Sr. M.V. Siyyalikoya v. K. Kammukutty Naha and Son, K. Ashraf

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY ,THE 03RD DAY OF SEPTEMBER 2018 / 12TH BHADRA, 1940** ## **SA.No. 309 of 1999** **AGAINST THE JUDGMENT AND DECREE IN AS 132/1996 of III ADDL.SUB COURT, KOZHIKODE DATED 30-11-1998** **AGAINST THE JUDGMENT AND DECREE IN OS 498/1985 of ADDL.M.C.,KOZHIKODE-II** ## **APPELLANT/ APPELLANT/ PLAINTIFF:** **SR.M.V.SIYYALIKOYA, SIYA MAHAL IN VADAKARA AMSOM DESOM OF VADAKARA TALUK, P.O.BADAGARA-3, NOW RESIDING AT SIYA MAHAL' P.O.,TRIKANDIYOOR, TIRUR-4, MALAPPURAM DISTRICT** **BY ADV. SRI. R. RAMADAS** ## **RESPONDENTS/ RESPONDENTS/ DEFENDANTS:** **1. K.KAMMUKUTTY NAHA, MANNARAYIL HOUSE, P.O., KARUVANTHURUTHY, FEROKE AMOSM, NELLUR DESOM, KOZHIKODE TALUK** **2. SON, K.ASHRAF, -DO – DO-** **ADV.M.C.SEN M.P.SREEKRISHNAN, SHAHNA KARTHIKEYAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **SA.No. 309 of 1999** ## **P.B.SURESH KUMAR, J.** **--------------------------------------------** **S.A.No.309 of 1999** **---------------------------------------------------------------** **Dated this the 3[rd] day of September, 2018** ## **J U D G M E N T** The plaintiff in the suit is the appellant. The plaint B schedule property is a portion of the plaint A schedule property. The plaint A schedule property was purchased by the plaintiff in terms of Ext.A1 kanam assignment deed on 07/12/1977. The case set out by the plaintiff in the plaint is that he is in possession of the plaint A schedule property ever since its purchase and it has come to his notice on 16/09/1985 that the defendants have trespassed into the plaint B schedule property and constructed a shed therein. It is also the case of the plaintiff that the defendants have no manner of rights in the plaint schedule properties and though he required the first defendant, who is a close relative of him, to remove the shed put up in the property, they have refused to do so. The suit, according to the plaintiff, was instituted in the said circumstances 3 ## **SA.No. 309 of 1999** for recovery of possession of the plaint B schedule property from the defendants and for injunction restraining the defendants from trespassing into the remaining portion of the plaint A schedule property. 2. The defendants contested the suit by filing a joint written statement. They admitted the case of the plaintiff that he has acquired title to the plaint A schedule property in terms of Ext.A1 kanam assignment deed. Their contention, however, was that the plaint A schedule property is lying as two taks (portions), one on the east and the other on the west; that the first defendant had taken the western tak on an oral lease from the vendor of the plaintiff Ismailkutty Haji during 1960 for thrashing soaked coconut husks for the purpose of extracting fibre; that he has constructed a shed in the leasehold for the said purpose during the year 1960 itself; that he is using the said property thereafter for the purpose for which it was leased out to him and that he is, therefore, entitled to protection under Section 106 of the Kerala Land Reforms Act, 1963 (the Act). 3. The trial court referred the issue as to the entitlement of the first defendant for protection under Section 106 of the Act for adjudication by the Land Tribunal as provided for under Section 125 4 ## **SA.No. 309 of 1999** (3) of the Act and the Land Tribunal answered the reference in favour of the first defendant. The trial court accepted the finding of the Land Tribunal on the issue and consequently, found that the plaintiff is not entitled to the decree for recovery of possession of plaint B schedule property sought for in the suit. In the written statement filed by the defendants, they have contended that they are in possession of only the leasehold and they have not attempted to trespass into any other portion of the plaint A schedule property. In the light of the said stand of the defendants, the trial court turned down the prayer of the plaintiff for injunction as well. In the result, the suit was dismissed. 4. The plaintiff challenged the decision of the trial court in appeal. Before the appellate court, the plaintiff contended that the claim raised by the first defendant being not one of tenancy, the trial court acted without jurisdiction in referring the claim made by the first defendant for protection under Section 106 of the Act for adjudication to the Land Tribunal. It was also contended by the plaintiff alternatively that at any rate, the finding rendered by the Land Tribunal on the referred issue, is unsustainable. The appellate court repelled both the said contentions of the plaintiff and confirmed the decision of the trial court. The plaintiff, who is 5 ## **SA.No. 309 of 1999** aggrieved by the concurrent decisions of the courts below, has thus come up in this second appeal. 5. Heard the learned counsel for the plaintiff as also the learned counsel for the defendants. 6. The learned counsel for the plaintiff, placing reliance on the decision of this Court in _**Muhammed Shaheer v. Nanu Vidyadharan** [1990 (1) KLJ 690)_ as affirmed in _**Govinda Panicker v. Sreedhara Warrier** [2000 (2) KLT 43]_ , contended that the Act does not contemplate a reference of a claim for protection under Section 106 of the Act for adjudication by the Land Tribunal under Section 125(3) of the Act and, therefore, the order of reference as also the finding rendered by the Land Tribunal are void. According to the learned counsel, the matter, in the circumstances, has to go back to the trial court for a fresh adjudication on the issue as to whether the first defendant is entitled to protection under Section 106 of the Act. The learned counsel also made submissions as regards the merits of the adjudication made by the appellate court on the point. According to the learned counsel, there is no reference at all in Ext.A1 document as to the oral lease set up by the first defendant, while the document refers to the remaining encumbrances in the property. It was pointed out by the learned 6 ## **SA.No. 309 of 1999** counsel that Ext.A1 recites categorically that physical possession of the entire property excluding the 'kudikidappu' referred to therein, is with the executant unencumbered and the same has been handed over to the plaintiff in terms of the said document. It was also pointed out by the learned counsel that the first defendant is a witness to Ext.A1 document. According to the learned counsel, in the light of the aforesaid recitals in Ext.A1 document to which the first defendant is a party, the first defendant cannot be heard to contend that he was in possession of a portion of the property covered by the document as a lessee and he continued to be in possession even after the execution of Ext.A1 document. It was pointed out by the learned counsel that this vital aspect of the matter has not been noticed by the appellate court while holding that the first defendant is entitled to protection under Section 106 of the Act. 7. _Per contra_ , the learned counsel for the first defendant forcefully contended that though the reference made by the trial court under Section 125(3) of the Act was unnecessary and without jurisdiction, the matter need not be remitted to the trial court for fresh adjudication for that reason alone as sought by the plaintiff. According to the learned counsel, in matters like this, the appellate 7 ## **SA.No. 309 of 1999** court is certainly entitled to examine the entitlement of the person concerned for protection under the said statutory provision based on the materials brought on record by the parties before the Land Tribunal and before the trial court. It was pointed out that the appellate court in the instant case has considered the merits of the claim raised by the first defendant for protection under Section 106 of the Act and answered the issue in favour of the first defendant. According to the learned counsel, there is absolutely no infirmity in the finding rendered by the appellate court in this connection. The learned counsel also made submissions, on merits, to support the finding rendered by the appellate court as to the entitlement of the first defendant for protection under Section 106 of the Act. Placing reliance on Exts.A1 and A2 documents produced before the Land Tribunal, the learned counsel contended that the said documents would establish the oral lease set up by the first defendant. Placing reliance on the evidence tendered by the witness examined as PW3 before the Land Tribunal, the learned counsel contended that the said evidence would convincingly establish that the building in the property has been constructed by the first defendant long prior to 21/5/1967. Placing reliance on the letters produced before the Land Tribunal by the first defendant as Exts.A3 to A5, the learned counsel 8 ## **SA.No. 309 of 1999** submitted that the said documents would establish that the first defendant was making use of the western tak for the commercial activity of thrashing soaked husks for extracting fiber. According to the learned counsel, in the light of the said materials, no conclusion other than the one arrived at by the appellate court is possible and the decision of the appellate court is, therefore, perfectly in order. Above all, it was also contended by the learned counsel that, at any rate, insofar as the finding rendered by the appellate court in this connection is on a pure question of fact, this Court shall not interfere with the said finding in a second appeal instituted under Section 100 of the Code of Civil Procedure. 8. I have given my thoughtful consideration to the contentions advanced by the learned counsel for the parties and the substantial questions of law arise in the second appeal have been framed thus: “(1) Insofar as the Act does not contemplate a reference of a claim for protection under Section 106 of the Act for adjudication by the Land Tribunal under Section 125 (3) of the Act, should a matter where a reference has been made and a finding obtained, be remitted to the trial court for fresh adjudication of the said claim? 9 **SA.No. 309 of 1999** (2) If it is found that the appellate court has jurisdiction to adjudicate the claim for protection under Section 106 of the Act even in a case where a reference has been made and a finding obtained, whether the appellate court, in the instant case, is justified in holding that the first defendant is entitled to protection under the said provision in the light of the specific recital in Ext.A1 to which the first defendant is a party, to the effect that the plaintiff was handed over possession of the entire property unencumbered in terms of the said document?” 9. In _**Govinda Panicker**_ (supra), it was clarified by this Court that in cases where references have been made under Section 125(3) of the Act and findings obtained, the matters need not be remitted to the trial courts for fresh adjudication on the issue as to the entitlement of the protection of the persons concerned under Section 106 the Act and that in all such cases, the appellate court, in the light of Section 107 of the Code of Civil Procedure, is empowered and shall decide the question, on merits, on the basis of the evidence made available by the parties before the Land Tribunal and trial court which form part of the records of the case. In the light of the said decision, question (1) is to be answered in favour of the first defendant and I do so. 10 **SA.No. 309 of 1999** 10. It is seen that it is in the light of Exts.A1 and A2 rent receipts issued by the vendor of the plaintiff to the first defendant, the appellate court found that the case of oral lease set up by the first defendant in respect of the western tak of the plaint A schedule property is correct. Though there was no reference at all about the existence of the oral lease in favour of the first defendant in Ext.A1 kanam assignment deed, it is on the basis of the reference made therein as to the existence of a building in the property, and recital in the document that the building is not the subject matter of the same, coupled with the evidence tendered by the witness examined as PW3 before the Land Tribunal that he has constructed the building in the property in the year 1960, the appellate court has arrived at the conclusion that the first defendant has constructed a building in the property before 21/05/1967. Further, it is from the recitals contained in Exts.A2 to A5 letters written by the plaintiff requiring the first defendant to stop his commercial activity in the property, the appellate court came to the conclusion that the lease was for a commercial purpose. It is in the aforesaid background that the appellate court came to the conclusion that the first defendant is entitled to protection under Section 106 of the Act. According to me, the aforesaid finding is vitiated by a very serious 11 ## **SA.No. 309 of 1999** error, for, the said finding has been rendered without comprehending correctly the implication of the recitals contained in Ext.A1 Kanam assignment deed. 11. As noted, Ext.A1 is the document in terms of which the plaintiff obtained title to the plaint A schedule property. It is executed by one Ismailkutty Haji. It is recited in Ext.A1 that the plaint A schedule property excluding 13½ cents covered by the 'kudikidappu' given to persons in terms of compromises arrived at before the Land Tribunal, is in the exclusive possession of the executant namely Ismailkutty Haji and that the same is not encumbered in any manner whatsoever. Ext.A1 also recites that the unencumbered property in the possession of the executant is handed over to the plaintiff in terms of the said document. The relevant portion reads thus: “ആകക 13½ ക�ന��� സല� അത�ല�ള കൾൾ �ഴ�ക�� ചമയങ ഉക�ക� കകരള ഭ�പര�ഷ�കര കൾ ഭദഗത� ന�യമത�കല കൾൾൾ (� � ല%ന��� �)�(�ണ കക%ട� കൾൾ ( %ധ���ച ഹജ� പ)ക%ര� ക���ക���� കക%��തത� കഴ�ച�ളത�� യൾ %കത%ര� ക���ക�വ�� ക� . കവച� വര�നത�� ആക�ന� എനൾ % പട�കയ�കല പ�മ�ന� കമ��� ക%ണ� പൾ ���%�� 50ന�ന പ. ക%ണവ�� 75 പയ�� പൾ ���%��� അ�ശ�ച അത� അവകൾൾ %ശങക �� ക��� മദ&സന% 12 **SA.No. 309 of 1999** 12000 ക ത0ര� വ�ല ന�ശയ�ച� എന�ക� ന���� കൾൾൾ കവശവ� � വ�ട ഈ ആധ%രത ത0ര� തര�കയ�� ത0ര� വ�ല ഉ����ക പന)ണ%യ�രവ�� ഇന� എന�ക� ന�ങകള%�� ക�%ക� ക�ട� ക(%ദ&� വര�കയ�� പട�കയ�കല പ�മൾ �കന എന�ക�ള �കലവക%ശ കകവശവ�� ൾൾഇത �ന % ത0ന� കപ%ക�കയ�� ആയത� എല�ല%� നൾൾൾ �ങക � � �ദ�ക�കയ�� വ�� കകവശ� തര�കയ�� കചയ�ത�ര�ക കക%ണ� ൾൾപട �കയ �കല പ�മ� ഇത� മ�തക� ക�ഴ�ക�� ചമയവക%ശമ%യ� കകവശ� കവച� �ക% ൾൾ ന�ക�ത� കക%��ത� എകനന�� അ�ക� അന�ഭവ�ക�നത�ന�� ജന�യ�ക� അവക%ശ� ന�യമപ)ക%ര� പത�ച� വ%ങ�നത�ന�� മറ� വ�ധമ%യ ന�ങള�ക� ഇഷപ)ക%ര� എല�ല% കൾ )യവ�ക)യങ കചയ�നത�ന�� പട�കയ�കല പ�മ�കനല�� ക%ണ� ക�ഴ�ക�� ചമയ� മൾ �തല%യത�കള�കനല യൾ %കത%രവക%ശവ�� “ . (%ദ&തയ�� ഇല�ല 12. The first defendant is a witness to Ext.A1 kanam assignment deed. It is beyond doubt that in the light of Section 111 (f) of the Transfer of Property Act, a lease can be determined by implied surrender as well. It is settled that implied surrender is by operation of law and it occurs or could be inferred from creation of new relationships or by relinquishment of possession or from other conduct. True, implied surrender of a lease is not to be inferred readily. In _**Shah Mathuradas Maganlal & Co. v. Nagappa Shankarappa Malage and Others** [(1976) 3 SCC 660]_ , it was 13 ## **SA.No. 309 of 1999** clarified by the Apex Court that relinquishment of possession operates as an implied surrender. 13. In _**P.M.C. Kunhiraman Nair v. C.R.Naganatha Iyer and Others** [(1992) 4 SCC 254]_ , the Apex Court, referring to the principles of English Law, reiterated that delivery of possession of the leasehold by the tenant to the landlord and its acceptance by the landlord would determine the lease by implied surrender. It has been clarified in the said case that illustration to clause (f) of Section 111 of the Transfer of Property Act is not exhaustive of the cases in which there may be an implied surrender of the lease and as under the English Law, there can be an implied surrender of lease, if the lessor confers rights over the property to a third person with the assent of the lessee under the existing lease and delivers possession to such person. Paragraph 10 of the decision of _**P.M.C.Kunhiraman Nair**_ (supra) reads thus: “ _Under clause (f) of Section 111 of the Transfer of Property Act, 1908, implied surrender is a mode for determination of a lease of immovable property. In English law, delivery of possession by the tenant to a landlord and his acceptance of possession effects a surrender by operation of law. It is also called implied surrender in contradistinction to express surrender which must be either by deed or in_ 14 **SA.No. 309 of 1999** _writing. It has been held that directing the occupier to acknowledge the landlord as his landlord, i.e., to attorn to the landlord, is a sufficient delivery of possession by the tenant to the landlord. It has also been held that receipt of rent from a person in possession may be evidence of the landlord’s acceptance of him as tenant, whether he is a stranger, or whether he was already in possession as subtenant. [See : Halsbury’s Laws of England, 4th Edn., Vol. 27, paras 444, 445, 446 and 450; and Note (1) to para 446]. Under the illustration to clause (f) of Section 111 of the Transfer of Property Act, there would be an implied surrender of the former lease if a lessee accepts from his lessor a new lease of the property leased to take effect during the continuance of the existing lease. The said illustration is, however, not exhaustive of the cases in which there may be an implied surrender of the lease. Just as under the English law, there can be an implied surrender under the law of transfer of property in India, if the lessor grants a new lease to a third person with the assent of the lessee under the existing lease who delivers the possession to such person or where the lessee directs his subtenant to pay the rent directly to a lessor. (See : Konijeti Venkayya v. Thammana Peda Venkata Subbarao[1] and Noratmal v. Mohanlal).”_ 15 ## **SA.No. 309 of 1999** 14. Coming to the case on hand, according to me, the recitals contained in Ext.A1 kanam assignment deed to which the first defendant is a signatory, as extracted above, leads only to the inference that the first defendant has surrendered possession of the leasehold to the landlord prior to the execution of the said document, if at all there was a lease in favour of the first defendant prior to the said document. If the first defendant had surrendered possession of the leasehold to the landlord, it has to be held that the lease in favour of the first defendant was determined before the execution of Ext.A1 document. If that be so, there is no question of the first defendant getting the protection under Section 106 of the Act. True, in terms of Exts.A2 to A5 letters written by the plaintiff to the first defendant, the plaintiff called upon the first defendant to remove the shed in the property and stop the thrashing activity of soaked coconut husks in the property. But, when the materials on record indicate that the leasehold was surrendered by the first defendant prior to Ext.A1, it cannot be found from the recitals of aforesaid letters alone that the first defendant is entitled to protection under Section 106 of the Act, for, claiming protection under Section 106 of the Act, one has to establish continued possession of the property pursuant to the lease from a day anterior 16 ## **SA.No. 309 of 1999** to 21/5/1967. In the said view of the matter, the finding rendered by the appellate court on the issue as to the entitlement of the claim for protection made by the first defendant under Section 106 of the Act could be termed only as perverse. The question (2) is, therefore, answered in favour of the appellant. In the result, the second appeal is allowed, the impugned decrees and judgments of the courts below are set aside and the plaintiff is permitted to recover possession of the plaint B schedule property from the defendants. There will also be a decree of permanent prohibitory injunction in favour of the plaintiff restraining the defendants and persons claiming under them from trespassing into the plaint A schedule property including the plaint B schedule property. Sd/- **P.B. SURESH KUMAR JUDGE** rsr