Kerala High Court
Kunimal Padmakshy vs Madavoor Mammukutty on 2 July, 2025
RFA 559/2011 & Cross objection 83/2011
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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 :
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"..........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
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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
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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
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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
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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
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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
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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
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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
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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.
