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                                                                {REPORTABLE}

IN THE SUPREME COURT OF INDIA                CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5163/2012

N K RAJENDRA MOHAN                             ...….APPELLANT

                         Vs.

THIRVAMADI RUBBER CO. LTD & ORS    …..RESPONDENTS

J U D G M E N T

Amitava Roy,J.

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 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.  

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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.

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 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 of 963.75 acres was leased out to one Mr.

Campbell  Hunt  for  a  period  of  thirty  six  years  vide  Exh.  A  1

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

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fixity of tenure or right of ownership either under the lease deed or

the  provisions of  the Kerala 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.  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  right  to  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

10.11.1980  to  the  respondent-company  to  vacate  and  deliver

possession of the suit land was 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

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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.

4. The respondent-company in its written statement, resisted the

suit.  While  admitting,  the lease deed Exh.  A 1,  in 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  respondent-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.

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

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plaintiffs met the same fate. Being still aggrieved, they (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

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,  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 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

was also noted. The High Court did record as well, that the land

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was assessed 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. A 2), appended to the 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.

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 Court thus concluded

that the respondent-company was entitled to fixity of tenure.  In

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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 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 and circumstances, the transaction

was well within the purview of 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 enactment, the learned senior counsel insisted that

the applicability of Section 3 (1) (vii) and 3 (1) (viii) thereof has to be

essentially tested on the touchstone of the date of the enforcement

of  the  legislation.  As  admittedly,  there  was  a  standing  rubber

plantation  on  the  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 patently non est in law.  Mr. Nambiar

urged  that  this  issue  having  been  authoritatively  settled  by  a

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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  (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 Kerala 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

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 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  KLT  914.  Contending  that  the  Act  1963  is  prospective  in

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nature, Mr. Nambiar emphasised that the text of Section 3 (1) (viii)

thereof,  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  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 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 of fixity

of tenure under Section 13 (1) 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 SCC 492.

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9. A contrario sensu, Mr. Singhvi, the learned senior counsel for

the respondent-company, maintained that as neither Section 3 (1)

(vii)  nor the Section 3 (1) (viii)  is attracted in the present factual

setting,  the  concurrent  findings  to  this  effect  are  assuredly

unassailable  and  thus  the  instant  challenge  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  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 ought to have

been summarily rejected, he asserted.  This is more so as this plea

was not raised either before the Trial Court or the Land Tribunal, or

the First Appellate Court.  The decision of the Kerala High Court in

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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 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 Kerala Agrarian Relations Act

1961 and is wholly unrelated to the challenge in Jerome Fernandes

(supra).  The 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 courts below. He urged that not only the

materials on record, do unequivocally demonstrate that neither the

land was a private forest nor did 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

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Court and the higher forums, and thus this Court in the exercise of

its jurisdiction under Article 136 of Constitution of India would not,

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 and not on

one  of  the  enforcement  of  the  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.

10. In responding to the plea raised on behalf of the 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  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

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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.

N. V.  Srinivasa Murthy (2005)  10 SCC 566,  K.  V.  Pathumma vs

Taluk Land Board and Ors (1997) 4 SCC 114, State of Kerala vs K

Sarojini Amma and Ors (2003) 8 SCC 526.

11. We  have  extended  our  thoughtful  consideration  to  the

recorded  materials  and  the  competing  arguments.  Whereas  the

appellant  seeks  the  ouster  of  the  respondent-company  from the

land involved contending that it is not entitled to the protection of

fixity of tenure under the Act 1963, the latter pleads to the contrary

by taking  refuge  of  the  enactment,  asserting  that  the  exemption

clauses  contained  in  Section  3  (1)  (viii)  and  3  (1)  (viii)  are

inapplicable to it. A correct exposition of Section 3 (1) (vii) and 3 (1)

(viii) of Act 1963 would, as a corollary, be of definitive significance.

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Necessarily  thus,  the  instant  adjudicative  exercise,  ought  to  be

preceded by an adequate reference to the relevant legal provisions.

12. As the flow of events attest, the enactment earliest in point of

time qua the present lis, is the Malabar Tenancy Act 1929. As the

preamble of this statute would reveal, it was one to define, declare,

alter  and amend,  the law relating  to  landlord and tenant  in  the

Gudalur  Taluk of  the  Nilgiris  District.   Section 2  thereof,  which

exempted lands from its application being of  relevance is  quoted

hereunder.  

“ 2. Exception:

Nothing in this Act shall apply to-

(1)Lands transferred by a landlord for filling 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.

(2)any transaction relating only to the usufruct of trees. (3)any building owned by a landlord including a house, shop or

warehouse, and the site thereof,  together with the garden or

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land appurtenant thereto but not including a hut belonging to a landlord, in any ulkudi.

Apart  from  defining  inter  alia  the  expressions  “landlord”  and

“tenant”,  the  legislation  did  confer  right  of  fixity  of  tenure  on

certain classes of tenants as set out under Section 21.

13. A plain reading of Section 2 would authenticate exclusion

of the applicability of the Act 1929 to lands transferred by the

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  a  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. The proviso of Section 2 (1) clarifies that no

rule thereunder would affect any land, in respect of which any

tenant did have right of fixity of tenure so long as such right did

subsist.  Sub-Sections (2) and (3) being not of relevance are not

being adverted to.

14. The legislative backdrop of the Act 1963 portrays, that it

was amongst others preceded by the Kerala Agrarian Relations

Act 1960 (hereinafter referred to as Act 1960) which sought to

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introduce comprehensive land reforms in the State of Kerala and

did  receive  the  assent  of  the  President  on  21.1.1961.   The

statement of objects and reasons of the enactment i.e. Act 1963

disclose that  this Court had declared unconstitutional  the Act

1960  in  its  application  to  ryotwari  lands  of  Hosdurg  and

Kasargod  Taluks,  whereafter  eventually  the  Act  1963  was

enacted to provide an uniform legislation in the State, by keeping

in view the broad objectives of land reforms as laid down by the

Planning Commission and the basic objectives of the Act 1960.

As the scheme of Act 1963 would dominantly demonstrate, the

statutory  endeavour  has  been  to  strike  a  fair  and  equitable

balance  of  various  interests  to  be  impacted  thereby  so  as  to

facilitate smooth implementation thereof, without casting undue

financial burden on the State.  Conferment of fixity of tenure on

the  tenants  as  well  as  the  limited  right  of  resumption  to  the

landlords are also the noticeable features of the enactment with

the emphasis that the right of resumption would not be available

against tenants, who were entitled to fixity of tenure immediately

prior  to  21.1.1961  under  the  law  then  in  force,  unless  such

tenants had in their possession land in excess of the ceiling area.

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The statement  of  objects  and reasons do refer  to  as well,  the

provisions  pertaining  to  determination  of  fair  rent  at  uniform

rates  and  purchase  of  the  rights  of  the  landowners  and

intermediaries  of  a  holding  by  the  cultivating  tenant.  The  Act

1963 as contemplated, did provide for imposition of a ceiling on

holdings and constitution of Land Tribunal and Land Board for

the  administration  of  the  provisions,  with  the  remedy  of

appeal/revision from the decisions of this fora.  The legislation

received the assent of the President on 31.12.1963 and some of

the provisions thereof which concern the present pursuit were

enforced with effect from 1.4.1964.  

Sections 2 (44) and 2(47) which define “plantation” and “private

forest” are extracted hereunder:

“ “Plantation” means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon (hereinafter  in this  clause referred to  as ‘plantation crops’)  and includes –

(a) land used by the said person for any purpose ancillary to the cultivation of plantation crops or for the preparation of  the same for the market;

(b) land  contiguous  to,  or  in  the  vicinity  of,  or  within  the boundaries of, the area cultivated with plantation crops, not exceeding  twenty  per  cent  of  the  area  so  cultivated  and

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reserved by the said person and fit for the expansion of such cultivation;

(c) agricultural lands interspersed within the boundaries of the area cultivated by the said person with plantation crops, not exceeding such extent as may be determined by the Land Board [or  the  Taluk Land Board,  as the  case may be]  as necessary  for  the  protection  and  efficient  management  of such cultivation. Explanation-  Lands  used  for  the  construction  of  office buildings,  godowns,  factories,  quarters  for  workmen, hospitals, schools and play grounds shall be deemed to be lands used for the purposes of sub-clauses (a);  “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;”

15. Chapter II  of  the enactment deals with provisions regarding

tenancies.  Section  3  exempts  the  transactions,  as  referred  to

therein subject to the stipulations enjoined,  from the application

thereof.  Section 3 (1) (vii) and 3 (1) (viii) being the focal point of

scrutiny demand extraction as well;

3 (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,

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under any law then in force or persons claiming under such persons; or]

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

Provided that the provisions of this Chapter, other than Sections  53  to  shall  apply  to  tenancies  in  respect  of agricultural  lands  which  are  treated  as  plantations under sub-clause © of clause (44) of Section 2;

15.1 Section 13 of the enactment mandates that notwithstanding

anything  contrary  to  the  law,  custom,  usage  or  contract  or  any

decree or order of Court, every tenant shall have fixity of tenure in

respect  of  his  holding  and  no  land  from  the  holding  shall  be

resumed  except  as  provided  in  Sections  14  to  22.   Section  72

proclaims that on a date to be notified by the Government in the

official  gazette, all  right,  title and interest of the landowners and

intermediaries  in  respect  of  holdings  held  by  cultivating  tenants

(including  holders  of  Kudiyiruppus  and  holders  of  Karaimas)

entitled to fixity of tenure under Section 13 and in respect of which

certificates of purchase under sub-Section (2) Section 59 have not

been issued,  shall,  subject  to  the  provisions  of  that  Section,  be

vested in the Government free from all encumbrances created by

the landowners and intermediaries and subsisting thereon on the

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said date.  Whereas Section 72 B confers cultivating tenants’ right

to assignments, Section 81 as well do cull out exemptions from the

applicability of Chapter III captioned “Restriction on ownership and

possession of land in excess of ceiling area and disposal of excess

lands.”  

16. Bar of jurisdiction of Civil Courts to settle, decide or deal with

any question or to determine any matter which is required by or

under the enactment to be decided, dealt with or determined by the

Land Tribunal or Board Authority or the Land Board or Taluk Land

Board  or  the  Government  or  an  Officer  of  the  Government  as

contained under Section 125 and the repeal amongst others of the

Malabar Tenancy Act 1929 and Kerala Agrarian Relations Act 1960

vide Section 132 deserve a passing reference to complete the fringe

survey of the legislative scheme of Act 1963.

17. The lease deed Exh. A 1, the fundamental instrument having a

decisive bearing on the course of  the present determination next

commands attention.  It  was executed on 21.6.1918 between the

Tarwad of the plaintiffs and Mr. Campbell Hunt, featuring an area

of  land  measuring  963-1/2 acres  of  which  925  acres  was  fit  for

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cultivation and not subject to any Government revenue. Thereby,

the lessor accorded a lease of the said 963-1/2  acres of land to the

lessee i.e. Mr. Campbell Hunt for a period of 36 years on and from

01.4.1918 on payment of premium of Rs. 693.12 anna calculated at

the rate of 12 annas per acre of the cultivable portion, that is 925

acres.  The lease deed evidenced, that pursuant to the payment of

premium of  Rs.  693.12 annas,  the  lessor,  his  heirs,  successors,

legal  representatives  and  assigns  did  lease  unto  the  lessee,  his

heirs,  successors,  legal  representatives and assigns,  the property

for a period of 36 years.  The land involved was delineated in the

appended plan along with 25 hills, water channels, poyils lands etc.

totaling  963–  ½  acres  of  which  925  acres  were  alone  fit  for

cultivation for the purpose of plantation and cultivation with a right

to  cultivate  coffee,  tea,  pepper,  cinchona,  rubber  and  any  other

produce which the lessee would think fit and proper to cultivate,

with full right of access to the premises, with all ways, watercourse,

privileges,  easements,  advantages  and  other  appurtenances

therewith and to cut, till and remove all forests, jungles and trees

for  the  purpose  of  planting  and  cultivating  without  any  let  or

interruption from the lessor.

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18. The lease deed, reading between the lines, would demonstrate

irrefutably, 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 admeasuring

963-1/2  acres which included hills, water channels, poyils lands etc

so much so that only 925 acres were comprehended to be fit for

cultivation and the  lessee was left  at  liberty  to  raise  coffee,  tea,

pepper,  cinchona,  rubber  or  any  other  produce  at  the  latter’s

discretion. It is apparent as well on the face of the lease deed, that

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 nature of cultivation/plantation to be resorted to

by the lessee on the cultivable portion of the land leased out.  To

reiterate, on the date of creation of the lease there was neither any

plantation  nor  a  private  forest  on  the  leasehold  land within  the

meaning of Section 2 (44) and 2 (47) of Act 1963 respectively.

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19. Significantly,  the  above  notwithstanding,  in  the  plaint,  the

plaintiffs  while  acknowledging  the  rubber  plantation  on  the  suit

land raised by the respondent-company, the assignee/transferee, in

possession in place of the original lessee, did assert that from prior

to the initiation of the lease in the year 1918, there was a private

forest on the suit land. They contended, to reiterate,  that as the

lease period had expired after 36 years, the company had no right

to retain the possession of the suit land and claim fixity of tenure.

Noticeably  however,  the  plaintiffs  complained  of  non-payment  of

lease  rent  at  the  rate  of  693.75  paisa  per  annum  by  the

respondent-company  from the  year  1979  for  which  a  decree  for

arrear rent was also prayed for.  Axiomatically thus, the plaintiffs

acknowledged and approved the possession of the leasehold land by

the respondent-company even after the expiry of the period of lease

in 1954 and did receive the annual rent at the same rate, even on

their admission up to the year 1978.  In course of the arguments

before  this  Court,  however,  the  learned  senior  counsel  for  the

appellant has not pursued the plea based on private forest and has

confined the assailment qua “plantation” as per clause 3 (1) (viii) of

Act 1963. The parties are also not at issue that on the date of the

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lease, no plantation as defined in Section 2 (44) did exist on the

demised  land.  The  plaint,  to  reiterate  does  not  refer  to  such

plantation on the date  of  the  lease,  as well.  In  that  view of  the

matter,  the  appellant’s  plea  based  on  Section  3  (1)  (viii)  lacks

foundation in the plaint and in the strict sense of the term as the

debate has its  genesis in a suit, ought not to have been entertained

by the High Court. This is more so, as the records substantiate that

the contention based on “plantation” was raised for the first time

before that forum.

20. The  remonstrance  based  on  cessation  of  the  lease  on  the

expiry of 36 years also does not commend for acceptance in the face

of  unreserved acceptance  of  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  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

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acres  cannot  be  sustained  as  well.  Though  admittedly,  at  the

institution  of  the  suit,  the  rubber  plantation  of  the

respondent-company did exist on the land, in the teeth of Section

116  of  the  Transfer  of  Property  Act  1882,  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

tenancy in respect of plantation, the same with efflux of time, in our

estimate  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  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 immovable property is essentially governed by the terms

and conditions concurred upon by the parties thereto, no unilateral

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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 to the disadvantage of  the other.  Neither the

lease  deed  contains  any  stipulation  sanctioning  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 of  the Transfer  of

Property Act 1882 also does endorse this deduction.  

21. This  conclusion  of  ours  is  founded  amongst  others  on  the

enunciations  of  the  Federal  Court  in  Kai  Khushroo  Bezonjee

Capadia Vs Bai Jerbai Hirjibhoy Warden & Anr 1949-50 FCR 262

and  referred  to  and  relied  upon  by  this  Court  in  Bhawanji

Lakhamshi & Ors Vs Himatlal Jamnadas Dani and Ors (1972) 1

SCC 388 and State of UP Vs Jahoor Ahmad and Anr AIR 1973 SC

2520, dwelling on the question of the nature of the tenancy created

under Section 116 of the Transfer of Property Act 1882.

21.1 Further, this cavil having been expressed before this Court for

the  first  time,  we are  not  inclined to  sustain the  same,  on that

count as well.  

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22. In the factual conspectus unfolded hereinabove, the issue of

the  applicability  of  Act  1963  to  the  lease  of  private  forests  and

tenancies  in  respect  of  plantations  exceeding  30  acres  not  in

existence as on 21.6.1918, but standing/present on the date of its

enforcement deserves to be addressed.  This indeed 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  thereof  as  legislatively  intended.   In  view  of  the

abandonment of the plea based on private forests, in course of the

arguments, as noted hereinabove, it is inessential thus too dilate on

the scope of Section 3 (vii).   

22.1 As alluded hereinbefore,  tenancies  in  respect  of  plantations

exceeding 30 acres in extent have been exempted from the purview

of the Act vide Section 3 (1) (viii). That on the date of the execution

of  the  lease  deed i.e.  21.6.1918 there  was no  plantation  on the

leasehold land, is an admitted fact. Such plantation as defined in

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. To clinch

the issue in favour of the appellant, reliance has been placed on the

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ruling  of  the  Constitution  Bench  of  this  Court,  in  Karimbil

Kunhikoman  (supra)  purportedly  buttressed  by  the  Malankara

Rubber and Produce Company and Ors etc. supra, Per contra, the

verdict  of  a  Full  Bench  of  the  Kerala  High  Court  in  Jerome

Fernandes supra has been pressed into  service  on behalf  of  the

respondent-company.  

23. In Karimbil Kunhikoman (supra), a Constitution Bench of this

Court was seized with the impugnment of the vires of the Kerala

Agrarian Relations Act 1960 (for short Act 1960) on the following

counts to be violative of Articles 14, 19 and 31 of the Constitution of

India.  

1. The Bill which became the Act had lapsed before it was assented to by the President and therefore the assent of the President to a lapsed bill was of no avail to turn it into law.  

2. The Act  is  a  piece  of  colourable  legislation as  it  has made  certain  deductions  from  the  compensation payable  to  landholders  under  Chap.  II  and to  others who held excess land under Chap. III and this amounts to  acquisition  of  money  by  the  State  which  it  is  not competent to do under the power conferred on it in Lists II and III of the Seventh Schedule to the Constitution.  

3. The  properties  of  the  petitioners  who  are  ryotwari pattadars are not estates within the meaning of Art. 31 A  of  the  Constitution  and  therefore  the  Act  is  not protected under that Article so far  as it applies to lands of ryotwari pattadars like the petitioners.

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4. The Act exempts plantation of tea, coffee, rubber and cardamom from certain provisions thereof, but no such exemption has been granted to plantations of areca and pepper,  and  this  is  clearly  discriminatory  and  is violative of Art. 14.

5. The  manner  in  which  ceiling  is  fixed  under  the  Act results in discrimination and is therefore violative of Art 14.  

6. The compensation which is payable under Chapters II and III of the Act has been reduced by progressive cuts as  the  amount  of  compensation  increases  and  this amounts  to  discrimination  between  persons  similarly situate and is therefore violative of Art. 14.  

24. While  repelling  the  impeachment  of  the  statute  qua  the

grounds enumerated in serial No. 1 and 2 as above, it was ruled

that the lands held by the ryotwari pattadars as referred to therein

and which had come to the State of Kerala by virtue of the States

Re-organisation Act 1956 from the State of Madras were not estates

within the meaning of Article 31 A (2) (a) of the Constitution and

therefore the legislation under attack was not protected from the

assailment under Articles 14, 19 and 31.  Vis-a-vis the discord that

the Act 1960 did effect a discrimination between areca and pepper

plantations on one hand and certain other plantations on the other

by  not  including  these  (areca  and  pepper  plantations)  in  the

definition  of  “plantation”  provided  by  Section  2  (39)  thereof,  by

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totally disregarding the existing large number of areca and pepper

plantations as comparable to tea and coffee and rubber plantations,

this court sustained the same and being of  the view that as the

provisions  relating  to  plantation  contained  in  the  assailed

legislation were inseverable, adjudged the legislation as a whole to

be unconstitutional.  In concluding thus, this Court did explore the

reasons impelling the  legislature  to  treat  these two categories  of

plantations as class different and observed that the objective of land

reforms,  including  imposition  of  ceiling  on  land  holdings  as

manifested  by  the  statute  under  scrutiny,  was  to  remove

impediments arising from the agrarian structure inherited from the

past,  in  order  to  increase  agricultural  production  and  create

conditions, for evolving as speedily as possible an agrarian economy

with a high level of efficiency and productivity as was underlined in

the Second Five Year Plan. That thereunder, it was recognized that

some exemptions  would  have  to  be  granted  from the  ceiling,  to

ensure that the productions may not suffer, was taken note of as

well. While referring to the Third Five Year Plan, dealing with land

reforms and ceiling on agricultural holdings, this Court on an audit

of the materials available, concluded that there was no appreciable

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difference  between  the  economics  of  tea,  coffee  and  rubber

plantations and areca and pepper plantations so as to justify the

differential treatment. The report of the concerned  committee, that

if areca gardens were brought under the ceiling, it would hamper

production and would be against national economy and that it had

recommended  to  the  Planning  Commission,  the  Central

Government and the State Government that at par with  tea, coffee

and rubber plantations, orchards, areca nut gardens should also be

similarly  exempted  from  ceiling  and  that  the  result  of  the

application of the ceiling and other provisions of Act 1960 would

occasion breakup of the plantations with a likely result in fall  in

production,  was  also  noted.   While  concluding  that  the  same

considerations as extended to tea, coffee and rubber plantations,

were available as well to areca and pepper plantations, the omission

of  the  respondent  State,  to  set  out  adequate  justification  for

exclusion of pepper and areca nut from the benefit of exemption

granted to tea, coffee and rubber plantation was recorded. Adverting

to the object and purpose of the Act 1960, and the basis on which

exemption was granted thereunder  to  the  plantations  as  defined

thereby,  it  was  held  that  there  was  no  reason  for  making  any

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distinction between tea, coffee and rubber plantations on one hand

and areca and pepper plantations on the other, in the facts of the

case. The contentions listed in serial No. 5 and 6 though, beyond

the framework of  the instant inquisition,  suffice it  to  state,  were

answered in the affirmative in favour of the appellant.

25. This  pronouncement,  though  had  taken  note  of  the

recommendations  of  the  Planning  Commission  against

disintegration of plantations as a measure of land reforms in the

State and to promote national  economy, it  was in the context of

evaluation  of  the  plea  of  discrimination  between  the  existing

plantations  vying  for  equal  treatment  for  exemption.  The  issue

which  seeks  adjudication  in  the  present  appeal  did  not  fall  for

scrutiny in this decision and therefore, we are of the comprehension

that it does not advance the case of the appellant.

26. The assertion on behalf of the appellant that the decision in

Karimbil Kunhikoman (supra) does essentially enjoin, that under all

circumstances, tenancies in respect of plantation as contemplated

in Section 3 (1) (viii), as existing on the date of the commencement

of  the  Act,  would  stand  exempted  from  the  purview  thereof,

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irrespective of whether or not such the plantation did exist on the

date  of  the  lease,  cannot  be  countenanced.  Not  only  this

pronouncement  is  not  an  authority  on  this  proposition,  having

regard to the scope of the analysis undertaken therein as well as

issues  addressed,  it  would  be  wholly  inferential  to  draw  this

conclusion  only  on  the  basis  of  the  recommendations  of  the

Planning  Commission  against  disintegration  of  plantations  as  a

measure  of  economic  policy.   Such  a  presumptive  approach

according  to  us  would  not  a  safe  and  expedient  guide  for  the

interpretation required.

27. The  constitutionality  of  the  Kerala  Land  Reforms  Act  1963

(also referred to as Act 1963) as amended (inter alia by Act 1964)

was  questioned  in  Malankara  Rubber  and  Produce  Co.  &  Ors

(supra) on the grounds that (i) Chapter III thereof was not aimed

exclusively at agrarian reform and was thus not saved by Article 31

A. (ii), it was violative of Article 14 due to deletion of clause (a) and

(g) of Section 81 (1) caused by the amendment of Act 1969 thereby

withdrawing  the  exemption  extended  to  cashew  estates,  pepper

gardens and areca gardens of the areas as mentioned therein.(iii)

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lands which were not then under rubber plantation but had been

set apart for expansion of existing plantations or were likely to be

taken up therefor in future could not be acquired and diverted to

other purposes as the rubber industry had been declared to be one

of national importance vide Rubber Act of 1947.  

28. Following an exhaustive reference to the decision in Karimbil

Kunhikoman (supra), it was held that the petitioners had failed to

demonstrate  that  their  lands  were  not  estates  and  thus  were

beyond  the  purview  of  the  Kerala  Land  Reforms  Act  1964  as

amended in 1969.  It was declared as well, that the provisions of the

1964 Act were immune from challenge under Article 31 A by reason

of its inclusion in the Ninth Schedule of the Constitution. It was

held that the reduction of ceiling limit by the amending Act 1969

did not attract the operation of the second proviso to Article 31 A(1).

It was propounded that the provisions of the Act 1963 withdrawing

protection to pepper and areca plantations could not be challenged

under Article 14, if the lands were estates within the meaning of

Article 31 A (2) (a). That forest and jungles would be exempted from

the operation of the Act was underlined as well. It would be patent

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from the contextual text of this decision that the questions posed

and the contours of the judicial survey were distinctively different

from those in hand and thus is of no avail to the appellant.  

29. A Full Bench of the Kerala High Court in Jerome Fernandes

(supra) however encountered the same issue qua Section 3 (1) (viii)

of Act 1963 in an identical fact situation.  The appellant therein,

had filed a suit for recovery of possession of the scheduled property

with arrears of  rent and mesne profits.   The suit  land had been

leased out to the predecessor in interest of the respondent-company

therein,  which eventually  under  an assignment  stepped into  the

position of the original  lessee. As on the expiry of  the lease, the

respondent-company did not surrender possession of the land, the

suit  was  instituted.   The  respondent-company  pleaded  fixity  of

tenure in respect of  the holding under the Act 1963.  The lower

forums  concurrently  held  that  the  respondent-company  was

entitled to the benefit  of  fixity of  tenure under Section 13 of Act

1963 as  the  transaction  of  lease  did  not  attract  the  exemptions

under Chapter II of the statute. The query that fell for scrutiny, was

whether  the  transaction  of  lease  did  entitle  the

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respondent-company to the fixity of tenure. That it was a tenant in

terms  of  Section  2  (57)  of  the  Act  1963  was  admittedly  beyond

doubt.  Referring to Section 3 (1)  of  the statute,  which listed the

categories of transactions exempted from the purview thereof, the

High  Court  while  noticing  that  the  leasehold  property  had  been

described in the lease deed as consisting of garden land, and wet

lands, negated the appellant’s contention based on clause (iii). Qua

clause (viii),  the High Court  examined the definition of  the word

“plantation” provided in Section 2 (44) and entered a finding, that

undoubtedly on the date of the execution of the lease deed, the land

covered  thereby  had  not  been  put  to  any  use  as  expressly

mentioned  in  the  definition.   Responding  to  the  plea  of  the

appellant,  that  the  determinative  factor  for  the  applicability  of

clause (viii) was the character of the land or the use thereof at the

commencement of the Act, the High Court on a comparison of the

text  amongst  others  of  clause  (v)  and  (ix)  of  Section  3  (1)  and

Section 2 of the Malabar Tenancy Act 1929 dealing with exemption

and Section 3 (1) (viii), of the Kerala Agrarian Relations Act 1960

enunciated  that  the  legislature  did  consciously,  as  a  matter  of

policy, in relation to the grant of exemption for plantations, restrict

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the scope thereof. The High Court in categorical terms referred to

the language used in Section 3 (1) (viii)  and the definition of the

expression “plantation” in both the statutes, and was of the view

that the object behind the constricted sweep of “plantation”, was to

confine the scope of exemption from the applicability of the Act. The

High  Court  entertained  the  notion,  that  the  legislature  had

construed it to be unfair and improper to deny the benefit of the

fixity  of  tenure  to  a  lessee  who  might  have  taken  the  lease  of

extensive parambos or waste lands and in course of time by hard

toil had developed those into plantations. That under the provisions

of the Malabar Tenancy Act 1929, such a tenant was entitled to

fixity of tenure, unless the lease had been one granted specifically

for the purpose of raising plantation as mentioned therein was also

emphasised.  The  High  Court  thus  rejected  the  appellant’s  plea

based  on  Section  3  (1)  (viii)  and  held  that  in  view  of  the  clues

furnished  by  the  statutory  history  preceding  the  legislation

involved, and also the express language used in Section 3 (1),  the

lease transaction was beyond the ambit thereof.  It held as well that

if the interpretation of Section 3 (1) (viii) as sought to be projected

by the appellant was accepted, it would divest the tenants of their

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pre-existing right of fixity under the Malabar Tenancy Act 1929 was

underlined as well.

30. Another  Full  Bench  of  the  Kerala  High  Court,  comprising

amongst others of Hon’ble Mr. Justice T. C. Raghavan C.J., as the

common member, in Jacob Philip (supra) also had the occasion to

examine the aspect of the fixity of tenure under Section 13 of the

Act 1963.  A lease of land, covered by Section 3 (1) (i) was involved

in a suit instituted against the appellant therein.  It was contended

on behalf of the appellant, that this exemption provision ought to be

applied qua the point of time, when the lease was granted and not

at the commencement of the Act or of any subsequent date, as on

the date of the execution of the lease neither the Government nor

any corporation owned or controlled by the Government was in the

picture.  The attention of the High Court was drawn amongst others

to the decision in Jerome Fernandes (supra).  On an analysis of the

contents of the Section 3 (1) (i), the High Court negatived this plea.

Drawing sustenance from the text of the Explanations appended to

the  clause,  it  returned  a   finding  that  the  requirements  under

Section 3 (1) (i) would be satisfied, even if the leased land happened

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to belong to or become vested in the Government or a corporation

under or controlled by the Government etc, subsequent to the grant

of the lease.

31. The rendering in Jacob Philip (supra) turns on its own facts

and by no means, in our opinion neuters the determination made in

Jerome Fernandes (supra).  Jacob Philip (supra)  proceeded on an

interpretation of Section 3 (1) (i) of Act 1963 which is distinctively

different in language and content from Section 3 (1) (viii)  and no

analogy, therefore, can be drawn to make it applicable to the case in

hand.  In our considered opinion, the decision of the Full Bench, in

Jerome Fernandes (supra), having regard to the scheme of Act 1963

with  particular  reference  to  Chapter  II  and  Section  3  (1)  (viii)

thereof, correctly states the law on the issue. We endorse the view

taken in Jerome Fernandes (supra) on the applicability or otherwise

of Section 3 (1) (viii) to the leasehold land of the present appeal.

32. Noticeably, the respondent-company in its written statement

had pleaded that the lease created by the deed dated 26.6.1918 was

an agricultural tenancy entitling the lessee to fixity of tenure under

the  Malabar  Tenancy Act  1929 and that  the  same benefit  stood

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extended  under  the  Act  1963.   The  learned  Trial  Court  while

dismissing  the  suit,  recorded  as  well  the  finding  of  the  Land

Tribunal,  following an inquiry,  that the respondent-company was

entitled  to  fixity  of  tenure  in  respect  of  the  leasehold  land both

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. We notice as well that Section

2 of the Malabar Tenancy Act 1929 has no application to the facts

and circumstances of the case, so as to warrant exemption from the

applicability thereof.  

33. As  determined  hereinbefore,  the  respondent-company,

continued as a lessee by holding over after 1954 and the lease rent

at the 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 Section 13 thereof.  To reiterate, 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

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tenancy in respect of plantation as defined in Section 2 (44) of Act

1963, in absence of any overt act of the parties, intending the same

on agreed upon terms.  

34. The consequences of the applicability of the Act, vis-a-vis the

plantation need not detain us, as the same would be regulated by

the provisions of the statute and as rightly asserted on behalf of the

respondent-company, the course to follow would witness 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.   

35. On a totality of the consideration of all aspects, factual and

legal as detailed hereinabove, we are of the unhesitant opinion that

no interference with the findings recorded by the forums below is

called for. The appeal lacks in merit and is thus dismissed.  

36. No Costs.  

……………………..J. (M.Y. EQBAL)

……………………..J. (AMITAVA ROY)

      New Delhi        Dated: 02 July, 2015

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ITEM NO.1               COURT NO.1               SECTION XIA                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal  No(s).  5163/2012 NK RAJENDRA MOHAN                                  Appellant(s)                                 VERSUS THIRVAMADI RUBBER CO. LTD AND ORS                  Respondent(s)

Date : 02/07/2015 This matter was called on for pronouncement of     Judgment today.

 For Appellant(s)  Mr.A.S.Nambiar, Sr.Adv.                      Mr. P. K. Manohar,Adv.                      Ms.Shanta Vasudevan, Adv.

For Respondent(s)  Dr.A.M.Singhvi, Sr.Adv.  Mr.Amrendra Sharan, Sr.Adv.

 Mr.Padam Khaitan,Adv.  Mr.Gopal Sankaranarayanan, Adv.  Mr.Nitish Massey, Adv.  Mr.Shikhar Srivastava, Adv.

                    for M/s. Khaitan & Co.,Advs.                       

Hon'ble Mr.Justice Amitava Roy pronounced the Judgment of the  Bench  comprising  Hon'ble  Mr.Justice  M.Y.Eqbal  and  His Lordship.

The appeal is dismissed, with no costs, in terms of the reportable Judgment.             

(G.V.Ramana) (Vinod Kulvi)   AR-cum-PS Asstt.Registrar (Signed reportable judgment is placed on the file