Ambujakshi Amma and others v Harikrishnan Nair and Kamaladevi and Uma and Nani Kutty Amma

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 CMA.No. 46 of 2003() -------------------- AS.10/1988 of SUB COURT, MANJERI OS.29/1977 of MUNI-MAGI.COURT,PERINTHALMANNA .................... ## APPELLANT(S): PLAINTIFFS: ----------------------------------------------- 1. AMBUJAKSHI AMMA, D/O. P.ACHUTHAN NAIR, KANNADATHIL, MELATTOOR AMSOM DESOM, MELATTOOR P.O., PERINTHALMANNA. 2. K.BALAKRISHNAN NAIR, S/O.P.ACHUTHAN NAIR AANIRA HOUSE, MULLAKKARA, MANNUTHI P.O., TRICHUR. 3. PRABHAKARAN NAIR, S/O.P.ACHUTHAN NAIR, KANNADATHIL, MELATTOOR AMSOM DESOM, MELATTOOR P.O., PERINTHALMANNA. 4. INDIRAKUTTY AMMA, D/O.P.ACHUTHAN NAIR, KANNADATHIL, MELATTOOR AMSOM DESOM, MELATTOOR P.O., PERINTHALMANNA. 5. JAYABHARATHI AMMA, D/O.P.ACHUTHAN NAIR, KANNADATHIL, MELATTOOR AMSOM DESOM, MELATTOOR P.O., PERINTHALMANNA. 6. ROHINI AMMA, D/O. P.ACHUTHAN NAIR, KANNADATHIL, MELATTOOR AMSOM DESOM, MELATTOOR P.O., PERINTHALMANNA. BY ADV. SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU 2 ## RESPONDENT(S): DEFENDANTS: -------------------------------------------------- 1. HARIKRISHNAN NAIR, S/O. KANNATH JANAKI AMMA, MELATTOOR AMSOM DESOM, MELATTOOR P.O., PERINTHALMANNA. 2. KAMALADEVI, D/O. KANNETH NARAYANAN NAIR, MELATTOOR AMSOM DESOM, MELATTOOR P.O., PERINTHALMANNA. 3. UMA, D/O.KANNETH NARAYANAN NAIR, MELATTOOR AMSOM DESOM, MELATTOOR P.O., PERINTHALMANNA. ## 4. NANI KUTTY AMMA, D/O. ARANGOTTU KUNJUKUTTY AMMA, MELATTOOR AMSOM DESOM, MELATTOOR P.O., PERINTHALMANNA. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R4 SRI.K.M.SATHYANATHA MENON FOR R4 THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V. RAMKUMAR, J.** ## **= = = = = = = = = = = = = C.M.A.No.46 of 2003** **= = = = = = = = = = = = = = Dated this the 22[nd] day of May, 2009** ## **JUDGMENT** The legal representatives of the plaintiff in O.S.No.29 of 1977 on the file of the Munsiff's Court, Perinthalmanna are the appellants in this appeal filed under Order XLIII Rule I(u) read with Section 104 C.P.C. The said suit was originally filed for a perpetual injunction restraining the defendants from trespassing into the plaint schedule property admeasuring 18 cents comprised in Re-Survey No.98/2 of Melattor village. The suit was filed on 9.4.1977. 2. The case of the original plaintiff can be summarised as follows:- The plaint schedule property along with other properties belonged on Kanam right to Parozhimanakkat Tharwad. One Madhavi Amma who was the Karanavathi and Manager of the said Tharwad entrusted the plaint schedule property as well as another item of property having an extent of 46 cents **CMA No.46 of 2003** 2 comprised in Re-survey No.98/3 to one Kondorathodiyil Parvathy Amma as per a registered pattom chit dated 19.2.1934. After the death of Madhavi Amma, her descendants through the subsequent Karanavathy Paru Kutty Amma obtained the properties back as per Ext.A1 surrender deed dated 28.2.1935. In the Tharwad partition the properties were set apart to the share of Achuthan Nair and others as evidenced by Ext.A2, registered Partition Deed dated 12.6.1951. On the death of Achuthan Nair (the allottee under Ext.A2 Partition Deed), his wife, the original plaintiff namely Lakshmi Kutty Amma and others obtained rights over the property. The plaint schedule property was a pond, a portion of which was filled up. The plaintiff has cultivated gingelly, plantain and arecanut trees thereon and she is in possession and enjoyment of the property. On 8.4.1977, the two defendants who have absolutely no right over the property, without the knowledge or consent of the plaintiff attempted to trespass upon the plaint schedule property and to destroy the kuzhikoors standing thereon. Due to the timely **CMA No.46 of 2003** 3 interference of the plaintiff the defendants withdrew from their attempt. The plaintiff has come to know that the defendants are attempting to trespass into the property , fence the same and alter the lie of the property. Hence the suit. 3. Both the defendants filed a joint statement contending inter alia as follows:- The registered pattom chit dated 19.2.1934 in favour of Parvathy Amma is admitted. But these defendants are not aware of the surrender deed dated 28.2.1935 mentioned in the plaint. There is no such surrender and even if there is any such document it is not binding on these defendants. Similarly, these defendants are not aware of the partition deed dated 12.6.1951 referred to in the plaint. The claim of the plaintiff that her husband Achuthan Nair obtained rights over the plaint schedule property as per the said partition deed is not true. Likewise, the claim of the plaintiff that she is in possession of the property and she has cultivated gingelly and other crops in the property is also not true. The **CMA No.46 of 2003** 4 plaint schedule property was never in the possession of the plaintiff or Parukutty Amma mentioned in the plaint. The cause of action alleged in the plaint is also not correct. The plaintiff is not entitled to get the injunction prayed for by her. The plaint schedule property along with other properties were in the possession of Kondorathodiyil Parvathy Amma as per the registered verumpattom chit dated 19.2.1934 as mentioned in the plaint. On the death of Parvathy Amma her daughter Janaki Amma obtained rights over the property. 18 cents comprised in Re-survey No.98/2 which is the plaint schedule property and 46 cents comprised in Re-survey No.98/3 included in the aforesaid pattom chit were purchased by Kunhilakshmi as per registered assignment deed of the year 1951 executed by Janaki Amma and Kunhilakshmi was in possession of the same. Subsequently, the 1[st] defendant Nani Amma, who is another daughter of Parvathy Amma, took assignment of the rights of Kunhilakshmi over the properties as per Ext.B2 assignment deed dated 27.4.1953. The properties include the plaint schedule property, the well, **CMA No.46 of 2003** 5 the pond and the kuzhikoors standing thereon. The 1[st] defendant Nani Amma is residing in the kudiyirippu and has cultivated areacanut trees, plantain and paddy thereon. The 1[st] defendant is taking usufructs and paying the land revenue also. The plaint schedule property and the 46 cents comprised in re-survey No.98/3 are lying as a compact plot with boundaries on all the four sides and fence. Since the plaint schedule property was a pond, revenue was not paid for the same. After the pond was filled up the 1[st] defendant is cultivating the same and paying the revenue for the same. The 1[st] defendant being the cultivating tenant is entitled to the fixity of tenure and the matter has to be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The 2[nd] defendant who is the son of Janaki Amma, the sister of the 1[st] defendant has no right over the property and he is, therefore, an unnecessary party to the suit. The plaintiff is not entitled to get the injunction prayed for. The suit is liable to be dismissed with costs of the defendants. **CMA No.46 of 2003** 6 4. The suit was subsequently amended as one for recovery of possession alleging that pending suit the defendants had forcibly reduced the plaint schedule property to their possession on 4.11.1977. The plaintiff also claimed mesne profits. The defendants filed additional written statement contending, inter alia, that the alleged trespass pending suit was not true and that the mesne profits shown and claimed in the plaint were not correct and they prayed for the dismissal of the suit. 5. The trial court framed 10 issues for trial. Issue No.4 was whether the 1[st] defendant is a tenant of the plaint schedule property. The said issue was cast evidently in view of the contention raised by the 1[st] defendant that she was a cultivating tenant entitled to fixity of tenure and the question of tenancy was liable to be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The said issue was, however, not referred to the Land Tribunal for the reason that it was only a rival claim of tenancy right between the plaintiff and the 1[st] defendant and the landlord **CMA No.46 of 2003** 7 was not on the party array. Thereafter, as per judgment and decree dated 30.3.1981 the suit was decreed as prayed for and the plaintiff was held entitled to recover possession of plaint schedule property on the strength of her title with mesne profits fixed at the rate of Rs.40/- per year from 4.11.1977 till recovery of possession. 5. It appears that the 1[st] defendant Nani Amma had filed O.A.No.2385 of 1976 before the Land Tribunal, Perinthalmanna seeking purchase of the 46 cents comprised in Re-survey No.98/3 of Melatoor village. The Jenmi Somayajipad was shown as the respondent and Manakkad Achuthan Nair was shown as the intermediary. As per Ext.A7 order dated 29.11.76, the Land Tribunal allowed the said application. There is a passing reference in the said order that eventhough the 1[st] defendant applicant had opted to pay in lump, the purchase price with regard to the property comprised in Survey No.98/2 admeasuring 18 cents, since the said property is reported to be unassessed, the offer will not be allowed. As mentioned earlier, O.A.No.2385 of 1976 was **CMA No.46 of 2003** 8 pertaining to the 46 cents comprised in Re-survey No.98/3 alone. Hence the above observation cannot have any relevance at all so far as the plaint schedule property is concerned. 6. It appears that pending this suit, on the report of the Revenue Inspector, the Land Tribunal, Perinthalmanna had initiated suo motu proceedings as S.M.No.926/1977 in which the plaintiff Lakshmikutty Amma was shown as the cultivating tenant and the Jenmi Somayajipad of Cherumukku mana was shown as the respondent. As per Ext.A4 order dated 20.1.1978, the Land Tribunal held that the plaintiff Lakshmikutty Amma was entitled to purchase the plaint schedule property as the cultivating tenant. Aggrieved by the order passed by the Land Tribunal, the 1[st] defendant Nani Amma filed A.A.No.2565 of 1979 before the Land Reforms Appellate Authority, Kozhikode. 7. Aggrieved by the judgment and decree dated 30.3.1981 passed by the Munsiff's Court, Perinthalmanna in O.S.No.29 of 1977 (the present suit), the defendants thereto **CMA No.46 of 2003** 9 filed an appeal as A.S.No.26/81 before the Sub Court, Manjeri. As per judgment dated 17.12.1986, the Sub Judge, Manjeri set aside the judgment and decree passed by the trial court and remanded the case to the trial court with a direction to refer the question of tenancy over the plaint schedule property to the competent Land Tribunal under Section 125(3) of the Kerala Land Reforms Act and then to dispose of the suit accepting the finding of the Land Tribunal on the question of tenancy. In the meanwhile, the appeal filed by the 1[st] defendant Nani Amma as A.A.No.2565/79 on the file of the Appellate Authority (Land Reforms), Kozhikode was allowed on 28.3.1985 and Ext.A4 order dated 20.1.1978 in S.M 426/77 was set aside and the matter was remanded to the Land Tribunal for fresh disposal after showing the 1[st] defendant Nani Amma also as a respondent in the proceedings. After the remand, the Land Tribunal as per order dated 12.2.1987, dropped the suo motu proceedings holding that the assignment sought in respect of unassessed land was not maintainable. **CMA No.46 of 2003** 10 8. After the remand by the Sub Court, Manjeri in A.S.No.26/81 on 17.12.86, the learned Munsiff referred issue No.4 to the Land Tribunal, Perinthalmanna for a finding. The case so referred to the Land Tribunal was registered as R.C.3 of 1987. Since, by then the Land Tribunal had already passed an order on 12.2.1987 in SM 426 of 1977 to the effect that the land could not be assigned as it was an unassessed land, the Land Tribunal incorporated the said finding in the case referred to from the Munsiff's Court as RC 3/87 and as per order dated 18.8.87 returned a finding to that effect to the Munsiff's Court, Perinthalmanna. Accepting the finding of the Land Tribunal, as per revised judgment and decree dated 30.11.87, the learned Munsiff dismissed the suit. In the meanwhile the original plaintiff had died leaving behind six of her children. 9. Aggrieved by the judgment and decree dated 30.11.87 in O.S.No.29/77 dismissing the suit, the legal representatives of the plaintiff filed an appeal as A.S.No.10/88 before the Sub Court, Manjeri. As per the judgment and **CMA No.46 of 2003** 11 decree dated 25.7.96, the learned Sub Judge, Manjeri allowed the appeal and set aside the judgment and decree passed by the trial court and decreed the suit directing the defendants to surrender possession of the plaint schedule property within three months. It is submitted that pursuant to the appellate decree the legal representatives of the plaintiff obtained possession of the plaint schedule property on 7.1.97. The aforesaid judgment was passed by the lower appellate court consequent on the counsel for the respondents reporting “no instructions”. Thereupon the defendants filed I.A.No.67/97 presumably under Order XLI Rule 21 C.P.C for re-hearing of the appeal. The said application was allowed on 10.8.2001. Aggrieved by the order allowing the application for re-hearing the legal representatives of the plaintiff filed CMA No.234/01 before this Court. As per judgment dated 19.6.02, this Court dismissed the C.M.Appeal holding that the lower appellate court was right in setting aside the ex parte decree passed against the defendants and directed the lower appellate court to dispose of the appeal on merits within four months from **CMA No.46 of 2003** 12 the date of receipt of a copy of the judgment. Until then status quo was directed to be maintained. 10. Aggrieved by the order dated 12.2.87, passed by the Land Tribunal, Perinthalmanna, dropping the suo motu proceedings holding the view that the plaint schedule property which is unassessed could not be allowed to be purchased by the plaintiff, the Legal Representatives of the plaintiff had filed an appeal as A.A No.96/87 before the Appellate Authority. The said appeal was allowed and the order dated 12.2.87 passed by the Land Tribunal was set aside and the matter was remitted to the Land Tribunal for fresh disposal on merits. Subsequently, as per Ext.A9 order dated 28.12.95(produced before the lower appellate court), the Land Tribunal held that additional plaintiffs 2 to 7 are entitled to purchase the plaint schedule property as the cultivating tenant, they having inherited the rights of the original plaintiff Lakshmikutty Amma. In the meanwhile, the 1[st] defendant Nani Amma died and her legal heirs filed an appeal as A.A.No.99 of 2000 before the Appellate Authority, **CMA No.46 of 2003** 13 Kozhikode challenging Ext.A9 order. The copy of the memorandum of appeal dated 4.3.97 filed by the LRs of Nani was produced and marked as Ext.B5 before the lower appellate court. 11. After the disposal of CMA 234 of 2001 by this Court, the lower appellate court took up the appeal A.S.No.10 of 1988 for hearing. As per the impugned judgment dated 31.10.2002, the lower appellate court set aside the revised judgment and decree dated 30.11.87 passed by the trial court and has again remanded the case to the trial court with a direction to refer the question of tenancy to the Land Tribunal for a finding. It is the said remand order which is assailed in this CMA. 12. Eventhough the impugned judgment is an order of remand, since the remand is by the lower appellate court, as far as the present appeal before this Court is concerned it is a second appeal the maintainability of which is hedged in by the restrictions under Section 100 C.P.C (vide Narayanan v. Kumaran 2004(4) SCC 26 = 2004(2) KLT 312 SC). But since **CMA No.46 of 2003** 14 this appeal was filed before the above pronouncement by the Supreme Court, neither the appellants nor this Court can be faulted for not formulating the substantial question of law. Hence, after hearing both sides I am of the view that the following questions of law arise for consideration in this C.M.Appeal:- 1. Was not the lower appellate court, being the final court of facts, bound to decide the appeal on the merits by recording findings of all the points including the question of tenancy arising for consideration? 2. Has not the lower appellate court abdicated its functions by remanding the case to the trial court with a direction to refer the question of tenancy again to the Land Tribunal? 3. When the Land Tribunal upon a reference from the civil court had already recorded a finding, was not the lower appellate court entitled, if not, bound to go into the correctness or otherwise of the said finding in the light of Section 125(6) of the Kerala Land Reforms Act? **CMA No.46 of 2003** 15 13. This is a case in which, after the institution of the suit, the parties have resorted to parallel proceedings by approaching the Land Tribunal as well for getting orders in their favour. In **Parameswaran Thampi v. Podiyan Thomas** (1984 KLT 397) a Division Bench of this Court observed as follows:- “When the question of tenancy is in issue in a civil court, a party to that proceeding cannot by pass the court, and seek to obtain redress from a Tribunal by filing a petition under S.72 of the Act. An attempt thus made to invite a decision on the question of tenancy by the Tribunal during the pendency of the suit cannot be encouraged or supported. The Tribunal shall either wait till the civil court renders its decision, or if the Tribunal proceeds to enter any finding, on the tenancy, it will only be a tentative decision subject to the final decision of the civil court. S.72 postulates a decision on the status of the applicant as a cultivating tenant and a consequent order for transfer of the landlord's rights. The first aspect is subject to the decision of second aspect which is consequential directing transfer of the landlord's **CMA No.46 of 2003** 16 rights is the prerogative of the Land Tribunal. The application of the doctrine of lis pendens in such a case therefore is not inconsistent with any provision of the Act. Thus, in this case, the third defendant can secure a transfer of the plaintiff's rights only when the question of his tenancy is finally determined in the suit. The decision now rendered by a Land Tribunal in SM 1754/56 or the appellate authority on A.A.174/1974 cannot be operative to enable assignment of the landlord's rights. The right to purchase the plaintiff's rights will arise only after the final decision in the suit and depending on its result.” 14. In the present case also, pending the case before the civil court the attempt made by both sides to invite a decision on the question of tenancy by the Land Tribunal cannot be either encouraged or supported. The Land Tribunal should have waited till the civil court rendered its decision. Whatever findings recorded by the Land Tribunal will only be tentative and subject to the final decision of the civil court. The above observations made by the Division Bench of this Court were approved by the Apex Court in **Mathevan** **CMA No.46 of 2003** 17 ## **Padmanabhan @ Ponnan v. Parameswaran Thampi and** **others** ( 1995 Supp(1). SCC 479). If pending the litigation before the civil court, the Land Tribunal were to render a final decision on the question of tenancy, it would be hit by the principles of les pendens under Section 52 of the Transfer of Property Act. The position is the same whether it was an independent application by which the Land Tribunal was moved or whether it was a suo motu proceedings initiated by the Land Tribunal itself (See **Venkitarama Iyer v. Vesu Amma)** 1995(2) KLT 295). In such situations, the primacy will have to be given to the decision of the civil court. It is common knowledge that the Land Tribunals are manned by personnel who are not well versed in adjudicating or resolving nice questions of law. One of the important questions which will have to be decided in this case is as to whether the kanom rights of Parvathy Amma had been surrendered as per Ext.A1 surrender deed dated 28.2.1935 in favour of the Perozhymanakkad Parukutty Amma. If Ext.A1 surrender deed is valid, then only the claim of the plaintiffs can be sustained, **CMA No.46 of 2003** 18 If on the contrary, there was no surrender of the kanam rights obtained by Parvathy Amma under the pattom chit dated 19.2.1934, then the claim of the plaintiff cannot be countenanced. All these subtle questions have to be decided by the lower appellate court which was doing a short work of the matter by remanding the case to the trial court. The Substantial questions of law are accordingly answered in the affirmative. The impugned judgment dated 31.10.2002 is set aside and the matter is remitted to the lower appellate court for a fresh disposal of the appeal on merits without resorting to a remand either to the trial court or to the Land Tribunal. Both sides shall be entitled to adduce further evidence before the lower appellate court to substantiate their rival contentions, if so advised. Having regard to the fact that this is a suit of the year 1977, the lower appellate shall make an earnest endeavour to dispose of the appeal expeditiously and at any rate within 9 months of receipt of a copy of this judgment. Status quo as obtained today shall be maintained by both sides until the disposal of the appeal. Parties shall **CMA No.46 of 2003** 19 appear before the lower appellate court on 16.6.2009 without any further notice. Registry shall re-transmit the Lower Court records forthwith. In the result this appeal is allowed and remanded as above. Having regard to the facts and circumstances of the case, the parties are directed to suffer their respective costs in this appeal. **Dated this the 22nd day of May, 2009.** ## **V. RAMKUMAR, JUDGE** sj