SA.No. 619 of 2000 (against the judgment and decree dated 31-03-2000 in AS 12/1996 of Sub Court, Vadakara, and judgment and decree dated 12-01-1996 in OS 149/1986 of Munsiff Court, Vadakara)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** ## **SA.No. 619 of 2000** **AGAINST THE JUDGMENT AND DECREE DATED 31-03-2000 IN AS 12/1996 of SUB COURT, VADAKARA AGAINST THE JUDGMENT AND DECREE DATED 12-01-1996 IN OS 149/1986 of MUNSIFF COURT, VADAKARA** **- APPELLANTS IN S.A. /RESPONDENTS 7 TO 12 IN THE LOWER APPELLATE - COURT DEFENDANTS 9 TO 14 IN SUIT.:** **1 V.K.SUSHEELA D/O.MALATHI AMMA, RESIDING AT UTTUPURAYIL, AZHIYUR AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. 2 DR.V.K.SANTHI, D/O..DO. MAHE HOSPITAL, MAHE AMSOM DESOM, PONDICHERRY STATE. 3 V.K.REMANI, D/O. D.O., RESIDING AT UTTUPURAYIL, AZHIYUR AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT.** |**4**|**RADHAKRISHNAN,**| |---|---| ||**S/O. .DO. IN .DO. .DO.**| |**5**|**PREMAN,**| ||**S/O. .DO. IN .DO. .DO.**| |**6**|**KRISHNA KUMAR,**| ||**S/O. .DO. IN .DO. .DO.**| ||**BY ADVS.**| ||**SRI.P.B.KRISHNAN**| ||**SRI.P.B.SUBRAMANYAN**| ||**SRI.P.M.NEELAKANDAN**| ||**SRI.SABU GEORGE**| **SA.No. 619 of 2000 2** **- RESPONDENT NO.1 IN S.A. APPELLANT IN THE LOWER APPELLATE COURT - PLAINTIFF NO.2 IN SUIT: RESPONDENTS 2 TO 7 IN S.A.RESPONDENTS 1 TO 6 IN THE LOWER APPELLATE COURT- DEFENDANTS 1 TO 6 IN SUIT** ****1 COURT RECEIVER, A.K.VIJAYAKRISHNA VARMA RAJA, S/O NARAYANAN NAMBOODIRI, PURAMERI AMSOM AND DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT (DIED) ***2 V.K.KALLIANI AMMA, W/O.T.G.KUNHIRAMA KURUP, RESIDING AT KOTTAPPALLI AMSOM, VALLIAD DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. (DIED) (RESPONDENTS 3, 6 AND PROPOSED ADDL.RESPONDENT NO.9 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.2 AS PER THE ORDER DATED 05.07.2018 ON MEMO VIDE CF.4345/18 DATED 16.06.2018) 3 RAMACHANDRAN, S/O. .DO. CLERK, SYNDICATE BANK, VADAKARA, IN .DO. .DO. *4 PREMANATHAN, S/O. .DO. RESIDING AT VANNATHANKANDIYIL, KOTTAPPALLY AMSOM, VALLIAD DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT.(DIED) 5 NANU, S/O. .DO. RESIDING IN .DO. .DO. (DIED) (THE APPELLANTS (APPLICANTS IN IA.906/2010) ARE EXEMPTED FROM THE NECESSITY OF IMPLEADING THE LR'S OF DECEASED R4 AND R5 AT THE RISK OF THE PETITIONERS VIDE ORDER DATED 19.05.2010 IN IA.906/2010). 6 GEETHA, D/O. .DO. IN .DO. .DO. 7 KAMALAKSHI, D/O. .DO. IN .DO. .DO. (DIED) 8 P.C.MANAVENDRA RAJA, S/O.DAMODARAN NAMBOODIRI, AGED 67, PAZHAYANALUKETU MALIKA,** **SA.No. 619 of 2000 3** **MANKAVU KOVILAKAM, MANKAVU P.O., KOZHIKODE, PIN-673 007.** **(THE LEGAL REPRESENTATIVE OF DECEASED RESPONDENT NO.1 IS IMPLEADED AS ADDL. RESPONDENT NO.8 AS PER THE ORDER DATED 05.07.2018 IN IA.223/2018).** **9 LATHA GOPALAKRISHNAN, D/O.KAMALAKSHI (AGE NOT KNOWN TO THE APPELLANTS) RESIDING AT 232, THE EMBASSY, ALI ASKAR ROAD, BANGALORE, PIN-560 052.** **(THE LEGAL REPRESENTATIVE OF DECEASED 7TH RESPONDENT IS IMPLEADED AS ADDL.RESPONDENT NO.9 AS PER THE ORDER DATED 29.08.2018 IN IA.8/2000 (A.NO.1843/2018)** **ADDL.R9 BY ADV.SRI.MANU VYASAN PETER** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SA.No. 619 of 2000 4** ## **JUDGMENT** A receiver appointed by a court of ward with respect to the Kuttippuram Kovilakam properties instituted a suit in O.S.No.149/1986 for recovery of property. But the suit was ended in dismissal in the trial court (Munsiff's Court,Vatakara). In A.S.No.12/1996, the Appellate Court reversed the finding of the trial court and decreed the suit granting eviction of defendant from the suit property, which comes to 24 cents and a building therein. Initially, rent control proceedings were initiated against the defendant for their eviction. But the defendants took a contention of permanent tenancy and the same was found to be bonafide by the rent control court under Ext.A3 and referred the parties to civil court. Consequently, the present suit was instituted against defendant Nos. 1 to 8. Defendant Nos. 1 to 6 are the widow and children of one T.C.Kunhirama Kurup, the manager of Devaswom. He obtained the suit property and the ## **SA.No. 619 of 2000 5** building therein under a lease arrangement from the said kovilakam. The 7[th] defendant Kunhikrishna Kurup is his nephew and 8[th] defendant is the wife of the 7[th] defendant. During the pendency of the suit, the 7[th] defendant passed away and his legal heirs were impleaded as additional defendants 9 to 11, and the 8[th] defendant recorded as one of his legal heirs. 2. According to the official receiver, the plaintiff, the property was obtained by T.C.Kunhirama Kurup, the Manager of the Kovilakam and he was paying rent at the rate of Rs.24/- per month. Ext.A4 kaichit produced to show the lease arrangement and the rent payable. 3. According to 8[th] defendant, Malathiamma, suo motu proceedings were initiated by Land Tribunal in S.M. proceedings No.1427/1977 on 29.12.1997 with respect to the suit property and granted a purchase certificate in her name. On getting knowledge about the S.M. proceedings, the receiver took the matter before the first appellate authority and the appellate authority under Ext.A5 order set aside ## **SA.No. 619 of 2000 6** the purchase certificate and remanded the matter to the Land Tribunal for fresh adjudication. In the meanwhile, a reference was made under Section 125 of the Kerala Land Reforms Act based on the contention raised by the 8[th] defendant. The reference was numbered by giving a R.C. number for adjudicating the claim under Section 72 of KLR Act. It was answered in favour of 8[th] defendant and consequently the suit was dismissed by the Trial Court. But in appeal, the finding rendered by the Land Tribunal was set aside and the suit was decreed by allowing the appeal mainly on the reason that there is no basis for the claim of the 8[th] defendant that she had obtained the property under an independent entrustment in the year 1957 directly from the senior member of Kovilakam (Valiya Raja). Subsequently, 8[th] defendant passed away and her legal heirs were impleaded as defendant Nos. 9 to 14 and they came up with this appeal. 4. Ext.A4 shows the lease arrangement between the kovilakam and the Manager T.C.Kunhirama Kurup. ## **SA.No. 619 of 2000 7** It is a document of the year 1132 ME (4[th] Chingam 1132 ME) corresponding to 28.7.1957. The admissibility of the said document and its genuineness are under challenge. The said document produced from a lawful custody and it was having an oldage of more than 30 years and hence initial presumption under Section 90 of the Evidence Act would come into play, though the presumption is rebuttable, for which no satisfactory evidence adduced by the defendants/appellants. On the other hand, it was submitted that the suit was filed on 17.11.1986 before the expiry of 30 years from the date of Ext.A4 i.e. one year prior to the expiry of 30 years. But it has no relevance. 30 years has to be computed from the date on which the document was put in evidence and as such Ext.A4 would qualify as a document having an oldage of 30 years and the initial presumption of genuineness of its execution would come into play, though it may not extent to the contents of the document. The initial presumption not rebutted and hence the execution of the document stood as proved which would satisfy ## **SA.No. 619 of 2000 8** the relationship between the parties based on its contents and it would clearly show a lease arrangement between the kovilakam and the Manager T.C.Kunhirama Kurup with respect to the suit property. The rent payable is stated as Rs.24/- per month. 5. There is no much dispute with respect to the status of one T.C.Kunhirama Kurup being the Manager of the Kovilakam. The case advanced by the plaintiff, the official receiver is that, it is T.C. Kunhiraman Kurup who had taken the plaint schedule property and the building thereon under a Kychit for a monthly rent of Rs.25/-. The defendants 1 to 6 are his widow and children. T.C.Kunhirama Kurup sub leased the property to the 7[th] defendant Kunhikrishna Kurup, his nephew and he used to pay the rent to the Kovilakam. The Kychit produced and marked as Ext.A4 is related to 14[th] day of Chingam 1132 ME corresponding to 28/07/1957. It was put in evidence after the expiry of 30 years. The suit was filed on 17/11/1986 just one year before the expiry of 30 years. The learned counsel ## **SA.No. 619 of 2000 9** for the appellant submitted that inorder to bring the document within the purview of Section 90 of the Evidence Act and to apply the presumption available thereunder, the document should be of 30 years old age right from the date of institution of the suit. But, the legal position settled says otherwise that the 30 years period should be computed from the date on which the document was put on evidence and not depend on the date on which the suit was filed. Ext.A4 document being a document having more than 30 years and contains a signature as that of the executant T.C.Kunhirama Kurup, the predecessor in interest of defendants 1 to 6, it can be presumed as genuine by virtue of operation of Section 90 of the Evidence Act. Ofcourse, the presumption is necessarily a rebuttable one. It is true that Section 90 of Evidence Act has no application with respect to the genuineness of contents of the document but when there is presumption showing execution of the document, in the absence of contra evidence the contents can be accepted. It is a lease executed by ## **SA.No. 619 of 2000 10** T.C.Kunhirama Kurup in the name of Karanavan (elder member) of the above said Kovilakam by which he had taken the plaint schedule property with Uttupuraparambu ('Uttupura' stands for a customary house and place intended for feeding the devotees or members of the family. The further case advanced by the official receiver the plaintiff is that based on the lease arrangement in between the Kovilakam and T.C.Kunhiraman Kurup, the D7, his nephew Kunhikrishna Kurup used to pay rent to the Kovilakam. Ext.B12 to 23 document produced by the defendants would sufficiently show that this Kunhikrishna Kurup was occupying the house situated in that property and the house was assessed in his name. These documents would clearly show that the 7[th] defendant either got a sub lease over the property or he was acting as the agent of T.C.Kunhirama Kurup, the original lessee and had done something by holding and possessing the same and was paying building tax over the property in his name. 6. The claimant in the _suo motu_ proceedings ## **SA.No. 619 of 2000 11** initiated by the land Tribunal-Malathi Amma is none else the wife of the above said 7[th] defendant Kunhikrishna Kurup. Her case is that she had obtained possession of the property in the year 1957 from the elder member of the Kovilakam (Valiyaraja) for which she has no document much less any scrap of paper. Even according to her it is only an oral entrustment in the year 1957. The document produced by the defendant executed as Exts.B12 to 23 would go against the very root of the case advanced by Malathi Amma, the 8[th] defendant, the wife of 7[th] defendant. 7. Her husband was holding the property and constructed a building therein and paying building tax in respect of the property. He was paying rent to the Kovilakam. It is too hard to digest that his own wife the 8[th] defendant was holding the same property in a different capacity under an oral entrustment of the year 1957, and this will not go together. Further her own documents, the documents produced by the defendant would improbalise and take away the very root of the case advanced by her ## **SA.No. 619 of 2000 12** alleging an oral entrustment of the year 1957. Her claim is mainly based on the payment of tax before the revenue authorities under Exts.B1 to B9 receipts commencing from 21/2/1961 to the year 1982. The owner of the property is stated as Valiyaraja of the said Kovilakam. Any person can make payment of tax. Exts.B1 to B9 documents did not disclose under what capacity she had paid or remitted the land tax to the property. Necessarily her relationship with her husband 7[th] defendant in whose name the building was assessed would go against her case. 8. Yet another argument was also advanced by the learned counsel for the appellant that the 8[th] defendant has to be treated as a deemed tenant by virtue of operation of Section 7 of the KLR Act. It is true that certain persons were brought under the purview of Section 7 as deemed tenant and it is really intended to safeguard the interest of persons who had come into possession of a tenanted premises without having a valid document showing their relationship. Inorder to satisfy a deemed ## **SA.No. 619 of 2000 13** tenancy as enumerated under Section 7 of the said Act a clear and unambiguous independent possession with its certainty for the period as enumerated under Section 7 has to be established. In the instant case the entrustment and the possession claimed by the 8[th] defendant is under the shadow of doubt and no satisfactory evidence was brought into existence inorder to satisfy any independent possession, apart from the possession enjoyed by her husband over the property. This would go against the case advanced by the 8[th] defendant. In any view of the matter there cannot any independent possession as claimed by the 8[th] defendant. The absence of satisfactory evidence much less any evidence to show the alleged oral entrustment of the year 1957 is certainly fatal to the case advanced by the 8[th] defendant. 9. The order of eviction was granted on the ground of sub-lease, a ground under Section 11(4) (i) of the Kerala Buildings (Lease and Rent Control) Act. In fact, it was granted in accordance with the mandate under the second proviso to ## **SA.No. 619 of 2000 14** Section 11(1) of the said Act and in consonance with the legal position settled in **M/s. East India Corporation Ltd. v. Shree Meenakshi Mills Ltd.** **(AIR 1991 (SC) 1094) and Nafeesu v. Hajrabi ( 1992** **(1) KLT 554)** . No substantial question of law brought to the notice of this court. Hence appeal fails. The appeal is dismissed. No costs. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** msp //TRUE COPY// P.A. TO JUDGE