R.S.A. No. 82 of 2023

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA, 1944 RSA NO. 82 OF 2023** **AGAINST THE JUDGMENT AND DECREE DATED 30.08.2022 IN AS 357/2012 OF SUB COURT, KANNUR ARISING FROM THE JUDGMENT AND DECREE DATED 09.03.2012 IN OS 74/2010 OF ADDITIONAL MUNSIFF'S COURT, KANNUR** ## **APPELLANTS/APPELLANTS 2 TO 12/LEGAL HEIRS OF DEFENDANT:** - 1 A.BHARATHAN S/O. YASODA, THYKANDY HOUSE, NEAR NITHYANANDA NAGAR COLONY, P.O. PALLIKUNNU, KANNUR, PIN - 670004 - 2 T.P PREMAJA D/O. YASODA, THYKANDY HOUSE, NEAR NITHYANANDA NAGAR COLONY, P.O. PALLIKUNNU, KANNUR, PIN - 670004 3 T. CHANDRAN S/O. YASODA, THYKANDY HOUSE, NEAR NITHYANANDA NAGAR COLONY, P.O. PALLIKUNNU, KANNUR, PIN - 670004 4 T. HARIDAS S/O. YASODA, THYKANDY HOUSE, NEAR NITHYANANDA NAGAR COLONY, P.O. PALLIKUNNU, KANNUR, PIN - 670004 5 T. PREMAN S/O. YASODA, THYKANDY HOUSE, NEAR NITHYANANDA NAGAR COLONY, P.O. PALLIKUNNU, KANNUR, PIN - 670004 - 6 T. PUSHPAJA D/O. YASODA, THYKANDY HOUSE, NEAR NITHYANANDA NAGAR COLONY, P.O. PALLIKUNNU, KANNUR, PIN - 670004 - 7 T. PADMAJA D/O. YASODA, THYKANDY HOUSE, NEAR NITHYANANDA NAGAR COLONY, P.O. PALLIKUNNU, KANNUR, PIN - 670004 R.S.A.No.82/2023 2 - 8 VALSALA RAVEENDRAN W/O. RAVEENDRAN, THYKANDY HOUSE, NEAR NITHYANANDA NAGAR COLONY, P.O. PALLIKUNNU, KANNUR, PIN - 670004 9 DIVYA R D/O. RAVEENDRAN, THYKANDY HOUSE, NEAR NITHYANANDA NAGAR COLONY, P.O. PALLIKUNNU, KANNUR, PIN - 670004 10 DHANYA R D/O. RAVEENDRAN, THYKANDY HOUSE, NEAR NITHYANANDA NAGAR COLONY, P.O. PALLIKUNNU, KANNUR, PIN - 670004 BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN ## **RESPONDENTS/RESPONDENTS 3 AND 5 TO 15/3RD PLAINTIFF AND** ## **LEGAL HEIRS OF PLAINTIFFS 1, 2 AND 4:** - 1 P. P. SOMAN S/O. LATE KUMARAN, "ROHINI KUMAR", NEAR BEVERAGES CORPORATION, THAVAKKARA, KANNUR DISTRICT, PIN - 670002 - 2 N.C. RADHAKRISHNAN HUSBAND OF P.P.RATHIDEVI, RESHMALAYAM, NEAR MANCHAPPALAM, P.O. CHALAD, KANNUR DISTRICT -, PIN - 670004 - 3 RESNA DAUGHTER OF LATE P.P.RETHIDEVI, RESHMALAYAM, NEAR MANJAPPALAM, P.O. CHALAD, KANNUR DISTRICT, PIN - 670004 - 4 DR. PRASANNA LAKSHMANAN W/O. P.P.LAKSHMANAN, ROHINI NIVAS, NEAR TRAINING SCHOOL, P.O. CIVIL STATION, KANNUR, PIN - 670002 - 5 SHAMLA D/O. P.P.LAKSHMANAN, ROHINI NIVAS, NEAR TRAINING R.S.A.No.82/2023 3 - SCHOOL, P.O. CIVIL STATION, KANNUR, PIN - 670002 - 6 DR. SMITHA D/O. P.P. LAKSHMANAN, ROHINI NIVAS, NEAR TRAINING SCHOOL, P.O. CIVIL STATION, KANNUR, PIN - 670002 - 7 LASITHA D/O. P.P. LAKSHMANAN, ROHINI NIVAS, NEAR TRAINING SCHOOL, P.O. CIVIL STATION, KANNUR, PIN - 670002 - 8 NAMITHA D/O. P.P.LAKSHMANAN, ROHINI NIVAS, NEAR TRAINING SCHOOL, P.O. CIVIL STATION, KANNUR, PIN - 670002 - 9 NAVEEN S/O. P.P.LAKSHMANAN, ROHINI NIVAS, NEAR TRAINING SCHOOL, P.O. CIVIL STATION, KANNUR, PIN - 670002 - 10 DEEGA.P.P D/O. GANGADHARAN, FIELD VIEW,THALIKKAVAU ROAD, KANNUR, PIN - 670002 - 11 DIVYA P.P D/O. GANGADHARAN, FIELD VIEW, THALIKKAVAU ROAD, KANNUR, PIN - 670002 - 12 ROHITH.P.P S/O. GANGADHARAN, FIELD VIEW, THALIKKAVAU ROAD, KANNUR, PIN - 670002 - THIS REGULAR SECOND APPEAL HAVING COME UP FOR - ADMISSION ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A.No.82/2023 4 ## **M.R.ANITHA, J** ****************** R.S.A.No.82 of 2023 ---------------------------------------------Dated this the 23[rd] day of February, 2023 ## **JUDGMENT** Appellants are the legal heirs of the defendant in O.S.No.74 of 2010 on the files of Munsiff's Court, Kannur. The suit is one for declaration and consequential injunction. Plaint schedule property is a building situated in Re-survey No.66/9 of Puzhathi amsom desom having an extent of 15 cents. The jenmam right with respect to property in which the building situates belongs to Pallikkunnu Devaswom which is in the possession of Kuzhikkanam Chamayam tenancy right of plaintiff's father P.P.Kumaran. Kunjikannan was running a handloom industry in the plaint schedule building just before the assignment. P.P.Kumaran died on 24.02.1982. His right devolved upon his wife Rohini and children who are the plaintiffs. Rohini also died on 09.11.1992. Plaint schedule building was let out to husband R.S.A.No.82/2023 5 of defendant for a monthly rent of Rs.100/-. The lease was in the year 1964 or 1965. Rent has been enhanced from time to time and at present, the rent is Rs.500/- per month. Defendant paid rent upto 31.01.2005. Thereafter, she wilfully neglected to pay the rent. On 10.10.2008, plaintiffs sent a lawyer notice to the defendant. Defendant replied that the owner of the land was Kunhikannan and Kunhikannan let out the land to the father of the defendant Chathu. Chathu constructed a building in question and that the plaintiffs has no right, title or possession of the plaint schedule building. 2. Defendant filed written statement contending that the property in which the plaint schedule building stands belong to one Arayakandi alias Vallyavalappil Kunhikannan. Kunjikannan orally entrusted the property to Chathu for about 60 years back. The property was taken for the construction of a cattle shed. The shed was constructed by the husband of defendant Chathu with his own funds. Chathu was having number of milk cows and was a milk vendor. Plaintiffs' father had no right, title or possession over the building. The predecessor of the defendant has not paid R.S.A.No.82/2023 6 any rent in respect of the building to anybody. So, permanent tenancy over the plaint schedule building is claimed under Section 106 of the Kerala Land Reforms Act, 1963 (for short 'the Act'). It is contended that the civil court has no jurisdiction to try the suit. 3. PW1 was examined and Exts.A1, A2 and A4 to A10 marked from the side of the plaintiffs. DW1 was examined from the side of the defendant. 4. On evaluating the facts and circumstances and evidence, trial court found that the defendants are not entitled to claim the benefit under Section 106 of the Act since they did not adduce any evidence to prove that they have constructed the plaint schedule building. Further, it is found that plaintiffs established their right and title over the plaint schedule property and accordingly the suit decreed, as prayed for. Against which appeal was filed and the first appellate court by the impugned judgment confirmed the judgment and decree passed by the trial court. Having lost before the two lower forums, appellants approaches this Court in second appeal. R.S.A.No.82/2023 7 5. Heard learned counsel for the appellants. 6. According to the learned counsel for the appellants, the courts below ought to have dismissed the suit on the ground of non-joinder of necessary parties since all the legal heirs of Chathu were not impleaded. It is also contended that the trial court went wrong in not referring the case to Land Tribunal for determination of the question under Section 106 of the Act. 7. 3[rd] plaintiff was examined as PW1 and Ext.A1 is the Kuzhikkanam deed by which father of the plaintiffs P.P.Kumaran purchased Kanam kuzhikkanam right of the plaint schedule building having an appurtenant land having an extent of 15 cents. Even before the purchase of property by the plaintiffs' predecessor, previous owner Kunhikannan was conducting a handloom industry in the plaint schedule building. After six years of the purchase of kanam kuzhikkanam as per Ext.A1, the building was let out to Chathu, the predecessor-in-interest of the defendant on a monthly rent of Rs.100/-. Though defendant put forward a claim of commercial lease under Section 106 of the Act, that has been concurrently found against the defendant. R.S.A.No.82/2023 8 Defendant has also got a contention that the claim of commercial lease under Section 106 of the Act ought to have been referred for finding to the Land Tribunal under Section 125(3) of the Act. It is also contended that the dictum laid down by this Court in **Govinda Panicker v. Sreedhara Warier : 2000 (2) KLT 43** was misinterpreted. As has been rightly found by the first appellate court, law laid down in **Govinda Panicker** referred above is that a claim for protection under Section 106 of the Act by a person in a suit filed in civil court need not be referred to a Land Tribunal for a decision since there is no ouster of jurisdiction of a civil court namely the trial court regarding the question Section 125(1) merely provides that the Civil Court shall not have jurisdiction to settle, decide or deal with any question which is by or under this Act, required to be settled, decided or dealt with by a Land Tribunal”. Section 125(3) “only speaks of a question regarding the rights of a tenant or of a kudikidappukaran. It is found that a lessee seeking protection under section 106 of the Act is not a tenant by description. He is also not a person on whom any right is conferred by Section 13 R.S.A.No.82/2023 9 or Sections 72 and 72B of the Act. In fact, the transaction in his favour is one which is exempted from the operation of Chapter II of the Act by section 3(1)(iii) of the Act. In para 19, the court held that “the definition of a tenant occurring in section 2(57) of the Act does not include within its purview lessee of a land leased for a commercial purpose coming within section 3(1)(iii) of the Act under section 106 of the Act.” 8. So, in view of the above settled position, the contention of the appellants that the question of commercial lease ought to have been referred to the Land Tribunal for finding also is not sustainable in law. Rightly the courts below, upon evidence adduced, came to a conclusion that defendants failed to prove that their predecessor-in-interest Chathu constructed the plaint schedule building and thereby they are entitled for the protection of Section 106 of the Act. 9. Ext.A1 kanam kuzhikanam deed, Ext.A2 extract of building tax assessment register for the year 1968-1973 issued by the Secretary, Pallikkunnu Grama Panchayat, Ext.A4 extract of building tax assessment register for the year 1988-1993; Ext.A5 R.S.A.No.82/2023 10 extract of building tax assessment register for the year 19931994 to 1997-98, Ext.A6 extract of building tax assessment register for the year 2005-06 to 2007-08 issued by the Secretary, Pallikkunnu Grama Panchayat conclusively proved the right and title of the predecessor of the plaintiffs over the plaint schedule building. Though defendant contended that their predecessor-in-interest, Chathu constructed the building when Kunhikannan the owner of property orally entrusted 15 cents of land to Chathu before 60 years to keep his milk cows, no evidence could be adduced by the defendants to prove that they have constructed the plaint schedule building. No document was also produced by them to prove the alleged arrangement in between their predecessor-in-interest and the erstwhile owner Kunhikannan. On the other hand, plaintiffs through Exts.A1 and A5 to A6 could prove conclusively their right and title over the plaint schedule building. An argument also seem to have been advanced before the first appellate court to the effect that only the wife of Chathu has been impleaded as a defendant in the suit and hence the suit is bad for non-joinder of necessary parties. In R.S.A.No.82/2023 11 the written statement, defendant did not take a plea of jonjoinder and no issue was also raised by the trial court regarding non-joinder. So, at a later stage, the defendant is estopped from raising such an issue of non-joinder. Moreover, after the death of the original defendant, all her legal heirs together filed the appeal. So, on a close evaluation of the judgment and decree passed by the courts below, I am of the considered view that the courts below have considered the facts and circumstances and evidence and law involved in a correct perspective and I do not find any substantial question of law emerging for consideration for entertaining the second appeal. In the result, appeal is found to be devoid of any merit and hence dismissed. (sd/-) **M.R.ANITHA, JUDGE** jsr/ True Copy P.S to Judge