Edakkayil Chandukutty Nair v. T. Narayanan Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 12TH DAY OF AUGUST 2016/21ST SRAVANA, 1938 RSA.No. 591 of 2006 (D) -----------------------AGAINST THE JUDGMENT AND DECREE IN AS NO. 196/2004 of DISTRICT COURT,THALASSERY DATED 08-04-2005 AGAINST THE JUDGMENT AND DECREE IN OS NO. 296/1996 of MUNSIFF COURT, THALASSERY DATED 07.07.2004 APPELLANT/APPELLANT/PLAINTIFF: --------------------------------- EDAKKAYIL CHANDUKUTTY NAIR, S/O.LATE KUNHAMBU NAIR, AGED 65 YEARS, RESIDING AT SREYAS, KADAMBUR AMSOM DESOM, P.O. EDAKKAD, KANNUR. BY ADVS.SRI.K.R.AVINASH SRI.ABDUL RAOOF P. RESPONDENT/RESPONDENT/DEFENDANT: ------------------------SRI.T.NARAYANAN NAIR S/O. RAMAN NAIR, AGED 62 YEARS, BUS OWNER, RESIDING AT `RAMALAYAM', CHALA EAST, KANNUR DT. BY ADV. SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) BY ADV. SRI.K.JAYAKUMAR (SENIOR ADVOCATE) BY ADV. SRI.P.B.KRISHNAN BY ADV. SRI.HARISH R. MENON BY ADV. SRI.R.SURAJ KUMAR BY ADV. SMT.GEETHA P.MENON THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.08.2016, THE COURT ON 12-08-2016 DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------R.S.A. No.591 of 2006 -------------------------------------Dated this the 12[th] day of August, 2016** ## **JUDGMENT** This second appeal is filed by the plaintiff in O.S.No.296 of 1996 on the file of the Court of Munsiff, Thalassery. The suit is one for declaration that plaint B schedule property and the school building thereon belongs to the plaintiff as absolute owner and also for a prohibitory injunction restraining the defendants from doing any act in the building situated in plaint B schedule property. The parties are hereinafter referred to as the “plaintiff” and “defendant” for the sake of clarity and convenience. 2. Bare minimum facts required for the disposal of the appeal are as follows: Plaint A schedule property is the total property obtained by the plaintiff by virtue of a partition deed (Ext.A1). That was executed in the year 1985. Plaint B schedule property is that part of plaint A schedule property, wherein a school building is situated. Plaint A schedule property is having an extent of 56 cents, which consists of the school building, a house and a well. The entire property belonged to Edakkayil Kalliyani Amma, mother of the plaintiff. She obtained the property as per Ext.A2 document in the year 1929. At that time there was no school building in the property. The building was constructed by Kalliyani Amma’s father and the school was established in 1929-30. The school was being looked after and managed 2 RSA No.591/2006 by one Chandhu Nair (Kalliyani Amma’s father-in-law) for and on behalf of Kalliyani Amma. Ownership of the property, school building, house and other structures was in the name of Kalliyani Amma. After Ext.A1 partition, the plaintiff became the owner of the property and the structures thereon. The school is an aided school, to be managed under the provisions of the Kerala Education Act and the Rules. Plaintiff has stated in the plaint that he would be taking appropriate steps to resolve the dispute regarding the management. 3. Plaint B schedule property is a portion of plaint A schedule property measuring about 2.75 cents with a school building included. The defendant is a stranger and he has no right, title or possession either over plaint A schedule property or over B schedule property and the building thereon. The defendant for the first time presented two documents before the authority concerned and claimed a right over B schedule property. Therefore, the plaintiff was constrained to file this suit for declaration and injunction. 4. Defendant filed a written statement contending that the plaintiff has no title over plaint B schedule property or over the building situated in B schedule property. He never exercised any act of possession over plaint B schedule property. Edakkayil Kalliyani Amma (mother of the plaintiff) had jenm right over a larger extent of property. One Marangalath Appa 3 RSA No.591/2006 Nair obtained an oral lease of plaint B schedule property on an yearly purappad of Rs.1.50. The property taken on lease was having a measurement of 26 **½** (east-west) x 8¼ (north-south) carpenter koles. Thereafter said Appa Nair, spending his own money, constructed a school building. He became the founder Manager of the school. Edakkayil Kalliyani Amma had no connection with the school. She did not construct any building. Kadambur Devi Vilasam Girls High School was managed by Appa Nair. Thereafter in 1938, as per Ext.B1, Appa Nair sold the entire interest in respect of the school and the premises to Puthenveettil Kunhiraman Nair and Marangalath Raman Nair. Both of them were teachers in the school. Kunhiraman Nair is the paternal uncle of the plaintiff. Initially, Raman Nair was managing the school. He was also functioning as Head Master of the school. Sometime in 1943, Kunhiraman Nair became the Manager and he managed the school till 1988. By virtue of Ext.B2 in the year 1988, he made over his entire rights in respect of the school and premises to the defendant. Raman Nair died in the year 1987. The defendant is the son of Raman Nair. By virtue of a release deed (Ext.B3), entire rights devolved on the defendant. The defendant is the present owner and he is in exclusive possession of the same. 5. By virtue of Ext.B2, permission was sought by Kunhiraman Nair and the defendant along with other legal representatives of deceased 4 RSA No.591/2006 Raman Nair to transfer the management in favour of the defendant involving a transfer of ownership. All the relevant documents were produced before the Director of Public Instructions. Accordingly, on 07.11.95 permission was granted for transfer of the management involving change of ownership. According to the defendant, plaint B schedule property belonged to him exclusively. The plaintiff is not entitled to any declaration prayed for. The property was outstanding on lease eversince 1929. The defendants derived tenancy rights in respect of plaint schedule properties. The question of tenancy was required to be referred to the competent Land Tribunal for adjudication. Alternatively, it was contended that the defendant has prescribed title by adverse possession and limitation. 6. On the basis of these pleadings, the trial court framed issues. But strangely no issue regarding the claim of tenancy raised by the defendant was framed by the trial court. However, records show that a reference was made under Section 125(3) of the Kerala Land Reforms Act, 1963 (in short, “KLR Act”) to the Land Tribunal concerned. Land Tribunal returned the finding stating that the defendant was entitled to fixity of tenure. On the basis of that finding, the trial court dismissed the suit. 7. The matter was taken up in appeal before the lower appellate court. On an elaborate consideration of the oral and documentary 5 RSA No.591/2006 evidence the lower appellate court agreed with the finding of the trial court and dismissed the appeal. Aggrieved by the concurrent finding the plaintiff has come up in this second appeal. 8. Heard the learned counsel for the appellant/plaintiff and the respondent/defendant. 9. The substantial question of law arising for determination after re-framing are as follows: (i) Whether the courts below are legally correct in holding that the tenancy claimed by the defendant in respect of plaint B schedule property has been established? (ii) Whether the plaintiff is entitled to get a declaration and consequential injunction in respect of plaint B schedule property admittedly when there is an aided school functioning? 10. Learned counsel for the appellant/plaintiff contended that the courts below fell in error in not considering the inherent improbability of the defendant's case. Admittedly, the plaintiff's predecessor-in-title, Kalliyani Amma, purchased larger extent of property as per Ext.A2 deed in the year 1929. Common case of the parties is that at the time of Ext.A2, there was no school building. The defendant would contend that after Ext.A2, purchase Appa Nair took an oral lease of an extent of property fixing an yearly purappad of `1.50 and its measurement was 26½ x 8¼ carpenter 6 RSA No.591/2006 koles. It is the case that he established the school in the premises. Later it became an aided school under the provisions of the Kerala Education Act and the Rules. The defendant appears to have risen a claim in respect of a larger extent (7½ cents) contending that the school premises has expanded to a wider area surrounding the building. That is described in the plaint B schedule. The defendant further contended that in the year 1938, as per Ext.B1, Appa Nair assigned his tenancy right in respect of the school premises to Kunhiraman Nair and Raman Nair. Both of them were teachers in the school. Sometime in 1943, Kunhiraman Nair became the Manager and he managed the school till 1988. As per Ext.B2 Kunhiraman Nair released his rights in favour of the defendant. The defendant is the son of Raman Nair. Raman Nair died in the year 1987. All the legal heirs of deceased Raman Nair released their rights to the defendant as per Ext.B3 document. According to the defendant, he is the owner of the school and its premises and is exclusively entitled to manage the school and also to posses the same. 11. Learned counsel for the defendant contended that the courts below correctly analysed the evidence and found that the plaintiff failed to prove any right to claim a declaratory and consequential injunction reliefs. According to the learned counsel for the defendant, the frame of the suit itself is bad. It is contended that the question of tenancy claimed by the 7 RSA No.591/2006 defendant was referred to the Land Tribunal concerned for determination under Section 125(3) of the KLR Act. That reference was answered in favour of the defendant. Learned counsel for the defendant further contended that in the light of the finding that the defendant's predecessorsin-title and thereafter the defendant has obtained a valid tenancy would destabilize the plaintiff's case. This fundamental fact would show that the plaintiff is not entitled to get any declaration and consequential reliefs. 12. Per contra, learned counsel for the plaintiff contended that the finding of the Land Tribunal is perverse and without appreciating the evidence properly. According to him, no document was produced to probabilise the tenancy in favour of the defendant and his predecessors-intitle. 13. Ext.B1 is a document of the year 1938. It is to be noticed that this document came into existence at a time when the KLR Act was not even in the contemplation of the Government. It may be idle to contend that the recitals in Ext.B1 were made with a forethought that it could be used at a future point of time. It clearly spells out a tenancy with respect to a certain piece of land, obtained by Appa Nair from Kalliyani Amma. It is true that there is no direct evidence to hold that Kalliyani Amma created a tenancy in favour of Appa Nair in the year 1929. But, the probabilities in the case indicate the fact that plaint B schedule property was outstanding 8 RSA No.591/2006 in the possession of Appa Nair and by subsequent assignments, with the defendant. 14. Learned counsel for the defendant relied on Ext.X4 service book, which was produced before the Land Tribunal when the matter was pending before it. It would indicate that even on 01.12.1949 Raman Nair and Kunhiraman Nair were managing the school. Ext.X4 service book would reveal that brother of the plaintiff was working in the school. In 1976, Kunhiraman Nair became the manager of the school and later as per Ext.B4 order passed by the Assistant Educational Officer, Kannur South, the right of management involving change of ownership in respect of the school in plaint B schedule property was transferred to the defendant by invoking power under Rule 4(1) of Chapter III of the Kerala Education Rules. These documents probabilise the defendant's case. 15. Another contention raised by the plaintiff is that the finding of the Land Tribunal that the defendant's predecessors-in-title and by assignment the defendant have became tenants entitled to fixity of tenure is unsustainable. In this context, the definitions of “tenant” in Section 2(57) and “cultivating tenant” in Section 2(8) of the KLR Act are relevant. Section 2(8) of the KLR Act defines “cultivating tenant” as a person who is in actual possession of and is entitled to cultivate the land comprised in his holding. Whereas “tenant” under Section 2(57) of the KLR Act means any person 9 RSA No.591/2006 who has paid or has agreed to pay rent or other consideration for his being allowed to possess and enjoy any land by a person entitled to lease and it includes the heir, assignee or legal representative of such a person, an intermediary, a kanamdar, et al. Section 13 of the KLR Act guarantees a fixity of tenure for every tenant in respect of his holding. But it is to be noticed that a right to purchase jenm right of tenanted property under Section 72B of the KLR Act enures to the benefit of a cultivating tenant only. 16. Learned counsel for the defendant relied on the decision of this Court in **Purushotham G.Plywood Co. v. Hamsa Kutty (1992 (2) KLT** **756)** to contend that the lease claimed by the defendant is not taken out of the protection provided under Section 13 of the KLR Act. The following principle from the decision is extracted hereunder: _“Section 13 of the Act does not use the expression ‘cultivating tenant’. It throws the mantle of protection on a tenant. Moreover a cultivating tenant as defined in S.2(8) of the Act means a tenant who is in actual possession of the land and is entitled to cultivate the land. It must be noted that the definition in S.2(8) does not confine the status to a person who continues to cultivate the land or who is actually cultivating the land. All that it contemplates is that he must be entitled to cultivate the land. There is nothing in Ext.A1 which_ 10 RSA No.591/2006 _disentitles the lessee from cultivating the land. The lessee in this case would even satisfy the definition of a cultivating tenant under S.2(8) of the Act. There is nothing in the Act, unless it be one of those cases covered by the exemption contained in S.3(l) of the Act which insists on the user of the land solely for agricultural purpose before the lessee of that land could qualify for protection under S.13 of the Act. The applicability of the Act cannot be confined to lands used for agriculture alone. The land involved in this case was part of agricultural lands at the time of Ext. Al demise in the year 1959. The fact that the lessee subsequently did not put it to agricultural use but used it as a way to go to his commercial establishment would not take the land demised out of operation of the Act.”_ 17. Learned counsel for the defendant argued that in the light of the ratio in **Venkataraja v. Vidyane Doureradjaperumal ((2014) 14 SCC 502)** the suit is not maintainable because in the suit for a declaratory relief proper consequential relief is not claimed, so that the suit becomes nonmaintainable. It is well established that the defendant is in possession of the school building and the premises. Therefore, it is contended that the suit should have been one for declaration and recovery of possession, although the fact remains that in the light of the facts and circumstances of this case, even such a suit may not be maintainable. But, the form of the 11 RSA No.591/2006 suit is not proper, so much so, no relief can be granted to the plaintiff. It is true that the plaint proceeds on the assumption that the plaintiff is in possession of the property. Documents show otherwise. Therefore, the suit is nothing but a misadventure. 18. Another difficulty faced by the plaintiff is regarding the provisions in the Kerala Education Act and Kerala Education Rules. Section 7 of the Kerala Education Act shows that the property of an aided school will be deemed to be in the possession and control of the manager. Admittedly the defendant is the manager appointed by the Education Department. Viewing from this angle also, the suit is not maintainable. For the above said reasons, I find no reason to deviate from the view taken by the courts below concurrently that the plaintiff is not entitled to any relief. In the result, the substantial questions of law framed are found against the appellant/plaintiff and the appeal is dismissed. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks**