N.P.Vijayalakshmi v. M/S. Percot Mills Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945** **RFA NO. 1 OF 2003** **AGAINST THE JUDGMENT DT. 05.12.2002 IN OS 77/1994 OF PRINCIPAL SUB COURT,** **PALAKKAD** **-----** ## **APPELLANT/PLAINTIFF:** N.P.VIJAYALAKSHMI D/O.LATE N.S.PARAMESWARA IYER, RESIDING AT 14, GIRI NAGAR, ERNAKULAM COCHIN- 682020. BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER ## **RESPONDENT/DEFENDANT:** M/S.PERCOT MILLS LIMITED, CENTRAL OFFICE KANJIKODE, PALAKKAD, REPRESENTED BY MANAGING DIRECTOR, REGISTERED OFFICE AT RACE COURSE ROAD, COIMBATORE-18 BY ADVS. MINI M.R. SRI.JOJI VARGHESE VINOD RAVINDRANATH MEENA.A. K.C.KIRAN M.DEVESH ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K. THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. No.1 of 2003** **= = = = = = = = = = = = = = = = = = Dated this the 16[th] day of June, 2023** ## **J U D G M E N T** The suit for recovery of possession on the strength of title, was dismissed by the trial Court. The plaintiff is in appeal. 2. The plaintiff claims title to the property as per Ext.A1 Partition Deed of the year 1958. Under the said partition, the plaint schedule property was allotted to her as included in the 'D' schedule therein. In the year 1976, one Chinnappa Gounder filed O.A. 2994/1976 before the Land Tribunal, claiming tenancy under the Kerala Land Reforms Act, 1963 (hereinafter referred to as, “the Act”). The plaintiff was arrayed as the landlord. The O.A. was originally dismissed by the Tribunal. In the appeal by Chinnappa Gounder, a 'J' form was filed in terms of Section 72MM of the Act. The appellate authority remanded the matter in the light ## **R.F.A. No.1 of 2003** -: 2 :- thereof. Even after remand, the Land Tribunal dismissed the O.A. In the meantime, Chinnappa Gounder had executed Exts.A2 and A3 conveyances in favour of the defendant purporting to convey the plaint schedule property. On the strength of such documents, the defendant entered into possession of the properties. Pursuant thereto, the defendant caused initiation of SM proceeding before the Land Tribunal as SM 638/1990, for assignment of landlord's rights. The said proceeding also ended in dismissal. The plaintiff seeks for recovery of possession on the strength of title, and damages for use and occupation. 3. The defendant contended that, the suit is bad for non-joinder of Chinnappa Gounder, who is a necessary party. It was further contended that, on the filing of the ‘J’ form, the plaintiff ceased to have title over the property. Thus, the title of the plaintiff was denied. It was alternatively contended that the title of the plaintiff is lost by adverse possession and **R.F.A. No.1 of 2003** -: 3 :- limitation. It was alleged that the present suit is a result of fraud and collusion between the plaintiff and the said Chinnappa Gounder. It was further pleaded that the defendant was not informed about the developments subsequent to the filing of the 'J' form before the Land Tribunal and that the defendant is a bona fide purchaser. 4. The trial court held that, on the submission of 'J' form, the landlord's right vested with the Government and therefore, the plaintiff does not have title over the property. It was also held that the order of the Land Tribunal dismissing the OA after remand by the appellate authority is void for non-compliance of the directions of the appellate authority. The trial court also held that the title of the plaintiff if any, has been lost by adverse possession and limitation. The plea of non-joinder of necessary parties, for failure to implead Chinnappa Gounder, was also upheld. Accordingly, the suit was dismissed. **R.F.A. No.1 of 2003** -: 4 :- 5. Heard Sri.P.B.Krishnan, learned counsel for the plaintiff-appellant, and Sri.T.Krishnanunni, the learned Senior Counsel for the respondent-defendant. 6. The points that arise for determination are :- (a) Is the finding of the trial court that, consequent on the submission of 'J' form the landlord's right vested with the Government, and hence the plaintiff does not have title, correct ? (b) Is the finding of the trial court that the title of the plaintiff is lost by adverse possession and limitation, sustainable on the materials ? (c) Is the finding of the trial court that the suit is bad for non-joinder of Chinnappa Gounder, correct ? (d) Are the defendants entitled to challenge the proceedings in OA 2994/1976 and SM 638/1990 of the Land Tribunal collaterally in the present suit ? 7. Chinnappa Gounder had filed OA 2994/1976 before the Land Tribunal claiming to be a cultivating tenant and for assignment of landlord's right. Ext.X1 is the ## **R.F.A. No.1 of 2003** -: 5 :- file relating to the said proceedings. The plaintiff herein, who was the respondent in the said proceedings, had appeared therein. It is evident from the said proceedings that the claim of tenancy was not disputed but the dispute was with regard to the rate of rent. The Land Tribunal taking note of the fact that, to prove the lease the parties were relying on a lease deed of the year 1966, and since section 74 of the Act prohibited creation of lease after 01.04.1964, held that there is no valid lease. As against the dismissal, Chinnappa Gounder filed an appeal as AA 680/77. Before the appellate authority, the parties filed 'J' form in terms of Section 72MM of the Act. Thereupon, the appellate authority set aside the order of the Land Tribunal and remanded the matter back to the Tribunal. Thereafter, on 05.05.1982, the Land Tribunal again dismissed the OA for want of evidence to prove lease prior to 01.04.1964. 8. In terms of Section 72 of the Act, the interest of the landowners in holdings held by cultivating **R.F.A. No.1 of 2003** -: 6 :- tenants vest with the Government. Section 72MM provides for assignment of the landlord's right by a joint application by the landlord and the tenant before the Land Tribunal by submission of a 'J' form in accordance with the Rules. However, the mere submission of 'J' form does not cause any vesting or divesting of rights. Unless the Land Tribunal is satisfied with the existence of a valid tenancy arrangement, the question of assignment does not arise. Noticeably in the case at hand though a 'J' form was submitted, the same was refused to be relied on by the Tribunal for want of evidence of existence of a lease arrangement prior to 01.04.1964. The claim of tenancy and assignment, though on a joint application, having been negatived by the Land Tribunal, Chinnappa Gounder did not have the status of a cultivating tenant. Hence there could not be any vesting of the title of the landowner with the Government. Thus, the finding of the trial court that, after the execution of 'J' form the plaintiff did not ## **R.F.A. No.1 of 2003** -: 7 :- have any subsisting title over the property, is not correct and is hereby set aside. 9. Coming to the finding of the trial court that the title of the plaintiff has been lost by adverse possession and limitation, a reading of the judgment shows that but for a bare statement to the said effect there has been no discussion of the evidence to uphold the plea. From when the possession became adverse to the interests of the plaintiff is not discussed. In the light of the filing of OA 2994/1996 by Chinnappa Gounder claiming tenancy under the plaintiff and the defendant having acknowledged plaintiff’s title in the SM proceeding, the very contention of adverse possession is unsustainable. The finding of the trial court on the said plea is liable to be set aside and I do so. 10. The trial court held that the suit is bad for non-joinder of Chinnappa Gounder as a defendant. The suit is for recovery of possession on the strength of title. Relief is sought against the person in ## **R.F.A. No.1 of 2003** -: 8 :- possession. It cannot be said that the person from whom the defendant claims to have obtained right is also a necessary party to the suit. The finding of the trial court to the contrary is also liable to be set aside and I do so. 11. That the plaintiff obtained title under Ext.A1 partition is not in dispute. The claim for recovery of possession by the plaintiff could be defeated only on the defendant proving a better title or a right of nonevictability. To deny the claim for recovery, the defendant relies on the alleged admission in OA 2994/1976 by the plaintiff herein with regard to the tenancy arrangement with Chinnappa Gounder. Even the arrears of rent payable was paid. The learned Senior Counsel would urge that, when there is admission by the plaintiff regarding the tenancy right of Chinnappa Gounder, unless that is explained, she is bound by that. The plaintiff cannot now contend that there is no tenancy, it is argued. To substantiate the same, the **R.F.A. No.1 of 2003** -: 9 :- learned Senior Counsel relies upon the decision of the Apex Court in _**Bishwanath Prasad & Others v. Dwarka Prasad (Dead)**_ _**& Others, 1974 AIR SC 117**_ wherein the 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 use of his prior statement. …an admission by a party is a substantive evidence...”._ 12. Apart from the law that admission cannot confer title, on the facts of the present case the argument is even otherwise liable to be rejected. The claim made before a competent Tribunal based on such admission was negatived by the Tribunal. There having been a rejection of such admission by the competent Tribunal, it is not open to again fall back upon the same. It does not survive the judgment. It does not resurrect. Estoppel by judgment operates against the defendant. The OA was dismissed and the defendant could not plead ignorance of the result of the OA. As held in _**Sankaran v. Chathukutty, 1983 KLT 925**_ the person claiming the benefit of an ## **R.F.A. No.1 of 2003** -: 10 :- estoppel must show that he was not aware of the true state of things. If he had the means of knowledge there can be no estoppel. As noticed above, the OA was dismissed finding that the lease claimed is subsequent to 01.04.1964 and that there is no evidence to substantiate otherwise. Though after purchase of property by the defendant an SM proceeding was caused to be initiated as SM 638/1990, the same was also dismissed in the light of the dismissal of OA 2994/1976. Admittedly, the dismissal of OA 2994/1976 and SM 638/1990 have become final. Therefore, the said contention of the respondent is only to be negatived. 13. Referring to Exts.X1 and X2 files of the Land Tribunal in OA 2994/1976 and SM 638/1990 respectively, the learned Senior Counsel would strenuously argue that, the mandatory procedural prescriptions under the Act and Rules namely issuance of public notice, obtaining report of village committee, have not been complied with by the Tribunal while dismissing the OA and the SM proceedings. ## **R.F.A. No.1 of 2003** -: 11 :- Even though the cultivating tenant was present, it was recorded in the proceedings that no evidence is adduced. There has been violation of natural justice. Therefore, the defendant is entitled to collaterally attack the validity of the said proceedings in this suit, it is contended. The learned Senior Counsel would refer to the judgment of the Full Bench of this Court in _**Muhammad Haji v. Kunhunni Nair, 1993 (1) KLJ 1**_ to canvass his argument. 14. In Muhammed Haji’s case, pending a suit for redemption and recovery, the claim of tenancy urged was referred to the Land Tribunal. The Tribunal held against the plea of tenancy. The trial court accepted the finding and decreed the suit. In the meantime, the defendant who had urged the plea assigned his rights to another defendant. He approached the Land Tribunal and filed OA for assignment of tenancy. The said application was allowed. In the appeal against the decree, the order of assignment was sought to be relied upon. It was in the said factual background that the validity of the ## **R.F.A. No.1 of 2003** -: 12 :- second proceeding before the Land Tribunal was collaterally considered. Here the SM and OA were at the instance of the defendant and predecessor. They permitted the dismissals to become final. It is thereafter that the present suit has been filed. A reading of the written statement of the defendant shows that, but for alleging that the present suit is a collusive one between the plaintiff and Chinnappa Gounder, there is no plea that the proceedings before the Land Tribunal in OA and SM are void for any reason whatsoever. The parties were never on issue on the said aspect. Even in the oral evidence of the parties there is no suggestion regarding the validity of the proceedings before the Land Tribunal. That apart, even if the argument of the learned Senior Counsel is upheld and the proceedings before the Land Tribunal are held to be void, that does not help the defendant to hold on to the possession in the absence of a right to remain in possession. There is absolutely no material produced ## **R.F.A. No.1 of 2003** -: 13 :- even in the present case to prima facie suggest that there existed a tenancy arrangement prior to 01.04.1964. Therefore, the question of a fresh reference to Land Tribunal also does not arise. 15. The learned Senior Counsel would raise yet another argument that, since both the plaintiff and Chinnappa Gounder were parties to an illegal contract, the contract having failed, the plaintiff is not to be given assistance of the Court to recover possession. The learned Senior Counsel would refer to the judgment in _**Narayanamma v. Govindappa, AIR 2019 SC 4654**_ to buttress the said contention. Here it is to be noticed that, the plaintiff does not seek any relief based on any contract. The claim of the plaintiff is on the strength of her title over the plaint schedule properties. Unless the defendant shows a better title or a right to remain in possession, he is bound to give up possession. Therefore, the said argument cannot be sustained. _(See_ _**Mohammed v. Rukkiya 1994 (2) KLT 722; Kutty Pennammal v.**_ ## **R.F.A. No.1 of 2003** ## -: 14 :- ## _**Ramarajan 2018 (4) KLT OnLine 2074** )._ 16. The title of the plaintiff having been found, and the defendant having failed to establish any right to remain in possession, the plaintiff is entitled to recover the plaint schedule property on the strength of her title. 17. Though the plaintiff has raised a claim for damages for use and occupation there is no evidence with regard to the same and the said claim is rejected. In the result, this appeal is allowed. The decree and judgment of the trial court are set aside. The suit will stand decreed allowing the plaintiff to recover possession of the plaint schedule properties from the defendant. No costs. Sd/- **SATHISH NINAN** **JUDGE** kns/- //True Copy// P.S. to Judge