Harrisons Malayalam Ltd. v. D. Sivarman and others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR MONDAY ,THE 10TH DAY OF SEPTEMBER 2018 / 19TH BHADRA, 1940 ## **SA.No. 110 of 1995** AGAINST THE JUDGMENT AND DECREE DATED 31-08-1994 IN AS 2/1992 OF DISTRICT COURT, KALPETTA AGAINST THE JUDGMENT AND DECREE DATED 16-08-1990 IN OS 70/1986 OF SUB COURT, SULTHAN BATHERY ## APPELLANT/RESPONDENT/PLAINTIFF: HARRISSONS MALAYALAM LTD., A COMPANY INCORPORATED UNDER COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT WILLINGTON ISLAND, P.B.NO.502 COCHIN - 682 003, REPRESENTED BY ITS MANAGER -LEGAL AND POWER OF ATTORNEY HOLDER SRI.V.VENUGOPAL BY ADVS. SRI.KURIAN THOMAS SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH MENON ## RESPONDENTS/SUPPLEMENTARY APPELLANTS 2 TO 4 /ADDITIONAL DEFENDANTS: * 1 D.SIVARAMAN, AGED 51 YEARS (DIED) S/O.KALPENA DADOO POOJARI, (LRS IMPLEADED) SUVARNA HOUSE, NEDUMBALA, PO MEPPADI D.VITTALAN, AGED 51 YEARS, (DIED) * 2. S/O.KALPANA DADOO POOJARI, (LHS RECORDED) SUVARNA HOUSE, NEDUMBALA, PO MEPPADY **SA.No.110 of 1995** **2** 3 VENKITESH, AGED 42 YEARS S/O.KALPANA DADOO POOJARI, SUVARNA HOUSE, NEDUMBALA, PO MEPPADI. ADDL.R4 RETHI, AGED 45 YEARS, WIFE OF D.SIVARAMAN, SUVARNA HOUSE, NEDUMBALA, PO MEPPADI ADDL.R5 INDIRA, AGED 24 YEARS, D/O.SIVARAMAN, SUVARNA HOUSE, NEDUMBALA, PO MEPPADI * ADDL.R6 JAYARANI, AGED 22 YEARS, (DIED) D/O.SIVARAMAN, (LRS RECORDED) SUVARNA HOUSE, NEDUMBALA, PO MEPPADI ADDL.R7 SUPANA, AGED 20 YEARS, D/O.SIVARAMAN, SUVARNA HOUSE, NEDUMBALA, PO MEPPADI ADDL.R8 KAVITHA, AGED 18 YEARS, D/O.SIVARAMAN, SUVARNA HOUSE, NEDUMBALA, PO MEPPADI ADDL.R9 PRAWAN, AGED 16 YEARS, S/O.SIVARAMAN, SUVARNA HOUSE, NEDUMBALA, PO MEPPADI (THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 TO 9 AS PER ORDER DATED 24.7.2017 IN CMP NO.2341/1998) (AS PER ORDER DATED 24.07.2017 ON MEMO DATED 24.07.2017 BEARING CF.4482/17 ADDL.R4 IS RECORDED AS THE LEGAL REPRESENTATIVE OF DECEASED ADDL. 6TH RESPONDENT) (AS PER ORDER DATED 31.07.2017 ON MEMO DATED 28.07.2017 BEARING CF.4672/17, ADDL.R3 IS RECORDED AS THE LEGAL HEIR OF DECEASED R2) BY ADVS. SRI.A.K.SRINIVASAN SRI.A.S.BENOY SRI.N.S.MOHAMMED USMAN **SA.No.110 of 1995** **3** THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J U D G M E N T** The plaintiff in a suit for recovery of possession and injunction, both mandatory and prohibitory, is the appellant in the second appeal. 2. The case set out by the plaintiff in the plaint is that the plaint schedule shed belongs to the plaintiff; that the defendant, who was an ex-employee of the plaintiff, was permitted to occupy the plaint schedule shed on a licence arrangement for a period of one year from 01.07.1973; that the defendant has made alterations in the plaint schedule shed violating the terms of the licence; that the defendant, in the circumstances, was called upon to vacate the plaint schedule shed and that he refused to do so. The suit was, therefore, for a decree of recovery of possession of the plaint schedule shed from the defendant, for a decree of mandatory injunction directing the defendant to restore the plaint schedule shed to its original position and for a **SA.No.110 of 1995** **4** prohibitory injunction restraining the defendant from carrying on any business in the plaint schedule shed and from making further alterations in the said shed. 3. The defendant contested the suit by delivering a written statement. The stand taken by the defendant in the written statement is that he was in possession of the plaint schedule shed from early sixties; that he is residing with his family in the plaint schedule shed and that he is, therefore, a 'kudikidappukaran' entitled to protection in terms of the provisions contained in the Kerala Land Reforms Act, 1963 ('the Act', for short). 4. The trial court referred the plea of 'kudikidappu' raised by the defendant for the decision of the Land Tribunal as provided for under Section 125(3) of the Act. Before the institution of the suit, the defendant had, in fact, filed an original application as O.A. No.834 of 1974 before the Land Tribunal for purchase of his 'kudikidappu' and the said application was allowed. The said decision of the Land Tribunal was challenged by the plaintiff before the appellate authority under the Act. It was while the said appeal was **SA.No.110 of 1995** **5** pending before the appellate authority, the reference was made in the suit. It appears that, in the light of the decision already taken by the Land Tribunal, the reference was answered by the Land Tribunal in favour of the defendant. The trial court accepted the finding of the Land Tribunal on the plea of 'kudikidappu' raised by the defendant and dismissed the suit. The plaintiff challenged the decision of the trial court in appeal. The appellate court remitted the suit for fresh disposal. The plea of 'kudikidappu' raised by the defendant was again referred by the trial court for the decision of the Land Tribunal. It is seen that in the meanwhile the appeal preferred by the plaintiff challenging the order in OA. No.834 of 1974 was set aside by the appellate authority and the matter was remitted back to the Land Tribunal for a fresh decision. The reference made by the trial court was answered this time by the Land Tribunal against the defendant. The materials, on record, do not indicate as to whether there was any separate order in the original application filed by the defendant for purchase of 'kudikidappu' consequent on the order of remand passed by **SA.No.110 of 1995** **6** the appellate authority. Be that as it may, the trial court accepted the finding of the Land Tribunal. It also found that the defendant is in occupation of the plaint schedule shed in terms of Ext.A1 agreement of licence entered into between the plaintiff and the defendant. Consequently, the trial court passed a decree in favour of the plaintiff directing the defendant to surrender vacant possession of the plaint schedule shed to the plaintiff. The trial court also passed a decree in favour of the plaintiff restraining the defendant from carrying on any business in the plaint schedule shed or doing anything by way of alteration or modification therein. The defendant challenged the decision of the trial court in appeal. The appellate court found that the finding of the Land Tribunal on the plea of 'kudikidappu' raised by the defendant is incorrect and that the defendant is a 'kudikidappukaran' entitled to protection in terms of the provisions of the Act. Consequently, the appellate court set aside the decision of the trial court and disposed of the appeal holding that the legal representatives of the defendant, who died in the meanwhile, are entitled to **SA.No.110 of 1995** **7** purchase 'kudikidappu'. The plaintiff is aggrieved by the decision of the appellate court. 5. Heard learned counsel for the appellant. 6. The learned counsel for the appellant, placing reliance on Section 80 of the Act, contended that there is nothing on record to indicate that the defendant is a person registered as a 'kudikidappukaran' in terms of Section 80 of the Act. It was pointed out by the learned counsel that in the absence of any determination as to the status of the defendant as 'kudikidappukaran' in terms of the provisions contained in Section 80 of the Act, the finding rendered by the appellate court that the legal representatives of the deceased defendant are entitled to purchase 'kudikidappu' is unsustainable in law. The decision of the Apex Court in _**Madhavi Amma and others v. S.Prasannakumari and others** [(2013) 4 SCC 77]_ was placed by the learned counsel in support of the said contention advanced by him. 7. It is seen that the appellate court reversed the decision of the trial court solely on the finding rendered by it that the defendant was a ' kudikidappukaran'. In the **SA.No.110 of 1995** **8** circumstances, in the light of the contention advanced by the learned counsel for the appellant, the following substantial question of law is framed for decision in the second appeal: _“In the absence of any material on record to indicate that the defendant was a person, whose status as 'kudikidappurkaran' was recognized in terms of Section 80 of the Act, is the finding of the appellate court that the legal representatives of defendant are entitled to purchase 'kudikidappu' sustainable in law?”_ 8. Section 80 of the Act provides that the local authorities shall prepare and maintain a register of 'kudikidappukars' within its jurisdiction. It also provides that any person aggrieved by registration of a 'kudikidappukaran' or the refusal to register a person claiming to be a 'kudikidappukaran' is entitled to challenge the said decision in appeal before the appellate authority provided for in the provision. It is seen that after a detailed analysis of the scheme of the Act, the Apex Court in _**Madhavi Amma**_ ( _supra_ ) held that in order for a person to claim the status of 'kudikidappukaran' for the purpose of availing the benefits **SA.No.110 of 1995** **9** available as a 'kudikidapukaran' as spelt out under Section 79A of the Act, he has to ensure that the status claimed by him as 'kudikidappukaran' is in the first instance accepted by the local authority in appropriate proceedings under Section 80 of the Act and more importantly in proof for such acceptance his name is entered as 'kudikidappukaran' in the register prepared and maintained for that purpose by the local authority. It is also held by the Apex Court in the said case that if any such person is not able to get such recognition in the first instance before the local authority, the statute prescribes a remedy of appeal under Section 80(5) before appropriate appellate authority. It was held further in the said case that only after establishing such a right in the prescribed manner as provided under Section 80 of the Act, there would be any scope for anyone to claim validly that he is entitled for all the benefits that would flow from his status as a 'kudikidappukaran'. The conclusion arrived at by the Apex Court, in the said case, therefore was that the claim of a status of a 'kudikidappukaran' can be determined only under Section 80 of the Act. It was also clarified by the Apex **SA.No.110 of 1995** **10** Court that Section 80A of the Act cannot be invoked by a person whose status as 'kudikidappukaran' has not been determined under Section 80 of the Act. On the facts of the case dealt with therein, the Apex Court also held that the approach made by the appellants therein by invoking Section 80B of the Act, without getting their status ascertained in the appropriate proceedings under Section 80 of the Act, was wholly without jurisdiction. Paragraphs 23 to 25 of the decision of the Apex Court referred to above read thus:- _“23. Consequently, when a decision was reached by the Land Tribunal in a reference made to it under Section 125(3) of the 1963 Act, having regard to the scheme of the Act as from the definition of “Kudikidappukaran” under Section 2(25), the benefits that would accrue to a Kudikidappukaran as provided under Section 79A, the procedure prescribed under Section 80 by which a person claiming the rights of Kudikidappukaran has to ensure the recognition of such status as Kudikidappukaran in a proceeding before the local authority concerned and get his name registered in the prescribed register to be prepared by the local authority and_ **SA.No.110 of 1995** **11** _to be maintained for that purpose, we fail to see how any person claiming such status as Kudikidappukaran can seek for such status to be recognised by resorting to any other proceedings under the other provisions of the 1963 Act. To put it differently, it has to be held that in order for a person to claim the status of Kudikidappukaran for the purpose of availing the benefits available as a Kudikidappukaran as spelt out under Section 79-A of the 1963 Act, he has to ensure that the status claimed by him as Kudikidappukaran is in the first instance accepted by the local authority in appropriate proceedings under Section 80 of the Act and more importantly in proof for such acceptance his name is entered as Kudikidappukaran in the register prepared and maintained for that purpose by the local authority. If any such person is not able to get such recognition in the first instance before the local authority, the statute prescribes a remedy of appeal under Section 80(5) before appropriate appellate authority. Only after establishing such a right in the prescribed manner as provided under Section 80 of the Act, there would be any scope for anyone to claim validly that he is entitled for all the benefits that would flow from his status as a Kudikidappukaran. In other words, it can be validly stated that the claim of a status of a_ **SA.No.110 of 1995** **12** _Kudikidappukaran can be determined only under Section 80 of the Act._ _24. In contradistinction to Section 80, what is provided under Section 80-A or 80-B were the consequential benefits such as the right to purchase the Kudikidappu and the procedure to be followed for effecting the purchase by approaching the authorities concerned and thereby ascertain his ownership rights after such purpose. By no stretch of imagination, the right to purchase provided under Section 80-A and the procedure prescribed for purchase of such right under Section 80-B can be invoked, by a person whose status as Kudikidappukaran was yet to be ascertained earlier. The approach made by the appellants by invoking Section 80-B of the Act in order to assert his right as Kudikidappukaran even without getting his status ascertained in the appropriate proceedings under Section 80 of the Act was wholly invalid and was rightly rejected by the original authority in its order dated 19-2-1991 in OA No. 78 of 1988. Unfortunately, the appellate authority that decided the appeal as against the said order in AA No. 37 of 1991 failed to understand the scope, power and jurisdiction of the appellate power under Section 102 of the Act as against the order passed under Section 80-B of the 1963 Act which unfortunately resulted in_ **SA.No.110 of 1995** **13** _the passing of the order dated 13-11-1995 in AA No. 37 of 1991._ _25. It has to be stated in uncontroverted terms that the said order of the Appellate Authority (LR), Attingal, dated 13-11-1995 in AA No. 37 of 1991 was, therefore, wholly without any jurisdiction and was not in tune with the powers vested with the said appellate authority under Section 102 of the 1963 Act while examining the order passed under Section 80-B of the Act. It has to be stated that the said order was far in excess of the jurisdiction vested in the said authority and, therefore, the said order was rightly set aside by the Division Bench of the High Court.”_ 9. Coming to the facts of the case on hand, the materials, on record, do not indicate that the defendant is a person who obtained registration as 'kudikidappukaran' under Section 80 of the Act. If that be so, in the light of the said decision of the Apex Court, the finding rendered by the appellate court on the plea of 'kudikidappu' set up by the defendant is liable to be reversed and I do so. The question formulated for decision is thus answered in favour of the appellant. **SA.No.110 of 1995** **14** In the result, the second appeal is allowed, the impugned judgment of the appellate court is set aside and the judgment of the trial court is restored. **Sd/-** **P.B.SURESH KUMAR** **JUDGE** aks/11/09