M. Chandrashekara Bhat v. S. Achutha Rao and S. Janardhana Rao

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943 ## **RSA NO. 900 OF 2006** (AGAINST THE JUDGMENT AND DECREE DATED 10.03.06 IN A.S.NO.15/02 OF SUBORDINATE JUDGES COURT, KASARAGOD JUDGMENT AND DECREE IN O.S.438/1990 OF ADDITIONAL MUNSIFF COURT, KASARAGOD) ## **APPELLANT/APPELLANT/PLAINTIFF:** - *1 M.CHANDRASHEKARA BHAT,S/O.M.THIRUMALESWARA BHAT, (DIED) RESIDING AT MARUVALA, KUDALMERKALA VILLAGE, POST KUDALMERKALA,VIA KUMBALA, KASARAGOD TALUK AND DISTRICT. - ADDL. 2 M.JAYALAKSHMI, AGED 63 YEARS, W/O.LATE M.CHANDRASEKHARA BHAT, MARUVALA, KUDALMERKALA VILLAGE, P.O.KUDALMERKALA, (VIA) MANGALPADY, MANJESHWAR TALUK, KASARAGOD DISTRICT-671324. - “ 3 THIRUMALESHWARA BHAT, AGED 44 YEARS, S/O.LATE M.CHANDRASEKHARA BHAT, MARUVALA, KUDALMERKALA VILLAGE, P.O.KUDALMERKALA, (VIA) MANGALPADY, MANJESHWAR TALUK, KASARAGOD DISTRICT-671324. - “ 4 KRISHNA PRASAD, AGED 41 YEARS, S/O.LATE M.CHANDRASEKHARA BHAT, MARUVALA, KUDALMERKALA VILLAGE, P.O.KUDALMERKALA, (VIA) MANGALPADY, MANJESHWAR TALUK, KASARAGOD DISTRICT-671 324. (LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.1 IS IMPLEADED AS ADDL. A2 TO A4, AS PER ORDER DATED 7.6.2018 IN I.A.NO.2886/2014.) BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE SRI.P.B.SUBRAMANYAN R.S.A.No.900 of 2006 2 ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - 1 S.ACHUTHA RAO - 2 S.JANARDHANA RAO (BOTH ARE THE SONS OF SUBRAYA NAIK, RESIDING AT SUBHAYYAKATTE IN KUDALMERKALA VILLAGE AND POST, VIA KUMBALA, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A.No.900 of 2006 3 **==> picture [97 x 11] intentionally omitted <==** ## **JUDGMENT** This Regular Second Appeal arises from the judgment and decree dated 28.11.2001 in O.S.No.438 of 1990 passed by the Additional Munsiff’s Court, Kasaragod. The Subordinate Judge’s Court, Kasaragod confirmed the judgment and decree of the Munsiff's Court in A.S.No.15 of 2002. The plaintiff who lost the case in the courts below is the appellant. 2. Material facts relevant for the adjudication of this appeal are narrated below:- 2.1. The plaint ‘A’ schedule property was assigned by the Government in favour of Maruvala Thirumaleshwara Bhat. According to the plaintiff, this was the self-acquired property of Sri.Thirumaleshwara Bhat who died in 1980. After his death, the plaint ‘A’ schedule property devolved upon the plaintiff, his mother, two sisters and two brothers. The plaintiff is one of the co-owners of the plaint ‘A’ schedule property. The defendants have no right, title, or interest over the plaint ‘A’ schedule property. The father of the plaintiff permitted to run a branch post office in a portion of the building in the ‘A’ schedule property. He constructed a building on the property. In 1984, the defendants trespassed upon the plaint ‘A’ schedule property and occupied the R.S.A.No.900 of 2006 4 building thereon. The occupation of the defendants in the building is unlawful. They have no manner of right, title, or interest in ‘A’ schedule property. One Bhandary Bunt was the branch Post Master till 1965. He was permitted to use a portion of the building by the father of the plaintiff. After his death, defendant No.1 became the branch Post Master, and he continued in the same building. Defendant No.1 fraudulently managed to get the name of the owner of the property changed in his favour in the Panchayat register. The plaintiff is entitled to recover possession of the property on the strength of his title from the defendants. 2.2. The Defendants contended that the plaint ‘A’ schedule property was not recognized as the self-acquired property of Thirumaleshwara Bhat. ‘A’ schedule property, as well as the entire remaining extent in R.S.No.100/1A1, had been treated as family property. Defendant No.1 obtained ‘A’ schedule property and another 1.51 acres of land in R.S.No.100/1A1, measuring a total extent of 1.61 acres of property in Kudalamerkala village on 'chalgeni lease' (See Sec.2(57)(j)(i) of the Kerala Land Reforms Act, 1963) from the father of the plaintiff Sri.Maruvala Thirumaleshwara Bhat about 30 years back for an annual rent of Rs.32/- on executing 'chalgeni chit' in his favour for one year. After the expiry of the lease period, he continued as a tenant holding over under the same terms and conditions and was paying rent. R.S.A.No.900 of 2006 5 Defendant No.1 constructed a tiled building in ‘A’ schedule property by spending his own money. The branch post office is housed in a portion of the said building. Defendant No.1 himself is the branch Post Master. Another part of the building is also in possession of the defendants, wherein they are running a ration shop and grocery shop. Defendant No.1 is a cultivating tenant of the aforementioned entire 1.61 acres of land in R.S.No.100/1A1, including the plaint ‘A’ schedule property. He is entitled to get all the benefits of the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the Act'). He has got fixity of tenure, and he is not liable to surrender vacant possession of ‘A’ schedule property. 2.3. On the side of the plaintiff PWs 1 and 2 were examined, and Exts.A1 to A7 were marked. DW1 was examined, and Exts.B1 to B26 were marked on the side of the defendants. Ext.C1 was marked as Court exhibit. 2.4. The trial Court referred the question of tenancy to the Land Tribunal under Section 125(3) of the Act. The Tribunal recorded a finding that defendant No.1 is a cultivating tenant. Relying on the order of the Land Tribunal dated 19.6.2001 (Ext.C1), the trial Court dismissed the suit. The plaintiff challenged the judgment and decree dismissing the suit before the Subordinate Judge’s Court, Kasaragod in A.S.No.15 of 2002. The First Appellate Court confirmed the findings of the trial Court. R.S.A.No.900 of 2006 6 3. The plaintiff is in appeal under Section 100 of the Code of Civil Procedure before this Court. This Court admitted the Second Appeal and issued notice to the respondents/defendants after formulating the following substantial question of law:- “Is the finding that defendant No.1 is a cultivating tenant under the Kerala Land Reforms Act in accordance with law ?” 4. Heard Sri.S.V.Balakrishna Iyer, the learned Senior Counsel appearing for the appellant/plaintiff and Sri.Kodoth Sreedharan, the learned counsel appearing for the respondents/defendants. 5. The learned Senior Counsel for the appellant contended that there was no conclusive evidence to record the finding that defendant No.1 is a cultivating tenant as provided under Section 2(8) of the Act. The learned Senior Counsel further contended that the finding of the Land Tribunal relying on the report of the authorised officer alone is not sustainable in law. 6. The learned counsel for the defendants Sri.Kodoth Sreedharan, per contra, contended that the plaintiff’s admission in a proceeding initiated under Chapter III of the Act (Ceiling Proceedings) between the same parties that defendant No.1 is a cultivating tenant of plaint ‘A’ schedule property is binding on him. The learned counsel submitted that the said admission of the plaintiff in the ceiling proceeding will operate as an estoppel. R.S.A.No.900 of 2006 7 7. The question that falls for consideration is whether the finding of the courts below relying on the order of the Land Tribunal to the effect that defendant No.1 is a cultivating tenant of plaint ‘A’ schedule property, is legally sustainable or not. 8. The case of the appellant/plaintiff is that he is the absolute owner of plaint ‘A’ schedule property and that the father of the plaintiff permitted to use the building in the plaint ‘A’ schedule property to function a post office. According to the plaintiff, his father constructed the building in the property. The further case of the plaintiff is that the defendants trespassed upon the said property in the year 1984, and are in unlawful occupation of the same. 9. The challenge of the defendants is that defendant No.1 obtained ‘A’ schedule property and another 1.51 acres of land in R.S.No.100/1A1 measuring a total extent of 1.61 acres on 'chalgeni lease' from the father of the plaintiff about 30 years ago for an annual rent of Rs.32/- on executing 'chalgeni chit' in his favour for one year. It is further contended that he continued as a tenant under the same terms and conditions, after the expiry of the lease period, and was paying rent. 10. The trial Court framed an issue of tenancy. The Court referred the matter to the Land Tribunal under Section 125(3) of the Act for a finding as to whether defendant No.1 is a cultivating tenant as R.S.A.No.900 of 2006 8 provided under Section 2(8) of the Act. 11. The Land Tribunal, after conducting an enquiry passed Ext.C1 order dated 19.6.2001 holding that defendant No.1 is a cultivating tenant of ‘A’ schedule property. The learned Senior Counsel for the appellant vehemently challenged the course adopted by the Tribunal in recording the finding that defendant No.1 is a cultivating tenant relying on the report of the authorised officer alone. The learned Senior Counsel submitted that the Tribunal ought to have examined the authorised officer as a witness. The Tribunal, invoking the provisions in Section 105A of the Act, deputed an authorised officer to make a local enquiry and submit a report. Section 105A of the Act reads thus:- “ **105A. Appointment of officers for certain purposes** . - (1) The Government may appoint any officer not below the rank of a Revenue Inspector for bringing to the notice of the Land Tribunal or the Land Board or the Taluk Land Board any fact or information required by the Land Tribunal or the Land Board or the Taluk Land Board, as the case may be, or for moving the Land Tribunal or the Land Board [or the Taluk Land Board to take any action necessary for the implementation of the provisions of this Act. (2) The Land Tribunal or the Land Board or the Taluk Land Board may depute any officer appointed under sub-section (1) to make local enquiry, investigation or inspection and to collect any data, and the report and the records submitted by such officer may be used without examining him as evidence in the proceedings before the Land Tribunal or the Land Board or the Taluk Land Board. (3) The Land Tribunal or the Land Board or the Taluk Land Board may, if it thinks fit, summon and examine any officer referred to in sub-section (2).” R.S.A.No.900 of 2006 9 Sub-section (2) of Section 105A of the Act says that the records submitted by the authorised officer may be used without examining him as evidence in the proceedings before the Land Tribunal or the Land Board or the Taluk Land Board, as the case may be. The report of the authorised officer appointed under Section 105A of the Act is substantive evidence in the proceedings before the Land Tribunal. This is clear from the language of sub-section (2) of Section 105A of the Act. Under the provisions in Section 105A of the Act, the report of the authorised officer appointed under sub-section (2) of Section 105A forms part of the record, and the same can be used as evidence by the Land Tribunal even without examining him. The word 'may' used in subsection (3) shows that the provision therein is only directory. This is an enabling provision under which discretion has been given to the Land Tribunal or the Taluk Land Board, if it thinks fit, to summon and examine the officer referred to in sub-section (2). Therefore, the contention of the learned Senior Counsel that the course adopted by the Tribunal by accepting the report of the authorised officer as evidence without examining him will not sustain. 12. The learned Senior Counsel further contended that going by the report of the authorised officer, it is evident that he has not given a conclusive report as to the tenancy in favour of defendant No.1. The learned Senior Counsel relied on the statement of the authorised officer R.S.A.No.900 of 2006 10 in the report to the effect that the relevant documents are yet to be produced to prove tenancy in respect of the suit property. The learned counsel for the respondents/defendants brought to the notice of this Court that the Land Tribunal relied on the admission made by the plaintiff in a ceiling case captioned TLB.599/1973 (Kas) of Taluk Land Board, Kasaragod, wherein he admitted that Sri.S.Achutha Rao (defendant No.1) was in possession of 1 acre 61 cents in R.S.No.100/1A1 of Kudelmerkala village. The learned counsel for the defendants contended that the plaintiff’s admission in a judicial proceeding between the same parties in respect of the property in question operates as estoppel. The learned counsel submitted that the plaintiff having made an admission before the Taluk Land Board, based on which a decision was finally arrived at therein, cannot now turn around and deny the admission made by him. Admittedly, in TLB.599/1973 (Kas), the dispute was between the plaintiff and defendant No.1 and others regarding the plaint schedule property. The Taluk Land Board entered into a finding based on the admission of the plaintiff. 13. Ext.B24 is the certified copy of the plaintiff’s deposition in TLB.599/1973 (Kas). The relevant portion of the deposition given by the plaintiff was marked as Ext.A24(a) by the Tribunal, wherein the plaintiff admitted that Sri.Achutha Rao (defendant No.1) was in R.S.A.No.900 of 2006 11 possession of an extent of 1 acre and 60 cents of property in R.S.No.100/1A1 of Kudalmerkala village, and the land is enclosed by a compound wall by the said Achutha Rao. 14. In Phipson on the Law of Evidence (Burrows, 1952 9[th] Edn. Page 230) it is suggested that the most plausible and perhaps widely accepted reason for receiving admissions in evidence is that whatever statements a party makes about the facts of the case, whether they be for or against his interest, should be relevant as representation or reflecting the truth as against him. In **Slatterie** v. **Pooley [(1840) 151 English Reports, page 579]** Parke B. observed:....... “what a party himself admits to be true may be presumed to be so.” 15. In Phipson on the Law of Evidence (supra) the learned author concluded thus in page 231:- “Subject to certain exceptions, the general rule, then both in civil and criminal cases, is that any relevant statement made by a party is evidence against himself. The weight of the declaration is, of course, a totally different matter; this may vary with the circumstances and will no doubt, be greater if against interest at the time, than the contrary.” ## 16. The Apex Court in **Biswanath Prasad and others** v. ## **Dwaraka Prasad and others (1974 KHC 374)** held that statements made by a person in his pleadings or in his evidence in some other case are admissions and therefore relevant. In that case, the question was R.S.A.No.900 of 2006 12 whether certain properties belonged to the defendant and certain others were liable to partition. The opposite party had made a statement in depositions in an earlier suit that they belonged to the defendant. Similar admissions occurred in the written statement filed by the plaintiff and his father in that suit. Treating this as relevant evidence against the plaintiff therein the Apex Court observed that “admissions are usually telling against the maker unless reasonably explained, and no acceptable ground to extricate the appellants from the effect of their own earlier statements has been made out.” ## 17. In **Biswanath Prasad's** case (supra), the attention of the Court was drawn to Section 145 of the Evidence Act which provides that if a witness is to be contradicted by his own earlier statement, the statement must be put to him so that he may have an opportunity to explain it and this was not done in that case. Dealing with this argument, the Apex Court held thus:- “There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by the use of his prior statement. In the former case in admission by a party is a substantive evidence if it fulfils the requirements of section 21 of the Evidence Act: in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore; in the latter case the Court cannot be invited to disbelieve a witness on the strength of the prior contradictory statement unless it has R.S.A.No.900 of 2006 13 been put to him, as required by section 145 of the Evidence Act.” 18. The Apex Court then made the following observation:- “This distinction has been clearly brought out in the ruling in **Bharat Singh** v. **Bhagirathi (1966(1) SCR 606; 615-16 : air 1966 SC 405)** . This Court disposed of a similar argument with the following observations:- "Admissions are substantive evidence by themselves, in view of S.17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence." 19. Referring to the distinction between the relevancy of an admission and its weight in **Bharat Singh’s** case (supra), the Apex Court held that “the weight to be attached to an admission made by a party is a matter different from its use as an admissible evidence.” 20. In order to constitute an admission in law, the statement should be ex facie unequivocal and categorical and not vague. In the present case, the admission made by the plaintiff before the Taluk Land Board is unequivocal and categorical. R.S.A.No.900 of 2006 14 The resultant conclusion is that there is no illegality in the finding of the Land Tribunal that defendant No.1 is a cultivating tenant under Section 2(8) of the Act relying on the admission made by the plaintiff before the Taluk Land Board. The trial Court as well as the First Appellate Court relied on Ext.C1 order dated 19.06.2001 of the Tribunal in concluding that defendant No.1 is a cultivating tenant and that the plaintiff is not entitled to recovery of possession of the plaint schedule property. The substantial question of law is answered accordingly against the appellant/plaintiff. The appeal lacks merits and it is dismissed. Parties are directed to bear their respective costs. Sd/- **K.BABU Judge** TKS