M/S Famous Timbers, Baliapattam vs Azhikode Puthiyakavu Devaswom

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940** **RSA.No. 780 of 2008** **AGAINST THE JUDGMENT/DECREE IN AS 18/2006 of THE PRINCIPAL SUB COURT,THALASSERY DATED 12-12-2007** **AGAINST THE JUDGMENT/DECREE IN OS 775/1997 of THE PRINCIPAL MUNSIFF COURT, KANNUR DATED 29-08-2005** ## **APPELLANT/APPELLANT/DEFENDANT :** **M/S.FAMOUS TIMBERS, BALIAPATTAM, REPRESENTED BY ITS MANAGING PARTNER, K.P.ZUBAIR HAJEE, S/O. KUNHALI, THAVAKKARA, KANNUR AMSOM, KANNUR TALUK.** **BY ADVS. SMT.M.A.ZOHRA SRI.K.MOHANAKANNAN** ## **RESPONDENT/RESPONDENT/PLAINTIFF :** **AZHIKODE PUTHIYAKAVU DEVASWOM, REPRESENTED BY ITS CHAIRMAN, K.KUNHIRAMAN NAMBIAR, S/O. GOVINDAN NAMBIAR, RESIDING AT CHIRAKKAL AMSOM DESOM, KANNUR DISTRICT** **BY ADVS. SRI.P.V.CHANDRA MOHAN SRI.RAJAN P.KALIYATH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No. 780 of 2008 2 ## **JUDGMENT** The appellant is the defendant in O.S. No.775 of 1997 of the Principal Munsiff Court, Kannur. The aforesaid suit has been filed, seeking a decree, directing the defendant to surrender vacant possession of the plaint schedule land and to pay a sum of `6,82,000/- with interest on `4,06,072/- from the date of plaint till its recovery. 2. According to the plaint averments, the plaint schedule property belongs to the plaintiff Devaswom. The Devaswom has leased out the plaint schedule property to M/s.Ramakrishna Saw Mills for conducting a timber industry. As per the terms of lease, the tenant is liable to pay 100 sers of paddy and `48/- by way of purappadu per annum. In addition to the above purappad, the defendant was also liable to meet the expenses of lighting of lamp during Navarathri Pooja every year. According to the plaintiff, by change of hand, the plaint schedule property RSA.No. 780 of 2008 3 came into the possession of the defendant. The defendant has defaulted payment of agreed rent and the expenses of lighting lamps during the Navarathri Pooja. The defendant has not paid the sum in spite of the receipt of notice requiring payment. In the above circumstance, the appellant prayed for recovery of possession of the plaint schedule property with the decree for arrears of rent. [The parties are referred to as in the Original Suit.] 3. The defendant denied the plaint averments and contended that the averment in the plaint that the lease was for a period of 12 years from the date of 13[th] Thulam of every year is not correct. In the absence of a fixed amount, the plaintiff has to prove the actual amount spent for Navarathri Pooja. New lease with fresh terms need not be executed after the commencement of the Kerala Land Reforms Act, 1964(hereinafter referred to as 'the K.L.R. Act'). The lease deed need not be renewed after the commencement of the K.L.R. Act. The averment that the RSA.No. 780 of 2008 4 defendant ceased to use the property for industrial or commercial purpose is utter false. Lease is a commercial lease which got protection under Section 106 of the K.L.R. Act. So, the matter has to be referred to the Land Tribunal. 4. On the aforesaid pleadings, the Chairman of the Devaswom was examined PW.1 and Exts.A1 to A5 were marked from the part of the plaintiff and Ext.C1 was marked as court exhibit. No evidence either oral and documentary evidence was produced by the defendants, as per the impugned judgment passed by the trial court, after the remand. However, after considering the evidence on record, the trial court found that the defendant is not entitled to get protection under Section 106 of the K.L.R. Act, as he is a sub-lessee only and a sub-lessee is not entitled to get protection under Section 106 of the K.L.R. Act. 5. Feeling aggrieved, the defendant preferred A.S. No.18 of 2006 before the Sub Court, Thalassery and after reappreciating the evidence on record, the Appellate Court also RSA.No. 780 of 2008 5 concurred with the findings of the court below and dismissed the appeal. Thus, the legality and propriety of the concurrent findings of the court below, whereby the Original Suit as well as the appeal stand dismissed, are challenged in this Regular Second Appeal. 6. Heard the learned counsel for the appellant and the learned counsel for the respondent. 7. Going by the records, it could be seen that this appeal was admitted on the files of this Court on 18.09.2008 and the admission was granted on two questions of law, which are given below: - 1) Whether the trial court was justified in not marking the 12 documents produced by the defendant on 19.08.2005, after the remand from the lower appellate court? - 2) In the face of the finding in paragraph 8 of the judgment of the trial court, that the defendant is an assignee from the original lessee, that the plaint schedule land alone was leased out to the original tenant, M/s.Ramakrishna Saw Mills, prior to 20.05.1967 for the purpose of installing a saw mill which is for RSA.No. 780 of 2008 6 an industrial purpose and that in pursuance of the said lease the tenant had constructed a building for the purpose of installing machines, were the courts below justified in denying the defendant the benefit of Section 106 of the Kerala Land Reforms Act, after having noticed that the defendant is an assignee from the original lessee and which assignment confers him the status of a lessee within the meaning of clause (a) of the Explanation Section 106 of the Kerala Land Reforms Act? 8. Being a regular second appeal, this Court is not inclined to re-appreciate the entire evidence on record and the scope and extent of consideration in this appeal is confined to questions of law only, in view of Section 100 of the Code of Civil Procedure. Therefore, this Court is inclined to consider the questions of law only. 9. As regards the first question of law, the specific case of the appellant in the memorandum of appeal is that after the first remand by the appellate court the defendant has produced 12 documents before the Munsiff Court on 09.08.2005. But those documents were not referred to or marked in evidence in RSA.No. 780 of 2008 7 the impugned judgment. They were returned to the defendant's counsel, after the disposal of the original suit. According to the defendants, the failure to consider 12 documents produced in evidence is fatal to him. 10. In view of the aforesaid argument, I have specifically examined the entire documents on record and found out that, as rightly pointed out by the defendant, before the disposal of the original suit on 09.08.2005, 12 documents were produced before the Munsiff Court, which includes the registered sale deed executed by the predecessor in interest of the defendant to the defendant M/s.Ramakrishna Saw Mills. Going by the impugned judgment under challenge passed by the Munsiff Court as well as the appellate court, it could be seen that the courts below concurrently found that the defendant is a sub lessee, who is not entitled to get the benefit under Section 106(1) of the Land Reforms Act. In order to substantiate the said finding, the appellate court has relied on **Krishnankutty v. State 1994 (1)** RSA.No. 780 of 2008 8 **KLT 457 and Sulaikha Beevi v. K.C.Mathew 1997 (1) KLT 69** and it was found that for the purpose of Section 106(1) the construction must be pursuant to the lease and if it was already in existence it cannot be said to have been constructed by the lessee. When a tenant is claiming benefit under Section 106, he has to satisfy the other requirements and conditions in that Section. If there be extinction of lease and creation of new one, and if under new lease, no construction activity which is a condition precedent of Section 106 had been carried out, then the defendant will not be entitled to the benefit under Section 106 of the KLR Act. This Court finds that the Munsiff Court has arrived at the aforesaid finding without considering any of the documents produced by the defendant before the trial court along with I.A.No.2545/2005. More importantly, the sale deed dated 05.12.1977, which was executed by the predecessor in interest of the defendant in his favour was not considered either by the trial court or by the appellate court. Therefore, the RSA.No. 780 of 2008 9 question whether the defendant is entitled to get a protection under Section 106 of the Act requires to be considered in the light of the aforesaid sale deed also. 11. In the above view, this Court finds that the trial court is not justified in not marking 12 documents produced by the defendants along with I.A.No.2545/2005 on 09.08.2005, after the remand from the lower appellate court and the question of law is answered accordingly. 12. Consequently, the impugned judgment and decree passed by the courts below are set aside and the original suit is remitted to the trial court for fresh consideration and disposal. The registry is directed to return the documents produced by the defendant in this appeal along with I.A.No.1977/2008. The defendant is at liberty to produce the same before the Munsiff Court. The Principal Munsiff Court, Kannur is directed to dispose of the original suit afresh, after affording an opportunity to adduce further evidence to both parties, at the earliest and at RSA.No. 780 of 2008 10 any rate, within a period of 'three months' from the date of receipt of a copy of this judgment. The parties shall appear before the Principal Munsiff Court, Kannur on 30.11.2018. ## **sd/-** **K.HARILAL, JUDGE** AMV/16/10/2018