Harrisons Malayalam Ltd. v. Bipin Jacob and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932** **WP(C).NO. 8556 OF 2010(O)** **---------------------------------------OS.475/2007 OF M.C.,PATHANAMTHITTA** **....................** ## **PETITIONER(S):** ## **------------------------** **1. HARRISONS MALAYALAM LTD., P.B.NO.502, BRISTOW ROAD, WILLINGDON ISLAND, KOCHI-682003, REPRESENTING BY ITS MANAGING DIRECTOR.** **2. MANAGING DIRECTOR, HARRISONS MALAYALAM LTD., P.B.NO.502, BRISTOW ROAD, WILLINGDON ISLAND, KOCHI-682003.** **BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.JOSON MANAVALAN** ## **RESPONDENT(S):** - **----------------------------** **1. BIPIN JACOB, AGED 41 YEARS, S/O.DR.JACOB ZACHARIAH, RESIDING AT KOTTAKKA VEEDU CHERUVACKAL MURI, CHERUVACKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **2. FEBI J.JACOB, AGED 46 YEARS, S/O.V.JACOB JOHN, RESIDING AT T.C.2/1129, PARUTHICKAL VEEDU, MADATHUVILAKAM MURI, PATTAM VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **3. SIJU THOMAS, AGED 42 YEARS, S/O.V.JACOB JOHN, RESIDING AT T.C.2/1129, PARUTHICKAL VEEDU, MADATHUVILAKAM MURI, PATTAM VILLAGE, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER THE 2ND PLAINTIFF.** **4. THOMAS VARGHESE, AGED 46 YEARS, S/O.P.O.VARGHESE, RESIDING AT 'CHRISANTH', T.C.12/2538, KUMARAPURAM, PATTAM VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **5. THOMAS G.MARUTHETHU, AGED 35 YEARS, S/O.MARUTHETHU THOMAS RESIDING AT MARUTHETHU VEEDU KUMBAZHA MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **6. SIBI THOMAS, AGED 33 YEARS, W/O.THOMAS G.MARUTHETHU, MERCY BUNGALOW, PRAMADOM MURI, PRAMADOM VILLAGE, PATHANAMTHITTA DISTRICT.** **ADV. SRI.D.KISHORE FOR R1,2,4,5,6** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **---------------** ## **PETITIONER'S EXHIBITS:** ## **----------------------------------** **EXHIBIT P1 TRUE COPY OF THE EXTRACT FROM THE MINUTES OF MEETING DATED 31.1.2007 OF THE BOARD OF DIRECTORS OF THE COMPANY AUTHORISING MR. MVH MENON, MANAGER-LEGAL TO APPEAR AND REPRESENT THE COMPANY IN ALL COURTS.** **EXHIBIT P2 TRUE COPY OF THE PLAINT FILED BY THE RESPONDENTS BEFORE THE MUNSIFF'S COURT, PATHANAMTHITTA IN O.S. NO.475 OF 2007 DATED 3.12.2007.** **EXHIBIT P3 TRUE COPY OF THE LEASE DEED NO.2822 OF PATHANAMTHITTA SUB REGISTRY DATED 30.6.1911 EXECUTED BY KIRIYARU KIRIYARU PANDARATHIL IN FAVOUR OF CHARTERS BRANDER AND RUBBER PLANTATION INVESTMENT TRUST LIMITED.** **EXHIBIT P4 TRUE COPY OF THE WRITTEN STATEMENT DATED 27.2.2008 FILED BY THE PETITIONERS IN O.S. NO.475 OF 2007 OF MUNSIFF'S COURT, PATHANAMTHITTA.** **EXHIBIT P5 TRUE COPY OF THE INTERLOCUTORY APPLICATION DATED 1[ST] MARCH 2010 IN I.A. NO.432 OF 2010 IN O.S. NO.475 OF 2007 FILED BY THE PETITIONERS.** **EXHIBIT P6 TRUE COPY OF THE I.A. NO.431 OF 2010 IN O.S. NO.475 OF 2007 DATED 1.3.2010 FILED UNDER SECTION 125(3) (5) OF THE KERALA LAND REFORMS ACT, 1963 BY THE PETITIONERS.** **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 10.3.2010 PASSED BY THE MUNSIFF'S COURT, PATHANAMTHITTA DISMISSING EXHIBIT P5 APPLICATION (I.A. NO.432 OF 2010 IN O.S. NO.475 OF 2010).** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 10.3.2010 IN I.A. NO.431 OF 2010 IN O.S. NO.475 OF 2007 BY THE MUNSIFF'S COURT, PATHANAMTHITTA.** ## **RESPONDENT'S EXHIBITS:** **-----------------------------------** **NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.8556 of 2010 ==================================== Dated this the 09[th] day of September, 2010** ## **J U D G M E N T** This Writ Petition is in challenge of Exts.P7 and P8, orders passed by the learned Munsiff refusing to raise additional issue concerning tenancy and fixity of tenure pleaded by petitioner No.1-defendant No.1 and refusing to refer that question to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act (for short, “the Act”) as requested by petitioners. The suit property is 831.52 acres in extent. It is not disputed that the said property originally belonged to Kiriyaru Kiriyaru Pandarathil as per Chembola Thittooram and while so he granted a lease of that property in favour of M/s. Rubber Plantation Industries Ltd., as per Ext.P3, lease deed for a period of 99 years commencing from 08.04.1911 (which I am told, expired by 30.06.2010). Respondents-plaintiffs claimed that the said property is now in the possession and enjoyment of petitioners on behalf of the original lessee. While so, respondents purchased 109 acres out of the said 831.52 acres from the successor of original lessor as per documents of title referred to in paragraph 4 of the plaint. Respondents sued petitioners for a decree for prohibitory ## **W.P(C) No.8556 of 2010** ## -: 2 :- injunction against the latter alienating, hypothecating, encumbering or mortgaging the suit property (obviously on the premise that period of lease has expired on 30.6.2010). Petitioners filed written statement contending that petitioner No.1 is a cultivating tenant of the suit property entitled to fixity of tenure under the Act and that respondents are not entitled to the injunction prayed for. Since learned Munsiff did not frame an issue concerning tenancy and fixity of tenure pleaded by petitioners, they filed Ext.P5, application (I.A. No.432 of 2010) to raise additional issue regarding tenancy and fixity of tenure and Ext.P6, application (I.A. No.431 of 2010) to refer that question to the Land Tribunal for a decision. Applications were opposed by the respondents who contended that alleged tenancy being in respect of plantation and extent of property being in excess of 30 acres it is exempted from tenancy under Section 3(1)(viii) of the Act. Respondents also claimed that since the suit is merely for injunction no question of tenancy arose for decision and hence it cannot be said that issue regarding tenancy genuinely arose for a decision to be referred to the Land Tribunal. Learned Munsiff accepted the objection preferred by respondents and dismissed Exts.P5 and P6, applications as per Exts.P7 and P8, orders which are under challenge in this Writ Petition. Learned counsel for ## **W.P(C) No.8556 of 2010** ## -: 3 :- petitioners contends that there is no dispute for the respondents also that petitioners are in possession and enjoyment of the suit property in the manner claimed by them in the written statement and that in the nature of the injunction prayed for, question whether petitioner No.1 is a cultivating tenant of the property entitled to fixity of tenure very much arose for a decision. It is also contended that exemption under Sec.3(1)(viii) of the Act is not available to the respondents on the facts of the case since the lease was not of plantation (at the time of transaction). Learned counsel placed reliance on the Full Bench decision of this Court in **Rt.Rev.Dr.Jerome Fernandez v. Be-Be** **Rubber Estate Ltd.** (1972 KLT 613 (F.B.). In response it is contended by learned counsel for respondents that bar of tenancy under Sec.3(1)(viii) of the Act concerned plantation as on the date issue regarding tenancy arose for a decision and admittedly as on the date the issue regarding tenancy was raised by petitioners suit property was a plantation and since petitioners are in possession of more than 30 acres it is exempt from the Chapter relating to tenancy under Sec.3(1)(viii) of the Act. It is also contended that this being a suit for injunction simpliciter no question of tenancy arose for a decision. Reliance **W.P(C) No.8556 of 2010** -: 4 :- is placed on the decision of the Full Bench in **Kesava Bhat v.** ## **Subraya Bhat (** 1979 KLT 766 (F.B.). 2. To understand the rival contentions it is necessary to refer to Ext.P3, the original lease deed in favour of the predecessor-in-interest of petitioners. In page 7 of Ext.P3 it is recited, “ .....ആ ന�ശയങള�� ക�ള�പ��ങള�� ന�ലന�റ�ത�യ�� ## റബര മ��ല�യവ ക�ഷ� ച�യ�ണ�ന വകക�യ�ട� ” പ�ടമ�യ� എഴ��� ചക�ട�ത�ര�ക�ന�. .... ## (emphasis supplied) Going by the said recital in Ext.P3, it is clear that it was not a lease of plantation but a lease of land for planting rubber, etc. Hence contention of petitioners that what is covered by Ext.P3 is a lease of land and not a lease of plantation has prima facie to be accepted. 3. The next question is whether lease in question is exempted by Sec.3(1)(viii) of the Act. That provision exempts from the Chapter dealing with tenancy of plantations exceeding 30 acres in extent. Referring to that provision the Full Bench of this Court held in **Ret.Rev. Dr.Jerome Fernandez v. Be-Be** **W.P(C) No.8556 of 2010** ## -: 5 :- **Rubber Estate Ltd.** (supra) that “going by the clues furnished by the statutory history preceding this legislation and also by the express language used in Sec.3(1)(viii) of the KLR Act it is clear that intention of legislature was to restrict the limited scope of exemption to lease of land which were already plantations as on the date of transaction.” I found from Ext.P3, lease deed that it was not lease of plantation but lease of land for planting rubber, etc. If that be so prima facie the exemption under Sec.3(1)(viii) of the Act cannot apply. It follows that the issue regarding tenancy and fixity of tenure genuinely arose for a decision by the Land Tribunal. 4. Then the question is whether in a suit for injunction of the present nature issue regarding tenancy could “arise”. Learned counsel for respondents has placed reliance on the decision of the Full Bench in **Kesava Bhat v. Subraya Bhat** (supra). There it was held that where the suit is for injunction simpliciter issue for decision is whether plaintiff is in possession of the property as on date of the suit and that nature and character of possession is irrelevant for a decision. In such a situation a claim of tenancy or a finding on that is not relevant. That is because in a suit for injunction simpliciter the court is only concerned with the question whether plaintiff is in possession of ## **W.P(C) No.8556 of 2010** ## -: 6 :- the property as on the date of suit. But that principle or decision is not applicable to the facts of the present case. Here, injunction prayed for is to restrain petitioners from alienating, hypothecating, encumbering or mortgaging the suit property. It is not a suit for injunction against trespass as if respondents are in possession of the property where the nature and character of such possession is not relevant. Petitioners are admittedly in possession of the suit property claiming under the successor of the original lessee. Respondents wanted petitioners to be prevented from alienating, hypothecating, encumbering or mortgaging the property. Lease creates an interest in the property. It is heritable and in the absence of any contractual restriction is assignable as well. Leasehold right can be subjected to a mortgage. The scheme of the Act is to confer fixity of tenure on the cultivating tenant and a certificate of purchase issued under Sec.72K of the Act is final and conclusive as to the right of cultivating tenant. If therefore petitioner No.1 were found to be a cultivating tenant he is entitled to fixity of tenure in which case that right is assignable and heritable and if that be so, it may not be possible to grant a decree against petitioner No.1 against alienating, hypothecating or mortgaging the property. Hence on the facts of the case and in the nature of the injunction ## **W.P(C) No.8556 of 2010** -: 7 :- prayed, it leaves me in doubt that the issue of tenancy and fixity of tenure raised by petitioners did genuinely “arise” for a decision. Learned Munsiff was not correct in dismissing Exts.P5 and P6, applications. Exhibits P7 and P8 orders are liable to be set aside. Resultantly, this Writ Petition is allowed in the following terms: (i) Exhibits P7 and P8, orders are set aside and Exts.P5 and P6, applications are allowed. (ii) Learned Munsiff is directed to frame additional issue as prayed for in Exts.P5 (I.A. No.432 of 2010) and refer the question to the Land Tribunal for a finding on that issue. ## **THOMAS P. JOSEPH, JUDGE.** vsv