Kerala High Court
Sarojini Amma vs Krishnan Nair on 3 January, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945
RSA NO. 179 OF 2021
AGAINST THE DECREE AND JUDGMENT DATED 31.1.2006 IN O.S.NO.111/1989 OF
MUNSIFF MAGISTRATE COURT,PONNANI
AGAINST THE DECREE AND JUDGMENT DATED 6.11.2020 IN A.S.NO.27/2006 OF
SUB COURT, TIRUR
APPELLANTS/APPELLANTS 3, 4 & 6/DEFENDANTS 5,6 & 11:
1 SAROJINI AMMA
AGED 76 YEARS
D/O THACHAKATH MADHAVI AMMA, PERUMBADAPPA AMSOM DESOM,
PONNANI TALUK,MALAPPURAM DISTRICT.
2 MADHAVI AMMA,
AGED 79 YEARS
D/O KALLIANI AMMA,PERUMBADAPPA AMSOM DESOM, PONNANI
TALUK,MALAPPURAM DISTRICT.
3 GIREESAN NAIR,
AGED 52 YEARS
S/O SAROJINI AMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK,MALAPPURAM DISTRICT.
BY ADVS.
SRI.KRISHNANUNNI (SR.)
JAMSHEED HAFIZ
K.K.NESNA
RESPONDENTS/RESPONDENTS AND 5TH APPELLANT/PLAINTIFFS 3 & 4 &
DEFENDANTS 7 TO 10 & 12:
1 KRISHNAN NAIR, AGED 89 YEARS
S/O THACHAKATH UNNIYAMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK, MALAPPURAM DISTRICT,PIN-679580.
*2 GOPALAN NAIR, [DIED] LEGAL HEIRS IMPLEADED
AGED 87 YEARS
S/O THACHAKATH UNNIYAMMA,PERUMPADAPPA AMSOM DESOM,PONNANI
TALUK, MALAPPURAM DISTRICT,PIN-679580.
3 SARASWATHY @ KUTTI AMMA,
RSA NO. 179 OF 2021 2
AGED 69 YEARS
D/O KALLIANI AMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK,MALAPPURAM DISTRICT -679580.
4 PRABHAKARAN NAIR,
AGED 61 YEARS
S/O KALLIANI AMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK,MALAPPURAM DISTRICT-679580.
5 MURALEEDHARAN NAIR,
AGED 61 YEARS
S/O KALLIANI AMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK,MALAPPURAM DISTRICT-679580.
6 RAJAN,
AGED 43 YEARS
S/O SAROJANI AMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK,MALAPPURAM DISTRICT-679580.
7 PATTATH SAROJINI AMMA,
AGED 79 YEARS
W/O LATE NARAYANAN NAIR,PALLIKKARA AMSOM DESOM,
PONNANI TALUK,MALAPPURAM DISTRICT-679575.
8 DINESSAN,
AGED 59 YEARS
S/O LATE NARAYANAN NAIR,PALLIKKARA AMSOM DESOM,PONNANI
TALUK, MALAPPURAM DISTRICT-679575.
9 BINDU,
AGED 57 YEARS
D/O LATE NARAYANAN NAIR,PALLIKKARA AMSOM DESOM,PONNANI
TALUK, MALAPPURAM DISTRICT,PIN-679575.
10 KAMALAM,
AGED 89 YEARS
W/O THACHAKATH RAMAN NAIR, PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.
11 NALINI,
AGED 72 YEARS
D/O THACHAKATH RAMAN NAIR, PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.
12 PRABHAKARAN,
AGED 67 YEARS
S/O THACHAKATH RAMAN NAIR,PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.
13 CHANDRAN,
RSA NO. 179 OF 2021 3
AGED 64 YEARS
S/O THACHAKATH RAMAN NAIR,PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.
14 LATHA,
AGED 61 YEARS
D/O THACHAKATH RAMAN NAIR,PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.
15 USHA,
AGED 66 YEARS
D/O THACHAKATH RAMAN NAIR,PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.
16 RAMESH,
AGED 49 YEARS
S/O THACHAKATH RAMAN NAIR, PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.
17 SURESH,
AGED 64 YEARS
S/O THACHAKATHGOVINDAN NAIR,PERUMBADAPPA AMSOM
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT, PIN-679580.
18 VASANTHI,
AGED 69 YEARS
D/O THACHAKATH GOVINDAN NAIR,PERUMBADAPPA AMSOM
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.
19 VILASINI AMMA,
AGED 71 YEARS
D/O KALLIANI AMMA,PERUMBADAPPA AMSOM DESOM, PONNANI
TALUK,MALAPPURAM DISTRICT--679580.
*ADDL.R20 TO R24 IMPLEADED
ADDL.R20 SAROJINI G NAIR
AGED 68 YEARS
W/O.LATE GOPALAN NAIR,GIRIJA NIVAS,DURGA
NAGAR,KODALLUR AMSOM DESOM,MELEPATTAMBI P.O.,PALAKKAD
DISTRICT-679 306.
ADDL.R21 GIRIJA DEVI
AGED 48 YEARS
D/O.LATE GOPALAN NAIR,GIRIJA NIVAS,DURGA
NAGAR,KODALLUR AMSOM DESOM,MELEPATTAMBI P.O.,PALAKKAD
DISTRICT-679 306.
ADDL.R22 MAYADEVI
RSA NO. 179 OF 2021 4
AGED 44 YEARS
D/O.LATE GOPALAN NAIR,GIRIJA NIVAS,DURGA
NAGAR,KODALLUR AMSOM DESOM,MELEPATTAMBI P.O.,PATTAMBI
TALUK,PALAKKAD DISTRICT-679 306.
ADDL.R23 SANGEETHA
AGED 40 YEARS
D/O.LATE GOPALAN NAIR,GIRIJA NIVAS,DURGA
NAGAR,KODALLUR AMSOM DESOM,MELEPATTAMBI P.O.,PATTAMBI
TALUK,PALAKKAD DISTRICT-679 306.
ADDL.R24 SANTHOSH KUMAR
AGED 35 YEARS
D/O.LATE GOPALAN NAIR,GIRIJA NIVAS,DURGA
NAGAR,KODALLUR AMSOM DESOM,MELEPATTAMBI P.O.,PATTAMBI
TALUK,PALAKKAD DISTRICT-679 306.
*(THE LEGAL HEIRS OF DECEASED SECOND RESPONDENT ARE
IMPLEADED AS ADDL.RESPONDENTS 20 TO 24 AS PER ORDER
DATED 06.09.2021 IN IA.3/2021.)
ADDL.R20 TO R24 BY ADVS.
C.V.MANUVILSAN
P.CHANDRASEKHAR
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 179 OF 2021 5
CR
JUDGMENT
Dated this the 3rd day of January, 2024
Defendants 5, 6 and 11 in O.S.No.111/1989 on the files of
the Munsiff Court, Ponnani, are the appellants in this appeal, filed
under Section 100 and Order XLII Rule 1 of the Code of Civil
Procedure (for short, 'the C.P.C.' hereinafter). They assail the
decree and judgment in the above suit, dated 31.1.2006 and the
decree and judgment of the appellate court in A.S.No.27/2006,
dated 6.11.2020, arose therefrom.
2. Respondents herein are the plaintiffs and the other
defendants.
3. Heard Sri.Krishnanunni, learned Senior Counsel for the
appellants and Sri.P.Chandrasekar, learned counsel appearing for
the respondents.
4. As per order, dated 23.3.2021, my learned predecessor
admitted this appeal formulating the following substantial
question of law:
Whether the two courts below are justified
in appreciating the findings of the Land Tribunal
with regard to the effects, nature and transaction
in obtaining the lease from Bhattathiripad?
5. Originally, suit was filed seeking recovery of possession
of the plaint schedule property, based on title and also for
permanent prohibitory injunction. The case put up by the
plaintiffs before the trial court was that, the plaint schedule
property originally belonged to late Sankara Narayanan
Bhattathiripad of Mullapalli Mana and Smt.Unnimayamma, the
mother of the plaintiffs, obtained mortgage right over the same.
Later, Smt.Unnimayamma purchased tenancy rights over the
same property, as per assignment deed, dated 21.5.1964.
According to the plaintiffs, the plaintiffs who are the children of
Smt.Unnimayamma, were residing at different places and
Smt.Unnimayamma alone was residing at the house constructed
in the plaint schedule property. When Smt.Unnimayamma was
affected with certain diseases in the year 1965, she was in need
of assistance of someone to manage her routine life. Thereafter,
the 1st plaintiff reached the place from Bangalore and
Smt.Lakshmi Amma and Smt.Kunhi Amma were permitted to
reside along with Smt.Unnimayamma in the plaint schedule
building. Smt.Lakshmi Amma is none other than the daughter of
late Madhavi Amma who was the elder sister of
Smt.Unnimayamma, whereas, Smt.Kunhi Amma was the younger
sister of Smt.Unnimayamma. Since the defendants refused the
demand to get vacant possession of the plaint schedule property,
the present suit was filed.
6. Defendants filed written statement as well as additional
written statement and inter alia raised contention that 'the plaint
schedule property originally belong to Sankara Narayana
Bhattathiripad of Mullapalli Mana.' Further contention was that
Smt.Unnimayamma obtained tenancy right from Sankara
Narayanan Bhattathiripad and later, the said tenancy was
purchased by 3rd defendant from Smt.Unnimayamma, orally.
7. During the pendency of the suit, I.A.No.908/1995 was
filed before the Munsiff Court, Ponnani to refer the question of
tenancy before the Land Tribunal, at the instance of defendants.
When the Munsiff Court dismissed the application, the
defendants filed C.R.P.No.1986/1995(E) before this Court. As per
order in the above C.R.P., dated 17.9.1998, this Court directed
the trial court to re-consider the prayer in I.A.No.908/1995
without taking into consideration of the statements in the caveat.
Thereafter, the order in I.A.No.908/1995 was re-considered and
the matter referred to Land Tribunal and the Land Tribunal, as
per order, dated 12.10.2004, negatived claim of tenancy at the
instance of the defendants.
8. Thereafter, the trial court recorded evidence confined
to that of PW1 and Exts.A1 to A10 on the side of plaintiffs. DW1
and Exts.B1 to B21 on the side of the defendants. Ext.C1 and
Ext.X1 were also marked. Finally, the trial court found tenancy in
favour of Smt.Unnimayamma and in turn, in favour of the
plaintiffs. Accordingly, the defendants were directed to vacate
the house situated in the plaint schedule property within a period
of 3 months and also granted permanent prohibitory injunction,
thereafter. A.S.No.27/2006 was filed before the Sub Court, Tirur,
challenging the verdict of the trial court and as per decree and
judgment, dated 6.11.2020, the appellate court also confirmed
the finding of the trial court and dismissed the appeal.
9. The learned Senior Counsel appearing for the
contesting defendants submitted that the trial court and the
appellate court failed to consider the case put up by the
defendants in its right perspective. According to the learned
counsel for the defendants, going by the averments in the written
statement, the defendants raised contention that
Smt.Unnimayamma obtained tenancy right from Sankara
Narayanan Bhattathiripad, Mullapalli Mana, being the senior
member of the Tharavadu. He also conceded that, another
contention also was raised to the effect that the 3 rd defendant
obtained tenancy right over the plaint schedule property from
Smt.Unnimayamma thereafter, orally. According to the learned
counsel, the tenancy right claimed by the defendants from the
original title holder i.e., Koypally Devaswam, should have been
decided to address the matter in controversy and for which, a
remand is absolutely necessary.
10. Dispelling this argument, the learned counsel for the
plaintiffs submitted that, reading the contentions raised in the
written statement, same are contrary to each other. It is
submitted that, at the first instance, the contention was by
admitting tenancy in favour of Smt.Unnimayamma from Sankara
Narayanan Bhattathiripad and secondly, the contention was that
the 3rd defendant obtained an oral tenancy from
Smt.Unnimayamma. It is also pointed out that, when the petition
filed by the defendants to refer the matter before the Land
Tribunal was dismissed by the trial court, the defendants took the
matter before this Court and in turn, reference was made to
decide the question of tenancy. It is submitted further that, as
per Ext.X1 order passed by the Land Tribunal, tenancy claimed
by the defendants was found against them. Therefore, in tune
with the mandate of Section 125(4) of Kerala Land Reforms Act,
1963 (for short, 'the Act' hereinafter), the trial court is bound to
accept the finding, though the appellate court has the power to
decide on the legality of the order passed by the Land Tribunal in
view of Section 125(6) of the Act.
11. To be on the crux of this matter, Ext.A1 is the document
relied on by the plaintiffs to assert tenancy right obtained by
Smt.Unnimayamma from Sankara Narayanan Bhattathiripad.
Ext.A1, executed in the year 1964, would go to show that
Sankara Narayanan Bhattathiripad transferred all his tenancy
rights in respect of the plaint schedule property in favour of
Smt.Unnimayamma after accepting sale consideration of
Rs.100/-. Thus, it appears that, as per Ext.A1, Smt.Unnimayamma
obtained tenancy right from Sankara Narayanan Bhattathiripad
for valid consideration.
12. On reading of written statement filed by the defendants
1 to 6, it has been contended that the plaint schedule property is
the janmam property of Koypally Devaswam and Sankara
Narayanan Bhattathiripad obtained tenancy over the same and in
turn, in the year 1950, later, Smt.Unnimayamma, being the senior
member of the family, obtained tenancy right from Sankara
Narayanan Bhattathiripad. The second contention raised is that
when Smt.Unnimayamma left the house to accompany her son,
who was employed in Bangalore, she had given an oral lease in
favour of the 3rd defendant and accordingly, the 3 rd defendant
obtained tenancy over the same. According to the learned
counsel for the contesting defendants, the second contention
need not be considered as admission and the original tenancy
right claimed from Koypally Devaswam, should have been
decided.
13. While addressing this contention, at the outset, it is to
be noted that the defendants never claimed tenancy right from
Koypally Devaswam, in any manner and the defendants claimed
tenancy right in favour of the 3rd defendant, on the allegation that
the 3rd defendant obtained oral tenancy from Smt.Unnimayamma.
Therefore, the tenancy now claimed by the learned Senior
counsel for the defendants is a case not pleaded in the written
statement and the tenancy pleaded was referred to the Land
Tribunal at the instance of the defendants and as per Ext.X1, the
Land Tribunal negatived the said claim of tenancy.
14. On perusal of Ext.X1, whereby the Land Tribunal
addressed the issue of tenancy, it is discernible that the Land
Tribunal found, after recording exhaustive evidence confined to
that of PW1 and Exts.A1 to A10 on the side of the plaintiffs and
DW1 to DW4 and Exts.B1 to B20 on the side of the defendants
that, tenancy right claimed by the defendants not at all
established and accordingly, the said contention was found as
negative.
15. Now, the questions arise for consideration are;
1) Whether the trial court/the referral court has the
power to deviate from the decision of the Land Tribunal after
discussing its legality?
2) Whether the appellate court has the power to address
on the legality of an order passed by the Land Tribunal under
Section 125(4) of the Act, in a reference under Section 125(3) of
the Act, while considering an appeal challenging the verdict of
the referral/trial court?
While answering these querries, it is relevant to refer Section
125 of the Kerala Land Reforms Act, 1963, as such. The same is
extracted as under:
125. Bar of jurisdiction of Civil Courts.- (1) No
Civil Court shall have jurisdiction to settle, decide or
deal with any question or to determine any matter
which is by or under this Act required to be settled,
decided or dealt with or to be determined by the Land
Tribunal or the Appellate Authority or the Land Board
[or the Taluk Land Board] or the Government or an
officer of the Government:
Provided that nothing contained in this sub-section shall
apply to proceedings pending in any Court at the
commencement of the Kerala Land Reforms
Amendment Act, 1969.
(2) No order of the Land Tribunal or the Appellate
Authority or the Land Board [or the Taluk Land Board]
or the Government or an officer of the Government
made under this Act shall be questioned in any Civil
Court, except as provided in this Act.
(3) If in any suit or other proceedings any
question regarding rights of a tenant or of a
kudikidappukaran (including a question as to whether
a person is a tenant or a kudikidappukaran) arises, the
Civil Court shall stay the suit or other proceeding and
refer such question to the Land Tribunal having
jurisdiction over the area in which the land or part
thereof is situate together with the relevant records for
the decision of that question only.
(4) The Land Tribunal shall decide the question
referred to it under sub-section (3) and return the
records together with its decision to the Civil Court.
(5) The Civil Court shall then proceed to decide
the suit or other proceedings accepting the decision of
the Land Tribunal on the question referred to it.
(6) The decision of the Land Tribunal on the
question referred to it shall, for the purposes of appeal,
be deemed to be part of the finding of the Civil Court.
(7) No Civil Court have power to grant injunction
in any suit or other proceeding referred to in sub-
section (3) restraining any person from entering into
or occupying or cultivating any land or kudikidappu or
to appoint a receiver for any property in respect of
which a question referred to in that sub-section has
arisen, till such question is decided by the Land
Tribunal, and any such injunction granted or
appointment made before the commencement of the
Kerala Land Reforms (Amendment) Act, 1969, or
before such question has arisen, shall stand cancelled.
(8) In this section, "Civil Court" shall include a
Rent Control Court as defined in the Kerala Buildings
(Lease and Rent Control) Act, 1965.
16. As per Section 125(3) of the Act, if in any suit or other
proceedings any question regarding rights of a tenant or of a
kudikidappukaran arises, the same has to be referred to the Land
Tribunal having jurisdiction over the area for a decision over the
same. Section 125(4) of the Act empowers the Land Tribunal to
decide the question referred to it under sub-section (3) and
return the records together with its decision to the Civil Court.
Section 125(5) of the Act provides that the Civil Court shall then
proceed to decide a suit or other proceedings, accepting the
decision of the Land Tribunal on the question referred to it. Thus,
it is clear that the trial court has no descretion to revisit the
finding of tenancy or kudikidapu entered into by the Land
Tribunal when a decision was taken by the Land Tribunal as per
Section 125(4) of the Act and the same shall be accepted by the
Civil Court as provided under Section 125(5) of the Act. Coming
to the appellate court, where appeal is filed challenging the
decree and judgment of the trial court rendered in consideration
of the finding entered into by the Land Tribunal under Section
125(4) of the Act, the appellate court has the power empowered
under Section 125(6) of the Act. It has been provided that the
decision of the Land Tribunal on the question referred to it shall,
for the purposes of appeal, be deemed to be part of the finding of
the Civil Court. Thus, the legal position is emphatically clear on
the point that the appellate court while deciding an appeal of the
nature discussed hereinabove, has the power to decide upon the
legality of the finding of the Land Tribunal along with the finding
of the trial court. In the decision in Poddar Plantations Ltd. v.
Thekkemariveettil Madhavi Amma and Others reported in
[2013 KHC 736] : [2013 (4) KLJ 781] : [2014 (1) KLT 439] :
[ILR 2014 (1) Ker. 813], this Court held so, as early in 2013.
17. Therefore, the trial court rightly acted upon Ext.X1 and
negatived the claim of tenancy and found tenancy in favour of
Smt.Unnimayamma as per Ext.A1 and in turn, the title of the
plaintiffs over the plaint schedule property. First appeal was filed
challenging the said verdict and the appellate court though
initially observed that no challenge made against the finding of
the Land Tribunal in the appeal memorandum and also the
appellants therein did not contend before the Land Tribunal that
the Land Tribunal went wrong in decision as per Ext.X1, in
paragraph No.8 onwards, the appellate court considered the
legality of Ext.X1 with reference to the evidence relied on by the
Land Tribunal while passing Ext.X1. Paragraph No.8 of the
appellate judgment appears to be relevant and therefore, the
same is extracted as under:
"8. Before the Land Tribunal, both sides
examined and produced documents. Though the
pleaded case in the written statement is that in 1950,
Unnimayamma obtained lease for the benefit Thavzahi
and in 1954, defendant No.3 obtained an oral sublease
from Unnimayamma, DW1/D3 before the Land
Tribunal deposed that the lease for the benefit of
thavazhi was in the year 1954 and that they have not
claimed that Unnimayamma obtained lease for the
benefit of Thavzahi in 1950. This evidence itself
demolishes the case set up by the defendants.
Likewise, the original entrustment was by Sankara
Narayanan Bhattathirippad is an admitted fact. If the
case of the defendants that they obtained sublease
from Unnimayamma agreeing to pay rent to Sankara
Narayanan Bhattathirippad directly is accepted as
true, Sankara Narayanan Bhattathirippad is the best
witness especially considering the fact that no rent
receipt issued by Sankara Narayanan Bhattathirippad
since 1954, June is brought by the defendants to prove
that rent was paid by D3 as a subtenant. Admittedly,
such person was alive at the time of examination and
he was in good relationship with them. No witness is
better than Sankara Narayanan Bhattathirippad to
prove the alleged case of sublease. By his
examination, they could prove two facts if their case
was true. One that, there was sublease in favour of D3
and secondly that he was having no saleable right over
the property in 1964 while executing Ext.Al since D3
obtained fixity of tenure when the Act came into force.
Non-examination of him as a witness to prove at least
that there was sublease since D3 was paying rent from
1954 June onwards, adverse inference has to be drawn
against the defendants that their case is unworthy of
acceptance. The examination of DW3, the brother of
Sanakaran Bhattathirippad is not a substitute for the
examination of Sanakaran Bhattathirirppad; whose
evidence established also that he has no knowledge
about the real nature of the transaction in question. It
is pertinent to note that the case of DW1 is that the
defendants were paying land revenue tax since 1960.
Suffice it to say, no tax receipt is produced to prove
any payment of tax till 11-4-1967. So, such case should
be treated as utter falsehood. Their documents for
proving payment of tax are from 1979-80 onwards
only. Needless to say, it does not establish any tenancy
right on the defendants. No rent receipt is also
produced by defendants though DW1 claimed that she
has rent receipts. Adverse inference has to be drawn
that such case is false. Needless to say, the building
tax receipts produced by defendants also will not
improve their case since admittedly they are residing
in the house in the plaint schedule property. Another
material produced by the defendants before the Land
Tribunal is Ext.B20, a letter sent by T.R Nair to Kunhi
Amma. In the appeal, the learned counsel for the
appellants vehemently argued that Ext.B20 destroys
the case of the plaintiffs. It is a letter alleged to be
written by the 1st plaintiff to Kunhi Amma, the sister of
the mother of the 1st plaintiff in the year 1955.
According to the counsel for the appellants, Ext.B20
would prove that before Ext.A1 itself Kunhi Amma, the
recipient of Ext.B20 letter was residing in the house in
the plaint schedule property at Perumpadappu. Kunhi
Amma is no more. According to the counsel for the
appellants, the relevance of Ext.B20 is that it
establishes that even in the year 1955, Thachakath
family had residence at Perumpadappu. We have
already found that the case of the defendants that
there was oral entrustment with respect to the plaint
schedule property in the year 1950 and there was
sublease in favour of D3 in the year 1954 is unworthy
of acceptance. There is no other material also brought
to the Court or the Land Tribunal to show that actually
the plaint schedule property was in the possession of
the Thachakath family from 1950 onwards. That be the
case, it cannot be accepted that Ext.B20 was served at
the house in the plaint schedule property. Most
importantly, Ext.B20 is not addressed in the name of
the plaint schedule property but is addressed in the
tharavad name located at Marancheri. There is no
convincing evidence to show that Ext.B20 was served
at the house in the plaint schedule property. It is also
pertinent to note that there is no evidence at all to
prove that Kunhi Amma was residing with
Unnimayamma at any point of time before 1964. Kunhi
Amma was the sister of Unnimayamma. It is not clear
whether she had any other residence at
Perumpadappu. Unless and until, clinching evidence is
brought to prove that the plaint schedule property was
in the possession of Thachakath family in the year
1955, the case of the defendants that Ext.B20 was
served on Kunhi Amma at the house in the plaint
schedule property cannot be swallowed. So, Ext.B20
cannot be a ground to hold that the plaint schedule
property was in the possession of Unnimayamma in
the year 1950 and D3 obtained the same from
Unnimayamma in the year 1954. That apart, if the
property was obtained by Unnimayamma in the year
1950 as a Karanavar sthree of the tharavad, there was
no necessity for a sublease from Unnimayamma in
favour of D3 because she also the member of the
tharavad even otherwise. The oral evidence of DWs 2
and 3 before the Land Tribunal also does not improve
the case of the defendants as to the tenancy. In the
absence of any material to establish the tenancy right
claimed by the defendants, Ext.A1, the registered
assignment deed has to be given effect. Most
importantly, defendants have not taken any steps to
set aside Ext.A1. So, it is binding on all. So, the Land
Tribunal was right in rejecting the claim of tenancy
put forth by the defendants. So, the argument of the
counsel for the appellants that Ext.B20 demolishes the
case of the plaintiffs can only be rejected."
18. On reading the appellate judgment, the observation of
the appellate court as regards to no challenge made against the
finding of the Land Tribunal in the appeal memorandum etc.,
found to be unwarranted. But, the same has no consequence
when the appellate court rightly decided the legality of the order.
As I have already pointed out, the contention of the defendants at
one hand that, Smt.Unnimayamma obtained tenancy right, being
the senior member of the family and at the same time, the other
contention is that, tenancy right was obtained by the 3rd
defendant in her favour from Smt.Unnimayamma, orally.
Ext.B20, letter addressed to 'T.Kuchu Amma, Thachakathe
House, P.O.Perubatape', was given much emphasis by the learned
counsel for the defendants to contend that Kunhi Amma was
residing in the plaint schedule building, even before Ext.A1 and
thereby the 1st plaintiff sent a letter as on 20.6.1955 in the said
address.
19. Even though the learned counsel for the defendants
given emphasis to Ext.B20 to show the residence of Kunhi Amma
or her legal representatives, who are not parties to the litigation,
independent tenancy right was claimed by the defendants
through Madhavi Amma. In paragraph No.8 of Ext.X1 also,
Ext.B20 was considered and the contention was found against the
defendants mainly holding that Kunhi Amma or her legal
representatives are not parties to the litigation. On perusal of
Ext.B20, what could be gathered is that, a letter was sent in the
name of Kunhi Amma by the 1st plaintiff in the address shown
therein and according to the defendants, the said address is the
address of the plaint schedule building. In fact, the said aspect
not properly proved and even otherwise, Ext.B20 letter by itself
cannot confer tenancy right to a resident, who is a relative to the
original tenant, in any manner. Therefore, Ext.B20 is of no
consequence in the case at hand.
20. In this matter, tenancy right, as extracted hereinabove,
was claimed by the defendants. Whereas, plaintiffs also claimed
tenancy right on the basis of Ext.A1, executed by Sankara
Narayanan Bhattathiripad. The occupation of the property by
Sankara Narayanan Bhattathiripad is not disputed by both sides.
The land Tribunal considered non-examination of Sankara
Narayanan Bhattathiripad as vital, while negativing the
contention of tenancy at the instance of the defendants.
Similarly, the appellate court also considered the said fact as
fatal, while deciding the legality of Ext.X1.
21. In this matter, as I have already pointed out, when
reference to decide the question of tenancy was negatived by the
trial court, the defendants approached this Court and as directed
by this Court in C.R.P.No.1986/1995(E), the right of tenancy was
re-considered by the trial court and referred to the Land
Tribunal. On reading of Ext.X1, tenancy right claimed by the
defendants through Madhavi Amma, had been discussed by the
Land Tribunal and found in the negative.
22. It is well settled law that the defendants have the right
to take inconsistent pleas in the written statement. But, when a
specific right is claimed, the pleadings should be specific and
clear to assert the said title. Here, the defendants raised two fold
contentions, as I have already pointed out. If the second
contention to the effect that the 3 rd defendant obtained oral
tenancy from Smt.Unnimayamma is accepted, the tenancy
claimed by Smt.Unnimayamma on the strength of Ext.A1 is also
accepted. In fact, the entire proceedings before the trial court,
Land Tribunal and before the appellate court, have been
progressed on the basis of the second contention. Even
otherwise, there is no challenge against Ext.A1, whereby
Smt.Unnimayamma perfected tenancy right through Sankara
Narayanan Bhattathiripad. Thus, it appears that the appellate
court rightly considered the legality of Ext.X1 and found in the
affirmative and accordingly, the appellate court concurred the
decree and judgment of the trial court. In this matter, it is
relevant to note that, though inconsistent pleadings with regard
to tenancy right have been taken by the defendants, the defendants
miserably failed to prove the tenancy, in any manner, eschewing the
legal effect of Ext.A1.
23. In view of the matter, the substantial question of law
answered holding that the appellate court fully justified in
appreciating the findings of the Land Tribunal with regard to the
effects, nature and transaction in obtaining the lease by
Smt.Unnimayamma from Sankara Narayanan Bhattathiripad.
Accordingly, the trial court granted decree and judgment in favour of
the plaintiffs and the said decree and judgment were upheld by the
appellate court. Thus, the concurrent verdicts under challenge do not
require any interference. Accordingly, this regular second appeal
stands dismissed.
All interlocutory orders stand vacated and all interlocutory
applications pending in this second appeal, stand dismissed.
Registry shall inform this matter to the trial court as well as the
appellate court, forthwith, to expedite the execution of the decree
forthwith, at any rate within seven days from the date of receipt of a
copy of this judgment.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
