Chandra Gopi and Others v. U.K. Gopalakrishnan and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934 ## **C.R.P.No.728 of 2005** --------------------------------------- [AGAINST THE ORDER DATED 6.4.2005 IN A.A.No.27/2002 ON THE FILE OF THE APPELLATE AUTHORITY (LAND REFORMS), THRISSUR, WHICH ARISES FROM THE ORDER DATED 26.06.2002 IN S.M.NO.301/2000 ON THE FILE OF THE LAND TRIBUNAL, THRISSUR. ------------------ ## **REVISION PETITIONERS /** APPELLANTS:- ------------------------------------------------------------ 1. CHANDRA GOPI, S/O.ALUPARAMBIL RAMAN, - KUZHIKKATTUSSERI DESOM, THAZHEKAD, MUKUNDAPURAM. 2. OMANA RAMAKRISHNAN, EZHUVATHARA VEETTIL, MANAKULANGARA P.O., KODAKARA. 3. RAJESWARI CHANDRA GOPI, ALUPARAMBIL HOUSE, THAZHEKAD. 4. E.R. MURALEEDHARAN, EZHUVATHARA VEETTIL, MANAKULANGARA P.O., KODAKARA. 5. E.R. SHEELA, EZHUVATHARA VEETTIL, MANAKULANGARA P.O., KODAKARA. 6. E.R. SHEEJA, EZHUVATHARA VEETTIL, MANAKULANGARA P.O., KODAKARA. - BY ADVS.SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL. ## **RESPONDENTS /** RESPONDENTS:- -------------------------------------------------- 1. U.K.GOPALAKRISHNAN, S/O.KUNJAPPU, URUNDOLIL HOUSE, KODAKARA, - (PROPRIETOR, NEO SURGICAL, COMBATORE ROAD, PALAKKAD). C.R.P.No.728 OF 2005 - 2 - 2. U.K. KARUNAKARAN, S/O. KUNJAPPU, URUNDOLIL HOUSE, MANAKULANGARA P.O., KODAKARA. - 3. U.K. VIJAYAN, S/O. KUNJAPPU, URUNDOLIL HOUSE, MANAKULANGARA P.O., - KODAKARA (DIED - Lrs RECORDED). 4. THANKAMANI KUMARAN, D/O. KUNJAPPU, CHINNATH HOUSE, P.V. VARAKKARA, MANNAMPETTA. 5. AMBUJAKSHY PRABHAKARAN, D/O. KUNJAPPU, CHULLIPARAMBIL HOUSE, KANJANI. 6. LALITHA CHANDRAN, D/O. KUNJAPPU, CHULLIPARAMBIL HOUSE, KANJANI. 7. GANGADHARAN, S/O. KOCHUKUTTAN, CHERAMPARAMBIL HOUSE, P.O. MANAKULANGARA, KODAKARA. 8. VILASINI, D/O. KOCHUKUTTAN AND W/O. NARAYANAN, ANAKKATTIL HOUSE, P.O. EDATHIRINJI, - VIA. IRINJALAKUDA. 9. AMMINI, W/O. VIJAYAN, URUNDOLIL HOUSE, MANNAMPETTA, P.O. VARAKKARA, ALAGAPPANAGAR. 10. JAYA, D/O. AMMINI, URUNDILIL HOUSE, MANNAMPETTA, P.O. VARAKKARA, ALAGAPPANAGAR. 11. JISHA, D/O.AMMINI AND VIJAYAN, URUNDOLIL HOUSE, MANNAMPETTA, P.O. VARAKKARA ALAGAPPANAGAR. 12. JYOTHISH, S/O. AMMINI AND VIJAYAN, URUNDOLIL HOUSE, MANNAMPETTA, P.O. VARAKKARA ALAGAPPANAGAR. 13. RAJESH, S/O. AMMINI AND VIJAYAN, URUNDOLIL HOUSE, MANNAMPETTA, P.O. VARAKKARA ALAGAPPANAGAR. 14. VENUGOPALAN A.K., S/O. KUMARAN AND SAROJINI, AYYANCHIRA HOUSE, P.O. CHENGALLUR - VIA. PUDUKKAD. 15. ANIYAN. A.K., S/O. KUMARAN AND SAROJINI, AYYANCHIRA HOUSE, P.O. CHENGALLOOR, VIA. PUDUKAD. C.R.P.No.728 OF 2005 - 3 - 16. VALSALAN. A.K., S/O. KUMARAN AND SAROJINI, AYYANACHIRA HOUSE, P.O. CHENGALLOOR VIA PUDUKAD. 17. E.R. MADHUSOODHANAN, S/O. RAMAKRISHNAN, EZHUVATHARA VEETTIL, MANAKULANGARA, P.O. KODAKARA THRISSUR DISTRICT. - IT IS RECORDED THAT RESPONDENT NO.3 IS DEAD AND HIS LEGAL REPRESENTATIVES ARE ALREADY IN THE PARTY ARRAY AS RESPONDENTS 9 TO 13, VIDE ORDER DATED 14.11.2012 IN MEMO (cf.No.4843/12) IN C.R.P.NO.728/05. R1 BY ADVS. SRI.G.UNNIKRISHNAN R5 BY ADVS. SRI.T.H.ABDUL AZEEZ SRI.M.M.SALIM R2 , R4, R6, R9 TO R13 BY ADVS.SMT.ELIZABETH MATHAI IDICULLA SRI.MOHAN IDICULLA ABRAHAM SRI.MARTIN D.ALUMKARA SRI.RACHEL JOSEPH SMT.PUSHPY B.MURICKEN SRI.E.S.SIMON. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.11.2012, THE COURT ON 11-12-2012, PASSED THE FOLLOWING:- K. Vinod Chandran, J - - - - - - - - - - - - - - - - C.R.P.No.728 of 2005 - - - - - - - - - - - - - - - - Dated this the 11[th] day of December, 2012 ## **O R D E R** The assignees, of a 'tenant' who obtained purchase certificate, are in revision against concurrent findings. The path to this Court, as is usual in proceedings under the Kerala Land Reforms Act, 1963 (hereinafter referred to as “the Act”) was strewn with remand orders. Two persons, viz., Ramakrishnan and Chandra Gopi, obtained assignment of a total of 2.61 acres of land in Survey No.1496/2 and 3 of Kodakara Village from one Kunjappu. Kunjappu's legal heirs are respondents 1 to 6 and 9 to 13, who are the contesting respondents. 2. The brief facts are, that, Kandu, the original landlord, had allegedly leased out the said properties by an oral lease to his sister Kunhipennu (@ Kochupennu). Kunhipennu, by Exhibit B2 bearing No.200 of 1120 M.E., sold the lease hold rights to her daughter Kochuparu and her son-in-law Kunjappu jointly. Kunjappu, in 1959 by Exhibit A2 deed No.700 of 1959, executed a fresh lease (patta-seetu) to the landlord Kandu. Whether the said lease is a fresh one in his individual name or whether it is a continuation of the lease to Kunjappu and CRP.728 of 2005 - 2 - Kochuparu is essentially the question that has to be resolved in the above case. 3. Kandu sold his jenm rights to another relative, Kochukuttan by Exhibit A1 (24.04.1959) sale deed. Kunjappu, by Exhibit A3 application dated 23.03.1970 applied to the Land Tribunal, Kodakara for a purchase certificate basing his claim on Exhibit A2 lease. That was allowed by order dated 15.10.1971. On 13.12.1973, Kochuparu expired. Kunjappu obtained Exhibit A4 purchase certificate on 21.04.1974. By separate sale deeds, Exhibits A5 dated 22.12.1979 and Exhibit A18 dated 24.12.1979, 1.75 acres and 86 cents were respectively sold to Ramakrishnan and Chandra Gopi. 4. The legal heirs of Kochuparu approached the Appellate Authority (Land Reforms), Thrissur in A.A.No.278 of 1980, which allowed condonation of delay of about 9 years and remanded the case to the Land Tribunal. Since the assignees were not heard, they challenged that order in C.R.P.No.633 of 1985, wherein the Appellate Authority was directed to implead them and pass fresh orders. The Appellate Authority, in A.A.No.2 of 1987, passed a remand order dated 31.12.1987. Original Petition filed, as O.P.No.5775 of 1988, confirmed the remand. The proceedings CRP.728 of 2005 - 3 - were re-numbered before the Land Tribunal, Kodungallur and then transferred to the Land Tribunal, Thrissur. The _suo motu_ proceedings, numbered as S.M.301/2000, was allowed by the Land Tribunal. Kunjappu and Kochuparu were held to have joint tenancy and purchase certificate was directed to be issued in both their names. The Appellate Authority concurred with the view of the Land Tribunal. 5. The question as to what would be the effect of a purchase certificate granted under the KLR Act if the tenancy devolves on more than one person is no more _res integra_ . The certificate of purchase issued after determination under the provisions of the Act is undoubtedly conclusive proof under Section 72K of the Act and the purchase certificate would definitely inure to the benefit of all co-owners. I notice that in C.R.P.633 of 1985 filed by the assignees, this Court even at that stage, noticed the contention of the assignees that the purchase certificate issued to Kunjappu, in the facts of the case, can be challenged only by filing a suit in the civil Court, as held in _**Velappan v. Thomas,**_ **1979 KLT 412.** This Court, however, left it to be considered by the Appellate Authority. The Appellate Authority's remand order was challenged in O.P.No.5775 of 1988. Again it was noticed that the suit for CRP.728 of 2005 - 4 - partition was filed by certain legal heirs of Kunjappu and Kochuparu. The suit was decreed, however, subject to the result of the proceedings under the KLR Act. In the Original Petition also, this Court noticed the grievance of the assignees that the legal heirs of Kochuparu had no _locus standi_ and observed that the question could be agitated in the appeal, A.S.No.168 of 1989. On a reading of the appellate judgment dated 13.7.1998 of the I[st] Additional District Judge, Thrissur, it can be seen that the _locus standi_ was affirmed in so far as the plaintiffs were held to be entitled to succeed to Kochuparu's assets. However, the partition of the scheduled property was held to be subject to the ultimate decision in O.A.No.754 of 1970. I confess to a foreboding that the issue of implied surrender of lease would have been best left to the civil Courts. ## 6. In _**Kochu Lakshmi v. Velayudhan,**_ **1981 KLT 639,** the elder son of a cultivating tenant had obtained purchase certificate in his name and claimed exclusive rights under Section 72K of the Act. While reiterating the conclusive proof under Section 72K, this Court held that if there are other legal heirs, they would have the status of co-owners and the purchase certificate would inure to the benefit of all such co-owners. It was also laid down that CRP.728 of 2005 - 5 - the _inter se_ disputes among cultivating tenants, however, could not be decided by the Land Tribunal. This view was clarified in _**Paul v. State of Kerala & Another,**_ **1981 KLT 721,** by the very same Division Bench. Here, an Association and an individual; both obtained two separate purchase certificates with respect to the very same land. The Appellate Authority held that the individual was only an employee of the Association and the real tenant was the Association itself. It was clarified that in a proceeding before the Land Tribunal where there are rival claims as to tenancy, necessarily the Land Tribunal could only issue a purchase certificate to the claimant found to be a cultivating tenant under the Act. But, it was reiterated that if the tenancy devolves on more than one person and one of the co-heirs obtains a purchase certificate, it will inure to the benefit of the other co-heirs. 7. A later decision of this Court in _**Balakrishnan Nair v.**_ _**Radha Amma and Others,**_ **1987 (1) KLT 195,** followed the decision in _**Paul's case**_ ( _supra_ ). There the issue was whether an oral lease of certain items of property, was in favour of one of the defendants in his individual capacity or to the tavazhi tarwad of the plaintiffs and defendants. The Division Bench held that; that was an issue which ought to be referred to the Land Tribunal under Section CRP.728 of 2005 - 6 - 125(3) of the KLR Act. Despite the foreboding, I proceed to consider the issue placing reliance on _**Balakrishnan Nair**_ ( _supra_ ). 8. I have heard learned counsel Sri.P.Gopal appearing for the revision petitioners and the learned counsel appearing for the various respondents, viz., Sri.T.H.Abdul Azeez, Sri.Mohan Idiculla Abraham and Sri.G.Unnikrishnan. The contention of Sri.P.Gopal is that by Exhibit A2, Kunjappu had executed a fresh lease with the landlord and the subsequent conduct of Kochuparu would amply demonstrate the implied surrender of her leasehold rights. Till the issuance of the purchase certificate, or even afterwards, there was no challenge against the purchase certificate and the assignees were _bona fide_ purchasers. 9. The learned counsel places reliance on the decisions in _**Sulaikha Beevi v. K.C.Mathew,**_ **1997 (1) KLT 69** and _**Sulaikha Beevi v. Mathew,**_ **2001 (1) KLT 360,** to advance the contention that an implied surrender could be found from the conduct of persons. Challenging the finding of the lower authorities that Exhibit B1 mortgage executed by Kunjappu and Kochuparu together would establish continuance of joint tenancy, the decision in _**Sarojini v. Santha Trading Co.,**_ **1969 KLT 412,** was placed to urge that merely because a person was joined as a party in a document; that CRP.728 of 2005 - 7 - alone does not confer any right. _**Ammini & Others v. State of Kerala & Others,**_ **(2005) 9 SCC 588,** was relied on for the proposition that this Court, exercising jurisdiction under Section 103 of the Act, is quite competent to look into the evidence, since the question raised turns on misinterpretation of the documents, which has been held by the Supreme Court to be a question of law. 10. The learned counsel for the respondents would urge that a reading of Exhibit A2 does not lead to a conclusion that Kochuparu was divested of her rights. In fact, her participation in Exhibit B1 would show that all recognized her rights on the property too. Exhibit A2 does not at all efface the joint tenancy acquired by Exhibit B2 and that is re-affirmed by the execution of Exhibit B1 mortgage. 11. The controversy is in the narrow compass of the finding rendered by the Land Tribunal on an interpretation of Exhibit B1 document. The Appellate Authority too relies on Exhibit B1 document to uphold the findings of the Land Tribunal. While the case of the revision petitioners/assignees of Kunjappu was implied surrender of Kochuparu's rights, the Appellate Authority strangely and very surprisingly, held that no such implied surrender can be found in the absence of documentary evidence. The Appellate CRP.728 of 2005 - 8 - Authority also held that the Land Tribunal has considered all documentary and oral evidence to pass an order directing issuance of the purchase certificate in the joint names of Kunjappu and Kochuparu. What is then germane for consideration is the findings of the Land Tribunal. 12. Exhibits A1 to A19 were produced by the assignees of the 'tenant' before the Land Tribunal. The Land Tribunal held that the most important aspect in the case was that the property originally belonged to the ancestors of Kochuparu and that it was surprising to note that such ancestral property does not devolve into the hands of the legal heirs of Kochuparu. It is to be noticed that the said finding is on a total misunderstanding of the legal issues arising in the case. The Land Tribunal found that the suit for recovery of arrears of rent was against both the tenants and the suit was decreed and the rent amount paid and settled. The payment of pattom and tax relating to the property by Kunjappu was brushed aside as being the prevailing practise of the husband looking after the affairs of the wife. 13. Everything turns on the implied surrender of Kochuparu pleaded by the revision petitioners and stoutly resisted by the respondents. Exhibit B2 is the deed by which Kunhipennu CRP.728 of 2005 - 9 - sold her leasehold rights in the subject property to her daughter and son-in-law. The consideration was shown as Rs.300/- and was set off against the obligation of the vendees to look after the vendor during her life time and on her death to conduct the last rites. There can be no dispute that this was a document granting the leasehold rights of Kunhipennu jointly to Kochuparu and Kunjappu and this was executed on 13[th] Kanni, 1120 M.E. (1944-45). 14. In 1959, by Exhibit A2, Kunjappu executed a patta-seetu in favour of the landlord Kandu. Exhibit B2 document was specifically referred to therein and the factum of the joint holding of the husband and wife was also referred to. Exhibit A2 was the document evidencing lease by the landlord himself, to Kunjappu. In this context the contention of Ambujakshy (R-5) D/o.Kunjappu, who filed a separate appeal before the Appellate Authority assumes significance. She too claims under her mother, but on a prior document by which Kunhipennu came into ownership of the property, which later was assigned to Kandu. Her claim was not considered since the Appellate Authority was of the opinion that such an issue cannot be decided in the proceedings under the KLR Act. There is no revision from that order. However she specifically contented that the document executed by Kunhipennu (Exhibit B2) CRP.728 of 2005 - 10 - showed no valid consideration and that was a document appointing Kunjappu and Kochuparu as caretakers, and it has no effect after the death of Kunhipennu. 15. The landlord Kandu sold his jenm right to Kochukuttan by Exhibit A1 sale deed. Exhibit A1 sale deed of Kandu to Kochukuttan spoke of the lease subsisting in the name of Kunjappu. Subsequently, after the coming into force of the Act, Kunjappu filed Exhibit A3 application for assignment. Exhibit A3 application also, in column-2, raise the claim on the basis of Exhibit A2 and Kochukuttan, who was assignee of Kandu, was shown as the landlord at that point of time. Kunjappu also received Exhibit A4 purchase certificate from the Kodakara Land Tribunal. But that of course, would inure to the benefit of any co-owner. 16. Much reliance has been placed on Exhibit B1 mortgage to urge that, the fact that it was executed by Kunjappu and Kochuparu, would show that the joint tenancy was continued. Exhibit B1 was a mortgage with respect to certain 'kuri' transactions entered into by the 1[st] respondent herein, who was shown at No.5 in the said deed. 17. Primarily the question would be whether this Court, under Section 103 of the Act, would be competent to go into the CRP.728 of 2005 - 11 - facts and arrive at a different conclusion than that arrived at by the authorities under the Act; that too concurrently. The learned counsel would urge a remand, especially in the context of the observation of the Appellate Authority that there can be no implied surrender in the absence of documents. However the question would be as to the interpretation placed on Exhibit B1 document to hold that it is a clear pointer to the fact of continuance of joint tenancy by Kunjappu and Kochuparu. Whether that finding is on a misconstruction of the document, as held by the Supreme Court in **(2005) 9 SCC 588;** is definitely a question of law. This Court is competent to examine whether the document and the recitals therein were read and understood in the proper perspective and whether the inference drawn by the lower authorities were proper. 18. Exhibit B1, which created a mortgage, specifically noticed the earlier sale deed Exhibit B2, from which the contention of joint tenancy emanates and the later 'patta-seetu' (Exhibit A2). There is nothing specific in the recitals to infer that the parties intended to revert to and revive the joint tenancy in exhibit B2. The mentioning of the 'patta-seetu' would only lead to a conclusion that Kunhiparu had agreed to the surrender of joint tenancy and it does not militate against the creation of a fresh lease. **1969 KLT 412** CRP.728 of 2005 - 12 - was a case in which the title was with the wife as per a kanom deed and the recitals in a hypothecation bond executed by the husband and wife were pressed into service to contend that they had joint ownership. The recitals in the bond were to the effect that the property belonged to the husband and wife and they were in possession. Relying on _**Neelakantan Damodaran Namboodiri v. Velayudhan Pillai Narayana Pillai,**_ **AIR 1958 SC 832** (para 17), this Court held that a recital in confirmation of pre-existing rights in a person who had no such rights in fact, would not convey any rights in the property to him. 19. Exhibit B1 does not specifically establish any joint tenancy by its recital. The mentioning of the 'patta-seetu' which is later in time and the fact that the sons of Kunjappu were also joined in the mortgage deed only indicates the abundant caution employed by the Bank, to avoid any legal issues; in insisting upon the heirs of Kunjappu joining in the deed. Exhibit B1 also spoke of both Exhibits B2 and A2. This would indicate that Kochuparu as also her male children were aware of a fresh lease in favour of Kunjappu. Rather than finding that Exhibit B1 would indicate the continuance of the joint tenancy, this Court is of the opinion that the family had accepted the individual lease of the father from the CRP.728 of 2005 - 13 - landlord; by executing a fresh lease and offering a higher rent. 20. Subsequent to the said mortgage being executed, in 1967 the then landlord Kochukuttan had filed a suit against Kunjappu and Kochuparu for recovery of rent due with interest. The plaint produced as Exhibit A6 reveals that the suit was filed on the basis of Exhibit A2 patta-seetu. In fact, the pleadings in the plaint would clearly indicate that the landlord was claiming recovery of amounts from Kunjappu, the 1[st] defendant. It was also specifically averred in para 6 that the wife Kochuparu was impleaded as the 2[nd] defendant; only since she was residing along with the 1[st] defendant and for ensuring that no obstruction is caused, if eventually eviction had to be effected. The suit was decreed as having not been contested. However, what is relevant is that Exhibit A7 decree and Exhibit A8 judgment shows that notice was served on both the defendants. The 2[nd] defendant Kochuparu remained _ex parte_ . The 1[st] defendant Kunjappu appeared and submitted that he is not contesting the suit. The suit was hence decreed. This goes a long way in supporting the claim of the revision petitioners that there was an implied surrender in favour of the individual lease executed by Kunjappu. The understanding of the Tribunal that the suit for recovery of arrears of rent was against both the tenants, CRP.728 of 2005 - 14 - reveals the levity with which the evidence was scrutinized. 21. It is contended that since the relationship between the parties with respect to the property was not a subject matter of the suit, there can be no such inference drawn on the basis of the non-appearance of the 2[nd] defendant. But in the context of the over all circumstances, this assumes relevance in so far as an inference regarding implied surrender. Exhibits A9, A10 and A11 are the receipts issued by the landlord, Kochukuttan, for the rent received from Kunjappu. Exhibit A12 also is indicative of tax having been paid by Kunjappu. The application for purchase certificate was also made when Kochuparu was alive. However, before obtaining purchase certificate, Kochuparu passed away. 22. The parties have a case that relationships turned sour and trouble erupted with the second marriage of Kunjappu. The respondents, children of Kunjappu, also have a contention that apprehending sale of the properties covered by Exhibit A4 purchase certificate, they had published a public notice in a news paper cautioning any intending purchaser. The specific case was set up only to impress upon the authorities that all proceeded in the belief that they were eligible to succeed to the property through their deceased mother. But, the public notice being published in the CRP.728 of 2005 - 15 - newspaper remained a mere assertion. True, a suit for partition was filed in the year 1981, again long after the sale of the properties in 1979. Assuming for a moment that the children of Kochuparu had an apprehension that the property entitled to them would be sold by their father; then the better course would have been to file a suit for partition of the properties. There is also an allegation of undue coercion exerted by the assignees on Kunjappu. But again that remained a bald allegation. The learned counsel would urge that the low consideration itself would prove it. However nothing is on record to deduce the land value in the locality or the probable price the subject land would have fetched. 23. After the death of Kochuparu, it is discernible from Exhibit A13, a registered Will executed by Kunjappu on 20.10.1978 that he married again. By Exhibit A13, he divided his properties among his 2[nd] wife and his male children. The 1[st] respondent herein, Gopalakrishnan, who was bequeathed the 'D' schedule therein, was also burdened with an obligation of paying some amounts in cash to his female siblings. Exhibit A2 was specifically referred to in the Will and the charge created by Exhibit B1 also found a place in the will. It is not clear as to whether the respondents were aware of Exhibit A13. It is also not clear as to CRP.728 of 2005 - 16 - what transpired thereafter to prompt Kunjappu to forego the Will and execute Exhibits A5 and A18 conveying 86 cents of property to Chandra Gopi and 1.75 acres to Ramakrishnan by sale deeds dated 24.12.1979 and 22.12.1979 respectively. But, what is pertinent is, that, to necessitate conveyance; free of encumbrance, the charge created by Exhibit B1 was sought to be released. On 15.12.1979, the Bank, in favour of whom Exhibit B1 was executed, released the charge by Exhibit A15. Exhibit B1 was executed in favour of the Bank as security for kuri transactions entered into by the 1[st] respondent. It is definite that without the junction of the 1[st] defendant, with respect to whose chitty transactions the mortgage was created in the Bank, the release would not have been possible. The one other fact that assumes significance is Exhibit A19, receipts numbering three. Though for negligible amounts of Rs.15/-, Re.1/- and Rs.10/-, they are all relating to fees payable to the Trichur Urban Co-operative Bank Limited for execution of “ozhimuri”; ie: release of mortgage. The receipts issued by the Trichur Urban Co-operative Bank Limited bear the date 14.12.1979. Ozhimuri, Exhibit A15, was executed on the very next day, i.e., 15.12.1979. Very significantly it is to be noticed that the person who had deposited the money before the Bank in the name of Kunjappu CRP.728 of 2005 - 17 - is A.R.Chandra Gopi, the 1[st] revision petitioner herein and the vendee in Exhibit A18. It is also borne out from records that the vendee in Exhibit A5 is the father-in-law of Chandra Gopi. 24. From the totality of the circumstances, this Court is of the opinion that definitely the intention of the parties as discernible from the documents produced was that Kunjappu obtained a fresh lease in his favour from the landlord; with no obligation for rent on his wife. Exhibit A2 was executed in 1959 and the only intention that can be inferred was to terminate the earlier lease in the joint names of the husband and wife. It is also pertinent that Exhibit B2 executed in favour of the husband and wife was by the wife's mother, who herself had claim to the property by virtue only of an oral lease from the original landlord. While there was no whisper in Exhibit B2 document about the rent payable, Exhibit A2 specifically spoke of Rs.40/- per annum, including Rs.5.75, being panchayat cess. The total 'pattom' of Rs.34.25 was also payable in two half-yearly instalments. Exhibit A2 can be taken as demonstrating the intention of the parties to have terminated the earlier lease and the husband creating a new lease with obligation for rent as specified in Exhibit A2. Exhibit A2 has to be viewed in the context of Kunhipennu's death, as contended by Ambujakshy CRP.728 of 2005 - 18 - (R5); and the only inference is of a new lease entered into by Kunjappu with the landlord, Kandu. The receipts produced would also indicate Kunjappu having paid; rent to the landlord, as also tax. There can be no dispute that if it was a joint tenancy, irrespective of the fact that the husband alone acquired the purchase certificate, in his individual name; that would not disentitle the co-owner or such co-owner's legal heirs. 25. **1997 (1) KLT 69** was set aside by the Supreme Court in C.A.No.5616 of 1997 as has been noticed in **2001 (1) KLT 360;** which was the judgment, on remand. Hence, this Court is precluded from looking into 1997 (1) KLT 69, or drawing any support from it. But of the Division Bench's findings in 2001 (1) KLT 360 has to be viewed as a binding precedent. The claim of the tenant therein was under Section 106 of the Act, which was resisted by the landlord contending surrender of lease in 1962 and a fresh lease thereafter; which included the buildings thereon. Since the subsequent leases were by unregistered documents, the tenant contended that they were void and hence could not be looked into. Relying on _**Antony v. K.C.Ittoop & Sons & Ors.,**_ **(2000) 5 Supreme 172** and _**Neelakantan Sreedharan v. Subba Bhakthan Narayana Bhakthan,**_ **1975 KLT 128,** it was held that it CRP.728 of 2005 - 19 - could be looked into to understand the jural relationship between parties. _**Smt.Kamlabai & Ors. v. Mangilal dulichand Mantri,**_ **AIR 1988 SC 375,** and _**Konijeti Venkayya & Anr. v. Thammana Pada Venkata Subbarao,**_ **AIR 1957 SC 619,** were relied on to hold that implied surrender can be inferred from the conduct of parties. It is also useful to refer to _**P.M.C.Kunhiraman Nair v. C.R.Naganatha Iyer,**_ **(1992) 4 SCC 254,** wherein it was held that direction to the occupier to acknowledge the landlord as his landlord, i.e., to attorn to the landlord, is sufficient delivery of possession by the tenant to the landlord. Receipt of rent from a person in possession also was held to be evidence of the landlord's acceptance of him as tenant, whether he is a stranger, or whether he was already in possession as sub-tenant. 26. On the strength of the findings above, this Court has no hesitation to find that the finding of the Land Tribunal relying on the nature of the property being ancestral property and ignoring the payment of tax and rent by Kunjappu on the assumption of that being due to the normal practise of the husband managing the affairs of the family, are all irrelevant considerations in deciding the issue. The evidence on record does not satisfy this Court to hold that there was continuance of joint tenancy. The definite conclusion CRP.728 of 2005 - 20 - that can be arrived at, on an examination of the evidence, as found above, is that Kunjappu was the individual tenant of the properties from the date of Exhibit A2. Kochuparu's tacit consent to such change is also evident from the conduct as discernible from the materials produced in the case. Such an inference of implied surrender is sanctioned by Section 111(f) of the Transfer of Property Act, 1882 and affirmed by the decisions cited above. The Appellate Authority's finding that since there is no documentary evidence, there could not have been any implied surrender is not worth mentioning. The plea on behalf of the respondents that if this Court finds that there is no proper appreciation of evidence, the proper course would be to remand the matter, does not impress this Court. The contours of the jurisdiction conferred under Section 103 of the Act definitely restrains this Court from re-appreciation of evidence to come to a different finding from that of the lower authorities and holding the same to be a more reasonable conclusion. But, this Court, even within the jurisdiction conferred under Section 103 of the Act, is competent to look into whether there has been complete mis-appreciation of evidence and whether relevant aspects have been eschewed by the fact finding authorities in entering the findings; causing a total miscarriage of CRP.728 of 2005 - 21 - justice. The findings of the fact finding authorities reveal reliance placed on absolutely irrelevant materials and having ignored relevant factors plainly deductible from the materials on record. It is not as if this Court is re-appreciating the evidence to upset the findings of the fact finding authorities. This Court is of the opinion that a finding of joint tenancy does not at all emanate from the materials and the only conclusion possible is that Kunjappu had acquired a fresh tenancy individually by Exhibit A2. In such circumstance, the order of the Land Tribunal, as confirmed by the order of the Appellate Authority impugned in this revision, are set aside and the issuance of Exhibit A4 is confirmed. The Civil Revision Petition is allowed, reversing the concurrent findings of the Land Tribunal as confirmed by the Appellate Authority. The purchase certificate issued under Section 72K of the Act in the name of Kunjappu is not liable to be interfered with. The parties shall suffer their respective costs. vku/- Sd/K. Vinod Chandran, Judge - true copy -