N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO. LTD & Ors.

1.3 The lease deed executed on 21.6.1918 between the Tarwad of the plaintiffs and CH would demonstrate that at the time of execution thereof, neither a private forest nor a plantation as defined in Section 2 (44)/2 (47) of the Act 1963 did exist on the demised land. The lease which was for a period of 36 years w.e.f. 01.4.1918, encompassed land ad measuring 963-112 acres· which included hills, water channels, poyils lands etc so much so that only 925 acres were comprehended to be fit for cultivation and not subject to any Government revenue, the lesi:.ee was left at liberty to raise coffee, tea, pepper, F cinchona, rubber or any other produce at the latter's discretion. There were forests, jungles and trees on the land which the lessee was authorized to clear for the purpose of plantation and cultivation, to be decided by him. There was thus, no restriction or regulation on the G nature of cultivation/plantation to be resorted to by the lessee on the cultivable portion of the land leased out. [Para 18] [646-G, H; 647-A-B]

1.4 The remonstrance based on cessation of the lease on the expiry of36 years also.does not commend H N.K. RAJENDRAMOHAN v. -1 rllRVAMADI RUBBER CO. LTD. 629 for acceptance in the face of unreserved acceptance of A lease rent at the earlier rate of Rs. 693.75 paisa admittedly till the year 1978. The assertion that in any view of the matter, as the respondent-company in terms of Section 116 of the Transfer of Property Act 1882, ought to be construed to be the lessee, holding over the demised B land on payment of rent and that the lease stood renewed from year to year and that accordingly on the date of the institution of the suit there was a subsisting tenancy in respect of plantation exceeding 30 acres cannot be sustained as well. Though admittedly, at the C institution of the suit, the rubber plantation of the respondent-company did exist on the land, in the teeth of Section 116 which comprehends renewal of the expired lease, year after year or month after month it is essentially qua the purpose for which the property had been originally leased which in the instant case is traceable to the year 1918. As the lease deed dated 21.6.1918 proclaims in no uncertain terms that the transaction evidenced thereby was by no means a E tenancy in respect of plantation, the same with efflux of time, cannot transfigure into the same merely because a plantation has been raised on the leasehold land in between by the lessee who had been left at its discretion to grow the same. In absence of a conscious intervention F of the parties to the lease, either to convert it into one for tenancy in respect of such plantation ad idem or to extend it thereto, an automatic transformation of the lease not for plantation cannot stand converted into one for plantation. As a transaction of this kind involving G immovable property is essentially governed by the terms and conditions concurred upon by the parties thereto, no unilateral alteration or modification thereof, unless agreed to by both, in categorical terms, ought to be permitted to be pleaded or enforced by anyone of them H 0 630 SUPREME COURT REPORTS [2015] 10 S.C.R. A B to the disadvantage of the other. Neither the lease deed contains any stipulation sancti_oning such unilateral alteration of the stipulations contained therein nor do the materials on record testify such consensus based modification of the lease covenants. A plain perusal of the Section 116 also does endorse this deduction. [Para 20] [648-C-H; 649-A-D]

1.5 The issue of the applicability of Act 1963 to the lease of private forests and tenancies in respect of C plantations exceeding 30 acres not in existence as on 21.6.1918, but standing/present on the date of its enforcement, is of decisive bearing and would assuredly involve a dialectical interpretation of Section 3 (1) (vii) and 3 (1) (viii) of Act 1963 to discern the true purport D thereof as legislatively intended. In view of the abandonment of the plea based on private forests, in course of the a~guments, it is inessential thus, too dilate on the scope of Section 3 (vii). Tenancies in respect of plantations exceeding 30 acres in extent have been E exempted from the purview of the Act vide Section 3 (1) (viii). That on the date of the execution of ttie lease deed i.e. 21.6.1918 there was no plantation on the leasehold land, is an admitted fact. Such plantation as defined in F Section 2 (44) of the Act 1963 however did exist on the date on which the enactment was brought into force i.e. 1.4.1964. [Para 22] [649-G-H; 650-A-D]

1.6 The respondent-company in its written statement had pleaded that the lease created by the deed in 1918 G was an agricultural tenancy entitling the lessee to fixity of tenure under the Malabar Tenancy Act 1929 and that the same benefit stood extended under the Act 1963. The trial court while dismissing the suit, recorded as well the finding of the Land Tribunal, following an inquiry, that H N.K. RAJENDRAMOHAN v. THIRVAMADI RUBBER CO. LTD. 631 · the respondent-company was entitled to fixity of tenure A in respect of the leasehold land bot.h under the Malabar Tenancy Act 1929 (as amended) and the Act 1963. This finding was upheld upon by the first appellate court and not dislodged by the High Court. Section 2 of the Malabar Tenancy Act 1929 has no application to the facts and B circumstances of the case, so as to warrant exemption from the applicability thereof. [Para 32) [658-B-E]

#1. 7 The respondent-company continued as a lessee by holding over after 1954 and the lease rent at the C agreed rate fixed at the first instance was paid till 1978 as admitted by the appellant. The Act 1963 had come into force prior thereto. As neither Section 3 (1) (vii) nor 3 (1) (viii) is applicable to the plantation involved, the respondent-company is entitled to fixity of tenure under D . Section 13 thereof. Section 116 of the Transfer of Property Act, 1882 even if applicable, the lease originally entered into would not get transformed with time into one of tenancy in respect of plantation as defined in Section 2 (44) of Act 1963, in absence of any overt act of E the parties, intending the same on agreed upon terms. The consequences of the applicability of the Act, vis-a vis the plantation would be regulated by the provisions of the statute and the course to follow would witness F the State and the tenant as the parties thereto. With the enforcement of the Act 1963, the appellant would be left with no role in that regard. Thus, no interference with the findings recorded by the forums below is called for. [Para 33-35) [658-F-H; 659-A-C] G Rt., Rev. Dr. Jerome Fernandes Vs B. B. Rubber Estate Ltd 1972 KLT 613 - approved . . Karimbil Kunhikoman vs State of Kera/a (1962) Suppl. 1 SCR 829 - distinguished. . H 632 SUPREME COURT REPORTS [2015] 10.S.C.R. A B c D E F Jacob Philip vs State Bank of Travancore 1972 KLT 914; Malankara Rubber and Produce Co. & Ors vs The State of Kera/a & Ors. (1972) 2 SCC 492; N. V. Srinivasa Murthy (2005) 10 SCC 566; K. V. Pathumma vs Taluk Land Board and Ors 1997 (2) SCR 175 : (1997) 4 sec 114; State of Kera/a vs K Sarojini Amma and Ors 2003 (4 ) Suppl. SCR 694 : (2003) 8 sec 526 ; Kai Khushroo Bezonjee Capadia Vs Bai Jerbai Hirjibhoy Warden & Anr 1949-50 FCR 262; Bhawanji Lakhamshi & Ors Vs Himatlal Jamnadas Dani and Ors 1972 ( 2) SCR 890 : (1972) 1SCC388; State of UP VsJahoorAhmad & Anr AIR 1973 SC 2520: 1974 (1) SCR 344 - referred to. Case Law Reference (2005) 1 o sec 566 Referred to. Para 10 1997 (2) SCR 175 Referred to. Para 10 2003 (4) Suppl. SCR 694 Referred to. Para 10 1949-50 FCR 262 Referred to. Para 21 1972 (2) SCR 890 Referred to. Para 21 1974 (1) SCR 344 Referred to. Para 21 (1962) Suppl. 1 SCR 829 Distinguished. Para 28 G 1972 KLT 914 Referred to. Para 30 1972 KLT 613 Approved. Para 31 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5163 of2012 H N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO. LTD. 633 From the Judgment and Order dated 26.07.2010 in S.A. A No. 193of1997 (F) of the High Court of Kerela at Ernakulam. A. S. Nambiar, P. K. Manohar, Shanta Vasudevan forthe Appellant. Dr. A. M. Singhvi, Amrendra Sharan, Padam Khaitan, Gopal Sankaranarayana, Nitish Massey, Shikhar Srivastava (for Khaitan & Co.) forthe Respondents. The Judgment of the Court was delivered by B c AMITAVAROY, J. 1. The appellant, one of the plaintiffs in the suit instituted before Munsif Court (II), Kozhikode along with others against the respondent No. 1 herein, seeking eviction of the latter from the land involved and damages for the use and occupation thereof, in his relentless pursuit for redress is D before this penultimate institutional forum, having successively failed at all the intermediate tiers. The procrastinated tussle spanning over three decades eventually seeks a quietus at this end. E

#2. We have heard Mr. A. S. Nambiar, Senior Advocate for the appellant and Mr. A. M. Singhvi, Senior Advocate for the respondent No.1. Incidentally, the co-plaintiffs have been arrayed as other respondents in the instant appeal. F

#3. The salient facts, which make up the edifice of the lingering contentious dissent, however lie in a short compass. As adverted to hereinabove, the appellant alongwith others did institute a suit, being OS 569/1982 before Munsif Court (II), Kozhikode against the Respondent No. 1 praying for its G eviction from the suit land and realization of arrear rent, damages etc, the pleaded case being that the suit land had belonged to their Tarwad and . was a private forest. On 21.6.1918, an area of963.75 acres was leased outto one Mr. Campbell Hunt for a period of thirty six years vide Exh. A 1 H 634 SUPREME COURT REPORTS [2015) 10S.C.R. 0 B A whereunder, the lessee was liable to pay a sum of Rs. 693.75 per annum towards annual rent. Eventually, through intervening transactions, the respondent-company stood inducted to the suit land with the same status. According to the plaintiffs, they were the joint owners of the property and asserted that neither the original lessee Mr. Campbell Hunt nor his successors did derive fixity of tenure or right of ownership either under the lease deed or the provisions of the Kera la Land Reforms Act 1964 (hereinafter referred to as Act 1963), brought into force on and from 01.04.1964 or any other tenancy laws prior thereto. C The plaintiffs averred, that at the time of handing over the property to Mr. Campbell Hunt in the year 1948, the same was a private forest under the ownership and possession of their Tarwad. The lease which was for a period of 36 years with effect from 01.04.1918 lapsed with efflux of time and the respondent-company had no rightto retain the possession thereof. The Plaintiffs admitted that it (respondent-company) had raised a rubber estate on the suit land. It was alleged that the respondent-company also did not pay the lease rent as fixed i.e. Rs. 693. 75 per annum for the year 1979, 1980 and thereafter. That in inspite of several requests, it did not vacate the land by removing its buildings etc. therefrom for which a notice was addressed on 1o~11.1980 to the respondent company to vacate and deliver possession of the suit land was F stated. According to the plaintiffs, in terms of the notice, the tenancy stood extinguished from 21.6.1981. However in response to the notice, the respondent-company claimed in its reply, that it had acquired the right of fixity of tenure on the suit land. In this factual premise, the plaintiffs instituted the suit, for the above reliefs claiming inter alia arrear lease rent at the rate of Rs. 693.75 per annum from 01.04.1979 to 20.06.1981 and damages at the same rate for the period subsequent thereto for use and occupation thereof. G E H

#4. The respondent-company in its written statement, N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO. LTD. [AMITAVAROY,J.] 635 resisted the suit. While admitting, the lease deed Exh. A 1, in A favour of Mr. Campbell Hunt in the year 1918, it elaborated that out of total land leased, the cultivable area was 925 acres and that the lease was granted with the right to cultivate coffee, tea, pepper, cinchona, rubber etc. and any other produce as the lessee would consider proper, by cleaning the area. The B respo~dent-company claimed fixity of tenure under the Malabar Tenancy Act 1929 (for short hereinafter referred to as Act 1929) as well as the Act 1963, and pleaded for the dismissal of the suit. c

#5. The learned Trial Court in the face of the respondent company's claim of fixity of tenure, referred the issue to the Land Tribunal, Kasargod which sustained this plea and consequently the suit was dismissed. The appeal preferred by the plaintiffs met the same fate. Being still aggrieved, they D (appellants) did take the challenge before the High Court of Kerala. By the judgment impugned, the High Court has sustained the adjudication of the Courts below.

#6. As the decisions impugned would reveal, the High Court E negated the plaintiffs' assertion that the suit land.at the time of the initiation of the lease in the year 1918 was a private forest and thus stood excluded from the applicability of Act 1963 in terms of Section 3 (1) (vii) thereof, as it was granted to Mr. Campbell Hunt as per Exh. A 1 to cultivate rubber, cinchona, F coffee and any such crop as the lessee construed it to be proper. It was inter alia observed that the lease deed clearly disclosed that the land was Puramboke and not assessed to any revenue and that the lessee was permitted to cut and remove trees, shrubs etc. to prepare the same for the purpose G of cultivating rubber, tea, coffee etc. The High Court was also of the view that if the conveyed land was a forest, there would ·have been some stipulation in the lease deed to the effect. That the lease rent was fixed at the rate of the cultivable area H was also noted. The High Court did record as well, that the 636 SUPREME COURT REPORTS [2015] 10 S.C.R. land was asses-sed to Government revenue on the basis of cultivations done which too belied the appellants' claim of the same being a private forest. Reference was also made to the relevant survey plan (Exh. A2), appended tothe lease deed, to endorse the conclusion against the existence of private forest on the land at the time of its demise on lease. It ruled further, that even if the land was a private forest at the time of the initial lease, cultivation of various other crops thereon, after the execution of the lease deed took it out of the ambit of Section 3 ( 1) (vii) of Act 1963. A B c D

#7. Vis-a-vis the next contention, namely, that the suit land contained a plantation on the date of enforcement of Act 1963 and thus stood exempted from the ambit thereof, the High Court entered a finding, that the statutory provision i.e. Section 3 (1) (viii), applied to cases where a plantation did exist at the time of the grant of lease and not on the date of commencement of the statute. Relying on the decision of a Full Bench of the Kerala High Court in Rt., Rev. Dr. Jerome Fernandes Vs B. B. Rubber Estate Ltd, 1972 KLT 613 dilating on the same issue, the High E Court thus concluded that the respondent-company was entitled to fixity of tenure. In these premise, the aspect of its entitlement to the value of improvements made by it on the land was left undecided. As a corollary, the appeal was F dismissed.

#8. Mr. Nambiar, the learned Senior Counsel for the appellant has assiduously argued, that having regard to the covenants of the lease deed and the attendant facts arid circumstances, the transaction was well within the purview of G Section 3 (1) (vii) and/or 3 (1) (viii) of the Act 1963 and was thus exempted from the applicability thereof and consequently the respondent-company was not entitled to any fixity of tenure as per the statute. Referring to the objects and reasons of the H enactment, the learned senior counsel insisted that the applicability of Section 3 (1) (vii) and 3 (1) (viii) thereof has to N.K. RAJENDRA MOHAN v. THIRVAMADI RUBBER CO. LTD. [AMITAVAROY,J.] 637 be essentially tested on the touchstone of the date of the A enforcement of the legislation. As admittedly, there was a standing rubber plantation on ttie suit land on that date i.e. 01.04.1964, the respondent-company unmistakably had no sustainable right of fixity of tenure and thus the deductions to the contrary as recorded in the impugned decisions are B patently non est in law. Mr. Nambiar urged that this issue having been authoritatively settled by a Constitution Bench of this Court in Karimbil Kunhikoman vs State of Kerala (1962) Suppl. 1 SCR 829, the decision to the contrary as recorded by the Full Bench of the Kerala·High Court in Rt., Rev. Jerome Fernandes C (supra) is on the face of it per incuriam and consequently the impugned verdict founded thereon is unsustainable in law and on facts. The learned senior counsel pleaded, that as the Act 1963, enacted after the Kera la Agrarian Relations Act 1961, is one for implementing land reforms in the State, no interpretation with regard to the applicability thereof ought to be assigned that would ensue in fragmentation of plantations existing on the date of the enforceability thereof and thus, the plantations standing on the suit land, did come within the E exemption contemplated under Section 3 (1) (viii). No exposition of Section 3 of Act 1963, incompatible with the objects and reasons thereof being permissible in law, the finding of the non-applicability thereof to the suit land is patently erroneous, he urged. The learned senior counsel, to endorse F this contention, amongst others, placed reliance also on a subsequent decision of the Full Bench of the Kerala High Court in Jacob Philip vs State Bank of Travancore, 1972 KL T 914. Contending that the Act 1963 is prospective in nature, Mr. Nambiar emphasised that the text of Section 3 ( 1) (viii) thereof, G clearly expressed the legislative intent of including tenancies in respect of plantation exceeding 30 acres existing on the date of enforcement thereof. In addition, the learned senior counsel asserted, that with the expiry of the initial period of lease in the year 1954, there was no formal renewal thereof H 0 638 SUPREME COURT REPORTS [2015] 10 S.C.R. A and in terms of Section 116 of the Transfer of Property Act 1882, the respondent continued in possession of the land by holding over, signifying at the best a lease, on year to year basis and in that view of the matter, in the face of admitted plantation on the suit land, the respondent-company was drawn B within the coils of Section 3 (1) (viii) of the Act 1963 and thus was disentitled to claim fixity of tenure. In the alternative, Mr. Nambiar insisted that the respondent~company is not a tenant in respect of the land after 1954 and thus in any case, is not entitled to the protection offixity of tenure under Section 13 (1) C of the Act 1963. The learned senior counsel placed on reliance as well on the decision of this Court in Malankara Rubber and Produce Co. & Ors vs The State of Kerala & Ors. (1972) 2 sec 492. D

#9. A contrario sensu, Mr. Singhvi, the learned senior counsel for the respondent-company, maintained that as neither Section 3 ( 1) (vii) northe Section 3 ( 1) (viii) is attracted in the present factual setting, the concurrent findings to this effect are assuredly unassailable and thL•s the instant challenge E deserves to be dismissed in limine. The learned senior counsel insistently urged that as the pleaded case of the appellant in the plaint was limited to the existence of private forest at the time of lease and that there was no whisper whatsoever of any F plantation thereon, the plea based on Section 3 (1) (viii) of Act 1963 ought not have been entertained by High Court and by no means should be taken cognizance of by this Court. Mr. Singhvi contended that in the face of the concession on behalf of the appellant that neither at the initiation of the lease nor at the enforcement of Act 1963 there did exist a reserve forest or the land, Section 3 (1) (vii) was decisively inapplicable. The plea founded of Section 3 (1) (viii) relatable to plantation, in absence of any pleading to the effect ou~ht to have been summarily rejected, he asserted. This is more so as this plea H was not raised either before the Trial Court or the Land Tribunal, G N.K. RAJENDRAMOHAN v. THIRVAMADI RUBBER CO. LTD. [AMITAVAROY,J.] 639 or the First Appellate Court. The decision of the Kera la High A Court in Jerome Fernandes (supra) being a determination clearly answering the issue vis-a-vis Section 3 (1) (viii) of the Act 1963 and as the ruling of this Court in Karimbil Kunhikoman (supra) pertains to a distinctively different sphere of scrutiny, the contention that the former is per incuriam the latter is wholly B misplaced, he maintained. According to Mr. Singhvi, the decision in Karimbil Kunhikoman (supra) dwelt upon the aspect of discrimination stemming from classification of plantations under the Kera la Agrarian Relations Act 1961 and is wholly unrelated to the challenge in Jerome Fernandes (supra). The C learned senior counsel urged as well, that the decision of this court in Malankara Rubber and Produce Co. and Ors supra being on a different issue does not render the adjudication in Jerome Fernandes (supra) per incuriam. Mr. Singhvi pleaded that having regard to the doctrine of stare decisis, the verdict in Jerome Fernandes (supra) having held the field, over the years, the same was rightly applied by the cou.rts below. He urged that not only the materials on record, do unequivocally demonstrate that neither the land was a private forest nor did E contain any plantation on the date of the lease and thus the same is beyond the scope of Section 3 (vii) and 3 (viii) of Act 1963 as has been consistently held by the Trial Court and the higher forums, and thus this Court in the exercise of its jurisdiction under Article 136 of Constitution of India would not, F even otherwise, lightly dislodge the same. Mr. Singhvi maintained, that the factum of existence of private forest and of plantation for the applicability of Section 3 (1) (vii) and 3 (1) (viii) of the Act 1963 would be assuredly relevant as on the date of the lease end not on one of the enforcement of the G enactment and judged by that benchmark, the suit land is beyond the said exemption clauses, entitling the respondent-company to the right of fixity of tenure under the legislation. 0

#10. In responding to the plea raised on behalf of the H 640 . SUPREME COURT REPORTS [2015] 10 S.C.R. A appellant in reply that in any view of the matter, the provisions of the Act 1963 pertaining to ceiling on the area of land that can be held by the respondent-company would apply, Mr. Singhvi maintained that the same at the first place having been raised for the first time in this Court, it ought to be readily B dismissed. Further, as there is a plantation on the suit land on the date of enforcement of the Act, it is exempted from ceiling as per the Section 81 (1) (e) thereof. In any case, it being an issue between State Government and the respondent company, the appellant has no locus standi to even refer thereto, the learned senior counsel urged. Mr. Singhvi did argue as well, that in the face of Section 72 of the enactment, there was no equity in favour of the appellant, he having been reduced to a non-entity by the statutory investiture of the landlord's right in the Government. The following decisions amongst others too were referred to. C 0