Kerala High Court
Madavoor Mammukutty vs Kunimal Padmakshy on 2 July, 2025
RFA 559/2011 & Cross objection 83/2011
1
2025:KER:48312
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
RFA NO. 559 OF 2011
OS NO.136 OF 1995 OF SUB COURT , SULTHANBATHERY
APPELLANTS/DEFENDANT NO.1 & SUPPL.DEFENDANTS 2 TO 5 IN SUIT
1 MADAVOOR MAMMUKUTTY, S/O ANTHRUMAN,
MANJAPPARA, P.O.NARIKUNDU,AMBALAVAYAL AMSOM DESOM, SULTHAN
BATHERY TALUK, WAYANAD DISTRICT.
2 P.A.HAMSA, S/O.ALAVI, PULICKAL HOUSE
NARIKUNDU P.O, ,AMBALAVAYAL AMSOM DESOM, SULTHAN BATHERY TALUK
3 K.SAINABA, D/O.BEERAN, KANAKAYIL HOUSE
NARIKUNDU P.O, ,AMBALAVAYAL AMSOM DESOM,, SULTHAN BATHERY TALUK
4 P.MUHAMMED, S/O.MOIDEEN,
PUTHANPURAYIL HOUSE, NARIKUNDU P.O, AMBALAVAYAL AMSOM DESOM,,
SULTHAN BATHERY TALUK
5 K.SAFIYA, D/O.ABDUL RAHMAN
PUTHANPURAYIL HOUSE, NARIKUNDU P.O, AMBALAVAYAL AMSOM, DESOM,,
SULTHAN BATHERY TALUK
BY ADVS.
SHRI.PHILIP MATHEW
SHRI.P.B.KRISHNAN (SR.)
SMT.CHITRA JOHNSON
RESPONDENTS/PLAINTIFFS & DEFENDANT NO.6
1 KUNIMAL PADMAKSHY, W/O P.CHANDRAN,
NOW RESIDING AT 'ROSHNI',KANDAMKUNNU AMSOM,, KAIDERI DESOM,POST
NEEMVALI (VIA), NIRMALAGIRI, KANNUR DISTRICT, PIN CODE - 670 701.
2 P.RAJETHA, D/O.LATE P.CHANDRAN
RESIDING IN -DO- -DO -
PIN CODE - 670 701
3 C.KUMARAN, S/O.PADMANABHAN,
CHUNDAMAKKAL HOUSE, NARIKUNDU P.O, AMBALAVAYAL AMSOM DESOM,
SULTHAN BATHERY TALUK, PIN CODE 673 593.
BY ADVS.
SRI.SHAJI THOMAS
SRI.B.G.BHASKAR
SRI.JEN JAISON
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19.6.2025, ALONG WITH
CO.83/2011, THE COURT ON 2.7.2025 DELIVERED THE FOLLOWING:
RFA 559/2011 & Cross objection 83/2011
2
2025:KER:48312
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 2ND DAY OF JULY 2025 / 11TH ASHADHA, 1947
CO NO. 83 OF 2011
R.F.A.559/2011 OF HIGH COURT OF KERALA
CROSS OBJECTORS/RESPONDENTS 1 & 2/PLAINTIFFS
1 KUNIMAL PADMAKSHY
W/O.P.CHANDRAN, NOW RESIDING AT 'ROSHNI', KANDAMKUNNU AMSOM,
KAIDERI DESOM, POST NEEMVALI, (VIA) NIRMALAGIRI, KANNUR DISTRICT.
2 P.RAJETHA,
D/O.LATE P.CHANDRAN, RESIDING AT 'ROSHNI', KANDAMKUNNU AMSOM,
KAIDERI DESOM, POST NEEMVALI, (VIA) NIRMALAGIRI, KANNUR DISTRICT.
BY ADV SRI.B.G.BHASKAR
RESPONDENTS/APPELLANTS & 3RD RESPONDENT/DEFENDANTS
1 MADAVOOR MAMMUKUTTY, S/O ANTHRUMAN,
MANJAPPARA, P.O.NARIKUNDU,AMBALAVAYAL AMSOM DESOM, SULTHAN
BATHERY TALUK, WAYANAD DISTRICT.- 673 592
2 P.A.HAMSA
S/O.ALAVI, PULICKAL HOUSE, NARIKUNDU P.O., AMBALAVAYAL AMSOM DESOM,
SULTHAN BATHERY TLAUK-673 592
3 K.SAINABA, D/O.BEERAN, KANAKAYIL HOUSE
NARIKUNDU P.O, ,AMBALAVAYAL AMSOM DESOM,, SULTHAN BATHERY TALUK -
673 592
4 P.MUHAMMED, S/O.MOIDEEN,
PUTHANPURAYIL HOUSE, NARIKUNDU P.O, AMBALAVAYAL AMSOM DESOM,,
SULTHAN BATHERY TALUK-673 592
5 K.SAFIYA, D/O.ABDUL RAHMAN
PUTHANPURAYIL HOUSE, NARIKUNDU P.O, AMBALAVAYAL AMSOM, DESOM,,
SULTHAN BATHERY TALUK - 673 592
6 C.KUMARAN
S/O.PADMANABHAN, CHUNDAMAKKAL HOUSE, NARIKUNDU P.O. AMBALAVAYAL
AMSOM DESOM, SULTHAN BATHERY TALUK-673 592.
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON
19.6.2025, ALONG WITH RFA.559/2011, THE COURT ON 2.7.2025 DELIVERED THE FOLLOWING:
RFA 559/2011 & Cross objection 83/2011
3
2025:KER:48312
JUDGMENT
Dated :2nd July 2025 Defendant No.1 and additional defendants 5 to 8 in O.S.136/1995 on the file of the Sub Court, Sulthan Bathery are the appellants and the plaintiffs are the cross-objectors. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.)
2. The plaintiffs filed this suit for mandatory injunction and in the alternative for recovery of possession. As per the plaint, the 1 st plaintiff is the wife of Puthanpurayil Chandran and 2nd plaintiff is their daughter. The plaint schedule property is the portion of a large estate originally belonged to one C.M.Chandukutty, Kozhikode. In the year 1966, Chandukutty transferred his rights in respect of some property including the plaint schedule property in favour of Chandran and 24 others as per Ext.A1 sale deed. In the year 1969, as per Ext.A2 partition deed, the above 25 persons partitioned the above property among themselves and accordingly, Chandran obtained five acres of property, which is scheduled in the plaint. According to the plaintiffs, the 1 st defendant originally belonged to Kozhikode and he was brought to Wayanad by Chandran to do manual labour in the plaint schedule property. He was residing in a property near to the plaint schedule property. Accordingly, the 1st defendant was managing the plaint schedule property on behalf of Chandran in his absence. In the year 1976, suddenly Chandran went missing. In spite of enquiries by the relatives and friends, his whereabouts could not be traced out. In the absence of Chandran also the 1 st defendant continued to manage the plant schedule property. During the life time RFA 559/2011 & Cross objection 83/2011 4 2025:KER:48312 Chandran had not divulged the details of the plaint schedule property to the plaintiffs. Though the 1st plaintiff knew that Chandran had some properties in Wayanad, she did not know its full details. Though the 1 st plaintiff and Chandran had a son, he died long back. His wife got re-married and as such she is not entitled to inherit the properties of Chandran. Till recently the 2nd plaintiff was also residing outside Kerala and only recently she started staying along with the 1 st plaintiff.
3. According to the plaintiffs, since the whereabouts of Chandran is not known from 1976, in spite of earnest efforts, it is to be presumed that Chandran died and as such, the plaintiffs are the owners of the plaint schedule property. When the plaintiffs got more details about the plaint schedule property, they demanded the 1st defendant to account for the income from the said property and to hand over the possession of the same to the plaintiffs. However, the 1 st defendant has attempted to create documents in respect of the plaint schedule property, though he has no manner of right or authority over the plaint schedule property. It was in the above context that the plaintiffs preferred the Suit for mandatory injunction and in the alternative for recovery of possession of the plaint schedule property.
4. When the 1st defendant filed his written statement, he raised a contention that portions of the plaint schedule property were already transferred by him in favour of additional defendants 2 to 6 and accordingly additional defendants 2 to 6 were impleaded in the Suit. According to the 1 st defendant, the RFA 559/2011 & Cross objection 83/2011 5 2025:KER:48312 document allegedly executed by Chandukutty in favour of Chandran and others and the subsequent partition deed allegedly executed by Chandran along with others are fraudulently created documents to escape from the provisions of the Kerala Land Reforms Act, 1963 (in short, the KLR Act) and subsequent amendments thereto. Therefore according to the 1st defendant, those documents are void and as such nobody can claim any title on the basis of those documents. The allegation that the 1st defendant was brought to the plaint schedule property by Chandran is denied. He was born at Narikkuni in Madavoor about 20 kms away from Kozhikode and he was brought to Wayanad by his father Anthruman who was holding five acres of property under C..M.Chandukkutty as per an oral lease as cultivating tenant which is protected by the provisions of the KLR Act. The property held by the 1st defendant is the property of his father and nobody else have any right, title or possession over the said property. The allegation that Chandran was missing since 1976 is false. The plaintiffs filed the Suit without knowing any idea about the property claimed by them. The 1 st defendant obtained valid purchase certificate in respect of 3 acres and 40 cents of property comprised in Sy.No.168/2 in Ambalavayal village. The said document is binding on the plaintiffs and all others. The 1st defendant is in possession and enjoyment of the said property for the last 19 years and hence, the suit is barred by limitation. The 1st defendant has constructed a residential building in the said property and over the above 3 acres and 40 cents the plaintiffs are not entitled to get any reliefs.
5. The additional defendants 2 to 5 filed a written statement contending RFA 559/2011 & Cross objection 83/2011 6 2025:KER:48312 that they have purchased portions of the plaint schedule property form the 1st defendant or his assignees and also obtained purchase certificate from the Land Tribunal, Kalpetta. They are residing in their respective plots as the true owners of those plots. The 6th defendant also filed a written statement claiming that he obtained purchase certificate in respect of his plot and he is in possession of the said property since 1976. The 6th defendant further contended that since there is continuous and uninterrupted possession over the property held by him, the right if any, on the said property to others is lost by adverse possession and limitation.
6. After the written statement of the 1st defendant, the plaint was amended to incorporate pleading to the effect that the purchase certificates obtained by the defendants are not binding on the plaintiffs. In the light of the above pleadings, the trial court has framed nine issues. The evidence in the case consists of the oral testimonies of PWs1 and 2 and DWs1 to 5 and Exts.A1 to A11 and B1 to B19, C1 and C2 series. After evaluating the evidence on record, the trial court decreed the Suit and allowed the plaintiffs to recover possession of the plaint schedule property from the defendants. Being aggrieved by the above judgment and decree of the trial court, the 1st defendant and additional defendants 2 to 5 preferred this appeal raising various contentions.
7. The plaintiffs filed Cross Objection 83/2011 challenging the judgment of the trial court to the extent it disallowed mesne profits and costs. Now the points that arise for consideration are the following :
1) Whether Ext.A1 sale deed and Ext.A2 partition deed are hit by Section RFA 559/2011 & Cross objection 83/2011 7 2025:KER:48312 84 of the KLR Act?
2) Whether the defendants are the tenants in the plaint schedule property, as claimed?
3) Whether the impugned judgment and decree of the trial court calls for any interference in the light of the grounds raised in the appeal ?
8. Heard Sri.P.B.Krishnan, the leaned Senior counsel appearing for the appellants and Sri.B.G.Bhaskar, the learned counsel for the respondents.
9. Point No.1:- The learned senior counsel would argue that Exts.A1 and A2 documents are hit by Section 84 of the KLR Act and as such, those documents are void and hence they will not confer any title on Chandran or anybody anybody claiming under him over the plaint schedule property. He would further contend that the plaintiffs have not succeeded in identifying the plaint schedule property and on that ground also, the impugned judgment and decree of the trial court is unsustainable. He would further argue that though in the written statement the defendants raised a specific contention that they have obtained purchase certificates from the land Tribunal, the validity of those purchase certificates were not decided by the trial court by framing necessary issues. He would further argue that even if it is found that the defendants have not succeeded in proving the tenancy right over the scheduled property, the plaintiffs are not entitled to get recovery of possession as they cannot claim right under Exts.A1 and A2 and as such, he prayed for preserving the possession of the defendants over the plaint schedule property.
RFA 559/2011 & Cross objection 83/2011 8 2025:KER:48312
10. On the other hand, the learned counsel for the plaintiffs would argue that in the light of Ext.B1 report of Special Deputy Tahsildar, Land Reforms and consequent proceedings before the Taluk Land Board it can be seen that Chandukkutty had disclosed the entire property belonged to him and that after considering all those aspects, the Land Board found that there was no excess land in the possession of Chandukkutty and as such Ext.A1 executed by Chandukkutty and the subsequent partition deed namely Ext.A2, executed by Chandran and others are valid and binding on all the parties. Further, according to him, the Commissioner deputed by the trial court has correctly identified the plaint schedule property and as such, there is nothing wrong in the impugned judgment and decree of the trial court. According to him, the purchase certificates relied upon by the defendants are obtained behind the back of the plaintiffs and their predecessor Chandran and as such those purchase certificates are not binding on Chandran and the plaintiffs. It was argued that, since the defendants have no case that they were in possession of the property prior to 1964, and since new tenancy cannot be created thereafter in the light of Section 74, the defendants failed to prove the tenancy right and as such they indirectly admits the title of the plaintiffs over the scheduled property. Therefore he prayed for dismissing the appeal, after confirming the judgment and decree of the trial court.
11. The learned Senior counsel has vehemently argued that Ext.A1 sale deed executed by Chandukkutty in favour of Chandran and 24 others is null and void in view of Section 84 of the KLR Act. According to him, the said document RFA 559/2011 & Cross objection 83/2011 9 2025:KER:48312 was executed to defeat the Government and to evade surrender of the excess land which was in the possession of Chandukkutty. It is revealed from Ext.A1 that as per the said document Chandukkutty sold a total extent of 211 acres and 83 cents of property in favour of 25 persons including Chandran. As per Ext.A2 partition deed, the above 211 acres and 83 cents was partitioned among the 25 persons and it was accordingly Chandran obtained five acres of property scheduled in the plaint. It is also revealed that Chandukkutty had 566 acres of landed property and it was in the above context that the learned senior counsel argued that Exts.A1 and A2 were executed to avoid surrender of excess land to the Government. Therefore, in the light of Section 84, he would argue that such a transfer was made with intend to defeat the provisions of the land Reforms Act and hence it is invalid.
12. Section 84 of the KLR Act is extracted below for reference:
"Notwithstanding anything contained in any law for the time being in force all voluntary transfers effected after the date of publication of the Kerala Reforms Bill, 1963, in the Gazette, otherwise than-
(i)by way of partition; or
(ii)[***][Omitted by Act No. 17 of 1972.]
(iii)in favour of a person who was a tenant of the holding before 27th July, 1960, and continued to be so till the date of transfer; [***] [Omitted by Act No. 17 of 1972.]
(iv)[***][Omitted by Act No. 17 of 1972.] by a family or any member thereof or by an adult unmarried person owning or holding land in excess of the ceiling area [or otherwise than by way of gift in favour of his son or daughter or the son or daughter of his pre-deceased son or daughter by any person owning or holding land in excess of the ceiling area] [Inserted by Act No. 17 RFA 559/2011 & Cross objection 83/2011 10 2025:KER:48312 of 1972.] shall be deemed to be transfers calculated to defeat the provisions of this Act and shall be invalid;
Provided that, without prejudice to any other right of the parties to any such transfer, when any purchase price is payable under Section 56 or any compensation is payable [under Section 72H or Section 88] [Substituted by Act No. 35 of 1969.] for any land covered by the said transfer, it shall be competent for the Land Tribunal to award to the transferee, out of the purchase price or compensation amount in respect of such land; such sum as the Land Tribunal may consider just and proper. "
13. The defendants produced Ext.B1 to substantiate the argument that Chandukktty had 566 acres of land and that Ext.A1 was executed to avoid surrender of excess land to the Government. On the other hand, the learned counsel for the plaintiffs also relied upon Ext.B1 to substantiate his argument that Chandukkutty had disclosed before the authorities the entire 566 acres and that nothing was suppressed by him. According to him, the authorities under the Land Reforms Act considered all those aspects and they were convinced about the fact that Chandukkutty had no excess land and as such, according to him, Ext.A1 is perfectly valid.
14. From Ext. B1 it can be seen that the above report was filed by the Deputy Tahsildar to the Taluk Land Board in connection with Taluk Land Board TLB 1124/73 and TLB 5555/73 filed by C.M. Chandukutty and his minor son, Pradeepkumar. From the above report, it can be seen that Chandukutty and Pradeepkumar furnished ceiling returns under Section 85A of the KLR Act. Since Pradeepkumar was a minor, the ceiling return filed by him was considered along RFA 559/2011 & Cross objection 83/2011 11 2025:KER:48312 with the return filed by C.M. Chandukutty. The report further states that notice was issued to the party in connection with the verification of the statement furnished and also that he had verified the return filed by the party, before preparing the above report. In the above report, the details of the land now held by Chandukutty and his family members were separately given. The report further states that Chandukutty had a total extent of 566.19 acres of land in Ambalavayal village in South Wayanad taluk, which includes 81.77 acres comprised in Sy. No.168/1 and 2. Out of the above 566.19 acres, 175 acres was rubber plantation and 301.86 acres was planted with coffee and pepper. As per the above report, the entire 566.19 acres were cultivated with rubber, coffee and pepper. As per Ext.B1 report, out of the above 566.19 acres, Chandukutty gifted 91.01 acres to his sons. The report says that, Chandukutty has not executed any registered documents between 18.12.1957 and 15.9.1963. The report further states that the list produced by the returnee in respect of the lands disposed of since 16.9.1963 is enclosed. The details of the present occupants are also furnished in the list enclosed. At the end of Ext.B1 report, there is a list of occupants in the lands sold by the returnee. A list of 85 persons are included, out of which serial No.78 is the 1 st defendant. However, even the 1st defendant has no case that he has purchased the above five acres from Chandukutty. At the most what can be presumed from the above entry is that the 1st defendant was in possession of the above five acres of landed property when Ext.B1 report was filed in 1976.
15. The case of the 1st defendant is that his father Anthruman obtained RFA 559/2011 & Cross objection 83/2011 12 2025:KER:48312 possession of the plaint schedule property as per an oral lease from Chandukutty and that he was in possession of the said property in continuation of his father. Further according to him, out of 5 acres, he sold 1.6 acres to additional defendants 2 to 6 and he obtained Ext.B6 purchase certificate for the remaining 3.4 acres from the Land Tribunal. As argued by the learned counsel for the plaintiffs, the 1 st defendant has not disclosed the date on which his father obtained oral lease from Chandukutty. The details of the rent fixed and paid by 1 st defendant or his father are also not disclosed in the written statement. Though at the time of examination, the 1st defendant as DW1 claimed that the said oral lease was in 1962, it appears to be not correct in the light of Ext.A7, records of Land Tribunal relating to Ext.B6. In the statement given by the 1st defendant before the Revenue Inspector in the proceeding before the Land Tribunal, as per which he claims Ext.B6 purchase certificate his claim is that, he started possession of the said property only in the year 1965. In Exts. A9, A10 and A11 relating to the other defendants also, their claim is that they started possession of the respective plots only after 1965. Since as per Section 74 of the KLR Act, no tenancy can be created after 1964, the possession of the property, if any by the defendants since the year 1965 will not confer any tenancy right on them.
16. Since from Ext.B1 it is revealed that Chandukutty had filed ceiling return before the Taluk Land Board, as required under Section 85 A of the KLR Act, disclosing entire 566.19 acres of land belonged to him, it cannot be held that Chandukutty executed Ext. A1 with any fraudulent intention to defeat the RFA 559/2011 & Cross objection 83/2011 13 2025:KER:48312 provisions of the KLR Act. The above 566.19 acres disclosed in Ext.B1 includes 81.77 acres comprised in Sy. No.168/1 and 2 of Ambalavayal village, a portion of which is the plaint schedule property. Since, Chandukutty filed ceiling returns disclosing the entire 566.19 acres of land possessed by him, it is the duty of the Taluk Land Board to verify and ascertain whether any portion of the above land possessed by him is in excess of the ceiling limit. Though the defendants have produced Ext.B1 report submitted by the Thahsildar before the Taluk Land Board, they have not produced the proceedings of the Taluk Land Board, in pursuance to Ext.B1. The defendants have no case that the Taluk Land Board has not passed final orders in pursuance to Ext.B1. Non production of the final order of the Land Board, in spite of producing Ext.B1, will go to show that if the said document is produced, it will be against the interest of the defendants. Therefore the claim of the plaintiffs that at the time of executing Ext.A1, Chandukkutty had no excess land is to be accepted. If that be the case, Ext.A1 sale deed executed by Chandukkutty is valid and as such Ext.A2 partition deed executed in pursuance to Ext.A1 is also valid. If so, it is to be held that Chandran obtained five acres of property as per Ext.A2, comprised in Sy.No.168/2 of Ambalavayal village, which is the plaint schedule property. Therefore, it is to be held that Exts.A1 and A2 are not hit by Section 84 of the KLR Act. Point No.1 answered accordingly.
17. Point No.2:- Since it is revealed that Chandran obtained five acres of property scheduled in the plaint as per Exts.A1 and A2 and the 1 st defendant claims that his father obtained oral lease of the said property from Chandukkutty, it is his RFA 559/2011 & Cross objection 83/2011 14 2025:KER:48312 burden to prove the oral lease as claimed in the written statement. In order to prove the oral lease, the 1st defendant could not produce any reliable documents. He has no case that his father ever paid any rent to his jenmi, Chandukutty or to Chandran, before the commencement of KLR Act. He also has no case that, he had ever paid any rent either to Chandukutty or to Chandran before the commencement of KLR Act. Moreover, as I have already noted above, before the Land Tribunal, the case of the 1st defendant was that he started possession of the plaint schedule property only in the year 1965. The case of the other defendants is also to the effect that they started occupying the respective plots only after 1965.
18. It is true that now the defendants 1 to 6 are in possession of the plaint schedule property. Admittedly, defendants 2 to 6 obtained possession from the 1 st defendant. The case of the 1st defendant is that his father Anthruman obtained possession of the said property on the basis of oral lease from Chandukkutty. Further according to the 1st defendant, after the death of his father he obtained the plaint schedule property in the year 1976. The claim of the defendants 2 to 6 is that they obtained the property from the 1st defendant. Therefore, the possession of the portions of the plaint schedule property by defendants 2 to 6 can only be after 1976. Though the defendants 2 to 6 claimed that they purchased portions of the plaint schedule property from the 1st defendant, there is absolutely no documents to prove the same.
19. The 1st defendant could not produce even a scrap of paper to show that his father was a tenant of Chandukkutty. The documents produced by the 1st RFA 559/2011 & Cross objection 83/2011 15 2025:KER:48312 defendant and the other defendants are of the year 1976 and thereafter. The earliest document produced by 1st defendant is of the year 1976,s Ext.B2 land tax receipt. Out of the 15 land tax receipts produced, the earliest one was of 4.10.1976. In this context it is to be noted that Ext.A3 extract of land tax register produced by the plaintiffs will go to show that on 10.1.1976 Chandran remitted tax for the said property. Therefore, it can be seen that upto 1976, Chandran, the predecessor of the plaintiffs, was remitting tax for the plaint schedule property and only since the end of 1976 1st defendant started paying land tax for the said property. The 1st defendant could not produce even a scrap of paper to prove that either he or his father ever paid any tax to the plaint schedule property prior to 4.10.1976. Ext.B3 is of 1984 and Ext.B4 building tax receipts are also of 1984 onwards. Exts.B5, B10, B13 and B16 proceedings of the Land Tribunal and Exts.B6, B9, B12, and B15 purchase certificates issued by the Land Tribunal also show that those proceedings were initiated only in 1991.
20. Though the 6th defendant produced Ext.B18 assignment deed issued by the 5th defendant, the 5th defendant has not obtained any such right from the 1 st defendant as per any such document. Therefore, Ext.B18 will not confer any title on the 6th defendant. Defendants 2 to 5 claim that they obtained property from the 1st defendant orally. The law is well settled that for transfer of immovable property worth Rs.100/- or more, a registered instrument in writing is required. In the instant case, the defendants 2 to 6 admits that the plots in their possession were purchased for more than Rs.100/-. They have not obtained the same as per any RFA 559/2011 & Cross objection 83/2011 16 2025:KER:48312 registered instrument and as such, their claim that they purchased those plots from the 1st defendant cannot be recognised in the eye of law.
21. Exts.B6, B9, B12 and B15 purchase certificates were relied upon by the defendants to prove their title over the respective plots covered by those purchase certificates. Relying upon sub-section (2) of Section 72(k) of the KLR Act, the learned senior counsel would argue that once the land Tribunal issues the purchase certificate after finding that the tenant was in possession of the property as a cultivating tenant, the above finding is conclusive. He has relied upon the decision of the Hon'ble Supreme Court in Ahmmed Kutty v. Manakutty Umma, 2000 (1) KLT 829 (SC) also in support of the above argument.
22. The learned senior counsel would further argue that, even if the defendants failed to prove valid tenancy in their favour, since Exts.A1 and A2 are void documents, the defendants' possession over the plaint schedule property is to be protected. In support of the above argument he has relied upon the maxim "ex turpi causa non oritur actio" and also the decision of the Hon'ble Supreme Court in Immani Appa Rao and Others v. Gollapalli Ramalingamurthi and Others, AIR 1962 SC 370. In the above decision in paragraph 15, the Apex Court held that:
"............Therefore, we are inclined to hold that the paramount consideration of public interest requires that the plea of fraud should be allowed to be raised and tried, and if it is upheld the estate should be allowed to remain where it rests. The adoption of this course, we think, is less injurious to public interest than the alternative course of giving effect to a fraudulent transfer."
23. In paragraph 23 the Apex Court further held that :
RFA 559/2011 & Cross objection 83/2011 17 2025:KER:48312 "..........Even if respondent 1 has based his case on a conveyance the position still remains that as a result of the facts proved by respondent 2 and the appellants the conveyance is void ab initio. It is a document fraudulently executed and as such it conveys no title to the transferee at all. That being so we do not think that in giving effect to the considerations of public interest or policy it makes any difference that the deed on which the present suit is brought is one of conveyance."
Since I have already found that Exts.A1 and A2 are valid documents, the decision in Immani Appa Rao (supra) does not apply to the facts of this case.
24. On the other hand, relying upon the decision in Chandran Nair v. Kunhambu Nair, 1981 KHC 262, the learned counsel for the plaintiffs would argue that those purchase certificates obtained behind the back of Chandran are void. In the above decision, a learned Single Judge of this Court has considered the validity of purchase certificate obtained without issuing notice to the landlord and held that such purchase certificate is not binding on the owner of the land and also that such purchase certificate has no evidentiary value.
25. As I have already noted above, defendants 2 to 6 obtained possession of the plots in their possession only after 1976, after the 1 st defendant obtained possession of the property from his father. In the proceedings before the Land Tribunal, their case is that they have obtained possession over the respective plots only after 1965. In the light of Section 74 of the KLR Act, no tenancy can be created after 1964. Moreover, in the applications filed before the Land Tribunal, Chandran, the land owner, or his legal representatives namely, the plaintiffs, were not made parties. In those proceedings they have made only Chandukkutty, who was no more and Jayaprakash, one of the sons of Chandukkutty, were made as RFA 559/2011 & Cross objection 83/2011 18 2025:KER:48312 landlords.
26. Admittedly, at the time of filing the above applications before the Land Tribunal, Chandukkutty was no more. From Ext.A8 heir-ship certificate it can be seen that there were 11 legal representatives to deceased Chandukkutty. However, only one among them was made as a party in the above proceedings before the Land Tribunal. As I have already noted above, while executing Ext.A1 in the year 1966 itself, Chandukkutty ceased to be the owner of the scheduled property and after the execution of Ext.A2 of 1969 Chandran became the absolute owner of the plaint schedule property. In the above circumstances, the proceedings before the Land Tribunal, without making Chandran or the plaintiffs as respondents/land-lords in the party array, is not at all valid and binding on the plaintiffs and the plaint schedule property. More over, as I have already noted above, in the light of Section 74 of the KLR Act, no tenancy can be created after 1964. On that ground also, no purchase certificate could have been issued in their favour. Therefore, Exts.B6, B9, B12 and B15 purchase certificates relied upon by the defendants are void in the eye of law. In the above circumstances, it is to be held that the trial court was perfectly justified in holding that the 1st defendant also has not succeeded in proving that he was a tenant in the plaint schedule property. If so, the defendants 2 to 6 who are claiming under the 1 st defendant are also not the tenants in the plaint schedule property. Point No.2 answered accordingly.
27. Point No.3:- The defendants admit the title of Chandukutty over the plaint schedule property. Further, when the 1st defendant claims that his father RFA 559/2011 & Cross objection 83/2011 19 2025:KER:48312 Anthruman obtained oral lease from Chandukkutty, he admits Chandukkuty as the owner of the plaint schedule property. As noted above, the 1st defendant has failed to prove any such oral lease in favour of his father. Further, I have already found that Exts.B6, B9, B12 and B15 purchase certificates relied upon by the defendants are void and that the defendants 1 to 6 are not the tenants in the plaint schedule property. Therefore, in the light of Exts.A1 and A2 Chandran became the owner of the plaint schedule property. Accordingly, the 1 st defendant indirectly admits the title of Chandran also, over the plaint schedule property.
28. The missing of Chandran in the year 1976 assumes significance in this context. The fact that Chandran was missing since 1976 was not disputed at the time of argument. Exts.A5 and A6 paper publications show news about the missing of Chandran. In the decision in Mariamma Samuel v. State of Kerala and Others, 2013 KHC 2723, a Division Bench of this Court also held that :
".......after a person is not heard of for 7 years by those who naturally would have heard of him, then there is a presumption of civil death and that relates back to the date when he went missing. The law permits such a presumption and deems that the missing man is dead when whereabouts are not known for 7 years. By the said presumption, the law deems that it should be imagined that the death had occurred of such a person and having imagined so, it is trite that we cannot allow our imagination to then boggle and draw distinctions which are not permissible by nature of the presumption that law mandates."
29. Though in the written statement, the 1st defendant denied the contention in the plaint that the plaintiffs have not heard about Chandran for more than seven years, such a contention was not raised at the time of argument. From RFA 559/2011 & Cross objection 83/2011 20 2025:KER:48312 the evidence of PWs1 and 2 and Exts.A5 and A6 paper publications it is revealed that the plaintiffs who are the wife and daughter of Chandran were not aware of his whereabouts. Therefore, it is to be held that Chandran is no more and as such the plaintiffs who are his wife and daughter became the owners of the plaint schedule property.
30. The specific case of the plaintiffs is that the 1st defendant was brought from Calicut to Wayanad by Chandran for managing his property. Since the 1st defendant could not produce any documents prior to 1976 and the document produced by him starts only from October 1976, after the disappearance of Chandran, the probability is as claimed by the plaintiff that the 1 st defendant was brought to the property by Chandran to look after the same on his behalf. Then, after the missing of Chandran in 1976, since the plaintiffs were not aware of the schedule property, he continued to possess and enjoy the plaint schedule property. In this context it is to be noted that the 1st defendant has not claimed any prescriptive title over the plaint schedule property by adverse possession and limitation. There is also no necessary pleadings to that effect in the written statement filed by him. At the time of argument the learned Senior counsel also has not raised any such argument.
31. In the decision in Mohammed Koya v. Bichikoya, 2004 KHC 812, as in the present case, the 1 st defendant claimed that his father obtained oral lease of the scheduled property in the year 1976. He also assigned property in favour of third parties and subsequently they obtained purchase certificate in their favour. In RFA 559/2011 & Cross objection 83/2011 21 2025:KER:48312 the above circumstances, in paragraph 5 the learned Judge held that :
"In the present case, the defendant was the admitted tenant. His oral assignment or oral lease in 1976 to Veerankutty Mulla even if it is true is invalid in law. Therefore, the subsequent sale by the oral assignee is also invalid. When the Land Tribunal issues a certificate of purchase to such an assignee, it can be seen that the certificate of purchase is inaccurate on its face. In a similar case in SreeKarikad Devaswom v. Wandoor Jupiter Chits (1980 KLT 760), M.P. Menon J has held that when the tenancy was created in 1969 when S.6 C of the Act was not in the legislative anvil and a certificate of purchase is issued by the Land Tribunal, there is inaccuracy writ large on its face and a court can declare it as invalid especially when the landlord was not given notice of the application for purchase of landlord's rights. This decision was followed in Chacko v. Joseph (1986 KLT SN 34)."
32. In the decision in Marimuthu Goundan v. Thambi, 1960 KHC 500, a Division Bench of this court held in similar instance that unless the defendant proves the existence of a tenancy which entitles him to retain possession, the owner of the land is entitled to recover possession from the defendant. In paragraph 8, the Division Bench held that :
"As the first defendant is in possession and as the lease set up by him has not been proved, his possession of the properties must be unlawful and the plaintiff who admittedly has title to the properties is entitled to recover possession of the same from him with mesne profits."
33. In this case also, the defendants have failed to prove that they are the tenants in the plaint scheduled property. They are also not claiming prescriptive title over the said property. I have already found that by virtue of Exts.A1 and A2 documents Chandran obtained title over the plaint scheduled property. After the RFA 559/2011 & Cross objection 83/2011 22 2025:KER:48312 civil death of Chandran in 1976, the plaintiffs became the joint owners of the said property. In the above circumstance, the defendants are liable to hand over possession of the said property to its true owners namely, the plaintiffs.
34. It is true that in the suit the trial court has not raised any separate issue regarding the validity of the purchase certificates produced by the defendants. Though no such specific issue was framed, the trial court has considered the validity of those purchase certificates in detail and held that those certificates are not binding on the plaintiff and the plaint schedule property. It is evident that the parties have adduced evidence on that aspect and the trial court also has entered into specific finding regarding the validity of those purchase certificates and therefore absence of separate issue in that respect is not fatal in the facts of this case.
35. Similarly the learned Senior counsel would argue that with regard to the validity of Exts.A1 and A2 in the light of Section 84 of the KLR Act also no issue was framed by the trial court. However, as I have already noted above, from Ext.B1 produced by the defendants itself, it is revealed that Chandukkutty has declared his entire properties in the ceiling return filed before the Taluk Land Board and as such, there was no suppression of any property belonging to him from Taluk Land Board. There is enough evidence to prove that Ext.A1 is not hit by Section 84 of the KLR Act. Therefore, absence of separate issue in that respect is not fatal in the facts of this case.
36. The main argument advanced by the learned Senior counsel is that RFA 559/2011 & Cross objection 83/2011 23 2025:KER:48312 the trial court has not properly identified the plaint schedule property. In support of his argument, he has invited my attention to the fact that in the original plaint, five acres of property was scheduled and after the Commissioner visited the property and reported that the extent of property available is only 4 acres and 24 cents, the plaint was amended in tune with the Commission report. Similarly, according to him, the boundaries mentioned in the plaint were not present at the spot and after the report was filed by the Commissioner, the boundaries of the plaint schedule property was also amended in tune with the property identified by the Commissioner. Therefore, according to him, there is no guarantee that the property identified by the Commissioner is the property covered by Exts.A2.
37. However, relying upon the description of boundaries in Ext.A2 and in Ext.C2 Commission report, the learned counsel for the plaintiffs would argue that the Commissioner has identified the property correctly and as such there is no grounds to disbelieve the identity of the property as reported in Ext.C2 Commission report. In the plaint, the extent and boundaries were shown as in Ext.A2 of the year 1969. After the missing of Chandran in 1976, the property was in the possession of the 1st defendant. Later on, he handed over portions of the said property to other defendants.In the meantime, much change has occurred to the properties. Two roads came on the northern and southern sides of the plaint schedule property. In this context it is to be noted that after Chandran was missing in the year 1976, the plaintiffs who are the widow and the daughter of Chandran did not know the details of the plaint schedule property. Only later on from PW2 RFA 559/2011 & Cross objection 83/2011 24 2025:KER:48312 they came to know about the identify of the scheduled property and thereafter, they preferred the Suit.
38. In the commission report, the Commissioner noted that the property on the eastern side of the plaint schedule property belongs to one Ulahannan and the Commissioner verified the title deed of Ulahannan which is document No.569/84. In the said document, the western property is shown as Chandran's property. According to the Commissioner, it was accordingly he identified the plaint schedule property. As per Ext.A2, the property on the eastern side of the plaint schedule property is the property of Aboobacker. The Commissioner verified the document of Ulahannan and found that Ulahannan obtained the property from Aboobacker. Since the commissioner has verified the title deed of Ulahannan and mentioned it's registration number in his report, I do not find any grounds to disbelieve the above boundary on the eastern side, as identified by the Commissioner. On the northern and southern sides there are newly constructed roads and as such, there was no difficulty for the Commissioner to identify the scheduled property.
39. In this context it is also to be noted that even as per Exts.A1 and A2, the plaint schedule property is situated in Sy.No.168/2. As seen from Ext.C2, in Sy.No.168 there is a total extent of 81.77 acres. From Ext.B1 it can be seen that the above entire 81.77 acres comprised in Sy.No.168 was originally belonged to Chandukkutty. From Ext.A1 it can be seen that the above entire 81 acres 77 cents comprised in Sy.No.168 was allotted to Chandran and others. Therefore, it can be RFA 559/2011 & Cross objection 83/2011 25 2025:KER:48312 seen that the entire property comprised in Sy.No.168 was obtained by Chandran and others as per Ext.A1 which was partitioned as per Ext.A2. The plaint schedule property identified by the Commissioner is also comprised in the same Sy.No.168.
40. In this context it is also to be noted that nobody else came forward with any claim over the property identified by the Commissioner as the plaint schedule property. I have already found that the defendants have no manner of right over the plaint schedule properties, as claimed. In the above circumstances, I hold that the trial court was right in holding that the property identified by the Commissioner in Ext.C2 series report and plan is the plaint schedule property. In other words, I do not find any merit in the argument that the Commissioner has not correctly identified the plaint schedule property. From the above discussions, it can be seen that there is no irregularity or illegality in the impugned judgment and decree of the trial court so as to call for any interference by this Court in appeal. In the absence of any reliable evidence regarding mesne profits, the Cross Objection is liable to be dismissed.
41. In the result, this appeal fails and it is dismissed accordingly. Considering the facts I order no costs. Cross-objection filed by the plaintiffs is also dismissed without costs.
All pending interlocutory applications will stand closed.
Sd/-
C.Pratheep Kumar, Judge Mrcs/19.6.