Unnikrishnan and others v. C. V. Ananthakrishnan @ Sankar and Omana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 26TH DAY OF AUGUST 2014/4TH BHADRA, 1936** ## **RSA.No. 624 of 2014 ()** **----------------------AS 39/1999 OF ADDITIONAL DISTRICT COURT-I, PALAKKAD OS 70/1974 OF ADDITIONAL SUB COURT, PALAKKAD** **----------------------** **NAME AND ADDRESS OF THE APPELLANTS/RESPONDENTS 5 TO 14, 16 TO 24 AND/** **-----------------------------------------------------------------------------------------------------------------------L.R'S OF R2, DEFENDANTS 6 TO 14, LRS OF D4, D5 AND D3:** **--------------------------------------------------------------------------------------** ## **1. UNNIKRISHNAN,** **S/O.MURUKANDI, AGED 67 YEARS UPPER VALMUTTY KALAM, 4/224 CHITTUR VILLAGE, CHITTUR TOWN, CHITTUR TALUK, PALAKKAD DISTRICT.** ## **2. RAMAKRISHNAN,** **S/O.MURUKANDI, AGED 65 YEARS UPPER VALMUTTY KALAM, 4/224 CHITTUR VILLAGE, CHITTUR TOWN, CHITTUR TALUK, PALAKKAD DISTRICT.** ## **3. SUNDARAN,** **S/O.MURUKANDI, AGED 58 YEARS UPPER VALMUTTY KALAM, 4/224 CHITTUR VILLAGE, CHITTUR TOWN, CHITTUR TALUK, PALAKKAD DISTRICT.** ## **4. ANANTHAKRISHNAN,** - **S/O.MURUKANDI, AGED 56 YEARS** - **UPPER VALMUTTY KALAM, 4/224 CHITTUR VILLAGE, CHITTUR TOWN,** - **CHITTUR TALUK, PALAKKAD DISTRICT.** ## **5. SIVADASAN,** **S/O.MURUKANDI, AGED 52 YEARS UPPER VALMUTTY KALAM, 4/224 CHITTUR VILLAGE, CHITTUR TOWN, CHITTUR TALUK, PALAKKAD DISTRICT.** ## **6. GOPALAKRISHNAN,** - **S/O.MURUKANDI, AGED 47 YEARS** - **UPPER VALMUTTY KALAM, 4/224 CHITTUR VILLAGE, CHITTUR TOWN,** - **CHITTUR TALUK, PALAKKAD DISTRICT.** **...2/-** ## **RSA.No. 624 of 2014 () -2-** ## **7. RUGMINI,** **D/O.MURUKANDI, AGED 75 YEARS UPPER VALMUTTY KALAM, 4/224 CHITTUR VILLAGE, CHITTUR TOWN, CHITTUR TALUK, PALAKKAD DISTRICT.** ## **8. PUSHPAVATHY @ PUSHPA, AGED 54 YEARS** **D/O.MURUKANDI, UPPER VALMUTTY KALAM, 4/224 CHITTUR VILLAGE, CHITTUR TOWN, CHITTUR TALUK PALAKKAD DISTRICT.** ## **9. KANAKAM,** **D/O.MURUKANDI, AGED 62 YEARS UPPER VALMUTTY KALAM, 4/224 CHITTUR VILLAGE, CHITTUR TOWN, CHITTUR TALUK, PALAKKAD DISTRICT.** **10. DEVAKI @ DEVU, AGED 80 YEARS W/O.LATE VASU, C/O.RATHNADAS, ASST. STATION MASTER SOUTHERN RAILWAY, CHALAKUDY, THRISSUR.** ## **11. SHOBHANA,** **D/O.LATE. VASU & W/O.DILEEP, AGED 50 YEARS, CHEETHAVU, AIYLOOR PALAKKAD.** ## **12. SUDHEENA,** **D/O.LATE VASU AND W/O.RATHNADAS, AGED 42 YEARS, ASST. STATION MASTER SOUTHERN RAILWAY, CHALAKUDY, THRISSUR.** ## **13. MEENAKSHI,** **W/O.LATE MALLU, AGED 77 YEARS, ARAMANAKALAM, VILAYODI, CHITTUR TALUK PALAKKAD DISTRICT.** **14. KRISHNAMOORTHY, S/O.LATE MALLU, AGED 58 YEARS,** **ARAMANAKALAM, VILAYODI, CHITTUR TALUK PALAKKAD DISTRICT.** ## **15. VIJAYAN,** - **S/O.LATE MALLU, AGED 54 YEARS** - **ARAMANAKALAM, VILAYODI, CHITTUR TALUK PALAKKAD DISTRICT.** **16. SIVADASAN @ SIVAN, AGED 52 YEARS S/O.LATE MALLU, ARAMANAKALAM,** **VILAYODI, CHITTUR TALUK PALAKKAD DISTRICT.** **...3/-** **RSA.No. 624 of 2014 () -3-** ## **17. ASHOKAN,** ## **S/O.LATE MALLU, AGED 50 YEARS ARAMANAKALAM, VILAYODI, CHITTUR TALUK PALAKKAD DISTRICT.** ## **18. PRAKASH M. @ PRAKASAN,** **S/O.LATE MALLU, AGED 48 YEARS ARAMANAKALAM, VILAYODI, CHITTUR TALUK PALAKKAD DISTRICT.** ## **19. CHEMPAKAM,** **D/O.LATE MALLU & W/O.SIVASANKARN, AGED 60 YEARS, ARAMANAKALAM VILAYODI, CHITTUR TALUK, PALAKKAD DISTRICT.** **20. SREEDHARAN K., S/O.LATE KUNJANDI, AGED 57 YEARS PUTHUSSERYKALAM, VILAYODI CHITTUR TALUK, PALAKKAD DISTRICT.** ## **21. PRABHAKARAN K.,** **S/O.LATE KUNJANDI, AGED 54 YEARS PUTHUSSERYKALAM, VILAYODI CHITTUR TALUK, PALAKKAD DISTRICT.** ## **22. GANGADHARAN K.,** **S/O.LATE KUNJANDI, AGED 52 YEARS PUTHUSSERYKALAM, VILAYODI CHITTUR TALUK, PALAKKAD DISTRICT.** ## **23. VALSALA K.,** **D/O.LATE KUNJANDI, AGED 59 YEARS PUTHUSSERYKALAM, VILAYODI CHITTUR TALUK, PALAKKAD DISTRICT.** ## **24. CHANDRIKA,** **D/O.LATE KUNJANDI, AGED 63 YEARS PUTHUSSERYKALAM, VILAYODI CHITTUR TALUK, PALAKKAD DISTRICT.** ## **25. VASANTHA,** **D/O.LATE KUNJANDI, AGED 49 YEARS PUTHUSSERYKALAM, VILAYODI CHITTUR TALUK, PALAKKAD DISTRICT.** ## **26. LATHA,** **D/O.LATE KUNJANDI, AGED 46 YEARS PUTHUSSERYKALAM, VILAYODI CHITTUR TALUK, PALAKKAD DISTRICT.** **...4/-** ## **RSA.No. 624 of 2014 () -4-** ## **27. GEETHA,** **D/O.LATE KUNJANDI, AGED 43 YEARS PUTHUSSERYKALAM, VILAYODI CHITTUR TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.P.U.VINOD KUMAR SRI.KANDAMPULLY RAHUL SRI.MITHUN BABY JOHN** ## **NAME AND ADDRESS OF THE RESPONDENTS/APPELLANT/PLAINTIFF AND 2ND** **-----------------------------------------------------------------------------------------------------------------RESPONDENT/15TH RESPNDENT IN AS 39/1999 :** **----------------------------------------------------------------------** **1. C.V.ANANTHAKRISHNAN @ SANKAR, AGED 61 YEARS, ADVOCATE S/O.JUSTICE C.A.VAIDIALINGAM (LATE) JUDGE (RETD.), SUPREME COURT OF INDIA NO.8, FIRST FLOOR, NIZAMUDDIN EAST NEW DELHI - 13, LAW CHAMBERS, DELHI HIGH COURT, NEW DELHI - 110 003.** **2. OMANA, AGED 60 YEARS D/O.LATE VASU & W/O.BALAKRISHNAN, KOOMANKAD CHUNGAMANNAM, MATHUR P.O., ALATHUR PALAKKAD DISTRICT – 678 571.** **R1 BY ADV. SRI. P.B.KRISHNAN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - ## R.S.A. No. 624 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of August, 2014 ## **J U D G M E N T** Fourty years of litigation is yet to see its culmination. O.S.No. 70 of 1974 was instituted before the Additional Sub Court, Palakkad seeking recovery of possession of plaint C schedule property which has an extent of 1.11 acres. 2. The facts absolutely necessary for the disposal of this appeal are as follows: It is not in dispute that the plaint A, B and C schedule properties originally belonged to late C.V. Ananthakrishna Iyer. By virtue of two Sambala pattachittu; one in favour of Appu and the other in favour of the defendant in the suit properties were leased out. The Sambala pattachittu in favour of Appu was in relation to plaint A and C schedule property and the other one in favour of the defendant with respect to B schedule property. Subsequently, late C.V. Ananthakrishna Iyer executed a settlement deed dated 27.2.1958 whereby he settled B and C schedule properties in **R.S.A. No. 624 of 2014** **-2-** favour of the plaintiff in the suit and A schedule property in favour of his wife. The settlement was effected by virtue of two separate documents. There is no dispute that later there was an exchange of property between Appu and the defendant in the suit. They executed two fresh Samabala pattachittu whereby Appu came into possession of, according to the plaintiff, B and C schedule properties and the defendant came into possession of A schedule property. According to the plaintiff, as water was to be taken from C schedule property and since the defendant was cultivating A schedule property in order to facilitate for taking water, the supervision of C schedule was also entrusted to him. Except for supervision of cultivation, he had no manner of right over C schedule property. On the basis of these allegations, the suit was laid. 3. The defendant resisted the suit. His contention was that C schedule was leased out to him. To be more precise, according to him, the initial Samabala pattachittu **R.S.A. No. 624 of 2014** **-3-** executed by him was in respect of B schedule and that by Appu related to A and C schedule. However, his further case was that on demand made by late Ananthakrishna Iyer, there was a surrender of lease in the year 1960 and on the very same day, he took on lease A and C schedule properties and B schedule was left with Appu. He thus claimed tenancy right over A and C schedule properties. 4. Based on the above pleadings, issues were raised by the trial court. Since the question tenancy was raised, the matter was referred to land Tribunal. Initially the Land Tribunal returned a finding in favour of the tenant. Consequently, the suit was dismissed on 02.01.1980. That was challenged in appeal as A.S. No. 50 of 1980. 5. As per the judgment dated 22.10.1983, the lower appellate court set aside the judgment and decree of the trial court and remanded the matter to the trial court with a direction to seek fresh finding regarding the tenancy from the Land Tribunal concerned. ## **R.S.A. No. 624 of 2014** **-4-** 6. While the matter was pending before the Land Tribunal, it so happened that the defendant passed away and his legal heirs were brought on the party array. Though the direction of the lower appellate court to refer the matter to the Land Tribunal was challenged before this Court in C.R.P. No. 1246 of 1987, that did not meet with success. 7. The Land Tribunal, by its order dated 29.11.1997 again held that the original defendant was the tenant of the C schedule property. Consequently, the suit was dismissed. That was challenged in appeal. 8. The lower appellate court reversed the finding of the trial court and came to the conclusion that the person from whom the defendant is alleged to have taken the property on lease did not have authority to lease out that property and therefore, he could be treated only as working in a supervisory capacity as alleged in the plaint and therefore the suit was decreed. That brings the legal heirs of the original defendant before this Court. **R.S.A. No. 624 of 2014** **-5-** 9. At the time of admission, both sides were heard. 10. Sri. Babu Karukappadath, the learned counsel appearing for the appellants, contended that the lower appellate court was not justified in reversing the finding of the trial court which adopted the Land Tribunal's order as per the statutory mandate. The Land Tribunal, according to the learned counsel, had considered the document produced by the claimant before it and had come to the conclusion that the C schedule was taken on lease from the wife of C.V.Ananthakrishna Iyer and the arrangement was not as claimed by the plaintiff. It was contended on behalf of the appellant that the settlement deed on the basis of which claim is laid by the plaintiff was not produced before the Land Tribunal nor was any evidence adduced by the plaintiff before the Land Tribunal. It was also contended that there was another proceedings as O.A. which had been allowed and that order has become final and that would act as res judicata. Finally, it is contended that the appellants sought **R.S.A. No. 624 of 2014** **-6-** to produce certain documents at the appellate stage which was improperly rejected by the lower appellate court. Had those documents been received in evidence, the court could have been in a better position to understand the nature of rights put forward by the appellant. For these reasons, it is contended that the judgment and decree of the lower appellate court cannot be sustained. 11. Sri. P.B. Krishnan, the learned counsel appearing for the respondent on the other hand contended that the Land Tribunal has misconstrued the evidence on record and has not properly understood the case put forward by the landlord before it. It proceeds on the basis that the lease of A and C schedule properties in 1960 was from the wife of late C.V.Ananthakrishna Iyer to whom the properties were alleged to have been settled as per document No. 406/1958. According to the learned counsel, it is not so. A schedule property was alloted to the wife of C.V. Ananthakrishan Iyyer and B and C schedule properties were alloted to the plaintiff ## **R.S.A. No. 624 of 2014** **-7-** in the suit. Therefore it is contended that the wife of C.V. Ananthakrishna Iyer was incompetent to grant a lease in respect of C schedule property and on that sole ground, the claim has to fail. It is admitted by the defendant, according to the learned counsel, that levy was measured in the name of the plaintiff which shows that the defendant was fully aware of the fact that the right over the C schedule property remained with the plaintiff. 12. As regards the contention regarding the order in O.A. the learned counsel relied on the decision reported in **Venkitarama** v. **Vesu Amma** [1995 (2) KLT 295] wherein it has been held that an order passed by the Land Tribunal during the pendency of suit proceedings is of no avail. It is also contended by way of abundant caution by the learned counsel that having claimed specific tenancy, the defendant now cannot call back upon the deemed tenancy to substantiate his claim. According to the learned counsel, there are no grounds to interfere with the judgment and **-8-** ## **R.S.A. No. 624 of 2014** decree of the lower appellate court. 13. The properties A, B and C scheduled originally belonged to C.V. Ananathakrishna Iyer is not a matter in dispute. There is some dispute regarding question as to whether the settlement deed said to have been executed by C.V.Ananthakrishana Iyer was produced or not. The Land Tribunal in its order does not seem to refer to the same, but the records indicate the document had been produced. It is also not in dispute that initially, as per two Sambala pattachittu, the properties were entrusted to Appu and the defendant in the suit. It is also not in dispute that at that point of time, Appu was entrusted with A and C schedule properties and the defendant with B schedule property. It is admitted by the defendant also that there was a surrender in the year 1960 and a fresh arrangement of lease of the properties. According to the plaintiff, as per the new arrangement, B and C schedule properties went to Appu and A schedule property went to the defendant. The defendant ## **R.S.A. No. 624 of 2014** **-9-** on the other hand would say that he took on lease A and C schedule properties and Appu was left with only B schedule property. This is that real dispute in the case. 14. The plaintiff would say that for cultivating A schedule property, water had to be taken from the C schedule property and as the defendant was cultivating A schedule property, he was asked to supervise cultivation in respect of C schedule property also. There was no lease arrangement between the plaintiff and the defendant as regards C schedule property. 15. It is true that the plaintiff did not adduce any evidence before the Land Tribunal. But the burden is on the claimant to show that he is a cultivating tenant entitled to claim fixity of tenure in respect of the C schedule. The defendant had examined himself before the Land Tribunal. So also was Appu. 16. The learned counsel appearing for the appellant pointed out that agricultural land of 130 paras were leased ## **R.S.A. No. 624 of 2014** **-10-** out to the defendant. If that be so, according to the learned counsel, A schedule has an extent of 11.93 acres and C schedule has an extent of 1.11 acres. They together would make 13 acres which would be in tune with 130 paras of paddy land. This is a clinching circumstance, according to the learned counsel, to show that A and C schedule properties were given on lease to the defendant. 17. It may be borne in mind that there is no dispute regarding the tenancy right claimed by the respective persons as regards A and B schedule properties. It is significant to notice that no documents were produced by the defendant to show that the wife of C.V.Ananthakirshna Iyer namely Visalakshy Ammal had any right over C schedule property. The Land Tribunal in its order has simply summarized the contention and has jumped into a conclusion that the tenancy right in respect of C schedule property has been proved by the claimant before it. ## **R.S.A. No. 624 of 2014** **-11-** 18. As already noticed, even the defendant in his written statement admits the surrender in 1960 and a fresh arrangement thereafter. The settlement deed seen to have been produced before the Land Tribunal shows that B and C schedule properties were given to Appu and that the property was set apart to the plaintiff as per the settlement deed. If that be so, the person who was competent to lease C schedule property was none other than the plaintiff. There is nothing on record to show that Visalakshy Ammal had any manner of right over C schedule property going by the settlement deed in her favour which took in only B schedule property. 19. It is contended on behalf of the appellant that the defendant was unaware as to who exactly was the landlord of the properties as the contents of the settlement deed were not disclosed to him and he bonafide believed that the document which he was made to execute took in both items of properties namely A and C schedule properties. ## **R.S.A. No. 624 of 2014** **-12-** 20. The above contention could have been accepted but for one fact. The defendant has admitted that the levy was measured in the name of the plaintiff. If he bonafide believed that the person from whom he had taken property on lease was Visalakshy Ammal, there were no occasion for him to have measured levy in the name of the plaintiff. Therefore, it could not be accepted that the defendant was totally unaware of the right of the plaintiff over C schedule property. Even going by the evidence before the Land Tribunal, the lower appellate court has come to the conclusion that the tenants have admitted that there was an exchange of property in 1960 and that would be sufficient to show that the claim of the plaintiff is true. Under these circumstances, the question as to whether C schedule was only a source of water for irrigation or not, does not assume much significance at all. The possession of the defendant in relation to C schedule property can therefore be only as claimed by the plaintiff. ## **R.S.A. No. 624 of 2014** **-13-** 21. It is true that the lower appellate court did not accept the additional evidence said to have been produced by the appellants before this Court. However, it must be remembered that the suit was of the year 1974 and there have been two remands already. Nothing prevented the appellants from producing the necessary documents at the appropriate stage and they have no case that those documents were not available with them. Probably, the lower appellate court could have given a reason for not accepting those documents. But merely because, that has not been done, does not make much of a difference in the light of the fact that the settlement deed on the basis of which the plaintiff lays the claim is seen produced before the Land Tribunal. 22. It is pointed out by the learned counsel for the respondent that the documents that were sought to be produced is a partition deed in the family of defendant and also that the plaintiff in the present case had preferred an **-14-** ## **R.S.A. No. 624 of 2014** appeal against the order in O.A. 23. By no stretch of imagination, it could be said that the partition deed in the family of the defendant would bind the plaintiff. As far as the filing of the appeal is concerned, it has to be noticed that the O.A. was allowed during the pendency of Civil proceedings in which matter was directly and substantially in issue and in the light of the decision cited by the learned counsel for the respondent, it was incompetent for the Land Tribunal to deal with the original application independently and the order so passed has no legal legs to stand. 24. It could thus be seen that none of the contentions raised by the appellants are sustainable. As to the question as to who held title to the C schedule property, the lower appellate court has considered the evidence on record and has come to the conclusion that the plaintiff was the title owner to the C schedule property. That is essentially a question of fact. No substantial question of law arises for **-15-** ## **R.S.A. No. 624 of 2014** consideration in this second appeal. This second appeal is without merits and is accordingly dismissed. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge