Arathil Kandoth Premkumaar and others v. Maniyankandiyil Sankaran Nair and Kizhakke Kallil Krishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** **THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929** ## **SA.No. 875 of 1994(D)** **-------------------------------** - **A.S. NO. 213/1991 OF DISTRICT COURT, THALASSERY, O.S. NO. 60/1982 OF MUNSIFF COURT THALASSERY.** ## **APPELLANTS/ APPELLANTS/ PLAINTIFFS:** **-------------------------------------------------------------** **1. ARATHIL KANDOTH PREMKUMAR, GENERAL POWER OF ATTORNEY HOLDER, ARATHIL KANDOTH PARUVATHI AMMA, DAUGHTER OF KUNHIRAMAN NAIR, RESIDING AT NO. 9, ROGRESS ROAD, SPRING HEAVEN, RICHARDS TOWN, BANGALORE.** **2. CHATHAMPALLI VAYALAMBRON RADHA, AGED 53 YEARS, WIFE OF LATE N.C. GOVINDAN, RESIDING AT CHOKLI AMSOM NIDUMBRAM DESOM, KANNUR DISTRICT.** **3. JAGATHPRABHA GOVINDAN, BUSINESS, SON OF LATE N.G. GOVINDAN, RESIDING AT CHOKLI AMSOM NIDUMBRAM DESOM, KANNUR DISTRICT.** **4. GEETHA GOVIND, DAUGHTER OF LATE N.V. GOVINDAN, RESIDING A CHOKLI AMSOM NIDUMBRAM DESOM, KANNUR DISTRICT.** **5. PRATHIBA GOVIND, DAUGHTER OF LATE N.C. GOVINDAN, RESIDING AT CHOKLI AMSOM NIDUMBRAM DESOM, KANNUR DISTRICT.** ## **S.A. 875/1994:** ## **6. VINDHYA GOVIND, DAUGHTER OF LAE N.C. GOVINDAN, RESIDING AT CHOKLI AMSOM NIDUMBRAM DESOM, KANNUR DISTRICT.** **BY ADV. SRI.M.K.DAMODARAN (SR.).** **RESPONDENTS:** **------------------------** **1. MANIYANKANDIYIL SANKARAN NAIR, SON OF KELAPPAN NAIR, CONTRACTOR, RESIDING AT IRINGANNUR, IRINGANNUR AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT.** - ***2. KIZHAKKE KALLIL KRISHNAN, SON OF KUNHIRAMAN, AGRICULTURIST, RESIDING AT MENAPRAM, MENAPRAM AMSOM DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT.** ***NAME OF THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 15/10/07 IN I.A. 1810/07.** **BY** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **M.SASIDHARAN NAMBIAR,J.** =========================== S.A. NO.875 OF 1994 =========================== Dated this the 3rd day of January, 2008 ## JUDGMENT The legal heirs of second plaintiff who were impleaded as supplimental plaintiffs 3 to 5 in O.S.60/1982 on the file of Munsiff Court, Thalassery are the appellants. Respondents are the defendants. When second respondent died during the pendency of this appeal, appellants filed 1810/2007 to delete him from the party array contending that as the decree sought for is only a permanent prohibitory injunction, his legal heirs are not to be impleaded. The suit was filed by the deceased first plaintiff, as the sole plaintiff, seeking a decree for permanent prohibitory injunction restraining defendants from trespassing into the plaint B schedule property. Plaint B schedule property is five acres in R.S.No.106/2 of Thalassery Taluk. According to the plaintiff, plaint A schedule property originally belonged to S.A.875/1994 2 Narangoli Chirakkal Ramath Karunakaran Nambiar and in 1936 under Ext.A17 registered lease deed it was obtained by Appukuttan Nambiar and Vasudevan Nair @ Ramakrishnadas and later under Ext.A9 dated 31.5.1956 Vasudevan released his right in favour of Appukuttan Nambiar who became the sole tenant and while so Appukuttan Nambiar sub-leased item No.2 of the lease hold properties in favour of Sadanandan Adiyodi and retained with him item No.1 of the properties. He executed Ext.A13 will dated 18.1.1972 whereunder he bequeathed his rights in favour of Ramakrishna Ashram. Plaintiff claimed that under Ext.A2 sale deed of 1976,the President of the Ashram assigned plaint A schedule property to the plaintiff. He asserts that he has been in possession of plaint A schedule property since then and plaint B schedule property is part of plaint A schedule property and respondents have no manner of right or possession over the same and they attempted to trespass into the plaint B schedule property on 20.12.1982 and plucked cashew nuts and S.A.875/1994 3 therefore they are to be restrained by a permanent prohibitory injunction from trespassing into the plaint B schedule property. He also sought realisation of Rs.600/- as damages. The suit was resisted by first respondent contending that plaint schedule property was not obtained by the plaintiff and instead he obtained plaint B schedule property as per an oral lease from Parvathyamma the power of attorney holder of the plaintiff in 1136 M.E and subsequently he purchased its jenm right from the Land Tribunal and he sold the right to take usufructs from the property to the second respondent for that year and first respondent is in possession of the property and therefore appellants are not entitled to the decree sought for. Second respondent filed a written statement reiterating the contentions raised by first respondent and also contending that he is taking usufructs from the property for the year 15th Dhanu 1157 to 25[th] Medam 1158 and the suit is to be dismissed. 2. Subsequently second plaintiff was impleaded S.A.875/1994 4 as the assignee of first plaintiff, claiming that he has obtained the properties from first plaintiff. On the death of second plaintiff, appellants were impleaded as additional plaintiffs. Learned Munsiff as per original judgment dated 28.2.1984 dismissed the suit. It was challenged by appellants herein before Sub Court, Thalassery in A.S.88/1984. Learned Sub Judge as per judgment dated 30.9.1987 set aside the original judgment of the trial court and remanded the suit to the trial court for fresh disposal in the light of the observations contained in the judgment. As per the order of remand, first appellate court directed appellants plaintiffs to take necessary steps for getting the property identified before the trial court by taking out a fresh Commission and parties were permitted to adduce further evidence. After the remand, a commission was taken and the Commissioner submitted Exts.C1 to C3. Learned Munsiff thereafter framed the following additional issue. 5 ## S.A.875/1994 Whether it is the plaintiff or first defendant who is the tenant of the plaint B schedule property. Following the decision of this court in **Nani Amma** ## **v. Chathukutty Nair 1989(2) KLT SN 15(Case No.19)** learned Munsiff referred the claim for tenancy to Land Tribunal, Kuthuparamba under section 125(3) of Kerala Land Reforms Act. Land Tribunal entered a finding that first respondent is entitled to fixity of tenure to plaint B schedule property. On receipt of the findings, without recording any further evidence, learned Munsiff dismissed the suit as per judgment dated 24.9.1990. Appellants challenged that judgment before District Court, Thalassery in A.S.213/1991. Learned District Judge on reappreciation of evidence found that the suit was remanded by first appellate court in A.S.88/1984 with a direction to the appellants to get plaint B schedule property identified and inspite of the direction plaint A schedule property was not identified and plaint B schedule property S.A.875/1994 6 is not shown as part of plaint A schedule property and being a suit for injunction the only question is with regard to the possession and on the evidence appellants have not succeeded in establishing their possession. Though a prayer for remand was made, learned District Judge found that an opportunity was already granted in A.S.88/1984 and another opportunity cannot be afforded. Learned District Judge therefore dismissed the appeal, observing that dismissal of the appeal will not prejudice the appellants as they can file a suit for recovery of possession on the strength of title. It is challenged in this appeal. 3. Though first respondent originally appeared through a counsel, learned counsel subsequently reported that he has no instructions. First respondent was called and found absent. 4. Learned counsel appearing for appellants was heard. 5. Learned counsel relying on the decision of the Full Bench of this court in **Kesava Bhat v.** S.A.875/1994 7 **Subraya Bhat (1979 KLT 766) argued** that reference to the Land Tribunal under section 125(3) of Kerala Land Reforms Act was not warranted as the suit is only one for injunction and trial court was not authorised to frame an additional issue as has been done or refer that issue to the Land Tribunal and as the reference itself was illegal, the finding of the Land Tribunal is to be eshewed. There is force in the submission of the learned counsel. Though section 125(3) of Kerala Land Reforms Act provides that a question of tenancy if arises in the suit, is to be referred to the Land Tribunal and the trial court is bound by the finding of the Land Tribunal, it is not the law that whenever a question of tenancy is raised, suit is to be referred to the Land Tribunal. As declared by the Full Bench in Kesava Bhat's case, only if the question of tenancy raised by the party arises for considertion, suit is to be referred to the Land Tribunal. The question is not whether the plea of tenancy is raised but whether plea of tenancy S.A.875/1994 8 arises for consideration. In a suit for injunction question is not whether plaintiffs or defendants are the tenants but whether plaintiffs are in possession of the property. In such circumstance, as held by this Court in Keasava Bhat's case reference to the Land Tribunal under section 125(3) of Kerala Land Reforms Act was unwarranted. Therefore the findings of the Land Tribunal has to be eshewed. 6. The question is whether on the evidence appellants are entitled to a decree for permanent prohibitory injunction sought for. After the dismissal of original suit, first appellate court remanded the suit in A.S.No.88/1984 granting an opportunity to the appellants to take out a commission to identify plaint B schedule property as part of plaint A schedule property. The very case of appellants was that plaint A schedule property is item No.1 of the property covered under Ext.A17 lease, which was subsequently bequeathed by one of the lessees to whom the other lessee S.A.875/1994 9 released his right under Ext.A9, under Ext.A13 will and subsequent assignment of item No.1 of Ext.A17 property in favour of first plaintiff under Ext.A2 sale deed, appellants claim right,title and possession as legal heirs of the subsequent assignee from the first plaintiff and that too after the institution of the suit. Case of the appellants is that thak Nos. 2 and 3 of item No.1 of Ext.A17 lease hold properties in the plaint A schedule property and plaint B schedule property is part of the A schedule property. Therefore appellants can succeed in the suit only on establishing that plaint B schedule property is part of thak 2 and 3 of Ext.A17 properties. As rightly found by first appellate court eventhough a commission was taken out subsequent to the remand of the suit and Commissioner submitted Exts.C1 to C3, Commissioner did not identify plaint B schedule property as part of plaint A schedule property. In fact, plaint A schedule as such was not identified. In such circumstance, findings of first appellate S.A.875/1994 10 court that appellants are not entitled to the decree for permanent prohibitory injunction is perfectly correct. The appeal is therefore dismissed. First appellate court itself observed that dismissal of the suit will not prejudice the appellants as they are entitled to institute the suit for recovery of possession on the strength of title. ## M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------S.A..NO.875 /94 --------------------- JUDGMENT 3[rd] JANUARY,2007