Devassy v. Annamm and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934 RSA.NO. 485 OF 2005 ( ) ----------------------AS.92/2001 OF ADDITIONAL SUB COURT, IRINJALAKUDA OS.402/1983 OF ADDITIONAL MUNSIFF'S COURT, IRINJALAKUDA APPELLANT/APPELANT/2[ND] DEFENDANT: -------------------------------- DEVASSY, S/O.PYLOTH, ALUKKA HOUSE, KIZHAKKE CHALAKUDY VILLAGE, DESOM MUKUNDAPURAM TALUK. BY SENIOR ADVOCATE SHRI P.RAVINDRAN RESPONDENTS/RESPONDENTS/PLAINTIFF & 1[ST] DEFENDANT: ------------------------------------------------- 1. ANNAM, D/O.PYLOTH, ALUKKA HOUSE, KIZHAKKE CHALAKUDY VILLAGE, DESOM MUKUNDAPURAM TALUK. 2. MARIYAM, W/O.PYLOTH, ALUKKA HOUSE, KIZHAKKE CHALAKUDY VILLAGE, DESOM MUKUNDAPURAM TALUK. 3. ROSSY, D/O.PYLOTH, ALUKKA HOUSE, KIZHAKKE CHALAKUDY VILLAGE, DESOM MUKUNDAPURAM TALUK. 4. SISTER MARTHA, D/O.PYLOTH, ALUKKA HOUSE, KIZHAKKE CHALAKUDY VILLAGE, DESOM MUKUNDAPURAM TALUK. ADV. SRI.SREELAL N.WARRIER - FOR R1 ADV. SRI.THYPARAMBIL THOMAS THOMAS - FOR R2 & 3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2012 ALONG WITH RSA. 486/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. Nos.485 & 486 of 2005 -------------------------------------Dated this the 4[th] day of December, 2012.** ## **JUDGMENT** The following substantial questions of law are framed for a decision in these appeals: i. Whether on the facts and in the circumstances of the case, first appellate court was right in deciding the question of tenancy after holding that there is no finding by the Land Tribunal (for short, “the Tribunal”) as required by the provisions of the Kerala Land Reforms Act (for short, “the KLR Act”)? ii. In view of the specific directions in the judgment of this Court in S.A.No.397 of 1996 requiring the Tribunal to decide the question permitting the parties to adduce evidence on the claim of tenancy, was the first appellate court right in not requiring the Tribunal to decide the question of tenancy as ordered in S.A.No.397 of 1996? iii. Was the first appellate court right in deciding the question of tenancy when there is a clear ouster of jurisdiction of the civil court? 2 RSA Nos.485 & 486 of 2005 2. These appeals arise from the common judgment and decree of the Additional Sub Court, Irinjalakuda in A.S.Nos.92 of 2001 and 90 of 2001 respectively, which in turn arose from the common judgment and decree of the Additional Munsiff's Court, Irinjalakuda in O.S.Nos.402 of 1983 and 528 of 1982, respectively. R.S.A.No.485 of 2005 is preferred by the 1[st] defendant in O.S.No.528 of 1982. He is the plaintiff in O.S.No.528 of 1982 and has preferred R.S.A.No.486 of 2005. The parties are referred as plaintiff and defendants as in O.S.No.402 of 1983 for easy reference. 3. O.S.No.402 of 1983 is for partition of item Nos. 1 and 2. The plaintiff and defendants are the children of Pyloth, who died on 28.09.1978. The plaintiff says that item Nos.1 and 2 were acquired by the said Pyloth on lease and on the death of Pyloth, the said properties devolved on the plaintiff and the defendants. Claiming that the plaintiff is in joint possession of the properties with the defendants, she asked for partition and separate possession of her share. 4. Defendant No. 2 onwards are not resisting the suit. The 1[st] defendant, only son of the late Pyloth while admitting that item No.2 of the plaint schedule in O.S.No.402 of 1983 was taken on lease by the late Pyloth and hence that item is partiable, resisted partition of item No.1 denying that the said item was taken on lease by the late Pyloth. He claimed that the said item was taken on lease by Vareed, brother of the late Pyloth (paternal uncle of the 1[st] 3 RSA Nos.485 & 486 of 2005 defendant). Vareed transferred his lease hold right to Pyloth. Pyloth defaulted payment of rent. Hence the tenancy in favour of Pyloth was terminated. Later, Vareed took item No.1 on lease on behalf of the 1[st] defendant. Thus, the 1[st] defendant claimed to be the cultivating tenant of item No.1 5. Claiming absolute right over item No.1 as above stated, the 1[st] defendant filed O.S.No.528 of 1982 against the plaintiff and others for a decree for prohibitory injunction against trespassing into item No.1. There, the plaintiff as a defendant has raised the same contention as in the plaint in O.S.No.402 of 1983. 6. The trial court initially decreed O.S.No.402 of 1983 in part granting partition of item No.2 alone. The prayer for partition of item No.1 was disallowed. O.S.No.528 of 1982 which concerned item No.1 in O.S.No.402 of 1983 was decreed. 7. The plaintiff filed A.S.Nos.43 and 44 of 1986 against that common judgment and decree. The appeals were allowed. O.S.No.402 of 1983 was decreed in full. O.S.No.528 of 1982 was dismissed. 8. Against that common judgment and decree of the first appellate court, the 1[st] defendant filed S.A.Nos.897 of 1996 and 1017 of 1997. This Court disposed of the second appeals as per common judgment dated 04.08.1999. This Court observed that since the dispute over item No.1 related to rival 4 RSA Nos.485 & 486 of 2005 claims of tenancy, that issue ought to have been referred to the Tribunal under Sec.125(3) of the KLR Act. Accordingly, judgment and decree of the first appellate and trial courts were set aside and the suits were remitted to the trial court with a direction to refer the issue regarding tenancy to the Tribunal for a decision. 9. Pursuant to that direction, the issue regarding tenancy was referred to the Tribunal. The Tribunal took the reference on file as R.C.No.1 of 2000. The Tribunal by its order dated 22.03.2001 observed that a perusal of the jenm assignment deed No.1289 of 1971 in favour of the 1[st] defendant (marked as Ext.B1 in the trial court) would show that there was a direct tenancy of item No.1 in favour of the 1[st] defendant and that item No.1 (1.48 acres in survey No.31/1) obtained by the 1[st] defendant as per pattom arrangement with the Kodassery Vadakke Madom and the jenm right of which he purchased as per Ext.B1, assignment deed No.1289 of 1971 was not partiable. 10. The learned Munsiff, bound by the finding of the Tribunal regarding tenancy granted decree in O.S.No.402 of 1983 to the extent it related to partition of item No.2. O.S.No.528 of 1982 was decreed granting prohibitory injunction concerning item No.1 in favour of the 1[st] defendant. 11. The plaintiff again challenged that common judgment and decree of the trial court in A.S.Nos.92 of 2001 and 90 of 2001 respectively. The first appellate court after assessment of the evidence came to the conclusion that the 5 RSA Nos.485 & 486 of 2005 finding of the Tribunal is erroneous, found that there is no evidence to show that the 1[st] defendant was the cultivating tenant of item No.1 and that the preponderance of probability is in favour of truth of the case pleaded by the plaintiff. Accordingly, in O.S.No.402 of 1983 a preliminary decree for partition was passed with respect to item No.1 as well. Consequence was dismissal of O.S.No.528 of 1982. Thus, these second appeals at the instance of the 1[st] defendant. 12. The learned counsel for the appellant/1[st] defendant has contended that finding of the first appellate court as regards tenancy is erroneous. It is pointed out by the learned counsel that it is without notice to the 1[st] defendant that the Tribunal has answered the reference. Thus the 1[st] defendant was deprived of an opportunity to adduce evidence in the reference before the Tribunal in support of his claim of tenancy over item No.1. It is also contended by the learned counsel that at any rate, finding of the first appellate court based on preponderance of probability is unacceptable on the face of Ext.B1, assignment deed No.1289 of 1971. It is pointed out that notwithstanding the validity or otherwise of Ext.B1, that document would indicate that the 1[st] defendant has acquired tenancy right over item No.1 which the first appellate court ought to have taken into account. It is also contended that at any rate, the 1[st] defendant is entitled to the protection of Sec.7E of the KLR Act. The learned counsel 6 RSA Nos.485 & 486 of 2005 requested that judgment and decree of the courts below be set aside and the matter be remitted to the trial court with a direction to refer the issue regarding tenancy to the Tribunal for a decision after notice to the all parties. 13. The learned counsel for the plaintiff has contended that the plaintiff, now aged 69 years, a spinster is nowhere and is living like an orphan as she has no shelter. It is contended that though Sec.125(1) of the KLR Act debars the trial court from deciding the issue regarding tenancy, that provision does not apply to the appellate court. The first appellate court on the evidence is competent to decide the issue regarding tenancy. Pursuant to that right, the first appellate court has considered the evidence and held that preponderance of probability is in favour of truth of the case pleaded by the plaintiff concerning tenancy over item No.1 of the plaint schedule in O.S.No.402 of 1983. According to the learned counsel, Ext.B1 is void and is of no consequence. It is also contended that even on the plea raised by the 1[st] defendant, there is no possibility of the 1[st] defendant adducing any evidence regarding the claim of tenancy set up by him and in the circumstances a remand of the case again would only be an empty formality and so far as the plaintiff who has nobody to fall back upon is concerned, it will be a great ordeal. 14. The bar of deciding issue regarding tenancy under Sec.125 of the KLR Act is on the trial court. It is within the power of the appellate court to decide the question of tenancy based on the evidence even without a reference 7 RSA Nos.485 & 486 of 2005 and also consider correctness of the decision rendered by the Tribunal on reference (see **Gnanamoni Rosamma v. Thankappan Nair (1989 (2) KLJ 212)** and **Ponnammal v. Gomez (1991 (1) KLT 901)** . 15. I have gone through the copy of order dated 22.03.2001 in R.C.No.1 of 2000 rendered by the Tribunal. The Tribunal has observed that notices issued to the plaintiff and the 1[st] defendant were returned with the endorsement 'not known'. Advocate Gopinath (obviously representing the plaintiff) was present and filed argument note. The Tribunal has referred to Ext.B1, assignment deed No.1289 of 1971 to hold that the 1[st] defendant is the tenant of item No.1. 16. No doubt, the reference order would show that the 1[st] defendant had no notice about the proceeding before the Tribunal. But I must notice that the 1[st] defendant was aware that the trial court had referred the issue of tenancy to the Tribunal. The 1[st] defendant was examined as DW1 in the trial court. He has produced Exts.B1 to B3 series. Ext.B1 is assignment deed No.1289 of 1971 dated 21.07.1971 allegedly executed from the jenmi family in favour of the 1[st] defendant. Thereunder the jenm right was allegedly assigned in favour of the appellant But, I must notice that as per the provisions of the KLR Act, the landlord's right vested with the Government on 01.01.1970. Hence after 01.01.1970, the jenm right did not remain with the landlord. The right available to the landlord after 01.01.1970 was only a right to get compensation on 8 RSA Nos.485 & 486 of 2005 assignment of jenm right to the cultivating tenant. Therefore, the landlord had no right to execute Ext.B1, assignment deed on 21.07.1971 even concerning the jenm right over item No.1. 17. Ext.B2 is the purchase certificate obtained in the name of the 1[st] defendant on 10.10.1975, admittedly concerning item No.2 which is a paddy land. As aforesaid, that item No.2 was acquired on lease by the late Pyloth and that the said item is partiable is not disputed by the 1[st] defendant also. In evidence, the 1[st] defendant as DW1 conceded that since Pyloth (father) was sick, Ext.B2 , purchase certificate happened to be obtained in his name. Pyloth died on 28.09.1978 (Ext.B2 was issued on 10.10.1975). Therefore it is clear that during the time Ext.B2, purchase certificate was obtained in the name of the 1[st] defendant on 10.10.1975 and possibly thereafter Pyloth was bedridden and unable to move about. 18. As per the claim made by the 1[st] defendant, item No.1 was originally taken on lease by Vareed, brother of the late Pyloth. Vareed assigned his right to Pyloth. As Pyloth defaulted payment of rent, the tenancy in his favour was terminated and later, Vareed took item No.1 on lease on behalf of the 1[st] defendant. The 1[st] defendant would say that Vareed took item No.1 on lease on his behalf about 45 years back (of the starting of the litigation in the year, 1982) It is interesting to note that in Ext.B1 of the year, 1971 the age of the 1[st] defendant is stated as 35 years which means that in the year, 1982, he was 9 RSA Nos.485 & 486 of 2005 aged 46 years. If the contention of the 1[st] defendant in the year, 1982 that Vareed had taken item No.1 on lease on his behalf 45 years back were to be accepted, it would mean that Vareed had taken the lease in the name of the 1[st] defendant at a time when the latter was aged one year. The 1[st] defendant stated as DW1 that his paternal uncle (Vareed) obtained lease of item No.1 on his behalf when he was aged 5-6 years. 19. Obviously to give acceptability to the claim of 1[st] defendant that at such a tender age a lease was obtained in his name, he claimed in the written statement in O.S.No.402 of 1983 that his father had disposed of certain items and hence the lease of item No.1 was taken in his name. However, the 1[st] defendant was not able to substantiate that plea in the course of his cross examination as DW1. Therefore the explanation offered by the 1[st] defendant for taking lease of item No.1 in his name at a time when he was aged one year or as he claims, aged 5-6 years is not acceptable. If that be so, it is difficult to believe that at a time when the 1[st] defendant was aged one year or 5-6 years, a lease was obtained by his paternal uncle in his name. 20. A further fact I must notice is that whatever the 1[st] defendant has stated in his evidence concerning the lease in his favour and termination of lease in the name of his father, Pyloth are informations which he claims to have collected from Vareed. There is no evidence let in by the 1[st] defendant even in 10 RSA Nos.485 & 486 of 2005 the trial court as regards his claim of tenancy. I must also notice that under Sec.125(3) of the KLR Act, it is only when a question of tenancy 'arises' and not when it is 'raised' that it is required to be referred to the Tribunal. 21. The 1[st] defendant has stated that there is no evidence to show that he ever paid rent to the jenmi (at least after he became a major). I stated that the 1[st] defendant was aged 46 years at the time the litigation started in the year, 1982. At least until 01.01.1970 the 1[st] defendant had the obligation to pay rent to the jenmi. There is no evidence to show that there was any such payment to the jenmi. 22. A further circumstance which looms large on the case pleaded by the 1[st] defendant is Exts.A7 to A9, the extract of building tax assessment registers produced by the plaintiff. Exts.A7 to A9 are for the period from 1971 to 1994. Admittedly in Exts.A7 to A9, the building (situated in item No.1 of the plaint schedule) is assessed in the name of Pyloth, father of the plaintiff and the defendants. The 1[st] defendant has no case that he allowed the father, Pyloth to construct a building in item No.1 and thus the building happened to be assessed in the name of the father. Nor is there reason to think so. Therefore, when Pyloth constructed a building in item No.1, I am inclined to think in the absence of other evidence that he constructed it as item No.1 belonged to him. 11 RSA Nos.485 & 486 of 2005 23. Connected with that, there is evidence of the 1[st] defendant as DW1 that in spite of the alleged termination of the lease in favour of Pyloth (consequent to the alleged default in payment of rent) Pyloth continued in possession and enjoyment of item No.1 and that the Pyloth was not dispossessed from that property. It was suggested to the 1[st] defendant in the course of cross examination that even before his birth, Pyloth was residing in the building in item No.1. True, he denied. But it is interesting to note that the 1[st] defendant did not say where else his father was residing at the time of his birth, before and after that. These circumstances also indicate that Pyloth was in possession and enjoyment of item No.1 even prior to the birth of the 1[st] defendant as a tenant of that item. 24. Ext.A4 is another document which is relied on by the plaintiff. That is a karar executed on 01.08.1982 between the plaintiff, 1[st] defendant and others. According to the plaintiff, that karar was not put into effect since one of the legal heirs of Pyloth had not been signatory to Ext.A4. 25. What is stated in Ext.A4 is that the 1[st] defendant would execute a gift deed in favour of the plaintiff concerning a portion of item No.1. I went through Ext.A4 and no where, there is any reference to the tenancy right in favour of the 1[st] defendant. 12 RSA Nos.485 & 486 of 2005 26. Assuming that since in Ext.A4 it is stated that the 1[st] defendant is to execute a gift deed in favour of the plaintiff, the 1[st] defendant was the owner of the property, it is not as if the 1[st] defendant is relying on Ext.A4. Instead, he is trying to avoid Ext.A4 on the ground that Ext.A4 was got executed by two congress men and that at the time when his signature was obtained in Ext.A4, it was not read over and explained to him. It is not a case where the 1[st] defendant is relying on Ext.A4 to contend that he has title over item No.1. Hence the 1[st] defendant cannot fall back on Ext.A4. 27. The evidence on record is consistant with the contention of the plaintiff that lease of item No.1 was in favour of the late Pyloth and on his death, that leasehold right devolved on on all his legal heirs. It is in the above circumstances that the first appellate court has decided the issue regarding tenancy as pleaded by the plaintiff based on preponderance of probability. This being a civil action, a decision based on preponderance of probability is permissible. 28. The learned counsel for the 1[st] defendant when faced with the above situation, has raised a contention that the 1[st] defendant is entitled to the protection of Sec.7E of the KLR Act. That contention cannot be accepted since when a person has set up a specific lease and fails in that, he cannot turn round and claim deemed tenancy, as held in **M.T.Mathew v. State of Kerala and another (1989 (2) KLJ 77)** . 13 RSA Nos.485 & 486 of 2005 29. In the above backdrop, I am inclined to think that a remand of the case to the trial court again, with a direction to refer the issue regarding tenancy to the Tribunal for a decision would be an empty formality and having regard to the circumstances of the plaintiff as reported by the counsel, it will be a great ordeal for her. Therefore the request for remand cannot be allowed. 30. The learned counsel for the plaintiff submits that apart from the plaintiff and the 1[st] defendant, other sharers are not likely to press their claim for a share in item Nos.1 and 2. It is submitted by the learned counsel that the plaintiff will be satisfied if she gets 35 cents out of item No.1 (apart from the share she is entitled to get in item No.2). It is also submitted by the learned counsel that if the 1[st] defendant and other sharers are agreeable, in the interest of rebuilding relationship between the parties, it is possible to arrive at a settlement in that line. The submission made by the learned counsel on behalf of the plaintiff is appreciated. I wish, wisdom would dawn on the parties at least at this belated stage. 31. I make it clear that it will be open to the parties to think of such a course of action even in the final decree proceeding. If the parties are able to settle the dispute in the final decree, let the trial court pass a final decree based on the settlement. 32. The substantial questions of law framed are answered accordingly. 14 RSA Nos.485 & 486 of 2005 Resultantly, 1. The second appeals fail and are accordingly dismissed. 2. Parties shall suffer their costs. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**