Appat Vadakkekara Mammed v. Abdul Razak and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941** **RSA.No.150 of 2017** **AS 37/2014 of ADDITIONAL DISTRICT COURT, TIRUR** **OS 16/2010 of SUB COURT, TIRUR** ## **APPELLANT/1ST APPELLANT/1ST DEFENDANT** **APPAT VADAKKEKARA MAMMED AGED 52 YEARS, S/O.KAMMUTTY HAJI, PARAYIL (HOUSE),P.O.PULLIPARAMBA, CHELEMBRA AMSOM DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SMT.MEENA.A. SRI.ASHWIN SATHYANATH SRI.K.C.KIRAN SRI.M.DEVESH SRI.SAJU.S.A SRI.VINAY MATHEW JOSEPH SRI.VINOD RAVINDRANATH** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 AND 3** **1 ABDUL RAZAK AGED 51 YEARS, S/O.NADAKASSERI PUTHUVAKKAL MOHAMMED, CHELEMBRA AMSOM DESOM,** **P.O.PULLIPARAMBA, TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** **2 ABDUL AZEEZ AGED 49 YEARS, S/O.NADAKASSERI PUTHUVAKKAL MOHAMMED,CHELEMBRA AMSOM DESOM, P.O.PULLIPARAMBA,TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** RSA 150/2017 2 - **3 MOHAMMED BASHEER AGED 45 YEARS, S/O.NADAKASSERI PUTHUVAKKAL MOHAMMED,CHELEMBRA AMSOM DESOM, P.O.PULLIPARAMBA,TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** - **4 ABDUL SALIM AGED 35 YEARS, S/O.NADAKASSERI PUTHUVAKKAL MOHAMMED,CHELEMBRA AMSOM DESOM, P.O.PULLIPARAMBA,TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** - **5 JAMEELA AGED 53 YEARS, D/O.NADAKASSERI PUTHUVAKKAL MOHAMMED,CHELEMBRA AMSOM DESOM, P.O.PULLIPARAMBA,TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** - **6 SUHARABI AGED 39 YEARS, D/O.NADAKASSERI PUTHUVAKKAL MOHAMMED,CHELEMBRA AMSOM DESOM, P.O.PULLIPARAMBA,TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** **7 RAZIABI AGED 32 YEARS, D/O.NADAKASSERI PUTHUVAKKAL MOHAMMED,CHELEMBRA AMSOM DESOM,** **P.O.PULLIPARAMBA,TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** - **8 NUSRATH** **AGED 29 YEARS, D/O.NADAKASSERI PUTHUVAKKAL MOHAMMED,CHELEMBRA AMSOM DESOM, P.O.PULLIPARAMBA,TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** - **9 UMMUKULSU** - **AGED 26 YEARS, D/O.NADAKASSERI PUTHUVAKKAL MOHAMMED,CHELEMBRA AMSOM DESOM,** **P.O.PULLIPARAMBA,TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** ## **10 BEEFATHIMA AGED 70 YEARS, D/O.NADAKASSERI PUTHUVAKKAL** RSA 150/2017 3 **MOHAMMED,CHELEMBRA AMSOM DESOM, P.O.PULLIPARAMBA,TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** - **11 NAZER** **AGED 48 YEARS, S/O.N.P.MOHAMMED, CHELEMBRA AMSOM DESOM, P.O.PULLIPARAMBA,TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-673634** **12 APPAT VADAKKEKARA AYISHA BEEBI HAJUMMA AGED 75 YEARS, D/O.AVARANKUTTY, P.O.PULLIPARAMBA, CHELEMBRA AMSOM DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN673634** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA 150/2017 4 ## **JUDGMENT** 1. The plaintiffs received a decree from the trial court for possession of the plaint schedule properties. The appeal against the decree filed by defendants 1 and 2 met dismissal. The 1[st] defendant has come in second appeal. 2. The case of the plaintiffs is stated below : Certain properties including the plaint schedule properties belonged to the grandfather of the plaintiffs. After the death of the grandfather, his properties were partitioned under Ext A7 by his heirs. The plaint schedule properties were allotted to the share of the father of the plaintiffs. The plaintiffs inherited the properties as the heirs of their father. One Avarankutty was the commercial lessee of the suit properties held under Ext A1 lease deed executed in 1928. The lease was granted to him for construction of a building and not for cultivation. Defendants 2 and 1 are respectively the daughter and grandson of Avarankutty. Plaint item 1 property is in the possession of the first defendant and item 2 is in the possession of the second defendant. The plaintiffs issued notice under Sec.106 of the Transfer of Property Act (for short, the TP Act) terminating the tenancy. The defendants have no right to continue in possession of the suit properties. RSA 150/2017 5 ## There is no building therein now. 3. The third defendant did not contest the suit. Defendants 1 and 2 had the following contentions : The lease in favour of Avarankutty was an agricultural lease for cultivation and not a commercial lease. The leasehold property measured five cents. Avarankutty effected agricultural improvements and constructed a shop room in the leasehold property. After him, a partition deed was executed in 1973 and plaint item No.1 was allotted to the father of the first defendant and item 2 to the second defendant. The father of the first defendant obtained certificate of purchase from the land tribunal in respect of plaint item No.1. After the death of the father of the first defendant, the properties held by him were partitioned in 2004 under a registered partition deed. The plaint item No.1 property was allotted to the share of the first defendant. He applied to the panchayat for permit to construct a new building and submitted a plan for approval. The suit is filed to prevent the first defendant from constructing the proposed building. 4. PWs 1 to 3 were examined and Exts A1 to A23 were marked on the side of the plaintiffs. No evidence was adduced by the defendants. Exts C1, C2 and X1 were marked. The RSA 150/2017 6 defendants suffered a decree directing them to surrender vacant possession of the plaint schedule properties to the plaintiffs. 5. Heard Sri.T.Krishnanunni, the learned senior counsel for the appellant/first defendant. 6. The contesting defendants contended for a certificate of purchase issued by the land tribunal in respect of plaint item No.1 property. In view of the said contention, Ext X1 file was called for from the land tribunal at the instance of the plaintiffs. The learned trial judge considered Ext X1 file and found that the certificate of purchase issued to Avarankutty was in respect of a different property. The contesting defendants filed an additional written-statement in which they withdrew their contention that the land tribunal issued a certificate of purchase in respect of plaint item No.1 property. 7. The questions formulated in the memorandum of appeal as substantial questions of law are extracted below : (i) Have the trial court and the first appellate court properly construed the recitals in Ext A1 document and whether both the courts are justified in finding that the same is a commercial lease ? RSA 150/2017 7 (ii) Is the suit as framed maintainable in law for want of proper notice to quit ? (iii) Are the trial court and the first appellate court justified in not considering the issue as to whether defendants 1 and 2 are entitled to benefits under Sec.106 of the Kerala Land Reforms Act ? (iv) Is the trial court justified in deciding the question with respect to the nature of Ext A1 lease without referring the same to concerned Land Tribunal u/s 125(3) of the Kerala Land Reforms Act and are not the judgments and decrees of both the courts vitiated on that count alone ? (v) Are not the judgments and decrees of both the courts below vitiated for not properly appreciating the evidence oral and documentary available in this case ? These questions are referred to in this judgment as question Nos (i) to (v). Any reference to 'defendants' hereafter in this judgment shall mean only defendants 1 and 2. 8. Ext A1 is the lease deed executed by Avarankutty in favour of the grandfather of the plaintiffs. I read a copy of it to know whether it was properly interpreted by the courts below. At no stretch of imagination, Ext A1 can be read as a document granting a lease for agricultural purpose. The property taken on lease under Ext A1 was a tiny plot of five cents. The schedule to Ext A1 makes it clear beyond any doubt that the property was taken on lease for the construction of a shop RSA 150/2017 8 room. Admittedly Avarankutty constructed a building which collapsed. It is not known what cultivation was possible in five cents of land after construction of a building. The defendants should explain. It must be to avoid giving any explanation, they cleverly avoided the witness-box. There is of course a reference in Ext A1 to 'kuzhikoors' which mean agricultural improvements. Avarankutty in Ext A1 mentioned 'kuzhikoors' only for entitling him to be reasonably compensted at the termination of the lease. Only in this perspective the word 'kuzhikoors' is referred to in Ext A1. The reference to 'kuzhikoors' in Ext A1 for the said limited purpose does not make the lease one granted for cultivation. Ext A1 can be interpreted only as a commercial lease as concurrently interpreted by the courts below. There is no merit in question No.(i) formulated in the memorandum of appeal suggesting that the courts below misinterpreted Ext A1. 9. Sec.106(1) of the Kerala Land Reforms Act (for short the KLR Act) provides that notwithstanding anything contained in the Act, or in any other law, or in any contract or in any order or decree of court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before 20[th] May 1967, RSA 150/2017 9 he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy and such rent shall be liable to be varied every 12 years. The defendants in their written-statement did not contend for any benefit under Sec.106 of the KLR Act. In fact, in the writtenstatement, they denied any commercial lease. They did not contend, or gave evidence, that the building which collapsed was constructed before 20.5.1967. In the absence of a contention in the written-statement claiming benefit under Sec.106 of the KLR Act, the defendants cannot agitate in the suit, appeal or second appeal for any benefit thereunder, particularly when, rightly or wrongly, they denied any commercial lease in favour of Avarankutty. Therefore question No.(iii) in the memorandum of appeal also sans merit. 10. Ext A21 is the notice to quit caused to be issued by the plaintiffs. Validity or sufficiency of the notice was not challenged in the written-statement. Nor did the writtenstatement point out any insufficiency or infirmity in the notice. No argument was addressed before the trial court regarding the validity of the quit notice. What was argued before the lower appellate court against Ext A21 notice was that it did not contain the details of the lease. Non- RSA 150/2017 10 mentioning of the history or details of the lease is not a defect in the notice. Any objection against Ext A21 notice should be deemed to have been waived. It is held by the apex court that an objection to the validity or infirmity of the notice under Sec.106 of the TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. The citation is **Parwati Bai v. Radhika (AIR 2003 SC 3995)** . Question No.(ii) in the memorandum of appeal also therefore goes. 11. Law on the point is settled that a reference to the land tribunal under Sec.125(3) of the KLR Act should be made only if any question which should be decided by the tribunal arises in the suit and not just because any such question was raised in the suit. What Avarankutty had under Ext A1 was a commercial lease and not an agricultural lease for cultivation. The defendants did not claim benefit under Sec.106 of the KLR Act. There was no scope for any reference to the land tribunal under Sec.125(3) of the KLR Act. Therefore question No.(iv) in the memorandum of appeal also has no legs to stand. 12. The courts below interpreted Ext A1 and appreciated evidence in correct perspective and reached the right RSA 150/2017 11 conclusion. Question No.(v) formulated in the memorandum of appeal is also one without any substance. 13. The second appeal is devoid of merit. No substantial question of law is involved in it to admit and entertain it. It deserves only a dismissal. 14. The second appeal is dismissed. The direction given by this court to the executing court on 18.7.2019 to defer the delivery of the properties for two weeks is withdrawn. Sd/- **A.M.BABU Judge** Mrcs/22.7.