Thannyam Panchayat Service Co-operative Bank v Kumaran s/o Kizhakkootu Velayudhan Peringottukara

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 SA.No. 113 of 1999(E) --------------------AS.306/1994 of ADDL.DISTRICT COURT, THRISSUR OS.864/1988 of I ADDL.M.C.,THRISSUR .................... APPELLANT/APPELLANT/PLAINTIFF: ---------------------------------------------------- THANNYAM PANCHAYAT SERVICE CO-OPERATIVE BANK R.NO.387, REPRESENTED BY THE SECRETARY. BY ADV. SRI.TKM.UNNITHAN SRI.MATHEW UMMEN ## RESPONDENT/RESPONDENT/DEFENDANT -------------------------------------------------------------- KUMARAN S/O. KIZHAKKOOTTU VELAYUDHAN PERINGOTTUKARA, P.O. KIZHAPALLIKKARA .............DIED, LRS IMPLEADED THANNYAM VILLAGE, THRISSUR TALUK. ADDL.R2 TO 5 IMPLEADED;;;;;;;;;;; ADDL.R2.. DEVADAS (S/O.LATE KUMARAN) .......DIED, LRS IMPLEADED KIZHAKKOOTTU HOUSE, PERINGOTTUKARA PO. THANNYAM VILLAGE, TRICHUR TALUK. TRICHUR DISTRICT. 680 665. ADDL.R3.. SURESH (S/O. LATE KUMARAN) -DO- -DOADDL.R4... DILEEP KUMAR (S/O. LATE KUMARAN) -DO- -DOADDL.R5.. SHAJIKUMAR (S/O.LATE KUMARAN) -DO- -DO- ADDL. R2 TO 5 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT AS PER ORDER DT 19.1.11 IN I.A.1629/10. ADDL.R6 & R7 IMPLEADED;;;;;;;;;;;;;; ADDL.R6 : LATHIKA (W/O. LATE DEVADAS) KIZHAKKOOTTU HOUSE, PERINGOTTUKARA PO. THANNYAM VILLAGE, TRICHUR TALUK. TRICHUR DISTRICT. 680 665. ADDL.R7; SAJITHA (DO.LATE DEVADAS) -DO- -DO- LRS' OF DECEASED ADDL.R2 ARE IMPLEADED AS ADDL.RESPONDENTS 6 TO 7 AS PER ORDER DT.29.8.2011 IN IA. 557/11, 558/11 AND CMA.218/11. ADV. SRI.P.RADHAKRISHNAN SRI.MADHU RADHAKRISHNAN FOR SMT.K.MEERA SRI.P.RADHAKRISHNAN (1) FOR R3,4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON 19/11/2011 DELIVERED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS J.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** Second Appeal No.113 of 1999 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 19[th] day of November, 2011 ## **JUDGMENT** This Second appeal is filed by the plaintiff in O.S. No. 864 of 1988 on the file of 1[st] Additional Munsiff's Court, Thrissur. The original respondent herein was the defendant in that suit which was filed by the plaintiff for permanent prohibitory injunction and recovery of plaint schedule property and for arrears of rent. 2. The case of the plaintiff is that the plaint schedule property was originally owned by Thannyam Co-operative Society Limited No.27. The defendant was a member of that society. On 15.8.1872 the property was leased out to the defendant for a rent of Rs.10 and arrears if any kept be cleared with 12% interest. Later the Cooperative Society was amalgamated to the plaintiff bank and its assets and liabilities were also vested with the bank. Thereafter on Second Appeal No.113 of 1999 -- : 2 : -- 1.3.1976 the rent was refixed as Rs.20. The defendant has not been paying rent since 30.6.1987. Now the bank is in need of the plaint schedule property for its own use. On 6.2.1988 lawyer notice was sent to the defendant terminating the license. The lawyer notice was received by him on 9.2.1988 and to which he had sent reply stating false facts. Hence the plaintiff prays the Court to restrain the defendant from entering into the plaint schedule property by a permanent prohibitory injunction and also direct the defendant to demolish and remove the shed in the plaint schedule property on his own expense and in default permit the plaintiff to demolish the shed at the expenses of defendant by a mandatory injunction. A decree may be passed in favour of plaintiff for realisation of arrears of rent from 30.6.1987 to 19.5.1988 with 12% interest. 3. Defendant filed a written statement contending that himself and one Vakayil Balan had taken a piece of low lying land from plaintiff for the purpose of carpentry work in the year 1958 on a monthly rent of Rs.5. He had filled up the area and put up shed therein of permanent nature. He had been conducting carpentry Second Appeal No.113 of 1999 -- : 3 : -- work in the shed for about 30 years. On 18.1.1963 Vakayil Balan had surrendered his right to him. Subsequently a rent deed was executed on 15.8.1972. From then onwards the rent was being paid at the rate of Rs.20/- per month. The plaintiff was entitled to fixity of tenure under Section 106 of Kerala Land Reforms Act. Plaintiff is not entitled to the relief sought for. There can only be a fixation of rent as contemplated under Land Reforms Act. 4. The claim of defendant regarding fixity of tenure under Section 106 of the Kerala Land Reforms Act was referred to the Land Tribunal by the Munsiff Court, Thrissur under Section 125(3) of the Act. The Land Tribunal Thrissur after taking evidence held that the defendant is entitled to fixity of tenure under Section 106 of the Kerala Land Reforms Act. The Munsiff Court on accepting that finding of the Land Tribunal dismissed the suit. Against that judgment and decree the plaintiff filed appeal as A.S. No.306 of 1994 before the first Additional District Court, Thrissur and that Court dismissed the appeal on finding that the finding of the Land Tribunal that the defendant is entitled to the protection under Second Appeal No.113 of 1999 -- : 4 : -- Section 106 of the Kerala Land Reforms Act requires no interference and also found that the plaintiff is not entitled to recovery of arrears of rent. Against that judgment and decree the appellant/ plaintiff filed this second appeal. 5. Heard learned counsel for the appellant and learned counsel for the respondent. 6. At the time of the argument learned counsel for the appellant raised the following contentions: (i) The finding of the lower appellate Court that the transaction evidenced by Ext.P1 is a lease and not a license is erroneous. (ii) The Courts below ought to have held that transaction is only a license and not a lease. (iii) A perusal of Ext.P1 will show that it does not satisfy the requirements prescribed under Section 106 of the K.L.R. Act and so the defendant is not entitled to get the benefit of Section 106 of that Act. (iv) The finding of the Land Tribunal to the effect that Ext.P1 Second Appeal No.113 of 1999 -- : 5 : -- evidenced a lease under Section 106 of the K.L.R. Act is erroneous especially in view of the finding of the Land Tribunal that a shed was constructed before the execution of Ext.P1. (v) There is no reliable evidence in the case to show that the plaintiff society or its predecessor society had any lease transaction with the defendant. - (vi) The lower appellate Curt ought to have allowed the claim - of the plaintiff for arrears of rent from 30.6.1987. Learned counsel for the respondent supported the judgment of the lower appellate Court and finding of the Land Tribunal. 7. For claiming benefit under Section 106 of the K.L.R Act, the land has to be leased for commercial or industrial purpose and the lessee has constructed building for such commercial or industrial purposes before 20.5.1967. For the purpose of that Section 'building' means a permanent or temporary building and includes a shed. 8. Before the Land Tribunal the rent/ license deed dated 15.8.1972 is marked as Ext.P1. According to the case of the Second Appeal No.113 of 1999 -- : 6 : -- plaintiff the plaint schedule property was entrusted to the defendant by Thannyam Co-operative Society as per Ext.P1 license dated 15.8.1987 and thereafter the defendant constructed structures referred in the plaint schedule and the defendant was doing carpentry work and the rent payable was Rs.10/- per month. Thannyam Co-operative Society later amalgamated to the plaintiff Co-operative Bank on 4.10.1975. 9. The defendant contends that Vakayil Balan and the defendant took small strip of land belonging to the society in 1958 for doing carpentry work and the rent was Rs.5/- per month and they reclaimed that low lying land and put a shed for their work and defendant purchased adjacent land belong to a coffee club for convenience of his trade and on 18.1.1963 the said Balan assigned his right over the property to the plaintiff and subsequently in 1972 Ext.P1 rent deed got executed by the Society enhancing the rent of Rs.10/- which was subsequently enhanced to Rs.20/- per month. The defendant produced Exts.D1 to 76, which are receipts for payment of rent issued by the predecessor society of the plaintiff Second Appeal No.113 of 1999 -- : 7 : -- Co-operative Bank for the periods from 6.11.1963 to 26.4.1989. 10. LW2 is the Secretary of the Society from 1972 onwards. When cross-examined he deposed that he does not know whether there was carpentry work in the plaint schedule property from 1958 onwards. LW2 admitted that signature in Ext.D2 dated 28.6.1964 and Ext.D10 dated 22.2.1968 are that of one Karuppan who was the President of the Society at that time. Ext.D2 rent receipt dated 28.6.1964 and Ext.D5 receipt dated 18.4.1966 are issued in the name of the defendant. Some of the receipts are in the joint names of the defendant and Balan. The plaintiff has no case that Ext.D2 series are not genuine documents. Ext.D series rent receipts contain the seal of the society. LW1 is the president of the plaintiff Cooperative Bank. He does not know whether Ext.D series receipts are genuine receipts. 11. The defendant was examined as DW1. DW1 deposed before the Land Tribunal that the land was taken on lease by himself and Vakayil Balan in 1958 and they constructed a shed and room in the said land and were doing carpentry work there from Second Appeal No.113 of 1999 -- : 8 : -- 1958 onwards. He also stated that Vakayil Balan assigned his right to him in the year 1963. In cross- examination he admitted that Ext.P1 was executed by him to the plaintiff's predecessor. He does not know whether any document has been executed by him in favour of the society. DW2 examined in the Land Tribunal on 12.4.1993 stated that since about 35 years the defendant had been doing carpentry work in the land in question. It was a low lying area which the defendant reclaimed. 12. On the basis of these evidence on record, the Land Tribunal and the lower appellate Court found that the defendant and Vakayil Balan took the land on lease in the year 1958 and constructed structures referred in the plaint schedule in the said land before 20.5.1967 referred in Section 106 of the K.L.R. Act. 13. The learned counsel for the appellant relied on the decision reported in **Sulekha Beevi v. K.C. Mathew** (1997 (2) I.L.R Kerala 40) argued that by the execution of Ext.P1 there is an implied surrender of the earlier lease and since the defendant has accepted a new lease, he cannot claim protection of Sec. 106 of the Second Appeal No.113 of 1999 -- : 9 : -- K.L.R. Act. In that case it was held that the lessee who accepted the new lease already surrendered the earlier lease and that the surrender could be by operation of law or by implication. That decision is not applicable to the facts of this case. In this case there was no surrender of the structures as per Ext.P1. 14. In the decision reported in **Krishna Kumar Khemka v. Grindlays Bank P.L.C. and others** (1990 (3) SCC 669), it was held that “Surrender of a part does not amount to implied surrender of the entire tenancy and the rest of the tenancy remains untouched. Likewise the mere increase or reduction of rent also will not necessarily import a surrender of an existing lease and the creation of a new tenancy.” 15. In the decision reported in **T.K. Lathika v. Seth Karsandas Jamnadas** (1999 (6) SCC 632), it was held that: “The principle which governs the doctrine of implied surrender of a lease is that when a certain relationship existed between two parties in respect of a subject-matter and a new relationship has come into Second Appeal No.113 of 1999 **==> picture [48 x 9] intentionally omitted <==** existence regarding the same subject-matter, the two sets cannot coexist, being inconsistent and incompatible between each other i.e., if the latter can come into effect only on termination of the former, then it would be deemed to have been terminated in order to enable the latter to operate. A mere alteration or improvement or even impairment of the former relationship would not ipso facto amount to implied surrender. It has to be ascertained on the terms of the new relationship vis-avis the erstwhile demise and then judged whether there was termination of the old jural relationship by implication.” 16. In the present case there is no surrender of structure as per Ext.P1. The case of the plaintiff that structures were put up after the execution of Ext.P1 is not proved as found by the Land Tribunal and the lower appellate Court. The case of the plaintiff that a new lease arrangement was created as per Ext.P1 cannot be accepted in the light of reliable evidence adduced by the defendant to prove the case of the defendant. The Land Tribunal and the lower appellate Court concurrently found that the defendant is Second Appeal No.113 of 1999 **==> picture [48 x 9] intentionally omitted <==** entitled to get protection under Section 106 of the K.L.R. Act and that finding is based on acceptable evidence. It is not proper for this Court to interfere with that concurrent finding in the second appeal. As regards the arrears of rent the lower appellate Court found that in the plaint the arrears of rent was claimed from 30.6.1987 to 21.5.1988. Ext.D76 shows that the defendant has paid rent up to 30.4.1988. Therefore as found by the lower appellate Court the plaintiff is not entitled to recovery of arrears of rent claimed in the plaint. Accordingly this second appeal is dismissed as it is without any merits. There is no order as to costs. ## **M. L. JOSEPH FRANCIS, (JUDGE)** dl/