AthiYadavan Veetil Kunhammar Amma and AthiyoYadavan Veetily Madhusoodanan v Athiyadavan Veetil Muthu Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936** **RSA.No. 188 of 2010 ( )** **-----------------------AGAINST THE JUDGMENT IN AS 47/2005 OF SUB COURT, HOSDRUG DATED 19-01-2010 AGAINST THE JUDGMENT IN OS 042/2000 OF MUNSIFF COURT, HOSDRUG DATED 30-09-2005** **---------------------** ## **APPELLANTS/APPELLANTS/DEFENDANTS :** **----------------------------------------------------------------** **1. ATHIYADAVAN VEETIL KUNHAMMAR AMMA, AGED 76 YEARS, D/O.MUTHU NAIR AND MADHAVI AMMA HINDU HOUSEHOLD, RESIDING AT VILLARAMBATHI PERIYA PERIYA VILLAGE OF HOSDURG TALUK.** **2. ATHIOYADAVAN VEETILY MADHUSOODANAN, AGED 42 YEARS, S/O.LAKSHMI AMMA, HINDU GOVT. EMPLOYEE, RESIDING AT POOCHOL, NORTH TRIKARIPUR VILLAGE, HOSDURG TALUK.** **BY ADV. SRI.KODOTH SREEDHARAN** ## **RESPONDENT/RESPONDENT/PLAINTIFF :** **------------------------------------------------------------** **ATHIYADAVAN VEETIL MUTHU NAIR, AGED 70 YEARS HINDU CULTIVATOR, RESIDING AT KOLATHOOR VILLAGE AND POST, KASARAGOD DISTRICT.** **BY ADVS. SRI.K.SHRIHARI RAO SRI.K.S.BALAKRISHNAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- RSA No.188 of 2010 --------------------------------------------Dated this the 20[th] day of October, 2014 ## **JUDGMENT** The defendants in the original suit are the appellants. The respondent filed the original suit for redemption of Ext.B1 mortgage and also for a permanent prohibitory injunction restraining the appellants from trespassing upon the property covered by Ext.B1. The appellants contended that Ext.B1 is not a mortgage deed and being a kanam kuzhikkanam, it has to be interpreted as a lease deed and therefore, they are entitled to deemed tenancy under the Kerala Land Reforms Act (hereinafter referred to as KLR Act for short). The suit was tried along with O.S.No.580/1998 which was filed by the second appellant seeking a prohibitory injunction against the respondent. O.S.No.580/1998 was decreed RSA No.188/2010 2 as prayed for. O.S.No.42/2000 from which this appeal arises was decreed for redemption of property, but the relief of injunction was declined. No appeal is preferred against the judgment in O.S.No.580/1998. The appellants, claiming themselves to be protected under Section 6C of the KLR Act, aggrieved by the judgment in O.S.No.42/2000 filed an appeal before the Subordinate Judge's Court, Hosdurg which was dismissed by the impugned judgment. 2. The respondent in the suit alleged that the respondent has executed a kanam kuzhikanam deed dated 15.10.1969 in favour of the first appellant for 25 years and even though it is recited that possession is given to the first appellant, the respondent was permitted to be in possession and he is continuing in possession despite the kanam demise. The second appellant, claiming to be an assignee as per the assignment of right of the first appellant dated 17.2.1998, filed O.S.No.530/1998 RSA No.188/2010 3 for prohibitory injunction against the respondent. The respondent contended that the first appellant or the assignee did not get any possession. It was specifically pleaded that the kanam kuzhikanam deed of 1969 is a mortgage and not a lease and Section 6(c) of the KLR Act is not attracted. It was also contended that the appellants are trespassers and the respondent is entitled to redeem the mortgage. Therefore, he prayed for redemption of mortgage and permanent injunction against the trespass. 3. The second appellant as plaintiff in O.S.No.580/1998, on the strength of the assignment of the kanam kuzhikkanam right of the first appellant, sought a decree for permanent prohibitory injunction in the suit against the respondent alleging trespass. In defence of the suit for redemption filed by the respondent, a written statement claiming fixity of tenure under the Kerala Land Reforms Act was filed and a reference under RSA No.188/2010 4 Section 125(3) of the KLR Act was prayed. 4. After the order for joint trial of the suit, the question of tenancy was considered as a preliminary issue. Though the respondent has specifically contended that Ext.B1 is not a lease under Section 6(c) of the KLR Act, there was no definite plea of deemed tenancy in the written statement filed by the appellants. Therefore, the learned Munsiff who tried the suit on the assumption that the plea is hit by Section 74 of the KLR Act and for the reason that Kanam Kuzhikkanam deed dated 16.10.1969 being after 1.1.1964 and without going into the question of deemed tenancy held that there is no requirement of a reference to the Land Tribunal. The appellants took the matter before this Court in CRP No.2431/2001 and the learned single judge which heard the CRP affirmed the finding of the learned Munsiff as per order dated 20.1.2005. 5. It is crucial to note that the question of RSA No.188/2010 5 deemed tenancy was not brought in the notice of this Court in view of the nature of contentions raised at that time. 6. After the disposal of the revision, the appellants were advised that even though the plaintiff himself has chosen to state in the plaint that Section 6(c) of the KLR Act will not apply to the facts of the case, there is no specific plea in the written statement to the effect that the facts of the case reveals that there is a plea of deemed tenancy required to be made in the written statement. Accordingly, the appellants to avail the specific plea of deemed tenancy made applications in the suit for amendment of the written statement in O.S.No.42/2000 under Order VI Rule 17 of CPC to incorporate the plea of deemed tenancy. This application was dismissed by the trial court and the appellants challenged the order before this Court by filing WPC No.28030 of 2005. However, by the time the interim order was communicated to the trial RSA No.188/2010 6 court, the suit itself was disposed on 30.9.2005 rendering the writ petition infructuous and therefore, the same was disposed of later on without prejudice to the right of the appellants to challenge the same in appeal. 7. I have heard the learned counsel on both sides. 8. The dispute centers round Ext.B1 document executed on 16.10.2009 which is a Kanam Kuzhikkanam deed. The position is well settled by various decisions of this Court as well as the decision of the Supreme Court in the decision reported in _**Lakshmi and others**_ v _**Narayani and others**_ (1967 KLT Page 1) that such transactions are to be reckoned as lease and that transactions entered into after 1.4.1964 are protected by Section 6(c) notwithstanding anything contained in Section 74 of the Kerala Land Reforms Act. The dismissal of the application by the trial court not to refer the matter to the Land Tribunal concerned and the RSA No.188/2010 7 subsequent decision of this Court in CRP No.2431/2001, purely relying on Section 74 of the Kerala land Reforms Act, cannot take away the benefit of the plea available to the appellants. It is true that the appellants have raised an omnibus plea of tenancy instead of specifically pleading, deemed tenancy under section 6C of the Kerala Land Reforms Act. Though the appellants tried to rectify their mistakes by way of an amendment, they could not succeed. However, the writ petition challenging the dismissal of the petition for amendment was disposed of permitting the appellants to take up reserving the right of the appellants to challenge the same in appeal. 9. In the instant case, in view of the plea of deemed tenancy under Section 125(3) of the KLR Act, the issue regarding the tenancy has to be settled by the Land Tribunal. The question relating to the exclusion of the jurisdiction of the civil court to decide the issue unrelated to the right of the RSA No.188/2010 8 parties founded purely on question of fact in CRP No.2431/2001 cannot be treated as _res judicata_ or constructive _res judicata_ in view of the provisions in Setion 6(c) which starts with a _non obstante_ clause. Apart from that the question relating to the jurisdiction of a court or interpretation of the provisions of the statute cannot be deemed to have been finally decided in such circumstances. 10. If the document is found to be a lease attracting section 6C of the KLR Act, in the light of the plea of deemed tenancy available in a welfare legislation, the earlier finding in CRP No.2431/2001 cannot affect the plea that the question of tenancy has to be referred to the Land Tribunal as Civil Court has no jurisdiction to decide the dispute and even the doctrine of waiver cannot be made applicable in such cases as held by the Apex Court in the decision reported in ( _**Sushil Kumar Metha**_ v _**Gobind Ram Bohra dead**_ ) 1990(1) SCC 193. 11. By rejecting the prayer for amendment, RSA No.188/2010 9 the valuable rights of the appellants are taken away which is liable to be interfered with in this appeal. The trial court could not have decided the issue without the said amendment. 12. The court below relied on certain decisions to assume that the documents does not spell out a lease. On the other hand various judgments of this Court interpreting similar terms have held that such transactions are, in essence, lease transactions. Therefore, I am of the definite view that the appeal has to be allowed and the matter has to be remitted back to the trial court for fresh consideration after affording the appellants an opportunity to amend their pleadings. In the result, this appeal is allowed. The judgment of the trial court as well as the impugned judgment confirming the same are set aside. The matter is remitted back to the trial court for fresh disposal after affording the appellants an opportunity to amend the pleadings. After the RSA No.188/2010 10 amendment, if the trial court finds that the appellants have raised a question of deemed tenancy under Section 6C of the Land Reforms Act, the matter shall be referred to the Land Tribunal. The entire exercise shall be over within a period of six months from the date of receipt of a copy of this judgment. The Trial court is directed to inform the Land Tribunal, to which the reference is made, that the time frame prescribed above is binding also on the Land Tribunal and therefore, to expedite the matter of answering the reference as expeditiously as possible. No order as to costs. **Sd/-A.V.RAMAKRISHNA PILLAI JUDGE** css/ true copy P.S.TO JUDGE