Puthiyath Aydru v. Asarath Veeran and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 7TH MARCH, 2008 /17TH PHALGUNA, 1929 SA.No. 252 of 2002() -------------------AS.51/1990 of SUB COURT, MANJERI OS.184/1982 of MUNSIFF COURT, MANJERI .................... APPELLANT: APPELLANT/DEFENDANT: ------------------------------- PUTHIYATH AYDRU, S/O. MAYIN,P.O.KARULAI, MALAPPURAM DISTRICT. BY ADVS. SRI.P.VIJAYAKUMAR SRI.P.NANDAKUMAR ## RESPONDENTS: RESPONDENTS/PLAINTIFFS: ------------------------------------ 1. ASARATH VEERAN, S/O. RAYANKUTTY, THANDUPARAKKAL HOUSE, P.O.KARULAI,MALAPPURAM DIST. 2. MOHAMMAD IQBAL, S/O. RAYANKUTTY, THANDUPARAKKAL HOUSE, P.O.KARULAI,MALAPPURAM DIST. 3. MUJEEB, S/O. RAYANKUTTY, THANDUPARAKKAL HOUSE, P.O.KARULAI,MALAPPURAM DIST. 4. KUNHAMMU, D/O.RAYANKUTTY, THANDUPARAKKAL HOUSE, P.O.KARULAI,MALAPPURAM DIST. 5. PATHUNNIKUTTY UMMA,W/O.(LATE)RAYANKUTTY, THANDUPARAKKAL HOUSE, P.O.KARULAI,MALAPPURAM DIST. BY ADVS.SRI.R.RAJESH KORMATH ) SMT.PREETHY KARUNAKARAN ) SRI.ANISH S.AMBADY ) R1 TO R5 SMT.BIJIMOL JOSE ) SMT.MEENA.A. ) SMT.M.R.MINI ) SRI.V.S.ROBIN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/03/2008 ALONG WITH SA NO. 250 OF 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 738 OF 2002 IN S.A. NO. 252 OF 2002. ## DISMISSED 7.3.2008 Sd/-(HARUN-UL-RASHID, JUDGE) ## **HARUN-UL-RASHID, J.** ## **-----------------------------------------------S.A. NOS. 250 & 252 OF 2002** **------------------------------------------------** Dated this the 7[th] day of March, 2008 ## **JUDGMENT** The above two appeals arise out of the decree and judgment in O.S. Nos.183 and 184 of 1982 on the file of the Munsiff's Court, Manjeri. The trial court decreed the suits and directed the defendants in both the suits to surrender vacant possession of the building free from all encumbrances. The said judgment and decree were challenged by the defendants in A.S. No. 50 and 51 of 1990 before the Sub Court, Manjeri. The findings entered by the trial court were confirmed by the appellate court and hence the above Second Appeals are filed at the instance of the defendants in the suit. 2. Both the suits were tried jointly and a common judgment was passed by the trial court as well as the lower appellate court. The parties to these appeals are referred to as the plaintiffs and defendants as in the suit. Evidence was recorded in O.S. No.183 of 1982. The short facts necessary for the disposal of these appeals are as follows: S.A.NOS.250 & 252/2002 2 The suit was filed for recovery of possession on the strength of the plaintiffs' title. The plaintiffs are the same in both the suit. According to the plaintiffs, the plaint schedule property in both the suits is part of the property set apart to the share of one of the sons of Muhammed alias Bappu and by assignment deed dated 15.4.1966, Aminakutty Umma, the mother of the 5th plaintiff's husband and grandmother of the rest of the plaintiffs purchased the plaint schedule property from the 5th plaintiff, Pathunnikutty Umma. Subsequently, there was a partition between Aminakutty Umma and her legal heirs as per partition deed No.675/1969. As per the said partition, the property assigned to Aminakutty Umma was partitioned into three shares and the western most portion of the property was set apart to the share of Rayinkutty, husband of the 5th plaintiff and father of the remaining plaintiffs. The plaint schedule building is situated in the property so set apart to the share of Rayinkutty. It is also alleged that the defendant in O.S. No.183 of 1982 was a tenant under Aminakutty Umma and that he paid a monthly rent of Rs.75/- to Rayinkutty. It is also pleaded that there is rent in arrears since December, 1980 and hence, the plaintiffs have the right to collect rent from the defendant and to evict him. 3. The defendant in the suit filed a written statement and inter alia contended that Aminakutty Umma was never in possession of the property S.A.NOS.250 & 252/2002 3 on the strength of Ext.A1 assignment deed of 15.4.1966. The defendant also denied the partition of 1969 and the setting apart of the property to the share of Rayinkutty. According to the defendant, he was never a tenant of Aminakutty Umma or Rayinkutty. It is also contended that the plaint schedule property is not included in the title deed of the plaintiffs and that even if it is included, it will not affect the lease hold right of the defendant. The defendant also claimed that he is a tenant of the building from 1960 onwards and hence entitled to protection under Section 106 of the Kerala Land Reforms Act, 1963 (hereinafter referred to as "the Act"). According to the defendant, in the year 1961 he leased out one cent out of the three cents to the defendant in O.S. No.184 of 1982 and, therefore, the defendant in O.S. No.184 of 1982 is a direct tenant under him. 4. The civil court referred the case to the Land Tribunal, Manjeri under Section 125(3) of the Act for entering a finding with regard to the tenancy claim of the defendant in O.S. No.183 of 1982. The Land Tribunal by separate orders dated 3.8.1989 in O.A. Nos.4 of 1988 and 3 of 1988 held that there was no evidence to establish the tenancy claim of the defendant over the plaint schedule property. The order in O.A. No.4 of 1988 also shows that the defendant in O.S. No.183 of 1982 did not press his claim of tenancy under Section 106 of the Act. the Land Tribunal S.A.NOS.250 & 252/2002 4 considered the question as to whether the defendants were tenants entitled to protection under Section 106 of the Act and found that there was no evidence to establish the tenancy set up by them. The reference was, therefore, answered against the defendants and the same forms part of the finding of the Munsiff's Court. 5. The evidence of the plaintiffs before the trial court consists of the evidence of PW.1 and Exts.A1 to A11(g). The defendants in the suits were examined as DWs.1 and 2 and Exts.B1 to B5(c) were marked on their side. Exts.C1 to C4 are marked as court exhibits. Ext.A1 is the assignment deed executed in favour of Aminakutty Umma. Ext.A1 shows that Aminakutty Umma had obtained an extent of seven cents in R.S. No. No.36/3 measuring 19 x 7[ 1] /2 six feet koles. Ext.A2 is the partition deed of 1969. Deceased Rayinkutty was a party to Ext.A2 partition deed and item Nos.26 to 48 were set apart to the share of Rayinkutty. Item No.48 of Ext.A2 is the disputed property in this case. The trial court after perusing Exts.A1, A3 and B1 concluded that the property obtained by deceased Rayinkutty as per Ext.A2 partition deed is the western most portion of the property comprised in Ext.A1 and that it is apparent from Ext.A2 itself that the total extent of the property comprised in Ext.A1 is not seven cents but more than that. The trial court also on the basis of the S.A.NOS.250 & 252/2002 5 documentary evidence, Exts.A1, A2 and B1 held that the plaintiffs got title over the plaint schedule building and disbelieved the contentions raised by the defendant that he had obtained three cents of property from one Bappu. The trial court also examined the contention of the defendant in O.S. No.183 of 1982 regarding the identification of the property and appreciating the evidence on record held that the plaint schedule property is identifiable. 6. The contention of the plaintiffs is that their predecessor-ininterest had constructed the building situated in the plaint schedule property and that the defendant in both the cases were tenants under her. The plaintiffs produced Exts.A8 and A9 to prove their ownership over the building. The trial court examined and discussed the oral evidence adduced by either side and held that the case of the plaintiffs that the defendants were tenants under them has not been proved. The trial court also considered all the contentions raised by the defendants, namely the jurisdiction of the court, maintainability of the suit, whether the suit was bad for non-joinder of parties, the competency of the first plaintiff to institute the suit etc. and held that those contentions are without merit. 7. The finding recorded by the trial court is that the plaintiffs in S.A.NOS.250 & 252/2002 6 both the suits had proved their title over the plaint schedule property. At the same time, the trial court held that entrustment of the building in lease is not proved and, therefore, the plaintiffs are not entitled to get arrears of rent. The trial court further held that the plaintiffs having proved their title, they are entitled to recover possession of the property on the strength of title. 8. Before the appellate court, the defendants filed A.S. Nos.50 and 51 of 1990 challenging the findings entered by the trial court. The plaintiffs also filed cross-objections challenging the finding regarding the status of the defendants and the negative finding regarding oral entrustment in 1969. The appellate court considered the contentions of the respective parties in detail and upheld the findings of the trial court. The appellate court apart from examining the findings on the issues formulated by the trial court also considered the question whether the defendants were lessees entitled to protection under Section 106 of the Act. After independently examining the materials on record, the appellate court held that no reliable evidence was adduced by the defendants to show that the building in the property was constructed by them. Accordingly, the appellate court confirmed the finding of the trial court regarding protection under Section 106 of the Act. The question of title and oral entrustment of S.A.NOS.250 & 252/2002 7 the building are re-agitated before this Court by the appellants in the Second Appeal. 9. According to the learned counsel for the appellants, the evidence on record would show that the claim of title set up by the plaintiffs is not proved and that since the plaintiffs have failed to prove entrustment of the building to the defendants in the suit, the decree passed by the trial court which was confirmed in appeal is not legal. Counsel also submitted that the plaintiffs failed to prove the entrustment of 1969 and that since there is positive proof of possession of the building by the defendants since 1960, the suit is liable to be dismissed. 10. I have examined the respective contentions of the parties. The materials on record and the oral evidence were discussed by the fact finding authorities and findings were entered on the basis of such materials. The inconsistent plea set up by the defendant was also considered by the courts below on the basis of the evidence on record. Before this Court also, the appellants put forward inconsistent pleas. After finding that the defendants cannot succeed in proving the claim of tenancy, they have filed a petition to amend the written statement for incorporating the claim of title under adverse possession and limitation. A petition for S.A.NOS.250 & 252/2002 8 amendment filed at the second appellate stage lacks bona fides and, therefore, I find that no reasons are made out by the appellants for raising such inconsistent pleas at the second appellate stage. Counsel for the respondents invited my attention to the decision of the Supreme Court reported in **Shrimoni Gurdwara Committee v. Jaswant Singh (1996)11 S.C.C. 690** wherein it was held that the defendant can raise mutually inconsistent pleadings in the written statement, but it is for the court to consider whether the case can be properly considered in deciding the issue. Finding that the contentions raised in that case is mutually destructive, the Supreme Court held that no explanation was given as to why they came forward with the plea at the belated stage after the parties had adduced evidence and the matter was to be argued. The Supreme Court further held that under such circumstances, there is no error of jurisdiction or material irregularity in the exercise of jurisdiction warranting interference. In this case also, the application for amendment is filed at the belated stage. There is no explanation why the defendants came forward with the plea at such a belated stage. This Court in **Saramma Ittoop v.Kunjamma Kuruvilla,** reported in **2006(3)I.L.R. Kerala 272** following the decision of the Supreme Court in **Annasaheb Bapusaheb Patil v. Balwant, 1995(2) S.C.C. 543** held that where possession can be referred to a lawful title, it will not be considered to be S.A.NOS.250 & 252/2002 9 adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. It was therefore held that a person who enters into possession having a lawful title cannot divest another of that title by pretending that he had no title at all. 11. No question of law or any substantial question of law arises for consideration in these Second Appeals. I find that the finding recorded are purely on facts based on the materials. I find no reason to interfere with the judgment under appeal. In the result, the Second Appeals fail and they are accordingly dismissed. The amendment petition is also dismissed. There will be no order as to costs. **(HARUN-UL-RASHID, JUDGE)** ## **sp/** S.A.NOS.250 & 252/2002 10 ## **HAURN-UL-RASHID, J.** **S.A.NOS.250 & 252/2002** **JUDGMENT** **8TH MARCH, 2008**