Kerala High Court
M/S.Harrisons Malayalam Ltd vs Gopinathan Nair on 3 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS.JUSTICE M.R.ANITHA
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
FAO (RO) NO.102 OF 2016
AGAINST THE JUDGMENT DATED 18.12.2015 IN AS 54/2013 OF
DISTRICT COURT, PATHANAMTHITTA AGINST THE JUDGMENT AND
DECREE DATED 28.06.2010 IN OS 51/2005 OF SUB COURT,
PATHANAMTHITTA
APPELLANT/1ST RESPONDENT/DEFENDANT:
M/S.HARRISONS MALAYALAM LTD
REGISTERED OFFICE 24/1624, BRISTOW ROAD,
WILLINGDON ISLAND, KOCHI, ERNAKULAM DISTRICT,
REPRESENTED BY ITS MANAGER-LEGAL SRI.SUMITH BABU.
BY ADVS.
SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.BENNY THOMAS
SRI.P.GOPINATH
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
RESPONDENTS/APPELLANTS & RESPONDENTS 2 TO 4/PLAINTIFFS 1 &
3 AND LRS OF 2ND PLAINTIFF:
1 GOPINATHAN NAIR(Died, LRs impleaded)
AGED 94 YEARS, S/O.KRISHNA PILLA,
PADINJARESRAMPICKAL VEEDU, PERUNADU MURI,
PERUNADU VILLAGE, RANNY TALUK, PATHANAMTHITTA
DISTRICT-689 711.
2 MURALEEDHARAN NAIR, AGED 74 YEARS,
S/O.RAMAN PILLAI, PADINJARESRAMPICKAL VEEDU,
PERUNADU MURI, PERUNADU VILLAGE,
RANNY TALUK, PATHANAMTHITTA DISTRICT - 689 711
3 SYAMALA NAIR, W/O LATE RAVEENDRAN NAIR,
ANJALI, TC 4/109, KAWDIAR P.O.,
THIRUVANANTHAPURAM DISTRICT - 695 003
F.A.O.No.102/2016
2
4 R.VIJAYAKUMAR, S/O.LATE RAVEENDRAN NAIR,
SREE, KODUNGANOOR P.O, VATTIYOORKAVU,
THIRUVANANTHAPURAM DISTRICT - 695 013.
5 JAYASREE S.R, D/O.LATE RAVEENDRAN NAIR,
THIRUVONAM, KUDAPPANAKKUNNU,
THIRUVANANTHAPURAM DISTRICT - 695 043.
ADDL.R6 BHAVANIAMMA, 87 YEARS, W/O LATE GOPINATHAN NAIR,
PADINJARESRAMPICKAL VEEDU, PERUNADU MURI,
PERUNADA VEEDU, RANNY TALUK, PATHANAMTHIRRA
689711
ADDL.R7 GOPALAKRISHNAN NAIR, 68 YEARS,
PADINJARESRAMPICKAL VEEDU, PERUNADU MURI,
PERUNADA VEEDU, RANNY TALUK, PATHANAMTHIRRA
689711
ADDL.R8 SASIDARAN NAIR, 65 YEARS,
PADINJARESRAMPICKAL VEEDU, PERUNADU MURI,
PERUNADA VEEDU, RANNY TALUK, PATHANAMTHIRRA
689711
ADDL.R9 KRISHNAKUMARI, 63 YEARS,
PADINJARESRAMPICKAL VEEDU, PERUNADU MURI,
PERUNADA VEEDU, RANNY TALUK, PATHANAMTHIRRA
689711
ADDL.R10 SATHISHKUMAR, 61 YEARS,
PADINJARESRAMPICKAL VEEDU, PERUNADU MURI,
PERUNADA VEEDU, RANNY TALUK, PATHANAMTHIRRA
689711
ADDL.R11 JAYASREE, 58 YEARS,
PADINJARESRAMPICKAL VEEDU, PERUNADU MURI,
PERUNADA VEEDU, RANNY TALUK, PATHANAMTHIRRA
689711
(ADDITIONAL RESPONDENTS 6 TO 11 ARE IMPLEADED AS
THE LEGAL HEIRS OF DECEASED R1 AS PER ORDER DATED
09.07.2019 IN I.A.NO.3/2018)
BY ADV SRI.K.B.PRADEEP R2 TO R5
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
COME UP FOR FINAL HEARING ON 20.01.2023, THE COURT ON
03.02.2023 DELIVERED THE FOLLOWING:
F.A.O.No.102/2016
3
M.R.ANITHA, J
******************
F.A.O. (R.O). No.102 of 2016
----------------------------------------------------------
Dated this the 3rd day of February, 2023
JUDGMENT
Appellant is the defendant in O.S.No.51/2005 on the file of
Subordinate Judge's Court, Pathanamthitta. The suit was one for
declaration of title and recovery of possession. Plaintiff's case is
that their predecessor leased out plaint schedule property in
favour of the defendant on 10.02.1912 for ninety years and rent
upto the year 1995 has been paid. Notice of termination of lease
was issued but the defendants raised a contention of fixity of
tenure due to the advent of Kerala Land Reforms Act, 1963. Trial
Court referred the question for finding under Section 125(3) of
the Land Reforms Act to the Land Tribunal. In view of the finding
of the Land Tribunal that the defendant and their predecessors
are entitled to get fixity of tenure, the suit was dismissed by the
trial court.
F.A.O.No.102/2016
2. Against which, appeal was filed by the plaintiffs before
the District Court, Pathanamthitta and by the impugned
judgment, the first appellate court remanded the case to the trial
court allowing the appeal in part. It has been found by the first
appellate court that burden to establish that it was a plantation
at the time of original lease is upon the defendant as they are
claiming the fixity of tenure and it is upon them to establish that
subject matter of the lease would not come under Section 3(i)
(viii) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964) (in
short 'the Act'). It is further found that the defendant failed to
establish that it is a plantation at the time of original lease. It is
further found that the defendant failed to show and establish the
character of the subject-matter of lease at its origination and the
extent of land admittedly exceeds 30 Acres and hence it would
come under the purview of Section 3(i)(viii) of the Act and
accordingly the order of the Land Tribunal was set aside. It is
further found that if the property was a plantation at the time of
commencement of the Act what would be the effect of application
F.A.O.No.102/2016
of Section 13 embodied under Chapter II of the Act also require
detailed consideration and accordingly the case was remanded to
the trial court setting aside the finding of the Land Tribunal.
Aggrieved by the remand order , the defendants approaches this
Court in appeal.
3. Notice was issued to the respondent. First respondent
died pending this appeal and his legal heirs were impleaded as
additional respondents 6 to 11. Lower court records were called
for and both sides were heard.
4. According to the learned counsel for the appellant, in
view of the settled position of law laid down by the Full Bench in
Rt.Rev.Dr.Jerome Fernandez v. B.B-B.E Rubber Estate Ltd.
: 1972 KLT 613 (F.B), the order of remand made by the first
appellate court is totally unwarranted and illegal. He would
contend that, in the plaint, the plaintiffs themselves admitted
that the properties were taken on lease for planting rubber, teak
and their specific case in the plaint is that the plaint schedule
property being rubber plantation, at the time when the Act came
F.A.O.No.102/2016
into effect, it is totally exempted from the provisions of Act. He
would also contend that the lease deed produced from the side of
the plaintiffs itself would prove that the land was leased out for
planting rubber, teak etc. and in view of the Full Bench decision,
the relevant date is the date of execution of the lease deed in
view of Section 3(i)(viii) of the Act and not the date of
commencement of the Act.
5. He would also contend that more than 100 years is
over and no purpose would be served in remanding the matter.
N.K.Rajendra Mohan v. Thirvamadi Rubber Company
Limited and Others : 2015 KHC 4427 : 2015 (9) SCC 326 is
also relied on.
6. Learned counsel for the respondents, on the other
hand, would contend that the order of the Land Tribunal by which
fixity of tenure was found in favour of the appellant is illegal and
unsustainable since it is not a speaking order. Learned counsel
relied on State of Uttaranchal and Another v. Sunil Kumar
Vaish and Others : 2011 KHC 4694 : 2011 (2) SCC (L&S)
F.A.O.No.102/2016
410. It is also contended that, on going through the lease deed
executed between the parties, there is reference with regard to
other trees and cultivation in the property leased out and it is not
a bare land or waste land which was leased out and the Land
Tribunal order though would go to show that witnesses were
examined and documents were marked, without discussing either
oral or documentary evidence, the order has been passed by the
Land Tribunal and hence on that ground itself, it is liable to be set
aside. Hence, according to him, there is no reason to interfere
with the order of remand passed by the first appellate court,
though according to him, the remand could have been to the
Land Tribunal since the trial court will have to again make a
reference to the Land Tribunal for finding as to whether the
appellant is entitled for fixity of tenure or whether the
respondents are entitled for the benefit of exemption under
Section 3(i)(viii) of the Act.
7. Hence the Point for determination is:
Whether any interference is called for in the
F.A.O.No.102/2016
order of remand passed by the first appellate
court?
8. Full Bench of this Court in Rt.Rev.Dr.Jerome
Fernandez referred above made a detailed discussion with
regard to the ambit and scope of Section 3(i)(viii) of the Act. In
paragraph 6, it has been discussed that, as per Section 3(i)(viii)
of the Act, the tenancies in respect of plantations exceeding 30
Acres in extent are exempted from the operation of the
provisions of Chapter II of the Act which deals with the provision
regarding tenancies and exemptions. In that case also, there was
an argument from the side of the appellant that the
determinative factor for applicability of Clause (viii) of Section
3(1) is not the character of the land or the use to which it was
being put at the time of grant of the lease but its nature and use
at the time of the commencement of the Act. Appellant
contended that Clause (viii) will apply in all cases where on the
date of commencement of Act, tenant will be in possession of 30
Acres in extent of land used by him principally for the cultivation
F.A.O.No.102/2016
of any one of the following crops referred in Section 2(44) of the
Act whatever might have been the nature of the land or the type
or use to which it was being put at the time of creation of the
tenancy and much emphasis was made by the appellant in that
case for describing the exempted category of transaction in the
employment of the words by the legislature "tenancies in respect
of plantations". It was also argued that if the intention of the
legislature was to confine the scope of the exemption to
transactions of leases of lands which are already under
cultivation with plantation crops and which thereby fulfil the
definition of 'plantation', then the clause could have been worded
as 'leases of plantation' as has been done with respect to private
forests in clause (vii). By making a detailed analysis of the
provisions, the Full Bench ultimately found that there can be no
doubt that the exemptions granted under Sections 3(i)(viii), (v),
(vi), (ix), (x) of the Act will be attracted only if the transaction of
tenancy was even at its inception one in relation to property of
the nature specified therein. It is also found that there is no
F.A.O.No.102/2016
warrant for assuming that the legislature intended to use the
same words "tenancies in respect of" in any different sense while
enacting clause (viii) which forms part of the very same section.
For arriving at that conclusion, the Full Bench also examined the
corresponding provisions dealing with the grant of exemption to
plantation of leases which were contained in the earlier tenancy
legislations in force in this State, that is, the Malabar Tenancy
Act, 1929. Section 2(1) and Section 3(c) of the Kerala Stay of
Eviction Proceedings Act, 1957 (Act 1 of 1957) etc. It is
ultimately concluded that the legislature thought that it will not
be fair or proper to deny the benefit of fixity of tenure to lessees
who might have taken on lease extensive parambas or waste
lands and might have in course of time by their hard toil
developed them into plantations. Even under the provisions of
Malabar Tenancy Act, 1929 such a tenant is entitled for fixity of
tenure unless lease itself was granted specifically for the purpose
of raising plantation. Hence Full Bench concluded that the
intention of the legislature was to restrict the scope of the
F.A.O.No.102/2016
exemption to leases of lands which were already "plantations" on
the date of the transactions.
9. Rajendra Mohan.N.K was further relied on by the
counsel for the appellant. That was an identical case in which
plaintiffs filed a suit for eviction of the first respondent and also
for damages for use and occupation. The property alleged to
have been leased out to the first respondent for cultivation of
rubber, cinchona, coffee and any such crop as the lesee
construed it to be proper as per Ext.A1 lease deed of the year
1918. First respondent claimed fixity of tenure under the Malabar
Tenancy Act, 1929 as well as under Act, 1963. The plaintiffs, on
the other hand, claimed benefit under Section 3(i)(vii) and
Section 3(i)(viii) of the Act, 1963 and claimed exemption from
the applicability of the Act and contended that the respondent
company is not entitled to any fixity of tenure as per the statute.
10. Learned counsel for the appellant in that case
contended that the applicability of Section 3(i)(vii) and Section
3(i)(viii) of the Act has to be essentially tested on the touchstone
F.A.O.No.102/2016
of the date of the enforcement of the legislation and since there
was standing rubber plantation on the suit land on 01.04.1964,
the respondent company had no sustainable right of fixity of
tenure. Learned counsel for the first respondent in that case, on
the other hand, contended that as the Act, 1963 enacted after
the Kerala Agrarian Relations Act, 1961 is one for implementing
land reforms in the State, no interpretation with regard to the
applicability thereof ought to be assigned that would ensue in
fragmentation of plantations existing on the date of the
enforceability thereof and thus, the plantations standing on the
suit land, did come within the exemption contemplated under
S.3(1)(viii) . That was a lease for a period of 36 years.
11. It is also contended that after the expiry of 36 years
there was no formal renewal and in terms of Section 116 of the
Transfer of Property Act, 1882, the respondent continued in
possession of the land by holding over, signifying at the best a
lease, on year to year basis and in that view of the matter, in the
face of admitted plantation on the suit land, the respondent-
F.A.O.No.102/2016
company was drawn within the coils of S.3(1)(viii) of the Act,
1963 and thus was disentitled to claim fixity of tenure.
12. Learned counsel for the appellant, on the other hand,
contended that company is not a tenant in respect of land after
1954 and is not entitled to the protection of fixity of tenure under
Section 13(i) of the Act, 1963. For resolving the issues, the Apex
Court in paragraph 18 interpreted the lease deed and found that
reading between the lines, would demonstrate irrefutably, that at
the time of execution thereof, neither a private forest nor a
plantation as defined in S.2(44)/2(47) of the Act, 1963 did exist
on the demised land. It is further observed that it is apparent as
well on the face of the lease deed, that there were forests,
jungles and trees on the land which the lessee was authorized to
clear for the purpose of plantation and cultivation, to be decided
by him. There was thus no restriction or regulation of the nature
of cultivation/plantation to be resorted to by the lessee on the
cultivable portion of the land leased out.
13. The Apex Court quoted Dr.Jerome Fernandez
F.A.O.No.102/2016
(supra) in paragraph No.29. The relevant portion reads thus:
"x x x x x. Responding to the plea of the appellant,
that the determinative factor for the applicability of
clause (viii) was the character of the land or the use
thereof at the commencement of the Act, the High
Court on a comparison of the text amongst others of
clause (v) and (ix) of Section 3(1) and Section 2 of
the Malabar Tenancy Act 1929 dealing with
exemption and Section 3(1) (viii), of the Kerala
Agrarian Relations Act 1960 enunciated that the
legislature did consciously, as a matter of policy, in
relation to the grant of exemption for plantations,
restrict the scope thereof. The High Court in
categorical terms referred to the language used in
Section 3(1) (viii) and the definition of the expression
"plantation" in both the statutes, and was of the view
that the object behind the constricted sweep of
"plantation", was to confine the scope of exemption
from the applicability of the Act. The High Court
entertained the notion, that the legislature had
construed it to be unfair and improper to deny the
benefit of the fixity of tenure to a lessee who might
have taken the lease of extensive parambas or waste
lands and in course of time by hard toil had
developed those into plantations. That under the
provisions of the Malabar Tenancy Act 1929, such a
F.A.O.No.102/2016
tenant was entitled to fixity of tenure, unless the
lease had been one granted specifically for the
purpose of raising plantation as mentioned therein
was also emphasised. The High Court thus rejected
the appellant's plea based on Section 3(1) (viii) and
held that in view of the clues furnished by the
statutory history preceding the legislation involved,
and also the express language used in Section 3(1),
the lease transaction was beyond the ambit thereof.
It held as well that if the interpretation of Section
3(1)(viii) as sought to be projected by the appellant
was accepted, it would divest the tenants of their pre-
existing right of fixity under the Malabar Tenancy Act
1929 was underlined as well."
14. Ultimately the Apex Court upheld the decision of the
Full Bench in Dr. Jerome Fernandez having regard to the
scheme of Act 1963 with particular reference to Chapter II and
Section 3(1) (viii) thereof, correctly states the law on the issue.
In paragraph No.33 it has been concluded that the respondent-
company, continued as a lessee by holding over after 1954 and
the lease rent at the agreed rate fixed at the first instance was
paid till 1978 as admitted by the appellant. Act 1963 had come
into force prior thereto. As neither Section 3(1) (vii) nor 3 (1)
F.A.O.No.102/2016
(viii) is applicable to the plantation involved, the respondent-
company is entitled to fixity of tenure under Section 13 thereof.
It is also held that Section 116 of the Transfer of Property Act,
1882 even if applicable, the lease originally entered into would
not get transformed with time into one of tenancy in respect of
plantation as defined in Section 2(44) of Act 1963, in the absence
of any overt act of the parties, intending the same on agreed
upon terms.
15. In the present case the first appellate court, on the
other hand, quoting Dr.Jerome Fernandez stated that in order
to ascertain the nature of property the best evidence available is
the lease deed which was executed in between the predecessor-
in-interest of the plaintiff with the predecessor-in-interest of the
defendant. It is further found that the attempt of the defendant
is to seek shelter under the umbrella of alleged pleading in the
plaint that the properties were taken on lease mainly for planting
rubber, teak etc. Hence it was found that the expression
"admission" stands for something specifically admitted by a party
F.A.O.No.102/2016
with respect to something in existence or not in existence against
his interest and it should be specific, clear and free from any kind
of guess work. It should not give any different hypothesis or
interpretation rather than the one claimed to be admitted by the
party. It is also found that the pleading in the plaint does not
satisfy the above requirements, since it is a mere statement to
the effect that the properties were taken on lease mainly for
planting rubber and teak and it does not say that whether it was
a plantation of rubber or teak or any other plantation or it was a
waste land or whether it was unattended property. Hence it was
found that the pleading in the plaint does not satisfy the
requirement of an admission as claimed by the defendant. It is
further found that in the written statement there is no pleading
or even a whisper that what they have taken is a bare land or
waste land which was subsequently developed into a plantation
by the defendant or their predecessor-in-interest. Again the first
appellate court found that the initial burden to show and
establish that it was a plantation at the time of original lease is
F.A.O.No.102/2016
heavily on the defendant as they are claiming the benefit of fixity
of tenure and it is upon them to show and establish that the
subject matter of the lease would not come under the exemption
3(1)(viii) of the Kerala Land Reforms Act.
16. The above reasoning of the first appellate court is not
seems to be legal and proper. In the plaint the plaintiffs have
specifically alleged in paragraph No.3 that the properties were
taken on lease mainly for planting rubber, teak etc. and in
furtherance of these deeds the properties are in the possession of
the defendant by planting rubber mainly. Since the plaintiffs
themselves admitted that the properties were taken on lease
mainly for planting rubber and teak and in furtherance of the
same the defendant planted rubber mainly would not give any
indication of having any other plantation or another different crop
or conversion of plantation into a new one as has been inferred
by the first appellate court. Since there is no pleading about any
existing plantation in the property leased out in the plaint there is
no necessity for the defendant to contend that they have taken
F.A.O.No.102/2016
bare land or that lease land was subsequently developed into
plantation by the defendant or their predecessors-in-interest. So
also the lease deed produced from the side of the plaintiffs also
would specifically state that the property has been leased out for
planting rubber and other cultivation and the period of lease is
for 99 years.
17. The learned counsel for the respondents drew my
attention to page No.9 of the lease deed wherein it has been
stated that in the leasehold property the lessee has got right to
cut and remove the trees at the time of clearing the land for
cultivation except teak and rose-wood and further that only the
lessors have got right for the stem of the trees. It is also stated
that the lessors have to cut and remove the said trees on getting
notice issued by the lessees and in the course of removing those
timbers, no damage should be caused to the new saplings and
cultivation made by the lessees. Hence, the stipulations in page
No.9 would only enable the lessor to cut and remove the timber
of the trees except teak and rose-wood. So it will in not anyway
F.A.O.No.102/2016
indicate the presence of any other plantation in the leased
premises at the time of inception of the lease.
18. In this context it is relevant to have a look at
N.K.Rajendra Mohan referred above. In paragraph No.18 of the
said decision while discussing the facts in that case the Apex
Court had found that it is apparent from the face of the lease
deed, that there were forests, jungles and trees on the land
which the lessee was authorized to clear for the purpose of
plantation and cultivation and there was thus no restriction or
regulation on the nature of cultivation/plantation to be resorted
to by the lessee on the cultivable portion of the land leased out.
It is further reiterated that on the date of creation of the lease
there was neither any plantation nor a private forest on the
leasehold land within the meaning of Section 2(44) and 2(47) of
Act 1963 respectively. So it could be discerned from the above
that in N.K.Rajendra Mohan at the time of leasing out there
were forests, jungles and trees on the land which the lessee was
authorized to clear for the purpose of plantation and cultivation.
F.A.O.No.102/2016
In the said circumstances eventhough the plaintiff/lessor claimed
for the benefit under Section 3(1)(vii) contending it to be a
private forest it was not allowed. So in the present case some
statements in the lease deed with regard to the presence of
some trees which the lessee was permitted to cut and remove for
cultivation with a stipulation that the lessor would be entitled for
the timber will not in anyway leads to an inference that there was
any plantation in the leasehold premises at the time of execution
of lease deed.
19. So also the first appellate court again went wrong in
finding that initial burden to show and establish that it was a
plantation at the time of original lease is on the
appellant/defendant as they are claiming the benefit of fixity of
tenure and burden is upon them to show and establish that the
subject matter of the lease would not come under the exemption
3(1)(viii) of the Act. It is further found that the burden is heavily
upon the defendant to show and establish that at the time of
original lease the property was not a plantation and defendant
F.A.O.No.102/2016
failed to show and establish the character of subject matter of
the lease at its origination and the extent of plantation exceeds
30 acres and hence it would come under the purview of
exemption u/s.3(1)(viii) of the Act and hence the order of the
Land Tribunal was set aside.
20. It is to be noted that Section 3 of Chapter II deals with
exemptions and as per Section 3(1)(viii) tenancies in respect of
plantations exceeding thirty acres in extent are exempted. On
whom the burden of proof lies is the question.
21. Section 101 of Indian Evidence Act, deals with burden
of proof which provides that whoever desires any court to give
judgment as to any legal right or liability dependent on the
existence of facts which he asserts, must prove that those facts
exists. As per section 102 of the Evidence Act, burden of proof in
a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side. So also Section 105 of
the Evidence Act provides that burden of proving that accused
comes within the exception is upon him only.
F.A.O.No.102/2016
22. Here, respondents/plaintiffs are claiming exemption
with respect to the plaint schedule property against granting
fixity of tenure as contemplated under Section 13 of the Act to
the appellant/defendant basing on Section 3(1)(viii) of the Act.
So, it is the plaintiffs who would fail to get exemption if no
evidence is adduced. Hence the burden is upon the
respondents/plaintiffs to prove that at the time of inception of
tenancy it was a plantation. In Dr. Jerome Fernandez it has
been held by the Full Bench that the word 'tenancies' in respect
of plantations exceeding thirty acres in extent is to confine the
scope of the exemption to transactions whereunder lands
satisfying the statutory definition of 'plantation' and having an
extent of more than 30 acres have been let out to tenants. It is
further categorically held by the Full Bench that going by the
clues furnished by the statutory history preceding this legislation
and also by the express language used in Section 3(1)(viii) it is
more reasonable to conclude that the intention of the legislature
was to restrict the scope of the exemption to leases of lands
F.A.O.No.102/2016
which were already "plantations" on the date of the transactions.
So the burden is upon the respondents/plaintiffs to prove that
the leasehold property was a plantation at the time of lease. The
first appellate court set aside the order of the Land Tribunal for
the reason that the appellant/defendant failed to show and
establish the character of subject matter of the lease at its
origination and the extent of plantation exceeds 30 acres and
thereby it will come under the purview of exemption u/s.3(1)(viii)
of the Act. Finding so entered into by the first appellate court is
against the settled position of law above discussed and hence is
illegal and unsustainable.
23. It is true that the learned counsel for the
respondents/plaintiffs would contend that the order passed by
the Land Tribunal is a non speaking order and hence is not
sustainable in law. He would contend that the order of the Land
Tribunal would go to show that evidence was adduced both oral
and documentary. But no discussion has been made by the Land
Tribunal and a non speaking order has been passed. The
F.A.O.No.102/2016
operative portion of which reads as follows:
"In the circumstances stated above I hold
the view that the petitioner Harrisons Malayalam
Ltd. and their predecessors have possessed and is
cultivating the Rubber plantation of the land in
question uninterruptedly from 1910 onwards and
entitled to fixity of tenure.
A copy of the findings together with the
records including the documents filed by the
petitioner and the respondents are forwarded to
the Hon'ble Sub Court, Pathanamthitta."
24. In the above context the learned counsel bring to my
attention State of Uttaranchal & Anr v. Sunil Kumar Vaish &
Ors. [2011 KHC 4694 : (2011) 2 SCC (L&S) 410 : (2011) 8
SCC 670]. Paragraph No.15 was highlighted by the learned
counsel.
"15. Judicial determination has to be seen as an
outcome of a reasoned process of adjudication
initiated and documented by a party based, on
mainly events which happened in the past.
Courts' clear reasoning and analysis are basic
requirements in a judicial determination when
parties demand it so that they can administer
justice justly and correctly, in relation to the
F.A.O.No.102/2016
findings on law and facts. Judicial decision must
be perceived by the parties and by the society
at large, as being the result of a correct and
proper application of legal rules, proper
evaluation of the evidence adduced and
application of legal procedure. The parties
should be convinced that their case has been
properly considered and decided. Judicial
decisions must in principle be reasoned and the
quality of a judicial decision depends principally
on the quality of its reasoning. Proper reasoning
is an imperative necessity which should not be
sacrificed for expediency. The statement of
reasons not only makes the decision easier for
the parties to understand and many a times
such decisions would be accepted with respect.
The requirement of providing reasons obliges
the judge to respond to the parties' submissions
and to specify the points that justify the decision
and make it lawful and it enables the society to
understand the functioning of the judicial
system and it also enhances the faith and
confidence of the people in the judicial system.
16. We are sorry to say that the judgment in
question does not satisfy the above standards
set for proper determination of disputes.
F.A.O.No.102/2016
Needless to say these types of orders weaken
our judicial system. Serious attention is called
for to enhance the quality of adjudication of our
courts. Public trust and confidence in courts
stem, quite often, from the direct experience of
citizens from the judicial adjudication of their
disputes."
25. It is true that the Tahsildar being a quasi-judicial
authority ought to have passed a speaking order so as to enable
the parties to understand how their arguments were met by the
authority. However, in this context the learned counsel for the
appellant bring to my attention an unreported decision of this
Court in Perumal Smaraka Nidhi Bhajanamadom v. M/s.
Harrisons Malayalam & Anr. [R.F.A.No.336/2011 dated
31.01.2013] in which case a Division Bench of this Court in an
identical situation where the Tahsildar passed an identical non
speaking order in a case of reference wherein the same appellant
- company has been found to be entitled for fixity of tenure by
the Land Tribunal, found that though they are not satisfied with
the way in which the Land Tribunal passed the order, finding that
F.A.O.No.102/2016
it cannot be overlooked that, that was a case where the leases
are of the years 1910 and 1923 in respect of item Nos.1 and 2 as
evidenced by documents and the admitted pleadings of the
plaintiffs and the legal position flowing from the pronouncement
of the law by the Full Bench in Dr. Jerome Fernandez's case
and also other provisions contained in the Act, held that, that
was not a case where the remand should be made since no other
result is likely to emerge other than what is decided by the Land
Tribunal and accordingly the appeal was dismissed.
26. In this case, it has already been found that the reason
for setting aside the finding of the Land Tribunal by the first
appellate court is that the defendant failed to show that at the
time of original lease the property was not a plantation and
further that the land exceeds 30 acres which is the limit
prescribed under Section 3(1)(viii). It was not because of the fact
that order of Land Tribunal was not a speaking order that the first
appellate court remanded the case to the trial court, but finding
that the respondents/plaintiffs are entitled for exemption as
F.A.O.No.102/2016
contemplated under Section 3(1)(viii). It has already been found
that the finding so entered into by the first appellate court is
against the law laid down by the Full Bench in Dr. Jerome
Fernandez and also the decision of the Apex Court in
N.K.Rajendra Mohan which approved the dictum laid down in
Dr. Jerome Fernandez. Hence the fact that the order of the
Land Tribunal is not a speaking order alone is not a ground to
sustain the impugned order.
27. In the result F.A.O. stands allowed and the impugned
order of the first appellate court is set aside and that of the trial
court is restored. In the facts and circumstances, there is no
order as to cost.
Pending interlocutory applications, if any, are closed.
(sd/-) M.R.ANITHA, JUDGE
jsr/shg
True Copy
P.S to Judge
