C. Venugopal v. P. Komalam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937** ## **RSA.No. 866 of 2010 C** ## **-----------------------------** **AS 136/2007 OF ADDITIONAL DISTRICT COURT-I, THIRUVANANTHAPURAM, OS 443/1998 OF PRINCIPAL MUNSIFF'S COURT, THIRUVANANTHAPURAM,** **----------------------** ## **APPELLANT/APPELLANT/DEFENDANT::** **------------------------------------------------------------** **C.VENUGOPAL, S/O.CHELLAPPAN ASARI, AGED 59 YEARS, FROM T.C.30/1716, PUNNAPURAM CHAYAKKUDI LANE, PETTAH, THIRUVANANTHAPURAM, NOW RESIDING AT `RAJASREE', T.C.27/3312(1), EMS NAGAR, VACHIYOOR P.O., THIRUVANANTHAPURAM.** ## **BY ADV. SRI.P.S.RAMESH KUMAR** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS::** **---------------------------------------------------------------** ## **1. P.KOMALAM, D/O.PADMAVATHY,** **AGED 74 YEARS, KOTTOOR ASWATHY, PUNNAPURAM ROAD, FORT P.O., VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM-695017.** ## **2. C.K.PADMINIDEVI, D/O.KOMALAM,** **AGED 44 YEARS, KOTTOOR ASWATHY, PUNNAPURAM ROAD, FORT P.O., VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM-695017.** ## **3. C.K.BALACHANDRAN,** **S/O.CHANDRASEKHARAN NAIR, AGED 48 YEARS, RESIDING AT KOTTOOR ASWATHY, PUNNAPURAM ROAD, FORT P.O., VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM-695017.** **BY ADVS. SRI.L.MOHANAN SMT.LIGEY ANTONY SRI.T.L.MANOJ** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **RSA.No. 866 of 2010** ## **-----------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES** - **---------------------------------------** - **A1: COPY OF THE ORDER OF THE MUNSIFF'S COURT DATED 31/3/2002 IN IA.5011/2000 IN OS.443/98** - **A2: COPY OF THE ORDER DATRED 10/3/2006 IN CRP.1139/03 OF THE HIGH COURT OF KERALA** - **A3: COPY OF THE IA.10786/2006 IN OS.443/98 DATED 30/11/2006 FILED BY THE APPELLANT** - **A4: COPY OF THE DOCUMENT NO.1182/1970 (EXT.A2).** ## **RESPONDENTS' ANNEXURE** **----------------------------------------** **NIL.** ## **/ TRUE COPY /** ## **P.S. TO JUDGE** ## **PJ** ## **P.B.SURESH KUMAR, J.** ## **= = = = = = = = = = = =** ## **R.S.A.No.866 of 2010.** ## **= = = = = = = = = = = =** Dated this the 11[th] day of February, 2016. **J U D G M E N T** The defendant in a suit for redemption is the appellant in this second appeal. 2. The suit property measuring 2 cents is part of a larger extent of 8 cents belonged to the family of one S.K.Nair. The said 8 cents of property was outstanding in a mortgage in favour of two persons namely, Padmavathy Amma and Parameswaran Pillai. Later, Chandrasekharan Nair, the predecessor-in-interest of the plaintiffs got the said mortgage assigned in his favour. Thereupon, Chandrasekharan Nair created a sub-mortgage in respect of the suit property in favour of the defendant on 7.5.1976. The suit was filed for redemption of the said sub-mortgage. 3. The defendant resisted the suit contending **RSA.No.866/2010.** 2 mainly that he is in possession of the suit property based on an oral lease granted by one of the earlier assignees of the mortgage namely, Bhaskara Pillai and that he is therefore entitled to fixity of tenure under the Kerala Land Reforms Act (hereinafter referred to as 'the Act' for short). On the basis of the said contention, the defendant sought a reference under Section 125(3) of the Act for deciding the issue of tenancy raised by him to the Land Tribunal concerned. I.A.No.5011 of 2000 was the application filed by the defendant for the said purpose. On the said application, the trial court initially made a reference of the issue raised by the defendant to the Land Tribunal. The said order was, however, challenged by the plaintiffs before this Court in CRP.No.2383 of 2000. This Court set aside the order passed by the trial court on I.A.No.5011 of 2000 and remitted the application for fresh consideration. Thereupon, I.A.No.5011 of 2000 was dismissed by the trial court holding that the issue of tenancy raised by the defendant based on the oral 3 ## **RSA.No.866/2010.** lease does not arise in the suit. The said order was though challenged by the defendant before this Court in CRP.No.1139 of 2003, this Court confirmed the decision of the trial court. 4. Thereupon, the suit was decreed by the trial court. Though the defendant took up the matter in appeal, the appellate court confirmed the decision of the trial court. Hence this second appeal by the defendant. 5. Heard the learned counsel for the appellant as also the learned counsel for the respondents/plaintiffs. 6. The learned counsel for the appellant, relying on Section 4A (1)(a) of the Act, contended that he is a deemed tenant under the said provision and that therefore he is entitled to fixity of tenure under the Act on that ground. According to the learned counsel, since the claim of the appellant under the said provision has not been considered by the courts below in the matter of rendering the impugned decisions, the suit has to be remitted to the **RSA.No.866/2010.** 4 trial court for _de novo_ consideration. 7. There is no substance in the contention raised by the learned counsel for the appellant. In the written statement filed by the defendant, the defendant has not raised the contention that he is a deemed tenant, as defined under Section 4A (1)(a) of the Act. On the other hand, what was claimed by him in the written statement was that he is holding the property under an oral lease from one of the assignees of the mortgage and therefore, he is entitled to fixity of tenure under the Act on that basis. In other words, fixity of tenure was not claimed by the defendant in the suit based on Section 4A (1)(a) of the Act, but based on an alleged oral lease granted to him by one of the predecessors of the plaintiffs. The suit being one instituted in the year 1998, it was open to the defendant to claim protection under Section 4A (1)(a) of the Act in the suit. As such, I am of the view that the defendant cannot be heard to contend that he is entitled to the protection of Section 4A **RSA.No.866/2010.** 5 (1)(a) of the Act and that therefore the suit has to be remitted for fresh decision on the said claim of the appellant. In so far as the defendant has not claimed the benefit of Section 4A (1)(a) of the Act at the appropriate stage before the trial court, I do not think that he can raise the said claim in a second appeal as the claim is barred by Explanation IV to Section 11 of the Code of Civil Procedure. 8. The learned counsel for the appellant contended that though the claim based on Section 4A (1)(a) of the Act was not raised by him before the courts below, he is entitled to raise such a claim in this second appeal. He relied on the decisions of this Court in _**Kaderkunhi Beary and others v. Kadre Beary and others**_ (AIR 1976 Kerala 92), _**Chathu Nair v. Chirutheyi Amma**_ (1985 KLT 164) and _**Haneefa v. Naina Mohammed Rowther**_ (1986 KLT (SN) Case No.98) in support of the said contention. I do not agree. Among the said decisions, _**Kaderkunhi Beary and others v. Kadre Beary and others**_ (supra) was a case **RSA.No.866/2010.** 6 where defendants became entitled to the benefits of Section 4A (1)(a) of the Act during the pendency of the second appeal in a suit for redemption. In the said circumstances, this Court took the view that the issue as to the entitlement of the benefits of Section 4A (1)(a) of the Act has to be decided by the court and for the said purpose, the matter was remitted to the trial court. The said decision has no application to the facts of the present case as the defence based on Section 4A(1)(a) of the Act was very much available to the defendant during the pendency of the suit itself. _**Haneefa v. Naina Mohammed Rowther**_ (supra) was a case where the claim under Section 4A (1)(a) of the Act raised by the defendant in the proceedings was turned down by the court as belated. The question considered in the said case was as to whether the said decision on the said claim would operate as _res judicata_ to raise the very same claim at a later stage of the proceedings. The said decision also may not be of any assistance to the defendant 7 ## **RSA.No.866/2010.** as the defendant who could have raised the said plea before the trial court deliberately did not raise the said plea. In _**Chathu Nair v. Chirutheyi Amma**_ (supra), the question considered was as to whether a party who had raised a claim for fixity of tenure and suffered an adverse order is entitled to raise the said claim again if the matter is remitted to the trial court for _de novo_ consideration. The said decision also, according to me, has no application to the facts of the present case. In the said view of the matter, there is no merit in the second appeal and the same is, accordingly, dismissed. All the interlocutory applications in the appeal are closed. _**Sd/-**_ **P.B.SURESH KUMAR,** **JUDGE.** _Kvs/-_ _// true copy //_ _PA TO JUDGE._