N. Thankappan Pillai v. Sarasamma @ Thankamma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL SATURDAY, THE 17TH DAY OF DECEMBER 2016/26TH AGRAHAYANA, 1938 SA.No. 325 of 2002 (E) ----------------------- AGAINST THE JUDGMENT & DECREE DATED 02-01-2002 IN AS 199/1996 of III ADDL. DISTRICT COURT, KOLLAM AGAINST THE JUDGMENT DATED 31-07-1995 IN OS 613/1991 of PRL. MUNSIFF COURT, KOLLAM APPELLANT(S)/RESPONDENT/DEFENDANT: --------------------------------- *1. N.THANKAPPAN PILLAI RESIDING AT CHERAKUNNATHU THEKKETHIL, KILIKOLLOOR VILLAGE, AYATHIL CHERRY, KOLLAM TALUK, KOLLAM DISTRICT. *(DIED; LRs 2 TO 7 IMPLEADED) ## ADDL.APPELLANTS: 2. BHARATHY AMMA, S/O. LATE THANKAPPAN PILLAI, AGED 64 YEARS, CHERUKUNNATHU VEEDU, AYATHIL P.O., KOLLAM-17. 3. N.BABU, S/O. LATE THANKAPPAN PILLAI, AGED 45 YEARS, MALU'S AYATHIL P.O., KOLLAM. **4. RAVINDRAN PILLAI, LATE THANKAPPAN PILLAI, CHERUKUNNATHU VEEDU, AYATHIL P.O., KOLLAM-17. **(DIED. LRS. ADDL.8 TO10 IMPLEADED) 5. GEETHA, D/O. LATE THANKAPPAN PILLAI, AGED 39 YEARS, MANGALASSERY PUTHAN VEEDU, KANDACHIRA, PERINAD P.O. 6. SURENDRAN, S/O. LATE THANKAPPAN PILLAI, AGED 35 YEARS, CHERUKUNNATHU VEEDU, AYATHIL P.O., KOLLAM-17. 7. BAIJU, S/O. LATE THANKAPPAN PILLAI, AGED 30 YEARS OF DO. DO. - *(ADDL.APPELLANTS 2 TO 7 ARE IMPLEADED AS THE Lrs OF DECEASED SOLE APPELLANT AS PER ORDER DT.9.10.2006 IN IA 2171/06) ....2/- SA.No. 325 of 2002 (E) 2 ** ADDL.APPELLANTS 8 TO 10: 8. THRIVENI, W/O.LATE RAVEENDRAN PILLAI, AGED 42 YEARS, SREEMAKAM, PERUMON DESOM, PANAYAM VILLAGE, KOLLAM. 9. ABHIRAM (MINOR), S/O. LATE RAVEENDRAN PILLAI, AGED 15 YEARS, SREEMAKAM, PERUMON DESOM, PANAYAM VILLAGE, KOLLAM, REPRESENTED BY HIS MOTHER THRIVENI. 10. DEVIKA RAVEENDRAN (MINOR) D/O. LATE RAVEENDRAN PILLAI, AGED 10 YEARS, SREEMAKAM, PERUMON DESOM, PANAYAM VILLAGE, KOLLAM, REPRESENTED BY HER MOTHER THRIVENI. **(THE LEGAL HEIRS OF DECEASED 4TH APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 8 TO 10 AS PER ORDER DATED 12.3.2015 IN IA.621/2015) ADDL.APPELLANTS 2-10 BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.) SRI.ANTONY MUKKATH SRI.R.V.JOY SRI.K.RAMACHANDRAN RESPONDENT(S)/APPELLANTS/PLAINTIFFS: ------------------------------------ 1. SARASAMMA @ THANKAMMA, AGED 76 YEARS, W/O. PARAMESWARAN UNNITHAN, RESIDING AT KAMBIYIL VEEDU, KANNIMEL CHERRY,KILIKOLLOOR VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT. - # 2. GOPALAKRISHNAN NAIR,AGED 51 YEARS, S/O.PARAMESWARAN UNNITHAN, DO. DO. (DIED. LRS. 4 TO 6 IMPLEADED) 3. RADHAKRISHNAN NAIR, AGED 44 YEARS, S/O.PARAMESWARAN UNNITHAN, DO. DO. ## #ADDL.RESPONDENTS: 4. SUMADEVI, W/O.LATE GOPALAKRISHNAN NAIR, ELAMPEZHATHU HOUSE, KULANGARA BHAGAM, CHAVARA P.O., KOLLAM-691583. 5. SANDEEP G. NAIR, S/O.LATE GOPALAKRISHNAN NAIR, -DO- -DO- 6. CHITRA B.S., D/O.LATE GOPALAKRISHNAN NAIR, -DO-DO- - # (ADDL. RESPONDENTS 4 TO 6 ARE IMPLEADED AS THE LRS OF DECEASED R2 AS PER ORDER DTD.28.7011 IN IA 1196/11) ......3/- SA.No. 325 of 2002 (E) 3 R2 & R3 BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17-122016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OKB ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ## S.A. No.325 of 2002 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 17[th] day of December, 2016 ## JUDGMENT ~ ~ ~ ~ ~ The respondents herein are the plaintiffs in O.S.No.613/1991 and the appellants in A.S.No.199/1996. The respondents/plaintiffs filed O.S.No.613/1991 seeking for declaration of title and recovery of possession of the plaint schedule property from the appellant/defendant. According to the plaintiffs, the plaint schedule property belongs to late Parameswaran Unnithan, the husband of the 1[st] plaintiff and the father of the plaintiffs 2 and 3 as per Ext.A1 Patta. The said Parameswaran Unnithan expired on 13.9.1985 and the right over the property devolved on the plaintiffs herein. The defendant was a tenant under the said Parameswaran Unnithan in the plaint schedule shop room and after the death of Parameswaran Unnithan he was attorned by the plaintiffs as landlord. The plaintiffs are in bona fide need of the plaint schedule property for erecting a building for the purpose of their residence. But SA.325/02-E **:2:** the defendant was not willing to vacate the premises on the demand of the plaintiffs. Hence they filed a suit for declaration of title and recovery of possession with damages. 2. The defendant contended that the suit is not maintainable and same is barred by limitation and adverse possession. According to the defendant, he is in possession of the plaint schedule property from 1969 onwards and he had constructed the shed in the plaint schedule property and he is doing tea shop business therein. He disputed the patta also contending that the said patta had been obtained fraudulently when the plaintiffs were in the Revenue Department. In short, according to the defendant, the plaintiffs have no title over the plaint schedule property and even if they have title, the same is lost by adverse possession. 3. On the rival pleadings both parties adduced evidence before the trial court and the trial court, after considering the evidence on record, dismissed the suit on a finding that the plaintiffs have no title or possession over the property and hence they are not entitled to SA.325/02-E **:3:** recover plaint schedule property from the defendant. Feeling aggrieved, the plaintiffs preferred the aforesaid appeal. After reappreciating the evidence on record, the lower appellate court reversed the said finding and decreed the suit. This second appeal is filed challenging the findings of the courts below. 4. Heard the learned counsel for the appellant and the learned counsel for the respondents. 5. In view of the submissions at the Bar, the question to be considered is whether the decree and judgment passed by the courts below are legally sustainable and valid in view of the commencement of the provisions of the Kerala Buildings (Lease and Rent Control) Act during the pendency of the original suit before the trial court. 6. Going by the pleadings, it could be seen that the defendant has specifically contended that the civil court has no jurisdiction till the commencement of Kerala Buildings (Lease and Rent Control) Act during the pendency of the original suit. It is not disputed that when the original suit was pending the provisions under the Kerala Buildings (Lease and Rent Control) Act was made SA.325/02-E **:4:** applicable to Kilikollur Panchayat, the area where plaint schedule shop room is situated. But, ignoring the said notification, the trial court proceeded further and passed the decree dismissing the original suit and, in appeal, the appellate court reversed the findings and allowed the appeal. 7. The point to be considered is, whether the courts below are justified in proceeding further notwithstanding the declaration under the Kerala Buildings (Lease and Rent Control) Act, making the provisions of the Act applicable to the area wherein the plaint schedule property is situated. 8. Going by the judgment passed by the trial court, it could be seen that the trial court has framed an issue, 'whether the suit is maintainable or not' and found that the suit is maintainable in view of the decision in Gowrikutty Amma v. Kesavan [1988 (1) KLT 649], wherein this Court held that Section 11(1) of the Act does not oust the jurisdiction of the civil court to pass a decree for eviction and the only prohibition is that the said decree could be executed only in accordance with the provisions SA.325/02-E **:5:** of the Act. Therefore, I cannot find fault with the trial court and held in such a way as the law prevailing then was that. 9. But, thereafter the aforesaid decision was referred to Full Bench of this Court for determining the correctness of the said proposition and this Court in Kuruvilla Abraham v. John [1995 (1) KLT 161 (F.B.)], relying on the decision of the Apex Court in M/s. East India Corporation Ltd. v. Shree Meenakshi Mills Ltd. [AIR 1991 SC 1094] held that “merely because when the decree was passed Munsiff had jurisdiction to try the suit the Lower Appellate Court cannot shut its eyes to the changed situations whereby the jurisdiction of the civil court has been taken off by notification under Section 1(3) of the Kerala Buildings (Lease and Rent control) Act. As the decree has been challenged in appeal and as the appellate court judgment was pronounced only at a stage when decree has become incapable of being affirmed because it has become invalid, the contention that the decree cannot be said to be a nullity is not tenable.” When applying the above proposition to the instant case, the judgment and SA.325/02-E **:6:** decree passed by both courts below are, in fact, nullity, in law. Hence the impugned decree and judgment passed by the courts below will stand set aside. The plaintiffs are at liberty to proceed in accordance with Section 11 of the Kerala Buildings (Lease and Rent Control) Act. This Second Appeal will stand allowed. All pending interlocutory applications will stand closed. K.HARILAL, Judge. okb