viii) of the Kerala Land Reforms Act, 1963 will not apply to rubber plantations.

                  v.       The lessee after the execution of lease deed in 1937 had assigned the property in favour of one Thattil Kochuvareed, who, in turn, assigned the lease to M/s.Supreme Industries, which assigned the property to M/s.United Planters, prior to the coming into force of the Kerala Land Reforms Act, 1963 and thus the predecessor of the defendants had secured the right to claim fixity of tenure. It is pointed out that the moment the claim for reference under Section 125(3) of the Kerala Land Reforms Act, 1963 is raised in the written statement, it was incumbent upon the court to have referred the claim to the Land Tribunal.

                  vi.      Alternatively, it is also contended that the tenants are entitled for protection from eviction under the provisions of the Malabar Tenancy Act, 1929. The crucial date for considering whether the lease will fall within the exemptions under the Kerala Land Reforms Act, 1963 is not the date on which the agreement was entered into, but the date of coming into force of the Act.

                  vii.      Ext.B3 cannot be construed as creation of a fresh tenancy, since the tenants had exercised the option of renewal and the lessor had consented to the same. Therefore, it cannot be said that a new tenancy was created between the parties by virtue of Ext.B3. At any rate, it is pointed out that even if it is assumed that Ext.B3 is liable to be construed as a fresh tenancy created, the defendants are entitled to disown and ignore Ext.B3 because of the prohibition under Section 74 of the Kerala Land Reforms Act, 1963.

                  viii.     The devolution of title as explained in paragraph 11 of the written statement by the defendants 5 to 9 in OS No.495/1997 (re- numbered as OS No.94/2001) clearly shows that in terms of Article 4(2) of Ext.B2 lease, the lessee was entitled to assign his right title and interest over the leasehold properties and once M/s.Supreme Industries transferred the properties to M/s.United Planters and that consequent to the dissolution of the partnership firm, a partition deed being executed between the partners, individual partners are entitled to fall back on the assignment of the lease in favour of M/s.United Planters and thus claim fixity of tenure.

                  ix.      When a lease is in respect of a private forest and for felling of timbers and subsequently the lessee converts the property into a rubber plantation, necessarily, the lessee is entitled to the protection of his leasehold rights. The learned Senior Counsel further pointed out that since the leasehold right is alienable under Section 50 of the Kerala Land Reforms Act, 1963 de hors Ext.B3 lease deed, the tenants are entitled to claim fixity of tenure.

                  x.       In support of his contention, the learned Senior Counsel for the appellants relied on the following decisions:

                  ( ) Narayanan Namboodiri v. Taluk Land Board, Perintalmanna [1975 KLT 171] (DB),

                  ( ) Ipe v. Pramathan Namboodiripad [1988(2) KLT 277],

                  ( ) Vadakkekkara Koran v. Gowri [2024 KHC 779],

                  ( ) Nandanasseri Kalpakasseri Damodaran Nair & Ors. v. Thiruvambadi Rubber Company Ltd. & Ors. [S.A.No.193/1997 dated 26.7.2010],

                  ( ) N.K.Rajendra Mohan v. Thirvamadi Rubber Co. Ltd and Others [(2015) 9 SCC 326],

                  ( ) Kesava Bhat v. Subraya Bhat [1979 KHC 346(FB)], and

                  ( ) Harrisons Malayalam Ltd. v. Gopinathan Nair (Died, LRs impleaded) [FAO (RO) No.102/2016 dated 3.2.2023 : 2023 KHC OnLine 10668].

                  xi.      Further, it is pointed out that even if this Court were to non-suit the appellants on the appeals arising out of the judgment and decree granting recovery of possession, the tenants are legally entitled to claim value of the improvements based on Ext.C1(b) report of the Rubber Board. From the two reports solicited by the first appellate court, one through the Advocate Commissioner and the other by the Rubber Board, the report of the Rubber Board was more favourable to the appellants. No reason was assigned by the first appellate court in not accepting the report of the Rubber Board, which is more beneficial to the tenants. Thus, it is submitted that if this Court is not inclined to entertain the reliefs in RSA No.515/2012 and connected cases, the claim for value of improvements may suitably be modified with reference to the report of the Rubber Board.

5. Sri.M.Gopikrishnan Nambiar, the learned counsel appearing for the appellants in RSA Nos.446/2012 & 1490/2011 contended that the right of the tenants under Section 13(1) read with Section 50 of the Kerala Land Reforms Act, 1963 is an indefeasible right and thus cannot be waived. The mere fact that the tenants had approached the trial court seeking a decree of specific performance against the Executive Officer of the Devaswom for renewal of the lease ipso facto will not lead to a conclusion that they had waived the right under Section 13(1). Taking this Court through the scheme of the Kerala Land Reforms Act, 1963 the learned counsel contended that even if the tenants abandoned the tenanted premises, the landlord is not empowered to enter into the land held by the tenants. Even if the tenants were to surrender the tenanted premises, they can do it only through an application filed before the Land Tribunal under Section 51B of the Kerala Land Reforms Act, 1963. The learned counsel concluded his arguments by saying that Section 74 only prohibits creation of future tenancies and that he would assert before this Court that the renewal of lease is not creation of a new lease, but rather it is continuation of the earlier lease. The learned counsel is also in unison with the submission of the learned Senior Counsel, Sri.T.Sethumadhavan, that if it is found that Ext.B3 lease deed is hit by Section 74, the same will have to be ignored by this Court and that the defendants are entitled to fall back on the assignment by M/s.Supreme Industries in favour of M/s.United Planters and thus assert their right for fixity of tenure. In short, both, the learned Senior Counsel as well as the learned counsel appearing for the other appellants, would require this Court to ignore Ext.B3 lease deed and proceed with the consideration of the appeals.

SUBMISSIONS ON BEHALF OF RESPONDENT/PLAINTIFF- DEVASWOM

6. Per contra, Sri.P.B.Subramanyan, the learned counsel appearing for the plaintiff-Devaswom, strongly countered the submissions of the learned Senior Counsel for the appellants and contended as follows:

                  i.        Contentions now raised before this Court do not find a place in the pleadings in the written statement filed on behalf of the defendants. It is further submitted that the written statement filed on behalf of the defendants 1 to 4 categorically contains an averment that the lessor is bound to renew the term of the lease and that the lessor is bound by the contractual terms of the lease.

                  ii. If as a matter of fact, the tenants are banking upon the lease deed, which by itself is a contract and therefore, the entitlement for fixity of tenure under Section 13(1) is out of question. Specific reference is made to paragraph Nos.6, 7 & 12 of the written statement.

                  iii. The devolution of title up to M/s.United Planters is clearly spelt out in para 11 of the written statement. Surprisingly, none of the documents showing devolution of title is produced before the court. As regards the claim under the Malabar Tenancy Act, 1929 the learned counsel pointed out that the benefit conferred on a tenant under the Malabar Tenancy Act is no longer available on the promulgation of the provisions of the Kerala Land Reforms Act, 1963 and that the parties will have to be governed by the Repeal and Saving clause under Section 132 of the Kerala Land Reforms Act, 1963.

                  iv. In support of his contention, relied on the decision of the Division Bench of this Court in Ammukutty Amma v. Viswanatha Iyer [1986 KLT 905].

                  v. In the facts of the case, deemed tenancy under Sections 6A and 7D of the Kerala Land Reforms Act, 1963 does not arise for consideration because the lease is created by a contract. In support of his contention, relied on a Single Bench decision of this Court in Sree Chathankulangara Bhagavathi Devaswom v. Nair Service Society [2023 KHC 852].

                  vi. As regards the applicability of the provisions of the Malabar Tenancy Act, 1929, the learned counsel relied on the decision of the Single Bench in Poddar Plantations Limited v. Thekkemariveettil Madhavi Amma [2014 (1) KLT 439].

                  vii. Lastly, it is pointed out that the moment the tenants disown Ext.B3, the entire edifice of the case built by them would collapse. The case built up by the tenants as could be seen from the suits filed for specific performance, is that the lessor is bound to renew the lease on expiry of the contractual period of lease. Therefore, when the tenants trace their very right to the contract of lease, once it is disowned, the claim for fixity of tenure will necessarily collapse.

                  viii. So far as the value of improvements, it is pointed out that the defendants did not adduce any evidence before the trial court and that, in order to fill up the lacuna, they filed an application for the appointment of an Advocate Commissioner. The report of the Advocate Commissioner would show that the assessment of the value of the improvements is without any basis.

                  ix. While hearing a first appeal under Section 96 of the Code of Civil Procedure, the first appellate court cannot allow the appellants therein to fill up the lacuna by permitting them to take out an Advocate Commissioner for local inspection and accept the report without any adjudication. He further pointed out that even if such a report is solicited, unless the conditions specified under Order-XLI Rule 27(1)(aa) of the Code of Civil Procedure, 1908 are not satisfied, the report cannot be received in evidence.

                  x. Creation of tenancy after 1.4.1964, is hit by Section 74 of the Kerala Land Reforms Act, 1963 and thus the appellants are not tenants but encroachers to the Devaswom land and are thus not entitled to claim value of any improvements. Therefore, it is contended that the findings of the first appellate court while granting the decree for the value of improvements are without any basis and not supported by any evidence.

7.     Sri.R.Lakshmi Narayan, the learned Senior Counsel appearing on behalf of the Malabar Devaswom Board supported the findings of the courts below and the submissions of Sri.P.B.Subramanyan. He further pointed out that Ext.B17 show cause would categorically show the extent of damages caused to the forest by the lessees. He further pointed out that the claim for the value of improvements is certainly an equitable right, but in the light of the indisputable fact that the tenants had caused large extent of deforestation and committed illegal felling of the trees, they are not entitled to the benefit. Further, it is pointed out that the tenants have no right to continue in the leasehold property and thus the decree passed by the courts below for recovery of possession is perfectly correct and is liable to be sustained.

8. I have considered the rival submissions raised across the bar and perused the judgments rendered by the courts below and the records of the case

SUBSTANTIAL QUESTIONS OF LAW

9. Multifaceted substantial questions of law needs to be addressed by this Court in these appeals. The appellants claim fixity of tenure and questions the inadequacy in the quantum of compensation granted to them towards the value of improvements. The respondent plaintiff raised a cross objection to the appellate decree granting compensation to the tenants towards the value of improvements. The appellants also seek for mandatory injunction to renew the lease. Succinctly the substantial questions of law are as follows:

                  a)       Substantial questions of law in RSA Nos.514/2012 to 522/2012

                  (i)       Is not judgment of appellate court on the contention regarding fixity of tenure illegal and without jurisdiction?

                  (ii)      Is not finding in paragraph 14 of the judgment of lower appellate court that there is implied surrender of tenancy on the culmination of the lease period against the mandatory provision laid down in Sec.51 of the Kerala Land Reforms Act?

                  (iii)     Is the appellate court entitled to deny the right of option given to the tenant relying on Sec.29 of the H.R.&C.E. Act, 1951 holding that sanction of the Commissioner is a precondition for renewing the lease?

                  (iv)     Are not appellants entitled to tack on their right and possession over the plaint schedule property on the basis of Exts.B1 and B2?

                  b)       Substantial questions of law in RSA No.446/2012

                  I.        When the trial court has not raised an issue regarding fixity of tenure under the Kerala Land Reforms Act and has not referred the matter to the Tribunal for a finding on that question, is not the first appellate court bound to raise an issue on fixity of tenure and refer it to the Land Tribunal?

                  II.       Is not the judgment of the first appellate court on the contention regarding fixity of tenure illegal and without jurisdiction?

                  III.      Is the suit for mandatory injunction to vacate maintainable in view of the evidence in the case that appellants are tenants of the plaint schedule property from 1907?

                  IV.      Are not the appellants entitled to fixity of tenure over the plaint schedule property in view of the provisions contained in Secs.6A, 6B, 7, 7D and Sec.13 of the Land Reforms Act?

                  V.       When the commissioner has reported that the value of improvements effected by the appellants will come to Rs.4,36,32,573/- can the court unilaterally reduce the same by holding that the appellants are entitled to the value of improvements effected only after Ext.B3?

                  VI.      Are not the appellants entitled to tack on their possession as lessees from 1907 and claim value of the entire improvements affected by them and their predecessor?

                  c)       Substantial questions of law in RSA No.1490/2011

                  I.        When Article (1) of Ext.B3 specifically provides that the lessees are entitled to exercise an option to renew the lease for a further period of 30 years after the expiry of 30 years from 15.03.1967, can the lower court rely on Article 4(3) of Ext.B3 which relates to renewal for any other period than what is provided in Article (1), for holding that the renewal of lease can be had only after obtaining sanction under Sec.29 of HR & CE Act?

                  II.       Is it not clear from a reading of Article (1) of Ext.B3 and Article 4(3) of the said document that Article 4(3) is applicable only if the lessee is exercising the option to renew the lease for any other period than what is provided in Article (1) of Ext.B3?

                  III.      Are not the lessees entitled to renewal of the lease for a further period of 30 years on the expiry of Ext.B3 in view of the specific provision in Article (1) of Ext.B3, as the lessees have admittedly exercised the option to renew the lease before the expiry of the period provided in Ext.B3?

                  d)       Substantial questions of law in RSA No.1333/2012

                  i.        When the trial court has not raised an issue regarding fixity of tenure under the Kerala Land Reforms Act and has not referred the matter to the Land Tribunal for a finding on that question, is not the first appellate court bound to raise an issue on fixity of tenure and refer it to the Land Tribunal?

                  ii.       Is not the appellant entitled to rely on the possession over the plaint schedule property on the basis of Exts.B1 and B2, deeds?

                  iii.       Is not the appellant entitled to rely on the possession as lessee from 1907 and claim value of the entire improvements affected by him and his predecessor?

                  iv.      Is not the finding of the first appellate court on the issue regarding fixity of tenure illegal and without jurisdiction?

                  v.       Whether the finding of the first appellate court that there is implied surrender of tenancy on the culmination of the lease period is against the mandatory provisions laid down in Sec.51 of the Kerala Land Reforms Act?

                  vi.      Is not the appellant entitled to fixity of tenure over the plaint schedule property in view of the provisions contained in Secs. 6A, 6B, 7, 7D and Sec.13 of the Kerala Land Reforms Act?

                  vii.      Whether the respondents are entitled to refuse to renew the lease on the ground that it will be against its interest?

                  viii.     Whether the finding of the first appellate court that the original lease was regarding a private forest and for planting rubber is sustainable in the light of the evidence adduced in the case?

                  e) Substantial questions of law in Cross Objection Nos.47/2014, 48/2014 & 49/2014

                  i.)       Whether the lower appellate court was justified in allowing the claim for value of improvements by relying on the report of the Advocate Commissioner?

                  ii.)      Whether the Appellants are entitled to claim value of improvements at all?

JUDICIAL EVALUATION

10. In the light of multifaceted substantial questions of law raised as above, it is imperative that this Court deals with certain vexed issues touching upon the rival claim. The issues, which this Court must address, are discussed serially.

                  a) Whether the Civil Court ought to have referred the claim of fixity of tenure to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, 1963?

11. The appellants assert before this Court that the claim for fixity of tenure ought to have been referred to the Land Tribunal by the civil court and failure to do so is fatal inasmuch as the civil court lacks jurisdiction to proceed with the suit. Further consideration of the appeals will necessarily revolve around the question as to whether the appellants are entitled to claim fixity of tenure. Ultimately, if this Court were to conclude that the lease deed in question falls outside the purview of the Kerala Land Reforms Act, 1963, then, it will be a futile exercise to have the matter referred to the Land Tribunal. Before considering this question in detail, it would be expedient to consider the impact of Section 125 (3) of the Kerala Land Reforms Act, 1963. Section 125 (3) reads as under:

                  “125. Bar of jurisdiction of Civil Courts.-

                  (1)      Xxxxxxx

                  (2)      xxxxxxx

                  (3)      If in any suit or other proceedings any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the Civil Court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only.

12. The scope of Section 125 of the Kerala Land Reforms Act, 1963 has been considered in a catena of decisions of this Court and therefore, this Court does not intend to burden itself by referring to the precedents on the point. The proposition of law expounded by this Court in numerous decisions leads to a conclusion that, the courts should exercise a greater amount of caution while considering the plea to refer the question of tenancy to the Land Tribunal.

13. In Kesava Bhat v. Subraya Bhat [1979 KHC 346 : 1979 KLT 766 (FB)], a Full Bench of this Court held that unless the question of tenancy actually arises for consideration, there is no obligation under Section 125(3) of the Kerala Land Reforms Act, 1963 to make a reference to the Land Tribunal. The mere incorporation of an unnecessary and irrelevant plea of tenancy in written statement is not to be taken as the basis for the reference under Section 125(3).

14. However, this Court must address the applicability of the precedents cited by the learned Senior Counsel for the appellants. In Kesava Bhat (supra), a Full Bench of this Court held that the decision of the civil court without compliance with Section 125(3) & (5) of the Kerala Land Reforms Act, 1963 in a suit where there is a question of tenancy, is a nullity.

15. In Vadakkekkara Koran v. Gowri [2024 KHC 779] (authored by ES(J)), it was held that the scheme of the Kerala Land Reforms Act, 1963 envisages that the question of tenancy be decided by an authority constituted under the Act and that the jurisdiction of the civil court is barred.

16. However, the fundamental question is whether the reference to the Land Tribunal must be made on a mere asking. It would be wholly impermissible for this Court to hold that as soon as the plea of tenancy is raised in the written statement, it is obligatory on the part of the civil court to refer the same to the Land Tribunal. It will be easy for the unscrupulous tenants to delay the proceeding by raking up an unwanted claim of tenancy, if, on facts, the claim does not actually arise. That is the reason why this Court has repeatedly cautioned the civil courts to exercise restraint while referring a claim under Section 125(3) of the Kerala Land Reforms Act, 1963.

17. The decision in Vadakkekkara Koran (supra) is clearly distinguishable on the facts. In the aforesaid decision, this Court had taken the view that the jurisdiction of the civil court is barred when a question of tenancy is raised, especially since the claim of tenancy was independently prosecuted by the tenant before the Land Tribunal and thereafter before the appellate authority by invoking the statutory scheme contained under the Kerala Land Reforms Act. The decision of the Full Bench in Kesava Bhat (supra) regarding the ouster of jurisdiction of civil court must be viewed as a general proposition of law and cannot be applied to the present facts, especially without looking into the question as to whether the claim of tenancy is genuine or not. Therefore, this Court is of the considered view that there is no merit in the argument of the learned Senior Counsel for the appellants that the jurisdiction of the civil court is barred because of the plea of fixity of tenure was not referred to the land tribunal.

(b) Whether Exts.B1 and B2 lease deeds fall outside the purview of the Kerala Land Reforms Act, 1963?

18. Specific case of the plaintiff is that Exts.B1 and B2 lease deeds fall outside the purview of the Kerala Land Reforms Act, 1963 and therefore, no legal right flows into the hands of the appellants out of Ext.B3 lease deed. To test this argument, one needs to delve little deep into the provisions of the Act

19. The Kerala Land Reforms Act, 1963 came into existence w.e.f. 1.4.1964. Section 3 of Chapter-II provides for exemptions. In the peculiar facts of this case, two provisions fall for extensive consideration of this Court, Sections 3(1)(vii) and 3(1)(viii). Sections 3(1)(vii) and 3(1)(viii) are extracted hereunder:

                  “3.      Exemptions.- (1) Nothing in this Chapter shall apply to-

                  xxx     xxx     xxx

                  (vii)    leases of private forests:

                  Provided that nothing in clauses (i) to (vii) shall apply in the cases of persons who were entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force or persons claiming under such persons; or

                  (viii)    tenancies in respect of plantations exceeding thirty acres in extent:

                  Provided that the provisions of this Chapter, other than sections 53 to 72S shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub-clause (c) of clause (44) of Section 2.”

20.    Impact of Section 3(1)(vii), which pertains to the lease of private forests, needs to be dealt with a little more deeply. Though an attempt has been made before this Court to point out that the definition of “private forest” must be made with reference to Section 2(47) of Kerala Land Reforms Act, 1963, this Court does not see any difficulty in accepting the said argument. Section 2(47) is extracted hereunder:

                  “2. Definitions- In this Act, unless the context otherwise requires,-

                  xxx     xxx     xxx

                  (47)"private forest" means a forest which is not owned by the Government, but does not include--

                  (i)       areas which are waste and are not enclaves within wooded areas;

                  (ii)      areas which are gardens or nilams;

                  (iii)     areas which are planted with tea, coffee, cocoa, rubber, cardamom or cinnamon; and

                  (iv)     other areas which are cultivated with pepper, arecanut, coconut, cashew or other fruit-bearing trees or are cultivated with any other agricultural crop;”

21. A further plea is also raised that the relevant date for applying the definition of private forest under the Kerala Land Reforms Act, 1963 should be the date on which the Act came into existence and not with reference to the date on which the lease deeds were executed. To ascertain the nature of the property leased out in 1907 as per Ext.B1, it is worthwhile to refer to certain clauses under Ext.B(1). Clause 2 of Article 4 of Ext.B(1) reads as under:

                  “Article 4

                  xxx     xxx     xxx

                  2. The lessee shall have full power and authority from time to time and at all times during the continuance of the lease or any extension thereof to convey, assign or transfer absolutely or by way of mortgage or sub lease the whole or any portion of his interest in the land hereby leased or demised or all or any of his obligations and interests hereby created to any person or persons, Company or Companies and subject to such condition or conditions as may be agreed upon between him and such person or persons, Company or Companies. He shall also be at liberty to open up the said land or any portion thereof for the cultivation of rubber or any other cultivation and for the purpose to fell timber and have the use of the same for all purposes consistent with the use of the said land for rubber or other cultivation and to erect buildings and machinery thereon.”

                  Turning to the schedule of the property, it is specifically mentioned in Ext.B1 as follows:

                  “The forests and parambas belonging to Elakoothambara, Akamalavaram Patimare Muri”.

                  Ext.B1 was followed by Ext.B2. The schedule reads as under:

                  “The forests and parambas belonging to Elakoothambara, Akamalavaram Patinhare Muri re. Survey Numbers 616-B/1, 616-C/1, 617/9, 12 & 14 and 825 and the remaining unsurveyed portion.”

                  In Ext.B3, there is more clarity in the schedule showing the extent. Schedule to Ext.B3 reads as under:

                  “Schedule

                  Elak Rubber Estate-Total extent. – 1000 acres, 400 hectares. Property situated in Akamalavaram, Patinhare Muri, in Kadukkamkunnam amsom and desom, Palghat taluk, Palghat District within the Registration Sub District and District of Palghat.

                  

                  

      22. The cumulative reading of the Schedule to the lease deeds, throws up an entirely different perspective to the case. At the time of grant of lease, the properties were certainly private forest, which cannot be disputed by the defendants. No doubt, a permission to change the character of the private forest was granted to the original lessee with liberty to clear the timbers and planting rubber trees and doing other cultivation. In the present case, there cannot be any dispute that on the date of coming into force of the Kerala Land Reforms Act, 1963 the property in question retained its character of a private forest even though not to its entirety. Once it is concluded that the land in question retained the character of private forest, it is not possible for this Court to interpret the lease deed in such a manner so as to bring certain portions of the deeds within the purview of Kerala Land Reforms Act and to take out the remaining portion out of the purview of the Act. Such a differential construction is not proper. Therefore, this Court is inclined to conclude that property covered by the lease deeds in question falls squarely within the definition of “private forest” and thus, is taken out of the purview of the Kerala Land Reforms Act, 1963.

23.    Yet another infirmity that stems out of the argument raised on behalf of the appellants by the learned Senior Counsel, Sri.T.Sethumadhavan, is that Ext.B3 is a lease of Rubber Plantation as well as a private forest. The extent of leasehold property is 1000 acres. Under the Kerala Land Reforms Act, exemption is available to plantation, only if the holding is less than 30 Acres. Therefore, if the extent held by a lessee is for more than 30 Acres, by operation of the statute, such lease is taken outside the purview of the Kerala Land Reforms Act, 1963. Therefore, since the cumulative holding in the present case is 694.32 Acres, it is not difficult for this Court to conclude that the lease is outside the purview of the Act.

24.    Before this Court moves forward, it must address the applicability of the three decisions cited by the learned Senior Counsel for the appellants.

25. In Nandanasseri Kalpakasseri Damodaran Nair & Ors.v. Thiruvambadi Rubber Company Ltd. [S.A.No.193/1997 dated 26.7.2010], a Single Bench of this Court held that once the property had been cleared of trees etc., the lessee is allowed to cultivate the same, and it can no longer be said that the lease was of a private forest. The learned Single Judge concluded relying on the decision of this Court in Ipe v. Pramathan Namboodiripad [1988 (2) KLT 277]. The decision in Nandanasseri Kalpakasseri Damodaran Nair (supra) was affirmed by the Supreme Court in N.K. Rajendra Mohan v. Thirvamadi Rubber Co. Ltd. & Others [(2015) 9 SCC 326].

26. A reading of the decision of the Supreme Court in N.K. Rajendra Mohan (supra) shows that there was only one lessee who continued to hold the property on expiry of the period of 36 years from 21.6.1918. Moreover, in the said lease deed there was no mention regarding private forest. Still further, by the time suit for eviction was filed the entire area was converted to a plantation. Further, the acceptance of the rent by the landlord was construed by the Supreme Court as an assent to continue with the lease even after its expiry. That apart, the lessee in that case had planted the rubber trees after taking the property for lease and thus qualifying for the fixity of tenure. Even in Ipe (supra), the position was the same.

27. However, in this case it is not so. In this case, original lease to Cecil Hall admittedly was that of a private forest, and thereafter the trustee renewed the lease in favour of M/s.Elak Rubber Company and M/s.Stanes and Company Ltd. Admittedly, at the time of renewal of the lease for 30 years in the year 1937, the property retained the character of a private forest. If the renewal of the lease is taken, then it is for both plantation as well as private forest. Therefore, when a lease is executed in respect of plantation, it is taken out of the purview of the Act.

28. However, the learned Senior Counsel for the appellants, Sri.T.Sethumadhavan contended that when the renewal of the lease is made it must be construed as continuation of the earlier lease and thus there is a continuity in the lease. This Court is unable to subscribe to the argument, especially in the light of the decision of the Supreme Court in State of UP & Others v. Lalji Tandon (Dead) through LRs [(2004) 1 SCC 1], wherein it was held by the Supreme Court that when the lessee exercises the option for renewal of the lease deed and renewed the lease deed, a fresh lease comes into existence.

29.    Moreover, the evidence adduced by the defendants (lessees) is conspicuously silent on the nature of the cultivation carried out in the leasehold land as on 1.4.1964. Therefore, evidently, the entire 1000 Acres of land was not cultivated by the original lessee as a rubber plantation. Even if this Court were to assume that there existed a rubber plantation, the moment a fresh lease deed is executed in the year 1937 for a period of 30 years, a lease is created in respect of the plantation. Therefore, as on 1.4.1964, when the Act came into existence, the lease in question was in respect of both ‘private forest’ and ‘rubber plantation’ thus taking it outside the purview of the Kerala Land Reforms Act, 1963.

30. Moreover, when Ext.B3 was executed for 1000 Acres, a large portion of the land was already under cultivation and, therefore, the said lease can only be presumed to be that of the plantation for more than 30 Acres, thus taking out the same outside the purview of the Kerala Land Reforms Act, by applying the exemption clause under Section 3(1)(viii) of the Act.

31. That apart, defendants 5 to 9 and others who claimed that they are the individual partners of M/s.United Planters had no such case pleaded or proved that it is M/s.United Planters which had done the plantation in the leasehold property. It is in this context that the description of the property covered in the Schedule to Ext.B3 assumes significance. Therefore, as on the date of execution of Ext.B3, since rubber plantation existed, the lease is not covered by the provisions of the Kerala Land Reforms Act, 1963. Therefore, the irresistible conclusion is that the lease deeds in question do not come within the purview of the Act.

c) Whether Ext.B3 lease deed is valid?

32.    An incidental question regarding the validity of lease must be addressed by this Court on the validity of Ext.B3 because it touches upon the claim of the defendants for fixity of tenure. It must be noted that, though the learned Senior Counsel opened his submissions before this Court by contending that Ext.B3 can only be construed as one in continuation of the earlier lease deeds and thus, the defendants are entitled to fixity of tenure. But, towards the conclusion of his argument, the learned Senior Counsel submitted that Ext.B3 lease deed is a void document because it militates against Section 74 of the Kerala Land Reforms Act, 1963. After raising this argument, the learned Senior Counsel Sri.T.Sethumadhavan went ahead and raised a plea that since the assignment in favour of M/s.United Planters by M/s.Supreme Industries is during the years 1963 and 1964 the said partnership firm is entitled to get fixity of tenure and since the appellants being the partners of the firm are automatically entitled to fixity of tenure. This aspect will be dealt with later in this judgment.

33.    As regards the claim of fixity of tenure based on deeds of assignment of 1963 and 1964, it is imperative for this Court to notice that the assignment deeds in question were not tested before the trial court in evidence. Though, belatedly an attempt is made to produce the two assignment deeds in favour of M/s. United Planters on the date on which these appeals were taken up for final hearing, through an application under Order-XLI Rule-27 of the Code of Civil Procedure, 1908, this Court is firm in its view that the application cannot be entertained at the Second Appellate stage and the same only deserved to be rejected . At any rate, the argument now raised does not find a place in the pleadings of the defendants in their written statement.

34.    Coming back to the validity of Ext.B3, it must be noted that Section 74 of the Kerala Land Reforms Act, 1963 creates a bar for creating future tenancy. The moment this Court applies the principle laid down by the Supreme Court in Lalji Tandon (supra), it is beyond cavil that Ext.B3 lease must be construed as a fresh lease deed in violation of Section 74 of the Kerala Land Reforms Act, 1963, rendering it void ab initio. This Court is fortified in arriving at this conclusion because of the conscious act of the appellants in disowning Ext.B3. Once the lease deed is held to be void then tenant cannot derive any benefit out of it. Moreover, since the appellants themselves have disowned Ext.B3, naturally, the entire edifice based on which these appeals are built upon will collapse and no further deliberation needs to be done by this Court. However, since other legal issues are raised before this Court, this Court will necessarily deal with the same for the sake of completion.

(d)    Effect of Malabar Tenancy Act, 1929

35. This question assumes significance in the context of the claim of the appellants that, since the possession was given to the lessee in 1907 and that his assignee continued to be in possession and further, the devolution of the title of the appellants is traceable to the predecessor who was in possession as on the coming into force of the Malabar Tenancy Act 1929, the subsequent assignees are entitled to fixity of tenure under Section 21 of the Malabar Tenancy Act 1929.

36. The Malabar Tenancy Act, 1929 (Tamil Nadu Act No.XIV of 1930) was promulgated by the State of Tamil Nadu and received the assent of the Hon'ble Governor on 28.3.1930 and it applied to the Malabar Area, which fell under the control of the erstwhile State of Tamil Nadu prior to the coming into the force of the States Reorganization Act, 1956. While dealing this question, this Court may have to further deliberate on the issue as to whether the benefit under the Malabar Tenancy Act, 1929 will continue to enure to the benefit of the appellants, notwithstanding the promulgation of the Kerala Land Reforms Act, 1963. The argument of the learned Senior Counsel for the appellants is primarily based on the basis of Section 21 of the Malabar Tenancy Act, 1929. Section 21 of the Malabar Tenancy Act, 1929 reads as under:

                  “21. Right of certain classes of tenants to fixity of tenure.

                  Notwithstanding any contract to the contrary, whether entered into before or after the commencement of this Act, every cultivating verumpattamdar, every customary verumpattamdar, every kanamdar, every kanam-kuzhikanamdar, every kuzhikanamdar, every tenant of a kudiyiruppu and every holder of a protected ulkudi shall have fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in this Act:

                  Provided that no tenant of a commercial site shall have fixity of tenure in respect thereof unless immediately before the commencement of the Malabar Tenancy (Amendment) Act, 1951, he had fixity of tenure in such site or a right to obtain a renewal of his tenancy in respect thereof:

                  Provided further that, in the case of a kanamdar whose kanartham exceeds forty per cent of the value of the janmi's rights in the holding, the kanamdar shall not have fixity of tenure.

                  Explanation. - For the purposes of the foregoing proviso, the janmi's rights in the holding shall be valued-

                  (i)       in the case of a kanam existing on the date of the commencement of the Malabar Tenancy Act, 1929, at twenty times the excess of (a) the annual fair rent of the holding as payable on that date under that Act over (b) the annual assessment then payable thereon;

                  (ii)      in the case of a kanam created after such commencement and before the date of the commencement of the Malabar Tenancy (Amendment) Act, 1951, at twenty times the excess of (a) the annual fair rent of the holding as payable under the Malabar Tenancy Act, 1929, on the date of the kanam over (b) the annual assessment then payable thereon;

                  (iii)     in the case of a kanam created on or after the date of the commencement of the Malabar Tenancy (Amendment) Act, 1951, if and to the extent the kanam relates to wet land, at thirty times the excess of (a) the annual fair rent of the holding payable on the date of the kanam under the Malabar Tenancy Act, 1929, as amended by the Amendment Act aforesaid, over (b) the annual assessment then payable thereon, and if and to the extent the kanam relates to garden or dry land, at twenty-five times such excess.”

37.    However, the argument overlooks the fact that by operation of Section 2 of the Malabar Tenancy Act, 1929 certain exemptions are provided. Section 2 of the Act reads as under:

                  “2. Exemptions – Nothing in this Act shall apply to-

                  (1)      lands transferred by a landlord for felling timber or for planting tea, coffee, rubber, cinchona or any other special crop prescribed by a rule made by the State Government or the erection of any building for the purpose of, or ancillary to, the cultivation of such crop, or the preparation of the same for the market or land let only for fugitive cultivation:

                  Provided that no rule under this clause shall affect any land in respect of which any tenant has a right of fixity of tenure under this Act, so long as such right subsists, or

                  (2)      any transaction relating only to the usufruct of trees,or

                  (3)      any building owned by a landlord including a house, shop or warehouse, and the site thereof, together with the garden or land appurtenant thereto, but not including a hut belonging to a landlord, in any ulkudi.”

38. When a query was raised by this Court as regards the applicability of the exemption clause, Sri.M.Gopikrishnan Nambiar, the   learned counsel appearing for the appellants in RSA Nos.446/2012 and 1490/2011, pointed out that the exemption is only provided for planting of rubber trees and not for cultivation. However, this Court is unable to subscribe to the aforesaid argument because admittedly, when Ext.B1 lease deed was entered, it was primarily for felling timbers and planting rubber trees and therefore, as on the date of coming into the force of the Malabar Tenancy Act, 1929, Ext.B1 lease deed is taken out of the purview of the Act. Still further, a cursory reading of Section 21 also shows that the fixity of tenure is to be granted to every cultivating verumpattamdar or customary verumpattamdar or kanamdar or kanam-kuzhikanamdar or kuzhikanamdar or a tenant of kudiyiruppu or holder of a protected ulkudi or a kudikidappu etc. It is not shown before this Court as to how the appellants would fall within the definition of any of the categories mentioned under Section 21 of the Malabar Tenancy Act, 1929. That apart, once this Court finds that Ext.B1 falls within the exempted category under Section 2, no further deliberation on the issue of entitlement for fixity of tenure under Section 21 of Malabar Tenancy Act, 1929 requires to be done by this Court.

39.    Yet another reason as to why this Court must negate the claim of the appellants for fixity of tenure under Section 21 of the Malabar Tenancy Act, 1929 is the insertion of Section 132(3) under the Kerala Land Reforms Act, 1963. Section 132(3) provides for saving of certain proceedings and is of a restrictive nature. Sub- Section (3) of Section 132 reads as under:

                  “132. Repeal and Savings –

                  xxx     xxx     xxx

                  (3)      Notwithstanding        the     repealof       the enactments mentioned in sub-section (2),

                  (a)      any decree passed before the commencement of this Act for the eviction of a tenant from his holding, pursuant to which eviction has not been effected, may, on the application of the tenant or the landlord, be reopened and the matter may be disposed of in accordance with the provisions of this Act;

                  (b) any suit for restoration filed under section 24 or section 26 or sub-section (3) of section 53 of the Malabar Tenancy Act, 1929 or any application for determination of fair rent made under section 16 of that Act or any application for        fixation of fair rent  made under section 9 of the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956 and pending disposal at the commencement of this Act shall be disposed of in accordance with the provisions, of the said Acts as if those Acts had not been repealed:

                  (c)      (i) where the decree-holder, plaintiff, appellant or petitioner, as the case may be, is a person entitled to resumption of land under this Act, he shall have the right to apply to Court to allow resumption of the holding or any part thereof to which he is entitled;

                  (ii)      the application under sub-clause (i) shall be made within one year from the commencement of this Act and shall contain a statement of facts in support of the claims of the applicant and also the names and addresses of all persons who have interest in the holding either as owner, lessee or kudikidappukaran:

                  (iii)     the court shall dispose of the application as if it were an application for resumption before the Land Tribunal under this Act;

                  (d) notwithstanding anything contained in section 11 of the Code of Civil Procedure, 1908, the right      conferred on the decree-holder, plaintiff, appellant or petitioner, as the case may be, under sub-clause (i) of clause (c) shall not be deemed to take away or in any manner affect his right to apply for resumption under this Act.”

                  The impact of sub-Section (3) of Section 132 of the Kerala Land Reforms Act, 1963 on the Malabar Tenancy Act, 1929 is no longer res integra in the light of the decision of the Division Bench of this Court in Ammukutty Amma v. Viswanatha Iyer [1986 KLT 905]. Paragraph 6 of the said decision reads as under:

                  “6. There is another angle from which the learned counsel for the respondent met the contention based on S.43 of the Malabar Tenancy Act. Even assuming that the said Act continued to be in force till the coming into force of the Kerala Land Reforms Act, the legislature has clearly expressed its intention that all the rights created under the Malabar Tenancy Act were not to survive subsequent to the repeal of the Act. All provisions regarding tenancies, in the Kerala Land Reforms Act have been included in Chapter II of that Act which starts with S.3. The said section says that nothing in Chapter II shall apply to "tenancies in respect of land or of buildings or of both created by persons having only life interest or other limited interest in the land or in the buildings or in both". This is mentioned in clause (vi) of sub-s.(1). A proviso inserted after clause (vii) is quoted:

                  ''Provided that nothing in clauses (i) to (vii) shall apply in the cases of persons who were entitled to fixity of tenure immediately before the 21st January, 1961, under any law then in force or persons claiming under such persons".

                  S.132(3) of the Kerala Land Reforms Act provides that certain actions taken pursuant to the repealed Acts are to continue in the manner specified in that sub-section. It is contended by the learned counsel for the respondent that the legislature, by including the said proviso and by providing that certain actions taken under the Malabar Tenancy Act are to continue, has "manifested its intention" that despite the repeal of the Malabar Tenancy Act, only certain rights which accrued or were acquired under the said Act will survive. Under S.4 of the Kerala Interpretation and General Clauses Act "where any Act repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed", (emphasis supplied) Dealing with S.132 vis-a-vis S.4 of the Kerala General Clauses Act a Division Bench of this Court has held in Adamkutty v. Damodaran Nambudiri (1970 KLT 321) that

                  "By the enactment of S.132(3) the new legislation manifests an intention contrary to the provisions of S.4 of the Interpretation and General Clauses Act; a different intention such as is contemplated by the Section as being sufficient to prevent the preservation of a right or privilege acquired or secured under a repealed Act may arise by necessary implication and full effect has to be given to the repeal subject to any provision in the repealing statute itself".

                  Whenever there is a repeal of an enactment the consequence laid down under S.4 of the Kerala Interpretation and General Clauses Act will follow unless a different intention appears. In the case of a simple repeal there is hardly any room for expression of a different intention. But when the repeal is followed by fresh legislation on the same subject, provisions of that legislation must be looked into for the purpose of determining whether they indicate a different intention (vide State of Punjab v. Mahar Singh, AIR 1955 SC 84). We respectfully agree with the observations of the Division Bench in Adamkutty's case cited supra. The result is that we hold that no right specified or dealt with under the Malabar Tenancy Act, except those specifically made mention of in S.132(3) read with proviso to S 3 of the Kerala Land Reforms Act, will survive, after the repeal of that Act. A proper understanding of the relevant provisions of the Malabar Tenancy Act, 1929, the Agrarian Relations Act, 1961 and the Kerala Land Reforms Act, 1963, in the light of S.4 of the Kerala Interpretation and General Clauses Act, as explained, by the Supreme Court in State of Punjab v. Mahar Singh (AIR 1955 SC 84) which was followed in T. Barai v. Henry Ab Hoe (AIR 1983 SC 150 at Page 156) and by this Court in Adamkutty's case (1970 KLT 321) fortifies the above view. The decision of the Supreme Court in State of Gujarat v. Shri Ambica Mills (AIR 1974 SC 1300 at page 1307) explains the legal effect of a few provisions of the Act being declared void by the courts.”

                  Thus, the claim for fixity of tenure under the provisions of the Malabar Tenancy Act, 1929 will survive only subject of Section 132(3) of the Kerala Land Reforms Act 1963. Once it is concluded that except so provided under Section 132(3) no other right of the tenant survives, it is not difficult for this Court to conclude that the claim of the appellants for fixity of tenure is liable to be rejected.

(e) Whether deemed tenancy exists in the present case?

40. Normally, once this Court concludes that the claim for fixity of tenure under Section 21 of the Malabar Tenancy Act 1929 is repelled, there cannot be any question whether the appellants can fall back on the principles of deemed tenancy. However, since the contention is raised, this Court must deal with the issue. Sections 6A and 7D of the Kerala Land Reforms Act, 1963 deals with the deemed tenancy and it read as under:

                  “6A. Certain persons who were holding land on or after 1st December 130, 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, a person in possession of immovable property in any area in the State to which the Malabar Tenancy Act, 1929, extended, whether as mortgagee or otherwise, shall be deemed to be a tenant if--

                  (a)      the property in his possession consists of agricultural land;

                  (b)      he or any of his predecessors-in-interest was holding the property as a tenant on or after the 1st day of December, 1930; and

                  (c)      the tenancy was terminated after the 1st day of December, 1930 and before the commencement of this Act, but his predecessors – in – interest or himself continued in possession of the property, without interruption, whether as a mortgagee with possession or otherwise, from the date of such termination till the commencement of this Act.

                  Explanation I.-- For the purposes of clause (b), "tenant" means a tenant as defined in the Malabar Tenancy Act, 1929, as in force on the 1st day of November, 1956.

                  Explanation II.-- An interruption for a period not exceeding an agricultural year immediately following the termination of the tenancy shall not be deemed to be an interruption for the purposes of clause (c).”

                  xxx     xxx     xxx

                  “7D. Certain persons occupying private forests or unsurveyed lands 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, 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 Preservation of 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.”

41. This issue needs to be addressed in two parts; a) claim under Section 6A, and b) claim under Section 7D. A reading of Section 6A, may first appear to be in favour of the appellants. But then, the argument for qualifying the appellants as deemed tenants primarily fails to address how they satisfy the conditions under clause (c) of Section 6A. Under the said clause, the appellants must satisfy that the tenancy was terminated after the 1st day of December, 1930 and before the commencement of this Act, but his predecessors – in – interest or himself continues in possession of the property without interruption from the date of such termination till the commencement of the Act. In this case, when the lease was terminated in 1937, the original lessee was not in possession. Similarly, during the currency of the said lease, the lessee assigned his property to one Thattil Kochuvareed who in turn assigned his right to M/s.Supreme Industries and M/s Supreme Industries to M/s United Planters. Thus, on the date of commencement of the Kerala Land Reforms Act 1963, neither the original lessee nor the appellants were in possession of the plaint schedule property.

42. Of course, it may be possible for the appellants to contend that their immediate predecessor, M/s.Supreme Industries, was in possession of the land and hence they are entitled to protection. But then, the fundamental question is, since M/s.Supreme Industries was in possession of the property under a deed of assignment of leasehold rights, whether such possession would entitle the assignee to claim the status of deemed tenant. Here, one must remember that the possession of M/s.Supreme Industries was through an assignment of contract of lease. It has also come out that the rights under the assignment deed was transferred to M/s United Planters. This court cannot remain oblivious of the fact that the provisions of Section 6A envisages protection to the person who is in possession of the property under a transaction which gives a colour of lease and not otherwise. Therefore, when a lessee assigns the leasehold property during the currency of a lease, the assignee cannot qualify itself as a deemed tenant.

43. Coming to the claim under Section 7D, this Court is of the considered view that the principles governing the applicability of Section 6A will also apply with equal force. Sri P.B.Subramanyan, the learned counsel appearing for the plaintiff-Devaswom, would, however, point out that the claim for deemed tenancy under Sections 6A and 7D of the Kerala Land Reforms Act, 1963 has to be rejected in its entirety in the light of the decision of the Single Bench of this Court in Sree Chathankulangara Bhagavathi Devaswom v. Nair Service Society [2023 KHC 852]. Paragraphs 20 to 22 of the aforesaid decision are extracted for reference:

                  “20. Being a tenant under the Act, the defendant in the suit is entitled to all the benefits conferred on a tenant by the Act unless expressly excluded by the Statute. So, the defendant would ordinarily be entitled for the benefit of fixity of tenure under Section 13 of the Act. However here comes the application of the exemption clauses under Section 3(1) of the Act. Section 3(1)(vii), as noticed first above, exempts the applicability of Chapter II of the Act (the chapter which contains Section 13 providing for fixity of tenure) to leases of private forests.

                  21.     Admittedly the defendant is in possession of the plaint schedule property under a ‘lease of private forest’. The same is, in no ambiguous terms, stated in the written statement thus,

                  “4. The allegation contained in para 2 of the plaint to the effect that the plaint schedule property is a private forest is admitted; not only that, MPPF Act was applicable to the said forest as well, as set out in the lease deed and it was after obtaining permission from the District Collector as envisaged in the MPPF Act, that the lease deed was executed. True that there are recitals in the lease deed regarding surrender after 36 years and on payment of compensation regarding the value of improvements.”.

                  Therefore, Chapter II does not apply to the case at hand. The defendant is thus, not entitled to claim the benefit of fixity of tenure under Section 13 of the Act.

                  22.     Even assuming that Section 7D applies in the case of the defendant, it may not be of any avail. As noticed earlier, the benefit of deemed tenancy would enure to a person who is not a tenant. It implies that he is not in possession under any lease arrangement. In such case he would become a deemed tenant under the Act and thus would be entitled for the benefits under Chapter II of the Act. The benefits would accrue to a deemed tenant who is thus in lawful possession but under an arrangement short of a lease. However, in the case of the defendant herein, the possession being admittedly under a lease of private forest, again, the application of Chapter II is excluded as noted above.”

                  This court is in complete agreement with the views expressed by the Single Bench in the above decision and thus the claim of the appellants to qualify themselves as deemed tenants must fail.

44.    It is also pertinent to mention that the decision of this Court in Sree Chathankulangara Bhagavathi Devaswom (supra) was taken before the Supreme Court in Special Leave to Appeal Nos.2752 - 2754 of 2024 and the Supreme Court refused to interfere with the judgment of the Single Bench as regards the claim of deemed tenants over 50 Acres of private forest and issued the limited notice insofar as the extent of 16 Acres is concerned. Therefore, this Court is of the considered view that the contention raised on behalf of the appellants that they are entitled for the benefit of Sections 6A and 7D of the Kerala Land Reforms Act, 1963 is liable to be rejected.

(f)    Whether the partners of a firm are entitled to fixity of tenure on the property of the firm?

45. It is important for this court to address this issued since the appellants claim fixity of tenure as partners of M/s.United Planters. Surprisingly the claim for fixity of tenure in terms of Section 13(1) of the Kerala Land Reforms Act, 1963 is raised for the first time before this Court.

46. Order-VIII Rule-2 of the Code of Civil Procedure, 1908, requires the defendants to raise in their pleadings all matters to show that the suit is not maintainable or that the transaction is either void or voidable in the point of law and all such grounds of defense. When this defect was pointed out by this Court, the learned Senior Counsel for the appellants countered it by pointing out that the claim of the appellants being statutory in nature, it was the duty of the trial court to have gone into the said question. However, the contention must fail for obvious reasons.

47. Admittedly, the leasehold right from 1937 onwards was vested in a firm, namely M/s.Stanes and Company / M/s.Elak Rubber Company. This right was subsequently assigned in favour of one Thattil Kochuvareed and later to M/s.Supreme Industries and later to M/s.United Planters. Notwithstanding the assignment, M/s.United Planters went ahead and executed renewal of the lease with the Devaswom on 22.12.1969 for 1000 Acres. At this juncture, Ext.B17 assumes importance. Under Ext.B17 show cause notice, the Government had proposed to cancel the sanction given by the Commissioner of HR&CE Department on the ground that the sanction violated the provisions of the Madras Preservation of Private Forest Act, 1949. Though the said notice was challenged before this Court, this Court did not interfere with the same presumably because the period of lease had by that time expired. But then, once the Government recalled the order giving sanction for renewal of the lease, the consequence is that Ext.B3 lease deed loses its efficacy. Once Ext.B3 loses it efficacy, M/s United Planters had no right to assign the lease in favour of the appellants. Thus, the possession of the appellants, if any, is under a void lease deed.

48. That apart, even assuming that in the absence of a formal order cancelling the lease deed, the lease deed may survive, even then it is difficult to uphold its efficacy because of Section 74 of the Kerala Land Reforms Act, 1963. Perhaps, finding that Section 74 may operate against the appellants, the appellants have given up the right based on Ext.B3 lease deed. Therefore, when there is a conscious relinquishment of the claim, though for the first time raised before this Court, that fact cannot be ignored by this Court under any circumstances. Hence, it must be irresistible to conclude that the claim of the appellants must fail. But then, it is further contended by the learned Senior Counsel that, notwithstanding the fact that the appellants had given up their claim under Ext.B3, they are entitled to fixity of tenure under Section 13(1) of the Kerala Land Reforms Act, 1963 based on the admission of the plaintiff and also in the light of the fact that the partnership firm was dissolved and an inter-se arrangement was entered between the partners of the firm.

49. This Court has bestowed its anxious consideration on the aforesaid point. The defendants 1 to 4 as well as 5 to 9 in their separate written statements, have clearly delineated the devolution of title from M/s.United Planters to the defendants. A cursory glance at the averments in paragraph 11 of the written statement of defendants 5, 7, 9 to 15 would show that the devolution is based on the execution of registered documents during various periods prior to the partnership firm being dissolved. The transaction per se appears to be illegal because, M/s.United Planters, appears to have sold various extent to other firms. Though, it is asserted before this court that the partners of such firms are none other than the partners of M/s.United Planters, there is no evidence to sustain the said plea. Therefore, this court is not in a position to test the veracity of the statement made by the learned Senior Counsel for the appellants across the bar.

50. Be that as it may, at some point of time, there appears to have been a conscious act of dissolution of the firm in terms of Section 39 of the Indian Partnership Act, 1932. It is further stated that a subsequent partition took place. These pleadings are not supported by any evidence. Though it may be possible to hold that the partners of the firm, which was entitled for fixity of tenure, could still claim the benefit of the fixity of tenure in the name of the firm, the said right would devolve only after the dissolution of the firm and a registered document being executed conferring the rights of the partners. No evidence is available to support such conclusion and hence this Court has no other alternative but to reject the claim of the appellants.

51.    Yet another glaring defect which stares at the face of the appellants is that most of the transactions appear to have been done during the subsistence of the firm, M/s.United Planters. Though the partners of the firm are entitled to sell the property of the partnership firm, it must be followed by a resolution of the firm. There is nothing before this Court to conclude that the sale in favour of the individual partners was in exercise of the powers of the partners under Section 19 of the Indian Partnership Act, 1932 and was preceded by a valid resolution. No explanation is forthcoming as to why the defendants consciously chose to withhold the assignment deeds by which they derived the right title and interest over the property. However, a fervent plea was raised on behalf of the appellants that there is an admission on behalf of the plaintiff as regards the possession of the defendants. It is true that in paragraph 1 of the plaint, it is stated that the defendants are in possession of the plaint schedule property comprising of 694.32 Acres. But then, unless the defendants are able to satisfy this Court that the character of possession is legal and valid, they are not entitled to claim the fixity of tenure.

52. Moreover, this Court cannot remain oblivious of the fact that the possession of the defendants over the property was only after the execution of the fresh lease deed in the year 1969. This Court has already held that the execution of the lease deed is hit by Section 74 of the Kerala Land Reforms Act, 1963 and thus, the defendants cannot claim any right based on a void lease.

53. In conclusion, this Court holds that since the lease deed in favour of the partnership firm, namely M/s.United Planters is a void lease, no right flows into the hands of the defendants based on the assignment in their favour and the possession becomes precarious and thus the possession is that of encroachers.

CLAIM FOR VALUE OF IMPROVEMENTS

54.    The claim under the Kerala Compensation for Tenants Improvements Act, 1958, is a highly debatable issue in the present appeals. While dealing with this issue, the Court must address three sub-issues; (i) the scope and extent of the power of the appellate court under Section 96, (ii) effect of a void lease & (iii) effect of disowning the lease.

i) Scope and power of the appellate court under Section 96 of the CPC.

55.    Before touching upon the said issue, it is worthwhile to mention that in the original written statement filed on behalf of the defendants, there was no plea raised for the value of improvements made by the defendants. But the defendants appeared to have filed an additional written statement wherein such a plea was raised. More pertinently, no evidence was adduced by the defendants before the trial court supporting their plea for the value of improvements. Therefore, the trial court rejected the claim. But during the first appellate stage, the appellants preferred an application for taking out an Advocate Commissioner. The Advocate Commissioner filed Ext.C1(a) report. An expert opinion was also solicited by the first appellate court by appointing one of the officers of the Rubber Board, who filed a report, Ext.C1(b). The contention now raised before this Court is that the value of improvements as fixed by the first appellate court cannot be sustained because the first appellate court failed to notice the existence of the report from the Rubber Board, which is more beneficial to the defendants. The plaintiff has preferred Cross Objections, which are mainly directed against the findings of the first appellate court on the grant of compensation towards the value of improvements. Thus, this Court is called upon to judge the sustainability of the findings of the first appellate court solely based on the report of the Advocate Commissioner.

56.    It is now trite law that the first appellate court under Section 96 of the Code of Civil Procedure, 1908, can reappreciate the evidence to find out whether the findings of the trial court are sustainable or not. In the present case, however, the first appellate court had exercised the power under Section 96, not based on the evidence adduced by the parties before the trial court but also on the basis of evidence in the form of the report of the Advocate Commissioner. The first appellate court no doubt has the power to appoint an Advocate Commissioner for ascertaining facts for the proper disposal of the appeal. However, the said power must be used sparingly and only if it is found that there is a defect or shortcomings in the report of the Advocate Commissioner at the trial stage. But, to solicit further evidence at the appellate stage to fill up the lacunae that occurred at the trial stage cannot be permitted.

57. At any rate, having obtained the report, it would be wholly impermissible for the first appellate court while exercising the power under Section 96 of the CPC to accept additional evidence at the appellate stage de hors the mandate under Order-XLI Rule-27 of the CPC, and also to accept the same even if not supported by any evidence. Accepting such a proposition would necessarily lead to a situation where the findings of the trial court could be unseated on additional materials produced at the first appellate stage, even if it did not meet the conditions prescribed under Order-XLI Rule-27 of the CPC. Therefore, this Court is inclined to think that the entire exercise of the first appellate court in soliciting a report through the Advocate Commissioner and reversing the judgment and decree declining the claim for value of improvements made by the defendants is per se uncalled for.

58. That apart, it is pertinent to note that apart from the report of the Advocate Commissioner, no independent evidence was adduced by the parties to sustain the plea of the claim of improvements. Therefore, it is a case where the defendants attempted to fill up the lacuna by introducing fresh materials before the first appellate court. A reading of the judgment of the first appellate court would clearly depict the complete non-application of mind to the additional evidence in the form of the report of the Advocate Commissioner.

ii. Effect of a Void Lease.

59. The claim for value of improvements is raised based on the Kerala Compensation for Tenants Improvements Act, 1959 (Act 29 of 1958). Section 2(d) defines tenant. It includes lessee, sub-lessee, mortgagee or sub mortgagee or in good faith believing himself to be a lessee, sub-lessee, mortgagee of the land in possession. The question is whether the appellants qualify themselves within the definition. The claim for value of improvements must be judged in the context of the case where the appellants claim as sub-lessees under a void lease. Moreover, the deeds of assignments are not produced. Therefore, once the possession of the appellants is concluded as precarious, it is difficult for this Court to hold that the appellants will come within the definition of tenants under Section 2(d) of the Act 29 of 1958. The Act is not intended to protect the encroachers and the same do not permit them to take shelter under the Act.

60.    Under normal circumstances, with the deliberation as above, the issue could have been concluded. However, this position was slightly deviated by a Full Bench of this Court in Augusty Devassia v. Haridasan Nair [1998 (2) KLT 6 (FB)], wherein it was held that it cannot be held that in all cases, where the transferee who finds out later that the transferor had no title whatsoever to pass on to him under the document will not be entitled to claim compensation for the value of improvements as a tenant coming under clause (iii) of Section 2(d) of the Kerala Compensation for Tenants Improvements Act, 1958.

61. However, the decision may not help the appellants because once it is held that the appellants will come under the definition of sub-lessee for want of evidence, the benefit of clause (iii) of Section 2(d) cannot be given. Moreover, when possession of the appellants is traceable to a lease prohibited by the statute, the possession becomes precarious. The conscious act of the defendants in not disclosing the nature of the transaction, as reflected in paragraph 11 of the written statement of defendants 5, 7, 9 to 15, leads to an irresistible conclusion that the possession of the defendants cannot be construed as a legal possession.

62. At any rate, this Court is inclined to conclude that because of the peculiar facts, the decision of the Full Bench will not apply, since the impact of Section 74 of the Kerala Land Reforms Act, 1963 was not considered. The issue that came up before the Full Bench was whether a transfer by a mother over a property in which the minors right was involved, was voidable or void at the instance of the minor. The Full Bench further stated that whatever be the reason for avoiding a sale deed whether as a document which is voidable at the instance of one of the parties or as a document which was inherently void due to any defect in the title or lack of title at all of the transferor or due to any other vitiating factor like the one that was present in that case, the transferee would be a person who had come into possession of the land belonging to another pursuant to the transaction. Thus, it was concluded that while making improvements thereon, whether he was labouring under a bona fide belief that he is entitled to do so, is a matter to be decided on the facts of each case. It was further held that it cannot be held that in all cases where a transferee who finds out later that the transferor had no title whatsoever to pass on to him under the document, will not be entitled to claim compensation for value of the improvements as a tenant coming under Clause (iii). The Full Bench was not called upon to consider the impact of an act prohibited by the statute. In the present case, M/s.United Planters knowing fully well that there is a bar to create future tenancy, proceeded to execute the lease deed on 22.12.1969. The appellants claim that they were assigned with the rights of M/s.United Planters under the said deed. Once a transaction is prohibited by law, the appellants, who are beneficiaries of such transaction, cannot derive any right on the ground that their possession is bona fide. If that be so, at the time of entering Ext.B3 contract, they were quite aware that the same is hit by Section 74 of the Kerala Land Reforms Act, 1963.

63.    In Haryana Wakf Board v. State of Haryana & Ors [(2019) 13 SCC 382], a similar question arose before the Supreme Court as to whether a lessee who is holding a property under a void lease is entitled for compensation under the provisions of the Land Acquisition Act, 1894. The Supreme Court negated the claim of a lessee for compensation for the land acquired under a void lease. This is precisely why this Court concluded that the decision of the Full Bench cannot be uniformly applied.

64. On the overall consideration and taking note of the conduct of the defendants, especially in the light of the overwhelming allegations against them as revealed from Ext.B17, that they had gone ahead with the act of cutting and removing trees outside the leasehold area, which had led to several complaints from the public regarding unauthorized felling of the teak-wood trees, coupled with the fact that they have consciously given up the claim based on Ext.B3 lease deed and that the lease deed executed after coming into force of the Kerala Land Reforms Act, 1963 being a void lease, the possession of the defendants is certainly precarious and cannot be given a legal colour.

iii. Effect of disowning the lease.

65. For the sake of completion, this Court felt it would be apposite to address this issue, especially when certain intriguing facts stare on the face of the records regarding the transaction between M/s.Supreme Industries and M/s.United Planters. It is conceded before this Court that M/s.Supreme Industries derived the rights of the lessee, M/s.Elak Rubber Company / M/s.Stanes and Company Limited. It has come out from the pleadings that M/s.Supreme Industries assigned its right to M/s.United Planters. The deliberation on this issue could have been more simple, if M/s.United Planters had stopped immediately after the assignment in their favour in the years 1963 and 1964. But then, it appears that they had gone ahead and negotiated with the landlord for the execution of renewal of the lease deed on 22.12.1969. Therefore, there is no difficulty for this Court to conclude that whatever right M/s.United Planters had over the leasehold properties; the said right becomes unenforceable because of the execution of the subsequent lease deed, thereby rendering the assignment deeds redundant. This is more so because M/s.United Planters could not have claimed rights in a dual capacity, one as an assignee of the lessee and that of a lessee directly under the lessor, namely the Devaswom.

66. In other words, when a fresh lease deed was executed, a new privity of contract was created between M/s.United Planters qua the Emoor Bhagavathy Devaswom. Therefore, it is safe to conclude that the rights under the original assignment pale into insignificance.

67. To complicate matters further, the appellants have disowned Ext.B3 before this Court. Though repeatedly this Court cautioned the appellants as to whether they intend to disown Ext.B3 lease deed, the learned Senior Counsel as well as the learned counsel appearing for the appellants in RSA Nos.446/2012 and 1490/2011 were in unison in their submission that Ext.B3 is a redundant document under Section 74 of the Kerala Land Reforms Act, 1963 and therefore, they are entitled to disown the same. Perhaps the submission was made before this Court, thinking that even if Ext.B3 goes, the defendants, being the successors of the assignee under Ext.B2 lease, were entitled to claim fixity of tenure. This Court cannot but notice the fact that such a mutually destructive plea is being raised by the appellants only to their peril.

68. Even if this Court were to conclude that the defendants were not entitled to claim fixity of tenure based on Ext.B2 lease deed, the claim for compensation could have been sustained on other grounds. However, since the defendants have given up their claim under Ext.B3 lease deed, the claim for compensation must be negated. This is more so because dehors Ext.B3, the possession of the defendants become precarious and qualifies it as a trespasser over the plaint schedule property. That be so, no bona fides could be attributed to the defendants’ possession, thereby taking their claim out of the purview of the Kerala Compensation for Tenants Improvements Act, 1959.

ANSWERS TO THE SUBSTANTIAL QUESTIONS OF LAW.

69. In the light of the discussions as above, this Court will proceed to answer the substantial questions of law framed in each appeal. Though certain substantial questions of law framed may overlap with the ones framed in connected appeals, since they were framed separately in each appeal, it becomes obligatory for this Court to answer the same separately.

                  Substantial Questions of law in RSA Nos.514/2012 to 522/2012

                  (i)       Is not judgment of appellate court on the contention regarding fixity of tenure illegal and without jurisdiction?

                  Ans. In the light of the findings of this Court that the possession of M/s.United Planters is traceable to a contract of lease, and in the light of the decision of this Court in Sree Chathankulangara Bhagavathi Devaswom v. Nair Service Society [2023 KHC 852], the claim of fixity of tenure under Sections 6A and 7D of the Kerala Land Reforms Act, 1963 and also the claim of deemed tenancy is unsustainable. Moreover, since the claim for fixity of tenure under Section 13(1) of the Kerala Land Reforms Act, 1963 has not been specifically pleaded by the defendants in their written statements, the same cannot be raised for the first time in the second appeal. Hence, the decisions of the first appellate court and the trial court on the claim of fixity of tenure are perfectly valid.

                  (ii)      Is not finding in paragraph 14 of the judgment of lower appellate court that there is implied surrender of tenancy on the culmination of the lease period against the mandatory provision laid down in Sec.51 of the Kerala Land Reforms Act?

                  Ans. Since the renewal of the lease constitutes a fresh lease as such and that the said lease being hit by Section 74 of the Kerala Land Reforms Act, 1963 and also in the light of the fact that the tenants had completely disowned Ext.B3, and that the tenancy is not in continuation of the earlier agreements, inasmuch as there is no continuity of the tenants-lessees, the findings of the first appellate court cannot be said to be unsustainable. Rather, this Court is inclined to conclude that the provisions of Section 51 of the Kerala Land Reforms Act, 1963 are not attracted because the appellants were not able to prove that they came into possession under a valid lease. Therefore, the question of applicability of Section 51 of the Kerala Land Reforms Act, 1963 does not arise.

                  (iii)     Is the appellate court entitled to deny the right of option given to the tenant relying on Sec.29 of the H.R.&C.E. Act, 1951 holding that sanction of the Commissioner is a precondition for renewing the lease?

                  Ans. Even if the lease deed contained a clause of renewal, an option being given to the lessee is only directory and not mandatory and binding upon the lessor. Therefore, even if the lessee exercises his right of option for renewal, it is not automatic that the lessor should be tied to the option exercised by the lessee. Moreover, in the light of the provisions of Section 29 of the HR & CE Act, 1951 under which the plaintiff Devaswom is being governed, the sanction of the Commissioner is a pre-requisite one. Even if the Commissioner grants a sanction, it is not mandatory for the Trustee to abide by the sanction and execute the lease, if the execution of the lease is against the interest of the Temple.

                  (iv)     Are not appellants entitled to tack on their right and possession over the plaint schedule property on the basis of Exts.B1 and B2?

                  Ans.: Normally, the assignee of a lease is entitled to tack on the possession of the predecessor. In the present case, the devolution of title as described from the pleadings in the written statement of the defendants 5, 7 & 9 to 15 show that the property was transferred by Cecil Hall to M/s.Elak Rubber Company through its agents M/s.Stanes and Company Ltd. and thereafter a fresh lease deed was executed in favour of M/s. Elak Rubber Company and the lease assigned to Thattil Kochuvareed and to M/s.Supreme Industries and thereafter to M/s.United Planters. Inasmuch as M/s.United Planters has gone ahead and executed a fresh lease deed with the Devaswom, and in the absence of any evidence to show how the devolution of title happened from M/s.United Planters to the defendants, the defendants are not entitled to tack on the possession of the predecessor in interest.

                  Substantial Questions of Law in RSA No.446 of 2012.

                  (i) & (ii) The answers to the first and second substantial questions of law framed in this appeal are one and the same given by this Court to the first question in RSA No.514/2012 and connected cases. Hence, the same are not separately answered. The answer given to the said question will govern the same.

                  (iii)     Is the suit for mandatory injunction to vacate maintainable in view of the evidence in the case that appellants are tenants of the plaint schedule property from 1907?

                  Ans.- Yes. The suit for mandatory injunction is maintainable, especially since it has come out in evidence that the possession of the appellants is under a void contract of lease which they themselves have disowned before this Court. Since the appellants are not the tenants of the plaint schedule property from 1907, the plea is actually a misnomer.

                  (iv)     Are not the appellants entitled to fixity of tenure over the plaint schedule property in view of the provisions contained in Secs.6A, 6B, 7, 7D and Sec.13 of the Land Reforms Act?

                  Ans.- In the light of the discussion made by this Court that the appellants’ predecessor was holding the property under a contract of lease, they cannot claim the benefit of Sections 6A, 6B, 7 and 7D of the Kerala Land Reforms Act 1963. Similarly, the claim for fixity of tenure under Section 13 is rejected because the same is neither pleaded nor supported by evidence, especially since possession of the appellants is under a void lease which is hit by Section 74 of the Kerala Land Reforms Act, 1963.

                  (v)      When the Commissioner has reported that the value of improvements effected by the appellants will come to Rs.4,36,32,573/-, can the court unilaterally reduce the same by holding that the appellants are entitled to the value of improvements effected only after Ext.B3?

                  Ans.- In view of the specific finding rendered by this Court that the lease in question falls outside the purview of the Kerala Land Reforms Act, 1963 and that the possession of the appellants are that of encroachers, and that the appellants will not fall within the definition of tenant under Section 2(d)(i) of the Kerala Compensation for Tenants Improvements Act, 1958, they cannot claim value of improvements.

                  (vi)     Are not the appellants entitled to tack on their possession as lessees from 1907 and claim value of the entire improvements affected by them and their predecessor?

                  Ans.-The appellants are not entitled to tack on the possession of the predecessor for claiming value of improvements since they are only encroachers over the property, and no legal right flows into their hands. Since the appellants are found to be not tenants coming under Section 2(d)(i) of Act 29 of 1958, the question of tacking on possession of predecessors does not arise for consideration.

                  Substantial Questions of law in RSA No.1490 of 2011.

                  (I)      When Article (1) of Ext.B3 specifically provides that the lessees are entitled to exercise an option to renew the lease for a further period of 30 years after the expiry of 30 years from 15.03.1967, can the lower court rely on Article 4(3) of Ext.B3 which relates to renewal for any other period than what is provided in Article (1), for holding that the renewal of lease can be had only after obtaining sanction under Sec.29 of HR & CE Act?

                  Ans.– The clause in the lease deed giving an option to the lessee for renewal of the lease cannot operate to the detriment of the interest of the lessor. There is no peremptory requirement on the part of the trustee of the temple to renew the lease merely because the right of option has been exercised by the lessee. To hold otherwise will erode the proprietary rights of the trustee over the property of temple. At any rate, going by the mandate of Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1951, the renewal of a lease can only be done with prior sanction of the commissioner. Moreover, since this Court has found that the lease itself is void, the question is merely academic and that the lessee will not get any right under the deed.

                  (II)     Is it not clear from a reading of Article (1) of Ext.B3 and Article 4(3) of the said document that Article 4(3) is applicable only if the lessee is exercising the option to renew the lease for any other period than what is provided in Article (1) of Ext.B3?

                  Ans.- Article 1 of Ext.B3 merely speaks of the period of lease, whereas Article 4(3) speaks about the option for the lessee to seek renewal of the lease. It is incorrect to state that Article 4(3) will apply only if the lessee is opting to renew the lease for a period other than one mentioned in Article 1. This is more so when the requirement to obtain prior sanction of the Commissioner is not contractual but a statutory one. Hence, it is held that irrespective of the tenure for which the lease is sought to be renewed, Article 4(3) will apply.

                  (III)    Are not the lessees entitled to renewal of the lease for a further period of 30 years on the expiry of Ext.B3 in view of the specific provision in Article (1) of Ext.B3, as the lessees have admittedly exercised the option to renew the lease before the expiry of the period provided in Ext.B3?

                  Ans.- The lessees are not entitled for renewal since the Commissioner has not granted permission to renew the same. Even if he had granted permission, since the said lease itself is found to be void and that there is no evidence to prove as to how the appellants came into possession of the plaint schedule property, the possession of the appellants can only be that of encroachers.

                  Substantial Questions of law in RSA No.1333/2012.

                  (i)       When the trial court has not raised an issue regarding fixity of tenure under the Kerala Land Reforms Act and has not referred the matter to the Land Tribunal for a finding on that question, is not the first appellate court bound to raise an issue on fixity of tenure and refer it to the Land Tribunal?

                  Ans.- Since the discussion above leads to a conclusion that the claim of fixity of tenure does not actually arise in this case, and that the reference to the Land Tribunal is not mandatory under Section 125(3) of the Kerala Land Reforms Act, the first appellate court is not bound to refer the same to the Land Tribunal.

                  (ii)      Is not the appellant entitled to rely on the possession over the plaint schedule property on the basis of Exts.B1 and B2, deeds?

                  Ans.- The appellant is not entitled to rely on the possession on the basis of Exts. B1 and B2 lease deeds since he has consciously given up his right under Ext.B3 before this Court. Moreover, the assignment in favour of the appellant is not supported by evidence.

                  (iii)     Is not the appellant entitled to rely on the possession as lessee from 1907 and claim value of the entire improvements affected by him and his predecessor?

                  Ans.- Since the appellant does not fall within the definition of tenant under Section 2(d)(i) of Act 29 of 1958, he is not entitled to rely on the possession of their predecessor. Still further, in the absence of any evidence to show as to how the appellant came into possession of the plaint schedule property, no question of relying on possession of the predecessor arises.

                  (iv)     Is not the finding of the first appellate court on the issue regarding fixity of tenure illegal and without jurisdiction?

                  Ans.- The answer given by this Court on substantial question of law no.(i) in RSA No.514/2012 and connected cases, will also govern the above question.

                  (v)      Whether the finding of the first appellate court that there is implied surrender of tenancy on the culmination of the lease period is against the mandatory provisions laid down in Sec.51 of the Kerla Land Reforms Act?

                  Ans.- Since Exts.B1 and B2 lease deeds fall outside the purview of the Kerala Land Reforms Act 1963, the question of application of Section 51 of the Act does not arise for consideration. Consciously, the appellant has disowned Ext.B3 before this Court. Hence, the question of applicability of Section 51 of the Kerala Land Reforms Act 1963 does not arise for consideration at all.

                  (vi)     Is not the appellant entitled to fixity of tenure over the plaint schedule property in view of the provisions contained in Secs. 6A, 6B, 7, 7D and Sec.13 of the Kerala Land Reforms Act?

                  Ans.- In view of the answer given by this Court to substantial question of law No.(iv) in RSA No.446 of 2011, the same will govern this question also.

                  (vii)    Whether the respondents are entitled to refuse to renew the lease on the ground that it will be against its interest?

                  Ans.-   No suit for mandatory injunction will lie to direct the lessor to renew the lease. The lessor is the best person to judge whether the lease is in its interest or not. Moreover, in view of the serious allegations such as overreaching the area of the lease and committing the acts of cutting and removing the teakwood trees and other valuable timbers, the courts cannot direct the lessor to renew the lease despite their entertaining a feeling that the renewal is not in its interest.

                  (viii)    Whether the finding of the first appellate court that the original lease was regarding a private forest and for planting rubber is sustainable in the light of the evidence adduced in the case?

                  Ans.- The finding of the first appellate court is that the lease is with regard to private forest and the planting of rubber is sustainable. The evidence in this case unequivocally suggests that as on the date of coming into force of the Kerala Land Reforms Act, 1963, i.e. 1.4.1963, the lease was in respect of a private forest as well as a rubber plantation, which was more than 30 acres. Hence, the lease deed is taken outside the purview of the Act.

                  Substantial questions of law in Cross Objections Nos.

                  47/2014, 48/2014 and 49/2014.

                  (i)       Whether the lower appellate court was justified in allowing the claim for value of improvements by relying on the report of the Advocate Commissioner?

                  And

                  (ii)      Whether the Appellants are entitled to claim value of improvements at all?

                  Ans.- The appellants herein have not established that they came into possession through a process known to the law. Admittedly, Ext.B3 lease deed is hit by Section 74 of the Kerala Land Reforms Act 1963. Further, the appellants have disowned the said lease deed during hearing of the appeals. Conscious attempt to conceal the nature of assignment in their favour leads this Court to conclude adversely against the appellants herein. That apart, the claims for improvements are not supported with any independent evidence. Since the possession of the appellants can only be qualified as encroachers, the first appellate court was not justified in awarding compensation to them. In fact, the appellants are not entitled to any compensation at all. Therefore, the substantial questions of law are answered in favour of the cross-objector/plaintiff-Devaswom.

CONCLUSION

69. In fine, based on the discussions as above, it is imperative for this Court to hold that the appellants are not entitled to fixity of tenure under the provision of Section 13(1) of the Kerala Land Reforms Act, 1963 nor are they deemed tenants under Sections 6A and 7D of the Act. Ext.B3 lease deed is a void document and no right flows into the hands of the appellants, thereby disentitling them to claim any compensation for the value of improvements. Resultantly, in the light of the answers given to the substantial questions of law framed by this Court, all the appeals are liable to be dismissed, and the Cross Objections are liable to be allowed.

70. Resultantly, the judgment and decree of the Addl. Sub Court, Palakkad, in OS No.94/2001 and connected cases dated 31.3.2008, as affirmed in the common judgment and decree in AS Nos.176/2008 & connected cases by the Additional District Court-II, Palakkad, granting recovery of possession in favour of the plaintiff- Devaswom, is sustained. The judgment and decree of the first appellate court in AS Nos.176/2008 & 231/2008 granting the value of improvements is reversed and the judgment and decree in OS No.94 of 2001 is restored. Costs of the respondents in the appeals and cost of the cross objectors in the cross objection will follow.