Ammukutty Iype v. Mathew Chacko

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN MONDAY, THE 28TH DAY OF JANUARY 2013/8TH MAGHA 1934 ESA.No. 3 of 2001 ( ) --------------------- AGAINST THE JUDGMENT IN AS.310/1993 of ADDL.DISTRICT COURT,KOTTAYAM AGAINST THE JUDGMENT IN OS.71/1983 of MUNSIF COURT, KANJIRAPPALLY ## APPELLANT(S): AMMUKUTTY IYPE, PUTHEN PEEDIKAYIL, KANOM, KANGAZHA, KOTTAYAM BY ADVS.SRI.V.G.ARUN SRI.T.R.HARIKUMAR ## RESPONDENT(S): MATHEW CHACKO, KOZHAKKEPUTHEN PURAKKAL (DIED) KANAM, VAZHOOR, KOTTAYAM ADDL. R2: ALICE CHACKO, W/O. MATHEW CHACKO, RAN ROY VILLA, ANNAKUNNU P.O., KOTTAYAM - 686 504 ADDL.R3: KOSHY P. JACOB, S/O. MATHEW CHACKO -DO-DO- ADDL. R4: MATHEW P. JACOB , S/O. MATHEW CHACKO - DO- ADDL. R5: ABRAHAM CHERIYAN, ERUTHICKAL HOUSE, CHANNANICAKAD P.O., KOTTAYAM - 686 504 LRS OF DECEASED R1 IMPLEADED AS ADDL. R2 TO R5 AS PER ORDER DATED 1-1-2013 IN I.A. 2282/2012. ADV. SRI.C.P.MOHAMMED NIAS ADDL.3 & 5 BY ADVS. M/S. A.K.ALEX, P.KURUVILLA JACOB & ADV. SMT.K.PRASANNAKUMARI THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## N.K. Balakrishnan, J. ................................................. E.S.A. No. 3 of 2001 ..................................................... ## Dated: 28-01-2013 ## JUDGMENT This Execution Second Appeal is filed by the wife of the Judgment debtor in O.S. 71/1983 which was a suit for declaration of title and recovery of possession of the plaint schedule property measuring 1 acre and 71 cents in Survey No. 38/1A/1 of Vazhoor village. The plaintiff and defendant in that suit are brothers. A total extent of 8 acres 91 cents belonged to the father of the plaintiff and defendant mentioned therein. On the death of the father, it devolved upon the plaintiff and defendant . There was a subsequent partition agreement of the year 1961 as per which 4 acres 91 cent was allotted to the plaintiff and 4 acres was allotted to the defendant in that suit. Subsequently 50 cents of land out E.S.A. No. 3 of 2001 **2** of 4 acres 91 cents of land was gifted by the plaintiff to the defendant. Thus, according to the plaintiff therein he was in possession of 4 acres and 41 cents on the eastern side whereas the remaining 4 acres 50 cents lying on the western side was in the possession of the defendant. Since a dispute arose relating to the identity of the property and also because the defendant tried to trespass into a portion of the property, the suit for declaration of title and for recovery of possession was filed as O.S. 71 of 1983. The suit was decreed as evidenced by Ext.A1. The appeal filed by the defendant therein was dismissed as evidenced by Ext.A2. The plaintiffdecree holder filed execution petition for getting delivery of the property in terms of the decree in Ext.A1which was confirmed in appeal by Ext.A2 . 2. The appellant herein who is the wife of the defendant/judgment debtor obstructed the delivery and accordingly the decree holder filed an application for removal of the obstruction. The appellant herein produced Ext.B1 the E.S.A. No. 3 of 2001 **3** order of the Land Tribunal and contended that in view of the order passed by the Land Tribunal the appellant is entitled to have fixity of tenure in respect of the disputed property and as such the application filed by the decree holder for removal of obstruction is unsustainable. The respondent herein (the decree holder) was examined as P.W.1 and Exts. A1 and A2 were marked. The Execution Court found that though it was averred by the respondent herein that Ext.B1 is a result of fraud that could not be substantiated by him. Since it was found that the order passed by the Land Tribunal was challenged by the respondent herein by filing an appeal before the Land Reforms Appellate Authority and as that order was once remanded and thereafter it was considered again by the Land Tribunal and again it was held that the appellant herein is a tenant and since that order which was challenged by the respondent herein was dismissed, finality is attached to the order passed by the Land Tribunal with regard to the tenancy claimed by the appellant herein and as such E.S.A. No. 3 of 2001 **4** the petition filed by the decree holder was dismissed. 3. In the appeal filed by the respondent herein (decree holder) the order passed by the execution Court was set aside and the obstruction was ordered to be removed. 4. In this Execution Second Appeal, the following substantial question of law has been raised by the learned counsel for the appellant:- _i) Whether in view of Ext.B1 order (the appeal against which was dismissed by the Appellate Authority) the lower appellate court was justified in negativing the plea of tenancy raised by the appellant ?_ 5. It is argued by the learned counsel for the appellant that it is not a case where Ext.B1 is vitiated on the ground of fraud. Though a vague contention was raised by the respondent -decree holder that Ext.B1 is vitiated by fraud, no specific pleading was raised with regard to the same. Not only that the order passed by the Land Tribunal was challenged before the Appellate Authority. The appellate court E.S.A. No. 3 of 2001 **5** remanded the matter to the Land Tribunal. Again the Land Tribunal considered the mater and a decision was rendered by the Land Tribunal holding the tenancy set up by the appellant herein as true and accordingly, an order of assignment of the land mentioned therein was ordered in favour of the appellant. It is further pointed out that though an appeal was filed by the respondent herein before the Appellate Authority, that appeal was dismissed for non-prosecution. Hence the order passed by the Land Tribunal has become final. It is not open to the respondent to contend that the appellant is not a cultivating tenant entitled to fixity of tenure or that Ext.B1 is invalid and inoperative, it is further contended by the appellant/obstructor. 6. The relevant provisions in Order XX1 of the Code were amended by the Parliament by Act 104/1976 which came into force with effect from 1-2-1977. Since Rule 101 as amended came into force with effect from 1-2-1977 long after the commencement of Kerala Act 1 of 64, as amended by Act E.S.A. No. 3 of 2001 **6** 35 of 1969, it has to be held that the non obstante clause contained in Rule 101 of Order XXI overrides the provisions contained in Sec. 125 (3) of KLR Act and as such the question of reference of the plea of tenancy to the Land Tribunal did not arise. It was so held by this Court in Kasim Rawther v. Mytheen Beevi - 1988 (2) KLT 812 and which was followed in Krishsnan Asari v. Parameswaran Pillai - 1989 (1) KLT 63. 7. The crucial question for consideration is whether in view of Ext.B1 order passed by the Land Tribunal which attained finality in view of the fact the appeal filed by the respondent was dismissed whether the decree holder respondent is entitled to question the order of assignment passed by the Land Tribunal in favour of the appellant herein. 8. The learned counsel for the respondent has relied upon the decision in Parameswaran Thampi v. Podiyan Thomas - 1984 KLT 397 and contends that the parties are bound by the principle of lis pendens and so Ext. B1 order cannot be used against the appellant. The decision E.S.A. No. 3 of 2001 **7** Parameswaran Thampi has absolutely no relevance to the point in dispute in this case. That was a case where the tenancy was claimed by the third defendant in that suit. There was a question of reference under Sec. 125 (3) of the Kerala Land Reforms Act ( "KLR Act" for short) . There was also another proceedings under Sec. 72 B of the KLR Act. Based on the order passed in the application under Sec. 72 B the reference under Sec. 125 (3) of the KLFR Act was answered in favour of the defendant. When that matter was taken up before the appellate court, it was found that the finding entered by the Land Tribunal under Sec. 125 (3) which was incorporated in the judgment of the trial Court was found to be unsatisfactory since no reasoned order was passed by the Land Tribunal and hence the matter was remanded to the trial Court to decide by itself the question of tenancy afresh. Though it was contended that again reference should have been made under Sec. 125 (3) that was held against by this Court. Not only that so far as the appellant is concerned, the E.S.A. No. 3 of 2001 **8** appellant was not a party to the earlier suit and as such the question of lis pendens does not arise at all. The aforesaid decision in Parameswaran Thampi has no application to the facts of this case. 9. Here, the appellant who obstructs the delivery of the plaint schedule property by virtue of the decree passed in the suit is the wife of the defendant/ judgment debtor. The suit was filed in the year 1983. Ext.A1 judgment was pronounced on 26-11-1985 which was confirmed in appeal under Ext.A2 judgment dated 9-2-1990. It is also in evidence that the Advocate Commissioner had inspected the properties with the assistance of Taluk Surveyor and demarcated the plaint schedule property therein. The main dispute was with regard to the boundary. The Plaint schedule properties were inspected by the Advocate Commissioner on 13-5-1984 and on 31-5-1984 and the properties were measured and demarcated. It is a case where the husband of the appellant herein asserted from the very beginning that he has title to E.S.A. No. 3 of 2001 **9** the property and that the plaint schedule property which was lying to the west of the thodu belongs to him and it has been in his possession and enjoyment since 1953. If that be so, how could the appellant being the wife of that defendant contend that he was granted lease of the said property by the respondent who is the plaintiff in that suit. According to the appellant she obtained lease of the property in February 1964, a plea evidently put forward by her to get over the embargo created under Sec. 74 of the KLR Act which interdicts a lease created after 1-4-1964 for the purpose of claiming tenancy and to obtain assignment of the land under Sec. 72 B of the KLR Act. It was also pointed out that when obstruction was raised by the appellant , when the amin went for effecting delivery, it was not stated that there was any order from the Land Tribunal in her favour. 10. It would appear from Ext.B1 that the proceedings for assignment of the land under Sec. 72 B was initiated in 1984. Evidently, after the Advocate Commissioner inspected E.S.A. No. 3 of 2001 **10** the property in May 1984 . It is true that the Land Tribunal had earlier passed an order of assignment. That was challenged by the respondent before the Appellate Authority. The Appellate Authority remanded the matter for fresh consideration and it was accordingly Ext. B1 order was passed by the Land Tribunal allowing the assignment of the plaint schedule property on 31-10-1992. The respondent contends that when the petition under Rule 97 of Order XXI was pending before the Civil Court, in view of the nonobstante clause contained in that Rule, all questions relating to the right, title and interest in the said property is to be decided by the Execution Court and not by the Land Tribunal. EA 129/1992 was filed on 1-9-1992. On going through Ext.B1 order it could be seen that the S.M. proceedings initiated by the Land Tribunal was posted for appearance of the parties on 25-09-1992. That means, the said proceedings started subsequent to the filing of E.A. 129/1992. Therefore, as on the filing of E.A. 129/1992, there was no proceeding pending E.S.A. No. 3 of 2001 **11** before the Land Tribunal. When the Civil Court, especially, the Execution Court dealing with an application under Rule 97 of Order XXI was seized of the matter, the Execution Court alone was competent to decide the question of right, title and interest including the tenancy claimed in respect of the said property. Therefore, the decision of the Land Tribunal rendered subsequent to the filing of E.A. 129/1992 cannot denude the Execution Court of its jurisdiction ignoring the order passed by the Land Tribunal subsequently. 11. It is seen, on going through Ext.B1 order, that the Land Tribunal did not consider the question of tenancy in the correct perspective. According to the appellant she obtained the lease in February, 1994 . Her marriage took place only on 27-1-1964. That means, according to her she obtained the lease within a few days from the date of marriage. There is also evidence to show that at the relevant time the plaintiff was in Keniya. Therefore, she wanted the Court to believe that within two or three weeks from the date of her marriage E.S.A. No. 3 of 2001 **12** she was granted oral lease of the property by the brother of her husband who was in Keniya. The date of the lease or the terms of the lease are conspicuously absent . Not even a single receipt was produced to show that rent was paid by her to the Landlord-jenmi. If as a matter of fact, the appellant was in possession of the property, she would have resisted the measurement of the property when the Advocate Commissioner inspected and measured the property in May 1994. No such objection was raised by her nor was any such objection statement made by her husband to the report and plan submitted by the Advocate Commissioner. It is a case where the appellant and her husband were on cordial terms throughout and as such the whole case of lease set up by the appellant bristles with inherent improbabilities. When that is the position how can the order passed by the Land Tribunal subsequent to the filing of E.A.129/92 preclude or oust jurisdiction of the execution court to decide the right, title and interest in the property independently . E.S.A. No. 3 of 2001 **13** 12. The intrinsic infirmity and inherently improbability in the lease set up by the appellant was rightly projected by the Appellate Judge to hold that the whole story of lease set up by her, at the behest of her husband who suffered adverse verdict in the suit filed against him by the respondent herein, is one woven to the imagination of a crooked brain. It is a clear case where the wife who was made to file an application before the Land Tribunal at the behest of the judgment debtor wanted to hoodwink the authorities and to get at the disputed property by hooks or crooks. The fact that the improbabilising factors as mentioned above regarding the lease pleaded by the appellant was not at all taken note of by the Land Tribunal. Ext.B1 order is eloquently silent of those improbabilising factors; rather, the order is seen to be a totally perverse order. It is true that the respondent herein had filed an appeal before the Appellate Authority and that appeal was dismissed for default. But at the same time, the fact that the said order was passed when the execution E.S.A. No. 3 of 2001 **14** proceedings was pending before the Execution Court and that the right, title and interest of the parties are to be decided as provided in Rule 97 of Order XXI cannot be lost sight of. Since Ext.B1 proceedings, (after the order of remand by the appellant authority) was initiated subsequent to the filing of the Execution Application 129/1992 it has to be held that the Execution Court was bound to decide the question of tenancy independently. As said earlier, if her husband had been in possession of the properties since 1953 as contended by him in the suit, how could it be said that his wife had obtained oral lease of that disputed item of property. If that property was in the possession of her husband then it was not possible for the decree holder to lease out the property. That also is a pertinent question which could not be answered by the appellant. The falsity of the case of lease pleaded by the appellant is so loudly obtrusive that it cannot be obliterated or cured by virtue of Ext.B1 order passed by the Land Tribunal during the pendency of the proceedings in E.A. 129/1992. E.S.A. No. 3 of 2001 **15** 13. The learned District Judge has considered all these aspects in the right perspective. I find no reason to differ from the view so taken by the appellate Court. This appeal fails and is accordingly dismissed. Dated this the 28th day of January, 2013. Sd/-N.K. Balakrishnan, Judge ani. /true copy/ P.S. to Judge E.S.A. No. 3 of 2001 **16** N.K. Balakrishnan, J. ................................................. E.S.A. No. 3 of 2001 ..................................................... Dated: 28-01-2013 JUDGMENT