[Cites 65, Cited by 0]
Kerala High Court
Ethamma Dominic,(Died) Impleaded vs The Commissioner on 16 January, 2026
2026:KER:2989
RSA 515/2012 & connected cases
1
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 520 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.176 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.94 OF 2001 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANTS/APPELLANTS 6 & SUPPLEMENTAL APPELLANTS 7 TO
18/SUPPLEMENTAL DEFENDANTS 17 & 18:
1 M/S/ HILL TOP PLANTATIONS
REP. BY ITS PARTNER ALEX JOSEPH, AGED 50 YEARS,
PLANTER, MALAMPUZHA, PALAKKAD.
2 MS. DAM VIEW PLANTATIONS REP. BY ITS
PARTNER HANSALA GEORGE, AGED 53 YEARS, W/O.
EDAYADI GEORGE, U.C. COLLEGE.P.O. ALUVA,
ERNAKULAM.
3 THOMAS JOSEPH
AGED 60 YEARS, EDAYADI, KANNADY, ALLEPPEY
DISTRICT
4 GEORGE JOSEPH AGED 60 58 YEARS
EDAYADI, KANNADY, ALLEPPEY DISTRICT
5 JOSE JOSEPH AGED 56 YEARS
EDAYADI, KANNADY, ALLEPPEY DISTRICT
6 MARYKUTTY THOMAS AGED 54 YEARS
EDAYADI, KANNADY, ALLEPPEY DISTRICT
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7 ALEXIS JOSEPH AGED 52 YEARS
EDAYADI, KANNADY, ALLEPPEY DISTRICT
8 JOHNY JOSEPH AGED 47 YEARS
EDAYADI, KANNADY, ALLEPPEY DISTRICT
9 GEETHA ALEX AGED 45 YEARS
EDAYADI, KANNADY, ALLEPPEY DISTRICT
10 SUMI JAMES AGED 43 YEARS
EDAYADI, KANNADY, ALLEPPEY DISTRICT
11 JOLLY GEORGE AGED 40 YEARS
EDAYADI, KANNADY, ALLEPPEY DISTRICT
12 MARTIN JOSEPH AGED 37 YEARS
EDAYADI, KANNADY, ALLEPPEY DISTRICT
13 HANSALA GEORGE AGED 53 YEARS
EDAYADI GEORGE, U.C. COLLEGE POST, ALUA,
ERNAKULAM DISTRICT.
BY ADVS. SRI.T.SETHUMADHAVAN (SR.) (B/O.)
SHRI.JACOB SEBASTIAN
SMT.PREETHY R. NAIR
RESPONDENTS/RESPONDENT NO.1, APPELLANTS 2, 5 AND DEFENDANTS
2 TO 10/PLAINTIFF AND DEFENDANTS 2, 16, 3,5, 7 TO 15:
1 EMOOR BHAGAVATHY DEVASWOM
KALLEKULANGARA, AKATHETHARA AMSOM, PALAKKAD
TALUK, REP. BY ITS EXECUTIVE OFFICER, HR & CE
DEPARTMENT, CALICUT - 673 020.
2 SEBASTIAN VARGHESE AGED 46 YEARS
PARTNER OF RIVERSIDE PLANTATIONS, MALAMPUZHA,
RESIDING AT KIZHUKUNNU.P.O, KOTTAYAM.
3 MS. RIVER PLANTATIONS
REP. BY PARTNER SEBASTIAN VARGHESE, AGED 46
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YEARS, PLANTER, MALAMPUZHA, PALAKKAD - 678 651.
4 ANOOP JOSEPH
PARTNER, HILL TOP PLANTATIONS, MALAMPUZHA,
RESIDING AT EDAYADIL HOUSE, KANNADY,PULUNCUNNO,
ALLEPPEY DISTRICT - 688504.
5 ETHAMMA DOMINIC AGED 50 YEARS
PARTNER, KOMBUTHOOKI ESTATE, MALAMPUZHA, RESIDING
AT MUKKADA HOUSE P.OI NALUNNAKKAL, VAKATHANAM,
KOTTAYAM DISTRICT - 686 538.
6 GEORGE DOMINIC AGED 44 YEARS
UNITED PLANTERS, MALAMPUZHA, RESIDING AT MUKKADA
HOUSE, POST MANJERI, MALAPPURAM DISTRICT -
676121.
7 RONI J MUKKADA
AGED 39 YEARS, MUKKADA HOUSE, POST NALUNNAKKAL,
VAKATHANAM, KOTTAYAM DISTRICT - 686 538.
8 THRESSIAMMA THOMA
AGED 54 YEARS, W/O. LATE THOMAS DOMINIC, MUKKADA
HOUSE, NALUMKKAL, VAKATHANAM, CHANGANASSERY
TALUK, KOTTAYAM DISTRICT - 686 538.
9 M.S. TISSY
S/O. LATE THOMAS DOMINIC, MUKKADA HOUSE,
NALUMKKAL VAKATHANAM, CHANGANASSERY TALUK,
KOTTAYAM DISTRICT - 686 538.
10 MERCY JOY AGED 67 YEARS
W/O. LATE JOYKUTTY DOMINIC, MUKKADA HOUSE,
VADAVATHOOR KOTTAYAM DISTRICT - 686 010.
11 DR. ROY J MUKKADA AGED 46 YEARS
S/O. LATE JOYKUTTY DOMINIC, C/O.P.V.S. HOSPITAL,
KALOOR, KOCHI, ERNAKULAM DISTRICT - 682 017.
12 ROJI J MUKKADA
AGED 42 YEARS, ELAKA ESTATE, ANAKKAL, MALAMPUZHA,
KADUKKAMKUNNAM, PALAKKAD TALUK, PALAKKAD DISTRICT
- 678 651.
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13 MRS. ROSHINI SURESH AGED 37 YEARS
D/O. LATE JOYKUTTY DOMINIC, MUKKADA HOUSE,
VADAVATHOOR, KOTTAYAM DISTRICT - 686010.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.) FOR R2
SRI.SABU GEORGE FOR R2
SRI.P.B.SUBRAMANYAN FOR R2
SRI.LAKSHMY NARAYAN FOR R1 (B/O.)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA NOS.446/2012, 514/2012,
515/2012, 516/2012, 517/2012, 518/2012, 519/2012, 521/2012,
522/2012, 1333/2012, 1490/2011 & CROSS OBJECTION NOS.47/2014,
48/2014 & 49/2014 IN RSA 520/2012, THE COURT ON 16.01.2026
DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
CO NO. 47 OF 2014 IN RSA NO.515 OF 2012
AGAINST RSA NO.515 OF 2012 OF HIGH COURT OF KERALA
ARISING OUT OF THE JUDGMENT AND DECREE DATED 22.07.2011 IN
AS NO.231 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.94 OF 2001 OF ADDITIONAL SUB COURT, PALAKKAD
CROSS OBJECTOR/RESPONDENT NO.1 IN APPEAL/RESPONDENT
NO.1/PLAINTIFF:
EMOOR BHAGAVATHY DEVASWOM
KALLEKULANGARA, AKATHETHARA AMSOM, PALAKKAD
TALUK, PALAKKAD-673020, REP. BY ITS EXECUTIVE
OFFICER
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENTS/APPELLANTS IN APPEAL/APPELLANTS 1, 3 AND 5 TO
10/DEFENDANTS 5,7 AND 9 TO 14:
1 ETHAMMA DOMINIC
AGED 92 YEARS
W/O.DOMINIC,PARTNER,KOMBUTHOOKI ESTATE,
MALAPUZHA, R/A.MUKKADA HOUSE, NALUMKAL POST,
VAKATHANAM,KOTTAYAM-686001
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2 GEORGE DOMINIC
AGED 46 YEARS
S/O.DOMINIC, UNITED PLANTERS, R/A.,MUKKADA HOUSE,
MANJERI POST, MALAPPURAM -6
3 RONI J MUKKADA, AGED 39 YEARS,
S/O.JOYKUTTY DOMINIC, R/A.MUKKADA HOUSE, NALUMKAL
POST, VAKATHANAM, KOTTAYAM-6860001
4 THRESIAMMA THOMAS
AGED 39 YEARS
W/O.THOMAS DOMINIC, R/A.MUKKADA HOUSE, NALUMKAL
POST, VAKATHANAM, KOTTAYAM-6860001
5 M S TISSY
AGED 32 YEARS
D/O.LATE THOMAS DOMINIC, MUKKADA HOUSE, NALUMKAL
POST, VAKATHANAM, KOTTAYAM-6860001
6 MERCY JOY
AGED 71 YEARS
W/O.JOYKUTTY DOMINIC, MUKKADA HOUSE, NALUMKAL
POST, VAKATHANAM, KOTTAYAM-6860001
7 DR.ROY J MUKKADA, AGED 50 YEARS,
S/O.LATE JOYKUTTY DOMINIC,C/O.PVS HOSPITAL,
KALOOR, ERNAKULAM-KALOOR, KOCHI-17
8 ROJI J.MUKKADA, AGED 46 YEARS, S/O.JOYKUTTY
DOMINIC, ELAK ESTATE, ANAKKAL, MALAMPUZHA,
KADUKKAMKUNNAM, PALAKKAD-6.
BY ADV SHRI.JACOB SEBASTIAN FOR R1
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED
CASES, THE COURT ON 14466.01.2026 DELIVERED THE FOLLOWING:
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RSA 515/2012 & connected cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
CO NO. 48 OF 2014 IN RSA NO.446 OF 2012
AGAINST RSA NO.446 OF 2012 ON THE FILES OF HIGH COURT
OF KERALA FILED AGAINST THE JUDGMENT AND DECREE DATED
22.07.2011 IN AS NO.176 OF 2008 OF II ADDITIONAL DISTRICT
COURT, PALAKKAD ARISING OUT OF THE JUDGMENT AND DECREE DATED
31.03.2008 IN OS NO.94 OF 2001 OF ADDITIONAL SUB COURT,
PALAKKAD
CROSS OBJECTOR/RESPONDENT NO.1 IN APPEAL/RESPONDENT
NO.1/PLAINTIFF:
EMOOR BHAGAVATHY DEVASWOM
KALLEKULANGARA, AKATHETHARA AMSOM, PALAKKAD
TALUK, PALAKKAD-673020,REP BY ITS EXECUTIVE
OFFICER
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENTS/APPELLANTS IN APPEAL/APPELLANTS 2 AND
5/DEFENDANTS 2 & 16:
1 SEBASTIAN VARGHESE
AGED 52 YEARS
PARTNER ,RIVERSIDE PLANTATIONS,MALAMPUZHA,
R/A.KIZUKKUNNU POST, KOTTAYAM-686001
2 MS.RIVERSIDE PLANTAIONS
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REP BY PARTNER SEBASTIAN, VARGHESE,PLANTER,
MALAMPUZHA, PALAKKAD-678651
BY ADV SHRI.M.GOPIKRISHNAN NAMBIAR
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY
HEARD ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED
CASES, THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
2026:KER:2989
RSA 515/2012 & connected cases
9
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
CO NO. 49 OF 2014 IN RSA NO.520 OF 2012
AGAINST RSA NO.520 OF 2012 FILED AGAINST THE JUDGMENT
AND DECREE DATED 22.07.2011 IN AS NO.176 OF 2008 OF II
ADDITIONAL DISTRICT COURT, PALAKKAD ARISING OUT OF THE
JUDGMENT AND DECREE DATED 31.03.2008 IN OS NO.94 OF 2001 OF
ADDITIONAL SUB COURT, PALAKKAD
CROSS OBJECTOR/RESPONDENT NO.1 IN RSA 520/2012/RESPONDENT
NO.1/PLAINTIFF:
EMOOR BHAGAVATHY DEVASWOM
KALLEKULANGARA, AKATHETHARA AMSOM, PALAKKAD
TALUK, PALAKKAD-673 020 REPRESENTED BY ITS
EXECUTIVE OFFICER
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
RESPONDENTS/APPELLANTS IN APPEAL/APPELLANTS 6 TO
18/DEFENDANTS 17 & 18 AND PARTNERS OF DEFENDANT NO.18:
1 M/S. HILL TOP PLANTATIONS
REPRESENTED BY ITS PARTNER ALEX JOSEPH,
S/O.JOSEPH, PARTNER, MALAMPUZHA, PALAKKAD-678
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651.
2 MS DAM VIEW PLANTATIONS
AGED 55 YEARS
REPRESENTED BY ITS PARTNER HANSALA GEORGE, W/O.
EDAYADI GEORGE, U.C.COLLEGE P.O, ALUVA,
ERNAKULAM-683 102.
3 THOMAS JOSEPH
AGED 62 YEARS
S/O.JOSEPH, EDAYADIL HOUSE, KANNADY.P.O,
ALAPPUZHA-688 501.
4 GEORGE JOSEPH
AGED 60 YEARS
S/O.JOSEPH, EDAYADIL HOUSE, KANNADY.P.O,
ALAPPUZHA-688 501
5 JOSE JOSEPH
AGED 58 YEARS
S/O.JOSEPH,EDYADIL HOUSE, KANNADY.P.O, ALAPPUZHA-
688 501
6 MARYKUTTY THOMAS
AGED 56 YEARS
W/O.THOMAS, EDAYADIL HOUSE, KANNADY.P.O,
ALAPPUZHA-688 501
7 ALEXIS JOSEPH
AGED 54 YEARS
S/O.JOSEPH, EDAYADIL HOUSE, KANNADY.P.O,
ALAPPUZHA-688 501
8 JOHNY JOSEPH
AGED 49 YEARS
S/O.JOSEPH, EDAYADIL HOUSE, KANNADY.P.O,
ALAPPUZHA-688 501
9 GEETHA ALEX
AGED 47 YEARS
W/O.ALEX, EDAYADIL HOUSE, KANNADY.P.O, ALAPPUZHA-
688 501
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10 SUMI JAMES
AGED 45 YEARS
W/O.JAMES, EDAYADIL HOUSE, KANNADY.P.O,
ALAPPUZHA-688 501
11 JOLLY GEORGE
AGED 42 YEARS
W/O.GEORGE, EDAYADIL HOUSE, KANNADY.P.O,
ALAPPUZHA-688 501
12 MARTIN JOSEPH
AGED 39 YEARS
S/O.JOSEPH, EDAYADIL HOUSE, KANNADY.P.O,
ALAPPUZHA-688 501
13 HANSALA GEORGE
AGED 55 YEARS
W/O.EDAYADI GEORGE, U.C.COLLEGE P.O, ALUVA,
ERNAKULAM-683 102.
BY ADVS.
SHRI.JACOB SEBASTIAN FOR R1-R13
SMT.PREETHY R. NAIR FOR R1-R13
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
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RSA 515/2012 & connected cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 446 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.176 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.94 OF 2001 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANTS/APPELLANTS/DEFENDANTS 2 AND 16:
1 SEBASTIAN VARGHESE
PARTNER, RIVERSIDE PLANTATIONS, MALAMPUZHA,
RESIDING AT KIZHUKUNNU, POST, KOTTAYAM.
2 MS. RIVERSIDE PLANTATIONS
REPRESENTED BY PARTNER SEBASTIAN VARGHESE,
PLANTER, MALAPUZHA, PALAKKAD.
BY ADVS.
SHRI.M.GOPIKRISHNAN NAMBIAR
SHRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
SHRI.PAULOSE C. ABRAHAM
SHRI.RAJA KANNAN
RESPONDENTS/RESPONDENTS 1 TO 9, APPELLANTS 3,4,7 TO 10,
RESPONDENTS 11 TO 18/PLAINTIFF & DEFENDANTS 5,7,9 TO 11 &
13 TO 15:
1 EMOOR BHAGAVATHY DEVASWOM, REPRESENTED BY ITS
EXECUTIVE OFFICER
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KALLEKULANGARA, AKATHETHARA AMSOM, PALAKKAD
TALUK, H R & CE DEPARTMENT, CALICUT-673001.
2 ETHAMMA DOMINIC,(DIED) LRS RECORDED
PARTNER, KOMBUTHOOKI ESTATE, MALAMPUZHA, RESIDING
AT MUKKADA HOUSE, P.O.MALUNNAKKAL, VAKATHARAM,
KOTTAYAM DISTRICT-686538.
(SECOND RESPONDENT IS DEAD AND RESPONDENTS 3 AND
8 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED
2ND RESPONDENT AS PER ORDER DATED 10.02.2025 IN
MEMO DATED 29.01.2025)
3 GEORGE DOMIN IC
UNITED PLANTERS, MALAMPUZHA, RESIDING AT MUKKADA
HOUSE, POST MANJERI, MALAPPURAM DISTRICT.
4 RONI.J. MUKKADA
HOUSE POST NALUNNAKKAL, VAKATHARAM, KOTTAYAM
DISTRICT-686538.
5 MRS. THRESSIAMMA ATHOMAS
W/O. LATE THOMAS DOMINIC, MUKKADA HOUSE,
NALUNAKKAL,VAKATHARAM, KOTTAYAM DISTRICT-686101.
6 M.S. TISSY
D/O. LATE THOMAS DOMINIC, MUKKADA HOUSE,
NALUNAKKAL,VAKATHARAM, KOTTAYAM DISTRICT-686101.
7 MERCY JOY
AGED 70 YEARS
W/O. LATE JOYKUTTY DOMINIC,MUKKANDA HOUSE,
VADAVATHOOR, KOTTAYAM DISTRICT.
8 DR. ROY J.MUKKADA
S/O. LATE JOYKUTTY DOMINIC, C/O. P.V.S. HOSPITAL,
KALOOR, KOCHI, ERNAKULAM (DISTRICT) PIN-682017.
9 ROJI J. MUKKADA
S/O.JOYKUTTY DOMINIC ELAK ESTATE, ANAKKAL,
MALAMPUZHA, KADUKKAMKUNNAM, PALAKKAD TALUK-
678551.
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10 MRS. ROSHINI SURESH
D/O. LATE JOYKUTTY DOMINIC, KUKKAD AHOUSE,
VADAVATHOOR, KOTTAYAM DISTRICT-686010.
11 ANOOP JOSEPH
AGED 53 YEARS
PARTNER HILL TOP PLANTATION MALAMPUZHA, RESIDING
AT EDAYADI HOUSE, KANNADY, PULINCUNNO, ALLEPPEY
DISTRICT-690537.
12 MS. HILL TOP PLANTATIONS
AGED 52 YEARS
REPRESENTED BY ITS PARTNER ALEX JOSEPH, PLANTER,
MALAMPUZHA, PALAKKAD-678651.
13 MS. DAM VEIW PLANTATIONS
AGED 55 YEARS
REPRESENTED BY ITS PARTNER HANSALA GEORGE, W/O.
ERAYADIL GEORGE, U.C. COLLEGE.POST, ALUVA
ERNAKULAM-686101.
14 THOMAS JOSEPH
EDAYADIL, KANNADY, ELLEPPEY DISTRICT-690537.
15 GEORGE JOSEPH
AGED 60 YEARS
EDAYADIL, KANNADY, ELLEPPEY DISTRICT-690537.
16 JOSE JOSEPH
AGED 59 YEARS
EDAYADIL, KANNADY, ELLEPPEY DISTRICT-690537.
17 MARYKUTTY THOMAS
AGED 56 YEARS
EDAYADIL, KANNADY, ELLEPPEY DISTRICT-690537.
18 ALEXIS JOSEPH
AGED 54 YEARS
EDAYADIL, KANNADY, ELLEPPEY DISTRICT-690537.
19 JOHNY JOSEPH
AGED 49 YEARS
EDAYADIL, KANNADY, ELLEPPEY DISTRICT-690537.
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20 GEETHA ALEX
AGED 47 YEARS
EDAYADIL, KANNADY, ELLEPPEY DISTRICT-690537.
21 SUMI JAMES
AGED 45 YEARS
EDAYADIL, KANNADY, ELLEPPEY DISTRICT-690537.
22 JOLLY GEORGE
AGED 42 YEARS
EDAYADIL, KANNADY, ELLEPPEY DISTRICT-690537.
23 MARTIN JOSEPH
AGED 39 YEARS
EDAYADIL, KANNADY, ELLEPPEY DISTRICT-690537.
24 HANSALA GEORGE
AGED 55 YEARS
W/O. EDAYADIL GEORGE, U.C. COLLEGE (POST) ALUVA
ERNAKULAM DISTRICT-690537.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.) FOR R1
SRI.P.B.SUBRAMANYAN FOR R1
SRI.SABU GEORGE FOR R1
SHRI.K.N.ABHILASH FOR R2 TO R4
SHRI.SUNIL NAIR PALAKKAT FOR R2 TO R4
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 514 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.239 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.162 OF 2003 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 DOMINIC THOMAS,(DIED) LRS IMPLEADED
AGED 24 YEARS, S/O.THOMAS DOMINIC,
T.D.PLANTATION, ELAK ESTATE, MALAMPUZHA,
ANAKKAL, KADUKKAMKUNNAM AMSOM, PALAKKAD TALUK.
2 THRESSIAMMA THOMAS
AGED 55 YEARS, W/O.LATE THOMAS DOMINIC, MUKKADA
HOUSE, NALAYAKKAL VAKATHANAM, CHANGANASSERY
TALUK, KOTTAYAM DISTRICT.
3 M.S.TISSY
D/O.LATE THOMAS DOMINIC, RESIDING AT MUKKADA
HOUSE, NALAYAKKAL VAKATHANAM, CHANGANASSERY
TALUK, KOTTAYAM DISTRICT.
SUPPL. GEENA MATHEW,
APPELLANT AGED 43 YEARS
NO.4 W/O.LATE DOMINIC THOMAS, RESIDING AT MUKKADA
HOUSE,NAJUNNACKAL,VAKATHANAM P.O.,KOTTAYAM
DISTRICT,PIN-686538.
SUPPL. LEAH TRESA DOMINIC (MINOR),
APPELLANT AGED 15 YEARS
NO.5 D/O.LATE DOMINIC THOMAS, RESIDING AT MUKKADA
HOUSE,NAJUNNACKAL,VAKATHANAM P.O.,KOTTAYAM
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DISTRICT,REPRESENTED BY HER MOTHER/NATURAL
GUARDIAN GEENA MATHEW,W/O.LATE DOMINIC THOMAS,
RESIDING AT MUKKADA HOUSE,NAJUNNACKAL,VAKATHANAM
P.O.,KOTTAYAM DISTRICT,PIN-686538.
SUPPL. LIZA CLARA DOMINIC (MINOR)
APPELLANT AGED 10 YEARS
NO.6 D/O.LATE DOMINIC THOMAS, RESIDING AT MUKKADA
HOUSE,NAJUNNACKAL,VAKATHANAM P.O.,KOTTAYAM
DISTRICT,REPRESENTED BY HER MOTHER/NATURAL
GUARDIAN GEENA MATHEW,W/O.LATE DOMINIC THOMAS,
RESIDING AT MUKKADA HOUSE,NAJUNNACKAL,VAKATHANAM
P.O.,KOTTAYAM DISTRICT,PIN-686538.
(LEGAL HEIRS OF THE DECEASED FIRST APPELLANT ARE
IMPLEADED AS SUPPL.APPELLANTS 4 TO 6 AS PER
ORDER DATED 10.02.2025 IN IA.NO.1/2025)
BY ADV SRI.T.SETHUMADHAVAN (SR.) (B/O)
SHRI.JACOB SEBASTIAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 THE COMMISSIONER
HR & CE(ADMN) DEPARTMENT, KOZHIKODE, PIN-673020.
2 THE EXECUTIVE OFFICER
SREE EMOOR BHAGAVATHY DEVASWOM, KALLEKULANGARA,
PALAKKAD, PIN-678009.
BY ADVS.
SHRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM
BOARD FOR R1 (B/O)
SHRI.P.B.KRISHNAN (SR.) FOR R2
SRI.SABU GEORGE FOR R2
SMT.R.RANJANIE, SC, MALABAR DEVASWOM BOARD FOR
R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:+
2026:KER:2989
RSA 515/2012 & connected cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 515 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.231 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.94 OF 2001 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANTS/APPELLANTS 1 TO 10/DEFENDANTS 5 TO 14:
1 ETHAMMA DOMINIC, AGED 90 YEARS
PARTNER KOMBUTHOOKI ESTATE, MALAMPUZHA, RESIDING
AT MUKKADA HOUSE, NALUMKAL P.O, VAKATHANAM,
KOTTAYAM DISTRICT
2 JOYKUTTY DOMINIC (DIED)
AGED 50 YEARS
FORMERLY PARTNER OF UNITED PLANTERS, MALAMPUZHA,
RESIDING AT KUKKAD HOUSE, NALUMKAL P.O,
VAKATHANAM, KOTTAYAM DISTRICT
3 GEORGE DOMINIC
AGED 44 YEARS
UNITED PLANTERS, RESIDING AT MUKKADA HOUSE, POST
MAJER, MALAPPURAM DISTRICT
4 THOMAS DOMINIC (DIED)
5 RONI.J. MUKKADA
AGED 37 YEARS
MUKKADA HOUSE, NALUMKAL, VAKATHANAM, KOTTAYAM
DISTRICT
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6 THRESSIAMMA THOMAS, W/O LATE THOMAS DOMINIC
AGED 56 YEARS
MUKKADA HOUSE, NALUMKKAL VAKATHANAM, KOTTAYAM
DISTRICT
7 M.S. TISSY
D/O LATE THOMAS DOMINIC, MUKKADA HOUSE, NALUMKKAL
VAKATHARAM, KOTTAYAM DISTRICT
8 MERCY JOY
AGED 69 YEARS
W/O LATE JOYKUTTY DOMINIC NKKADA HOUSE,
VADAVATHOOR KOTTAYAM DISTRICT
9 DR. ROY J.MUKKADA
AGED 48 YEARS
S/O LATE JOYLUTTY DOMINIC, C/O P.V.S HOSPITAL
KALOOR, KOCHI, ERNAKULAM DISTRICT
10 ROJI J MUKKADA, AGED 44 YEARS,
S/O LATE JOYKUTTY DOMINIC, ELAK ESTATE, ANAKKAL,
MALAMPUZHA KADUKKAMKUNNAM, PALAKKAD TALUK,
PALAKKAD DISTRICT
BY ADVS.
SHRI.JACOB SEBASTIAN
SRI.T.KRISHNANUNNI (SR.)
SMT.PREETHY R. NAIR
RESPONDENTS/APPELLANT NO.11 AND RESPONDENTS/PLAINTIFF &
DEFENDANTS 1 TO 4 AND 16 TO 18 AND SUPPL.RESPONDENTS 9 TO
20:
1 EMOOR BHAGAVATHY DEVASWOM
KALLEKULANGAR, AKATHETHARA, EMSOM, PALAKKAD
TALUK, REPRESENTED BY TIS EXECUTIVE OFFICER,
HR & CE DEPARTMENT, CALICUT - 673020.
2 MRS. ROSHINI SURESH
AGED 37 YEARS
D.O LATE JOYKUTTY DOMINIC, MUKKADA HOUSE,
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VADAVATHOOR, KOTTAYAM DISTRICT 686010
3 MARIAMMA JOSEPH (DIED)
4 SEBASTIAN VARGHESE
AGED 42 YEARS
PARTNER RIVERSIDE PLANTATIONS, MALAMPUZHA
RESIDING AT KIZHUKAMA POST, KOTTAYAM 686002
5 ANOOP JOSEPH, AGED 47 YEARS
PARTNER HILL TOP PLANTATIONS, MALAMPUZHA,
RESIDING AT EDAYADIL HOUSE, KANNADY, PULINCUNNOO,
ALLEPPEY DISTRICT 688504
6 E.T. JOSEPH (DIED)
7 M/S RIVERSIDE PLANTATIONS
REPRESENTED BY ITS PARTNER SEBASTIAN VARGHESE
PLANTER, AGED 51 YEARS, MALAMPUZHA, PALAKKAD
678651
8 M/S HILL TOP PLANTATIONS
REPRESENTED BY ITS PARTNER ALEX JOSEPH PLANTER,
AGED 55 YEARS, MALAMPUZHA PLAKKAD 678651
9 M/S DAM VIEW PLANTATIONS
REPRESENTED BY ITS PARTNER E.T JOSEPH, AGED 89
YEARS, EDAYADIL HOUSE, KANNADI, PULINKUNNU,
ALLEPPEY 688504
10 HANSALA GEORGE, AGED 53 YEARS
W/O EDAYADIL GEORGE, U.C. COLLEGE (POST) ALUVA,
ERNAKULAM DISTRICT 683101
11 THOMAS JOSEPH, AGED 60 YEARS
S/O E.T. JOSEPH EDAYADIL KANNADI, ALLEPPEY
DISTRICT 688504
12 GEORGE JOSEPH, AGED 58 YEARS,
S/O E.T. JOSEPH EDAYADIL KANNADI, ALLEPPEY
DISTRICT 688504
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13 JOSE JOSEPH, AGED 56 YEARS
S/O E.T. JOSEPH EDAYADIL KANNADI, ALLEPPEY
DISTRICT 688504
14 MARYKUTTY THOMAS, AGED 54 YEARS
D/O E.T. JOSEPH EDAYADIL KANNADI, ALLEPPEY
DISTRICT 688504
15 ALEXIS JOSEPH, AGED 52 YEARS
EDAYADIL KANNADI, ALLEPPEY DISTRICT 688504
16 JOHNY JOSEPH, AGED 47 YEARS
EDAYADIL KANNADI, ALLEPPEY DISTRICT 688504
17 GEETHA ALEX, AGED 45 YEARS
EDAYADIL KANNADI, ALLEPPEY DISTRICT 688504
18 SUNIL JAMES, AGED 43 YEARS
EDAYADIL KANNADI, ALLEPPEY DISTRICT 688504
19 JOLLY GEORGE, AGED 40 YEARS
EDAYADIL KANNADI, ALLEPPEY DISTRICT 688504
20 MARTIN JOSEPH, AGED 37 YEARS,
PARTNER M/S DAM VIEW PLANTATIONS, U.C. COLLEGE
(POST) ALUVA, ERNAKULAM DISTRICT 683101
21 HANSALA GEORGE
PARTNER M/S DAM VIEW PLANTATIONS, U.C. COLLEGE
(POST), ALUVA, ERNAKULAM DISTRICT 683101
BY ADVS.
SHRI.P.B.KRISHNAN (SR.) FOR R1
SRI.SABU GEORGE FOR R1
SRI.P.B.SUBRAMANYAN FOR R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
2026:KER:2989
RSA 515/2012 & connected cases
22
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 516 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.232 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.122 OF 2000 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANTS/APPELLANTS 1 TO 9/DEFENDANTS 3 TO 12:
1 M/S. KOMBUTHOOKI PLANTATIONS
REP. BY ITS PARTNER M/S.ETHAMMA DOMINIC, AGED 94
YEARS, KOMBUTHOOKI PLANTATIONS, MALAMPUZHA.
2 JOYKUTTY DOMINIC
AGED 78 YEARS, S/O.M.C.DOMINIC, ELAK ESTATE,
MALAMPUZHA.
3 GEORGE DOMINIC
AGED 76 YEARS, S/O.M.C.DOMINIC, ELAK ESTATE,
MALAMPUZHA.
4 RONY J MUKKADA
AGED 53 YEARS, S/O.JOYKUTTY DOMINIC, RESIDING AT
ELAK ESTATE, MALAMPUZHA.
5 THRESSIAMMA THOMAS
AGED 62 YEARS, W/O.LATE THOMAS DOMINIC, MUKKADA
HOUSE, NALUMKKAL VAKATHANAM, CHANGANASSERY TALUK,
KOTTAYAM DISTRICT.
6 M.S.TISSY
AGED 38 YEARS, D/O.LATE THOMAS DOMINIC, MUKKADA
HOUSE, NALUMKKAL VAKATHANAM, CHANGANASSERY TALUK,
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23
KOTTAYAM DISTRICT.
7 MERCY JOY
AGED 75 YEARS, MUKKADA HOUSE, VADAVATHUR,
KOTTAYAM DISTRICT.
8 DR.ROY J MUKKADA
AGED 54 YEARS, P.V.S.HOSPITAL, KALOOR, COCHIN,
ERNAKULAM DISTRICT.
9 ROJI J MUKKADA
AGED 50 YEARS, S/O.LATE JOYKUTTY DOMINIC, ELAK
ESTATE, ANAKKAL, MALAMPUZHA, KADUKKAMKUNNU,
PALAKKAD TALUK.
BY ADVS. SRI.T.SETHUMADHAVAN (SR.) (B/O.)
SHRI.JACOB SEBASTIAN
SMT.PREETHY R. NAIR
RESPONDENTS/APPELLANT NO.10 AND RESPONDENTS/PLAINTIFFS AND
DEFENDANTS 1 & 2:
1 MRS. ROSHINI SURESH
AGED 37 YEARS, D/O.LATE JOYKUTTY DOMINIC, MUKKADA
HOUSE, VADAVATHOOR, KOTTAYAM DISTRICT, PIN-686
010.
2 MS.RIVERSIDE PLANTATIONS
REP. BY ITS PARTNER SEBASTIAN VARGHESE, AGED 54
YEARS, MALAMPUZHA, PIN-678 651.
3 MS.HILL TOP PLANTATIONS
REP. BY ITS PARTNER ALEX JOSEPH, AGED 58 YEARS,
MALAMPUZHA, PIN-678 651.
4 MS.DAM VIEW PLANTATIONS
REP. BY ITS PARTNER E.T.JOSEPH, AGED 92 YEARS,
EDAYADIL HOUSE, KANNADI, PULINKUNNU, ALLEPPEY,
PIN-688 504.
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24
5 THE COMMISSIONER
HR & CE (ADMN) DEPARTMENT, KOZHIKODE, PIN-673
020.
6 THE EXECUTIVE OFFICER, SREE EMOOR BHAGAVATHY
DEVASWOM, KALLEKULANGARA, PALAKKAD, PIN - 678
009.
BY ADVS.
SRI.B.S.SURESH KUMAR
SHRI.P.B.KRISHNAN (SR.)FOR R6
SRI.P.B.SUBRAMANYAN FOR R6
SRI.SABU GEORGE FOR R6
SHRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM
BOARD FOR R5 (B/O)
SMT.R.RANJANIE, SC, MALABAR DEVASWOM BOARD FOR R5
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
2026:KER:2989
RSA 515/2012 & connected cases
25
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 517 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.235 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.165 OF 2003 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANT/APPELLANT/PLAINTIFF:
DR. ROY J MUKKADA
AGED 54 YEARS, S/O.DR.JOYKUTTY DOMINIC, MUKKADA
HOUSE, NALIMKKAL P.O., CHANGANASSERY, KOTTAYAM.
BY ADVS.SRI.T.SETHUMADHAVAN (SR.) (B/O)
SHRI.JACOB SEBASTIAN
SMT.PREETHY R. NAIR
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 THE COMMISSIONER
HR & CE (ADMN) DEPARTMENT, KOZHIKODE, PIN-673
020.
2 THE EXECUTIVE OFFICER
SREE EMOOR BHAGAVATHY DEVASWOM, KALLEKULANGARA,
PALAKKAD, PIN-678 009.
BY ADVS.
SHRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM
BOARD FOR R1 (B/O)
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26
SHRI.P.B.KRISHNAN (SR.) FOR R2
SRI.P.B.SUBRAMANYAN FOR R2
SRI.SABU GEORGE FOR R2
SMT.R.RANJANIE, SC, MALABAR DEVASWOM BOARD
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
2026:KER:2989
RSA 515/2012 & connected cases
27
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 518 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.240 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.166 OF 2003 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANT/APPELLANT/PLAINTIFF:
1 ETHAMMA DOMINIC,(DIED) IMPLEADED
AGED 88 YEARS, W/O. LATE M.C. DOMINIC, MUKKADA
HOUSE, NALINKKAL.P.O, CHANGANACHERY, KOTTAYAM.
SUPPL. ROJI J. MUKKADA
APPELLANT AGED 59 YEARS
NO.2 S/O. ELAK ESTAE, ANAKKAL, MALAMPUZHA,
KADUKKAMKUNNAM, PALAKKAD DISTRICT,PIN-678651.
(IS IMPLEADED AS SUPPLEMENTAL 2ND APPELLANT AS
PER ORDER DATED 10.02.2025 IN IA.NO.1/2025 )
BY ADVS. SRI.T.SETHUMADHAVAN (SR.)
SHRI.JACOB SEBASTIAN
SHRI.WINSTON K.V
SMT.ANU JACOB
SHRI.BHARATH KRISHNAN G.
SMT.ANJANA A.S.
SMT.PREETHY R. NAIR
2026:KER:2989
RSA 515/2012 & connected cases
28
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 THE COMMISSIONER
HR & CE (ADMN) DEPARTMENT, KOZHIKODE - 673 020.
2 THE EXECUTIVE ENGINEER
SREE EMOOR BHAGAVATHY DEVASWOM, KALLEKULANGARA,
PALAKKAD - 678 009.
BY ADVS.
SHRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM
BOARD FOR R1
SHRI.P.B.KRISHNAN (SR.) FOR R2
SRI.SABU GEORGE FOR R2
SRI.P.B.SUBRAMANYAN FOR R2
SRI.PARTHASARATHY.B, SC, MALABAR DEVASWOM BOARD
SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM
BOARD
SMT.R.RANJANIE, SC, MALABAR DEVASWOM BOARD
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
2026:KER:2989
RSA 515/2012 & connected cases
29
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 519 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.177 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.122 OF 2000 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANTS/APPELLANT NO.2 AND SUPPLEMENTAL APPELLANT
NO.3/PLAINTIFFS 2 & 3:
1 M/S. HILL TOP PLANTATIONS
REPRESENTATION BY ITS PARTNER ALEX JOSEPH AGED 50
YEARS, PLANTER, MALAMPUZHA, PALAKKAD.
2 DAM VIEW PLANTATIONS
REPRESENTED BY ITS PARTNER HANSALA GEORGE, AGED
53 YEARS, W/O.EDAYADIL GEORGE, U.C.COLLEGE P.O.,
ALUVA, ERNAKULAM.
BY ADVS. SRI.T.SETHUMADHAVAN (SR.)
SHRI.JACOB SEBASTIAN
SMT.PREETHY R. NAIR
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 THE COMMISSIONER
HR & CE (ADMN) DEPARTMENT, KOZHIKODE, PIN-673020.
2 THE EXECUTIVE OFFICER
SREE EMOOR BHAGAVATHY DEVASWOM, KALLEKULANGARA,
PALAKKAD, PIN-678009.
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3 MS.KOMBUTHOOKI PLANTATIONS
REPRESENTED BY ITS PARTNER, M/S.ETHAMMA DOMINIC,
AGED 86 YEARS, KOMBUTHOOKI PLANTATIONS,
MALAMPUZHA, PIN-678651.
4 JOYKUTTY DOMINIC,(DIED) LRS RECORDED
AGED 71 YEARS, S/O.M.C.DOMINIC, ELAK ESTATE,
MALAMPUZHA, PIN-678651.
(4TH RESPONDENT IS DEAD AND RESPONDENTS 6,9 TO 12
ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED
4TH RESPONDENT AS PER ORDER DATED 10.02.2025 IN
MEMO DATED 03.02.2025)
5 GEORGE DOMINIC
AGED 68 YEARS, S/O.M.C.DOMINIC, ELAK ESTATE,
MALAMPUZHA, PIN-678651.
6 RONY J.MUKKADA
AGED 45 YEARS, S/O.JOYKUTTY DOMINIC, ELAK ESTATE,
MALAMPUZHA,PIN-678651.
7 THRESSIAMMA THOMAS
AGED 54 YEARS, W/O.LATE THOMAS DOMINIC, MUKKADA
HOUSE, NALUMKKAL VAKATHANAM, CHANGANASSERY TALUK,
KOTTAYAM DISTRICT, PIN-686538.
8 M.S.TISSY
AGED 30 YEARS, D/O.LATE THOMAS DOMINIC, MUKKADA
HOUSE, NALUMKKAL VAKATHANAM, CHANGANASSERY TALUK,
KOTTAYAM DISTRICT, PIN-686538.
9 MERCY JOY
AGED 67 YEARS, W/O.LATE JOYKUTTY DOMINIC, MUKKADA
HOUSE, VADAVATHOOR, KOTTAYAM DISTRICT, PIN-
686010.
10 DR.ROY J. MUKKADA
AGED 46 YEARS, P.V.S.HOSPITAL, KALOOR, KOCHI,
ERNAKULAM DISTRICT, PIN-682017.
11 ROJI J.MUKKADA
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AGED 42 YEARS, S/O.LATE JOYKUTTY DOMINIC, , ELAK
ESTATE, MALAMPUZHA,KADUKKAMKUNNAM AMSOM, PALAKKAD
TALUK, PALAKKAD DISTRICT, PIN-678651.
12 ROSHNI SURESH
AGED 37 YEARS, D/O.LATE JOYKUTTY DOMINIC, MUKKADA
HOUSE, VADAVATHOOR, KOTTAYAM DISTRICT, PIN-
686010.
BY ADVS.
SHRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM
BOARD FOR R1 (B/O)
SHRI.P.B.KRISHNAN (SR.) FOR R2
SRI.SABU GEORGE FOR R2
SRI.B.S.SURESH KUMAR FOR R3, R5 TO R12
SMT.R.RANJANIE, SC, MALABAR DEVASWOM BOARD FOR R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
2026:KER:2989
RSA 515/2012 & connected cases
32
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 521 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.236 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.167 OF 2003 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANT/APPELLANT/PLAINTIFF:
GEORGE DOMINIC
AGED 65 YEARS, S/O.LATE M.C.DOMINIC, ELAK ESTATE,
MALAMPUZHA, ANAKKAL, KADUKKAMKUNNAM AMSOM,
PALAKKAD.
BY ADVS.
SHRI.JACOB SEBASTIAN
SMT.PREETHY R. NAIR
SRI.T.SETHUMADHAVAN (SR.)
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 THE COMMISSIONER
HR & CE (ADMN) DEPARTMENT, KOZHIKODE, PIN-673
020.
2 THE EXECUTIVE OFFICER
SREE EMOOR BHAGAVATHY DEVASWOM, KALLEKULANGARA,
PALAKKAD, PIN-678 009.
BY ADVS.
SHRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM
BOARD FOR R1
2026:KER:2989
RSA 515/2012 & connected cases
33
SHRI.P.B.KRISHNAN (SR.) FOR R2
SRI.SABU GEORGE FOR R2
SRI.P.B.SUBRAMANYAN FOR R2
SRI.PARTHASARATHY.B, SC, MALABAR DEVASWOM BOARD
FOR R1
SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM
BOARD
SMT.R.RANJANIE, SC, MALABAR DEVASWOM BOARD
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
2026:KER:2989
RSA 515/2012 & connected cases
34
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 522 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.234 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.164 OF 2003 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 JOYKUTTY DOMINIC (LATE)
70 YEARS, S/O. LATE M.C. DOMINIC, UNITED
PLANTERS, ELAK ESTATE, MALAMPUZHA, ANAKKAL,
KADUKKAMKUNNAM AMSOM, PALAKKAD TALUK.
2 RONI J. MUKKADA
AGED 42 YEARS, S/O. JOYKUTTY DOMINIC, MAYAPPARA
PLANTATION, UNITED PLANTERS, ELAK ESTATE,
MALAMPUZHA, ANAKKAL, KADUKKAMKUNNAM AMSOM,
PALAKKAD TALUK.
3 ROJI J. MUKKADA
AGED 40 YEARS, S/O. JOYKUTTY, UNITED PLANTERS,
ELAK ESTATE, MALAMPUZHA, ANAKKAL, KADUKKAMKUNNAM
AMSOM, PALAKKAD TALUK.
4 MERCY JOY
AGED 60 YEARS, W/O. JOYKUTTY DOMINIC, MUKKADA
HOUSE, VIJAYAPURAM VILAS, KOTTAYAM TALUK,
KOTTAYAM DISTRICT.
5 ROY J. MUKKADA
WRONGLY TYPED AS JOY J MUKKADA IN THE JUDGMENT
IMPUGNED, AGED 45 YEARS, S/O. LATE JOYKUTTY
DOMINIC, UNITED PLANTERS, ELAK ESTATE,
2026:KER:2989
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35
MALAMPUZHA, ANAKKAL, KADUKKAMKUNNAM AMSOM,
PALAKKAD TALUK.
BY ADVS. SRI.T.SETHUMADHAVAN (SR.) (B/O)
SHRI.JACOB SEBASTIAN
SMT.PREETHY R. NAIR
RESPONDENTS/APPELLANT NO.6 AND RESPONDENTS/PLAINTIFF NO.6
AND DEFENDANTS:
1 THE COMMISSIONER, HR & CE (ADMN.) DEPARTMENT,
KOZHIKODE - 673 020.
2 THE EXECUTIVE OFFICER
SREE EMOOR BHAGAVATHY DEVASWOM, KALLEKULANGARA,
PALAKKAD - 678 009.
3 MRS. ROSHINI SURESH
AGED 37 YEARS, D/O. LATE JOYKUTTY DOMINIC,
MUKKADA HOUSE, VADAVATHOOR, KOTTAYAM DISTRICT -
686 010.
BY ADVS.
SHRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM
BOARD FOR R1
SHRI.K.N.ABHILASH FOR R3
SHRI.P.B.KRISHNAN (SR.) FOR R2
SRI.SABU GEORGE FOR R2
SHRI.SUNIL NAIR PALAKKAT FOR R3
SRI.PARTHASARATHY.B, SC, MALABAR DEVASWOM BOARD
SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM
BOARD
SMT.R.RANJANIE, SC, MALABAR DEVASWOM BOARD
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
2026:KER:2989
RSA 515/2012 & connected cases
36
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 1333 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS NO.233
OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD ARISING
OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN OS NO.163
OF 2003 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANT/APPELLANT/PLAINTIFF:
SHERRY GEORGE
AGED 42 YEARS, S/O.GEORGE MUKKADA,
MUKKADA HOUSE, MISSION COMPOUND, CALICUT ROAD,
MANJERI, MALAPPURAM DISTRICT.
BY ADVS.
SRI.MATHEW B. KURIAN
SRI.C.N.SREEKUMAR
SRI.K.T.THOMAS
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1. THE COMMISSIONER, HR & CE ADMINISTRATION
DEPARTMENT, KOZHIKODE, PIN - 673 001.
2. THE EXECUTIVE OFFICER, SREE EMOOR BHAGAVATHY
DEVASWOM, KALLEKULANGARA, PALAKKAD, PIN - 678
009.
BY ADVS.
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RSA 515/2012 & connected cases
37
SHRI.R.LAKSHMI NARAYAN, SC, MALABAR DEVASWOM
BOARD FOR R1
SHRI.P.B.KRISHNAN (SR.) FOR R2
SRI.P.M.NEELAKANDAN FOR R2
SRI.P.B.SUBRAMANYAN FOR R2
SRI.V.KRISHNA MENON, SC, MALABAR DEVASWOM BOARD
SRI.PARTHASARATHY.B, SC, MALABAR DEVASWOM BOARD
SRI.MAHESH V.RAMAKRISHNAN, SC, MALABAR DEVASWOM
BOARD
SMT.R.RANJANIE, SC, MALABAR DEVASWOM BOARD
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
2026:KER:2989
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38
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 16TH DAY OF JANUARY 2026 / 26TH POUSHA, 1947
RSA NO. 1490 OF 2011
AGAINST THE JUDGMENT AND DECREE DATED 22.07.2011 IN AS
NO.177 OF 2008 OF II ADDITIONAL DISTRICT COURT, PALAKKAD
ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.03.2008 IN
OS NO.122 OF 2003 OF ADDITIONAL SUB COURT, PALAKKAD
APPELLANT/1ST APPELLANT/1ST PLAINTIFF:
M/S.RIVERSIDE PLANTATIONS
REPRESENTED BY PARTNER SEBASTIAN VARGHESE,
PLANTER, MALAMPUZHA, PALAKKAD.
BY ADVS.
SHRI.M.GOPIKRISHNAN NAMBIAR
SHRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
SHRI.PAULOSE C. ABRAHAM
SHRI.RAJA KANNAN
RESPONDENTS/RESPONDENTS & APPELLANTS 2 & 3/DEFENDANTS &
PLAINTIFFS 2 & 3:
1 THE COMMISSIONER
HR & CE (ADMN) DEPARTMENT, KOZHIKODE. 673 001.
2 THE EXECUTIVE OFFICER
SREE EMOOR BHAGAVATHY DEVASWAM, KALEKULANGARA,
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39
PALAKKAD-678 009.
3 MS. KOMBUTHOOKI PLANTATIONS
AGED 86 YEARS
REPRESENTED BY ITS PARTNER, M/S. ETHAMMA DOMINIC,
KOMBUTHOOKI PLANTATIONS, MALAMPUZHA-678651.
4 JOYKUTTY DOMINIC,(DIED) LRS RECORDED
AGED 73 YEARS
S/O M.C. DOMINIC, ELAK ESTATE, MALAMPUZHA-678
651.
(THE RESPONDENTS NOS.6,10,11 AND 12 ARE RECORDED
AS THE LEGAL HEIRS OF THE DECEASED 4TH RESPONDENT
AS PER THE ORDER DATED 10.02.2025 IN MEMO DATED
29.01.2025)
5 GEORGE DOMINIC
AGED 70 YEARS
S/O M.C. DOMINIC, ELAK ESTATE, MALAMPUZHA-678651.
6 RONY J. MUKKADA
AGED 47 YEARS
S/O. JOYKUTTY DOMINIC, ELAK ESTATE, MALAMPUZHA-
678651.
7 THRESSIAMMA THOMAS
AGED 56 YEARS
W/O. LATE THOMAS DOMINIC, MUKKADA HOUSE,
NALUNAKKAL, VAKATHANAM, CHANGANASSERY TALUK,
KOTTAYAM DISTRICT.-686 101.
8 M.S. TISSY
AGED 32 YEARS
D/O. LATE THOMAS DOMINIC MUKKADA HOUSE,
NALUNAKKAL VAKATHANAM, CHANGANASSERY TALUK,
CHANGANASSERY (P.O), KOTTAYAM DISTRICT-686 101.
9 MERCY JOY
AGED 69 YEARS
W/O. LATE JOYKUTTY DOMINIC MUKKADA HOUSE,
VADAVATHOOR (P.O), KOTTAYAM DISTRICT. 686 010.
10 DR. JOY J. MUKKADA
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40
AGED 48 YEARS
P.V.S. HOSPITAL, KALOOR, COCHIN, ERNAKULAM
DISTRICT. 682 017.
11 ROJI J. MUKKADA
AGED 42 YEARS
S/O. LATE JOYKUTTY DOMINIC, ELAK ESTATE, ANAKKAL
MALAMPUZHA, KDUKKAMKUNNAM AMSOM, PALAKKAD TALUK.
678 651.
12 ROSHINI SURESH
AGED 39 YEARS
D/O. LATE JOYKUTTY DOMINIC MUKKADA HOUSE,
VADAVATHOOR (P.O), KOTTAYAM DISTRICT. 686 010.
13 M/S. HILL TOP PLANTATIONS
REPRESENTED BY ITS PARTNER ALEX JOSEPH, AGED 52
YEARS, PLANTER, MALAMPUZHA-678651
14 M/S. DAM VIEW PLANTATIONS
AGED 55 YEARS
REPRESENTED BY ITS PARTNER, HANSALA GEORGE, W/O.
EDAYADIL GEORGE, U.C. COLLEGE (POST), ALUVA,
ERNAKULAM DISTRICT-682032
BY ADVS.
SHRI.K.N.ABHILASH FOR R1 & R2
SHRI.SUNIL NAIR PALAKKAT FOR R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07.01.2026, ALONG WITH RSA.520/2012 AND CONNECTED CASES,
THE COURT ON 16.01.2026 DELIVERED THE FOLLOWING:
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41
"C.R"
EASWARAN S., J.
------------------------------------
RSA Nos.515 of 2012, 514 of 2012, 516 of 2012, 517 of 2012,
518 of 2012, 519 of 2012, 520 of 2012, 521 of 2012,
522 of 2012, 1333 of 2012, 446 of 2012 & 1490 of 2011
&
Cross Objection Nos.47 of 2014 in RSA 515 of 2012,
48 of 2014 in RSA No.446 of 2012 and
49 of 2014 in RSA No.520 of 2012
-------------------------------------
Dated this the 16th day of January, 2026
JUDGMENT
PRELUDE- [Dispute Involved in the Appeals]
Emoor Bhagavathy Devaswom, represented by its Executive
Officer, instituted a suit, OS No.94/2001 on the files of Additional Sub
Court, Palakkad, for recovery of possession based on the strength of
the title. According to the Devaswom, the 30 years of period of lease
had expired and that since the Government had not accorded sanction
for renewal of the lease, eviction is inevitable. The defendants (lessees)
also instituted various suits seeking specific performance and
mandatory injunction directing the Devaswom to renew the lease
after the expiry of the 30 years based on the clause which provided for
renewal of the lease at the option of the lessee. Alternatively, a plea
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for compensation for the improvements made was also raised. The
trial court decreed the suit filed by the Devaswom and dismissed the
suits filed by the defendants. The defendants appealed against the
decree in the suit for recovery of possession and the dismissal of the
suits for specific performance. The first appellate court dismissed
both the appeals, but however granted compensation for the
improvements made by the tenants. The questions which this Court
is required to address are as follows.
1. Whether the appellants are entitled to fixity of tenure under
Section 13(1) of the Kerala Land Reforms Act, 1963 ?
2. Whether the compensation ordered by the first appellate
court under the Kerala Compensation for Tenants
Improvements Act, 1958 is sustainable?
3. Are the tenants entitled for renewal of the lease as a matter
of right?
While considering the above questions, this Court will have to answer
certain incidental issues as well, which will be discussed in course of
this judgment.
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FACTS OF THE CASE
2. The Trustee of Emoor Bhagavathy Temple - Sekhari
Varma Valiya Rajah Avargal- executed a registered lease in favour of
Cecil Hall in the year 1907 by which 1000 acres of land, including
private forest, was given on lease, primarily for rubber cultivation.
The period of the lease was for 30 years. The deed of indenture was
executed, incorporating all normal clauses of a lease deed. The lessee,
Cecil Hall, was empowered to mortgage, transfer, assign and convey
the right title and interest over the property. In the year 1925, Cecil
Hall transferred the property to 1. M/s.Stanes & Co., 2. T.Krishna
Chettiar, 3. V.Balakrishna Mudaliar, 4. V.S.Shencottiah, 5.
S.Murugappa Chigateri, in favour of M/s.Elak Rubber Company Ltd.
On expiry of the period of lease of 30 years, the assignee - M/s.Stanes
and Company Limited, as agent of Elak Rubber Company,
approached the trustee of the Temple for renewal of the lease and
accordingly, the deed of indenture No.993/1937 dated 14.4.1937 was
executed. During the currency of the said lease, M/s.Stanes and
Company Ltd. transferred the property to one Thattil Kochuvareed,
in the year 1944, who in turn transferred the property to
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M/s.Supreme Industries. M/s.Supreme Industries in turn by two
deeds of indenture in the years 1963 and 1964 transferred the
property to M/s. United Planters. Despite the assignment of
leasehold rights, M/s. United Planters approached the Devaswom for
renewal of the lease, since 30 years had expired in the year 1967. In
view of the promulgation of the Madras Hindu Religious and
Charitable Endowments Act, 1951, and that the Temple being
managed by the Executive Officer, the parties were obliged to obtain
the permission of the Commissioner of the HR&CE Department and
after obtaining permission, on 22.12.1969 the lease was renewed for
a period of 30 years.
2.1. Accordingly, the lease was renewed in favour of
M/s.United Planters. During the currency of the lease, it appears that
several unauthorized acts were done by the lessee leading to several
allegations of overreaching the terms and conditions of the lease by
extensively undertaking cutting of valuable trees outside the
leasehold areas. On the verge of expiry of the period of lease, in the
year 1996, the lessees sought permission of the Commissioner of the
HR&CE Department for renewal of the lease by making an
application dated 11.9.1996. The same was rejected on 12.10.1996. In
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the meanwhile, the Commissioner, HR&CE (Admn.) Department
issued a notice during 1993 to the lessees-defendants to show cause
as to why the lease granted shall not be cancelled. Aggrieved by the
action, the lessees preferred OP No.10355/1993. By the time the
original petition was taken up for hearing, the period of lease had
expired and therefore, this Court by judgment dated 17.3.1997 closed
the original petition by granting liberty to the lessees to seek renewal.
2.2 In the meantime, the Devaswom issued notice on 9.4.1997
requiring them to vacate the leased premises. The lessees in turn
alleged that they were entitled for protection under the provisions of
the Kerala Land Reforms Act, 1963. Finding that the lessees were not
intending to vacate the premises, OS No.495/1997 on the files of
Munsiff's Court, Palakkad, was instituted by the plaintiff-Devaswom
for recovery of possession on the strength of the title. Before filing of
the suit, on 10.9.1996 and 12.9.1996, various lessees had issued
notices to the Executive Officer of the Emoor Bhagavathy Devaswom
to renew the lease. The said notice was under Section 80 of the Code
of Civil Procedure, 1908. Immediately on the filing of the suit by the
Devaswom for eviction, the lessees instituted suits for specific
performance and for a mandatory injunction directing the Devaswom
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to renew the lease. On behalf of the plaintiff-Devaswom, Exts.A1 to
A3 were marked and PW1 was examined and on behalf of the
defendants-lessees, Exts.B1 to B18 were marked and no oral evidence
was adduced. On institution of the suits for specific performance
before the Additional Sub Court, the suit filed by the Devaswom was
transferred to the Additional Sub Court, Palakkad and was re-
numbered as OS No.94/2001 and was tried together. The defendants,
namely the lessees, resisted the suit, contending that the right title
and interest over the leasehold premises were transferred by
M/s.Stanes and Company Limited to Thattil Kochuvareed and
thereafter to M/s.Supreme Industries and then to M/s.United
Planters. The partnership firm, M/s.United Planters, was dissolved
and a partition deed was executed among the partners, whereby
various properties held on leasehold right by the firm were distributed
among the partners. It was thus contended that the defendants, being
partners of the erstwhile firm, are entitled for fixity of tenure as
deemed tenants under Section 6A read with Section 7D of the Kerala
Land Reforms Act, 1963 and therefore the question of fixity of tenure
should be referred to the Land Tribunal under Section 125(3) of the
Kerala Land Reforms Act, 1963. The trial court held that inasmuch as
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the lease was over a property covered by a private forest, and further,
by the time the property leased to M/s.United Planters, was converted
to a rubber plantation, which is exempted under the provisions of the
Kerala Land Reforms Act, 1963, the defendants are not entitled to
claim fixity of tenure. Alternatively, the plea of the value of
improvements effected by the defendants was rejected for want of
evidence. Consequently, the suits for mandatory injunction and
specific performance were also dismissed. Aggrieved, the tenants
preferred first appeals against the judgment and decree of the trial
court. The first appellate court permitted the defendants to take out
a commission for assessing the value of improvements. Two reports
were solicited, one from the Advocate Commissioner and another
from the Rubber Board. The report of the Advocate Commissioner
was accepted, and the appeals were partly allowed, allowing the
appellants to claim the value of improvements effected by them. The
decree for recovery of possession was affirmed. Thus, the defendants
(lessees) are on second appeals against the decree for recovery of
possession as well as the decree declining specific performance of
renewal of the lease. The plaintiff-Devaswom has preferred Cross
Objection Nos.47/2014, 48/2014 and 49/2014 in RSA Nos.515/2012,
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446/2012 & 520/2012, respectively, stating that the grant of the value
of improvements is without any basis and not supported by any
independent evidence. Thus, all these matters are before this Court.
3. Heard Sri.T.Sethumadhavan, the learned Senior Counsel,
assisted by Sri.Jacob Sebastian, the learned counsel, appearing for
the appellants in RSA Nos.515/2012 and connected cases, except RSA
Nos.1490/2011, 446/2012 & 1333/2012, and Sri.M.Gopikrishnan
Nambiar, the learned counsel appearing for the appellants in RSA
Nos.1490/2011 and 446/2012; Sri.P.B.Subramanyan, the learned
counsel appearing for the Emoor Bhagavathy Devaswom-plaintiff
and Sri.R.Lakshmi Narayan, the learned Standing Counsel for the
Malabar Devaswom Board.
SUBMISSIONS ON BEHALF OF THE APPELLANTS (LESSEES)
4. Sri.T.Sethumadhavan, the learned Senior Counsel
appearing for the appellants/defendants raised the following
submissions:
i. In a case, where the defendants (lessees) raise a claim for fixity
of tenure under the provisions of the Kerala Land Reforms Act,
1963, the trial court is obliged to refer the question of fixity of
tenure to the Land Tribunal under Section 125(3) of the Kerala
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Land Reforms Act. In not doing so, the civil court abdicated its
duties and assumed jurisdiction which it did not have while
deciding the case on merits.
ii. The proposal to cancel the order dated 21.11.1969 granting
permission to renew the lease was challenged before this Court
in OP No.10355/1993, which was disposed of by judgment dated
17.3.1997 directing the lessees to apply for renewal of the lease.
That by itself will not preclude the tenants from contending that
they are entitled for fixity of tenure and the said right cannot be
waived by them.
iii. Defendants would come directly within the definition of 'tenant'
under Section 2(57) of the Kerala Land Reforms Act, 1963 and
that the statutory right under Section 13 of the Act cannot be
waived. Since Section 13(1) starts with a non-obstante clause, the
tenants have got every right to resist the plea of eviction and thus
attain immunity. The factum of immunity was pleaded in the
written statement.
iv. Courts below went wrong in holding that the lease in question is
covered by the exemption under Section 3(1)(vii) and 3(1)(viii) of
the Kerala Land Reforms Act, 1963. The learned Senior Counsel
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also pointed out that the exemption under Section 3(1)(viii) of
the Kerala Land Reforms Act, 1963 will not apply to rubber
plantations.
v. The lessee after the execution of lease deed in 1937 had assigned
the property in favour of one Thattil Kochuvareed, who, in turn,
assigned the lease to M/s.Supreme Industries, which assigned
the property to M/s.United Planters, prior to the coming into
force of the Kerala Land Reforms Act, 1963 and thus the
predecessor of the defendants had secured the right to claim
fixity of tenure. It is pointed out that the moment the claim for
reference under Section 125(3) of the Kerala Land Reforms Act,
1963 is raised in the written statement, it was incumbent upon
the court to have referred the claim to the Land Tribunal.
vi. Alternatively, it is also contended that the tenants are entitled for
protection from eviction under the provisions of the Malabar
Tenancy Act, 1929. The crucial date for considering whether the
lease will fall within the exemptions under the Kerala Land
Reforms Act, 1963 is not the date on which the agreement was
entered into, but the date of coming into force of the Act.
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vii. Ext.B3 cannot be construed as creation of a fresh tenancy, since
the tenants had exercised the option of renewal and the lessor
had consented to the same. Therefore, it cannot be said that a
new tenancy was created between the parties by virtue of Ext.B3.
At any rate, it is pointed out that even if it is assumed that Ext.B3
is liable to be construed as a fresh tenancy created, the
defendants are entitled to disown and ignore Ext.B3 because of
the prohibition under Section 74 of the Kerala Land Reforms Act,
1963.
viii. The devolution of title as explained in paragraph 11 of the written
statement by the defendants 5 to 9 in OS No.495/1997 (re-
numbered as OS No.94/2001) clearly shows that in terms of
Article 4(2) of Ext.B2 lease, the lessee was entitled to assign his
right title and interest over the leasehold properties and once
M/s.Supreme Industries transferred the properties to
M/s.United Planters and that consequent to the dissolution of
the partnership firm, a partition deed being executed between
the partners, individual partners are entitled to fall back on the
assignment of the lease in favour of M/s.United Planters and
thus claim fixity of tenure.
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ix. When a lease is in respect of a private forest and for felling of
timbers and subsequently the lessee converts the property into a
rubber plantation, necessarily, the lessee is entitled to the
protection of his leasehold rights. The learned Senior Counsel
further pointed out that since the leasehold right is alienable
under Section 50 of the Kerala Land Reforms Act, 1963 de hors
Ext.B3 lease deed, the tenants are entitled to claim fixity of
tenure.
x. In support of his contention, the learned Senior Counsel for the
appellants relied on the following decisions:
( ) Narayanan Namboodiri v. Taluk Land Board,
Perintalmanna [1975 KLT 171] (DB),
( ) Ipe v. Pramathan Namboodiripad [1988(2) KLT 277],
( ) Vadakkekkara Koran v. Gowri [2024 KHC 779],
( ) Nandanasseri Kalpakasseri Damodaran Nair & Ors. v.
Thiruvambadi Rubber Company Ltd. & Ors.
[S.A.No.193/1997 dated 26.7.2010],
( ) N.K.Rajendra Mohan v. Thirvamadi Rubber Co. Ltd and
Others [(2015) 9 SCC 326],
( ) Kesava Bhat v. Subraya Bhat [1979 KHC 346(FB)], and
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( ) Harrisons Malayalam Ltd. v. Gopinathan Nair (Died, LRs
impleaded) [FAO (RO) No.102/2016 dated 3.2.2023 : 2023
KHC OnLine 10668].
xi. Further, it is pointed out that even if this Court were to non-suit
the appellants on the appeals arising out of the judgment and
decree granting recovery of possession, the tenants are legally
entitled to claim value of the improvements based on Ext.C1(b)
report of the Rubber Board. From the two reports solicited by
the first appellate court, one through the Advocate
Commissioner and the other by the Rubber Board, the report of
the Rubber Board was more favourable to the appellants. No
reason was assigned by the first appellate court in not accepting
the report of the Rubber Board, which is more beneficial to the
tenants. Thus, it is submitted that if this Court is not inclined to
entertain the reliefs in RSA No.515/2012 and connected cases,
the claim for value of improvements may suitably be modified
with reference to the report of the Rubber Board.
5. Sri.M.Gopikrishnan Nambiar, the learned counsel
appearing for the appellants in RSA Nos.446/2012 & 1490/2011
contended that the right of the tenants under Section 13(1) read with
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Section 50 of the Kerala Land Reforms Act, 1963 is an indefeasible
right and thus cannot be waived. The mere fact that the tenants had
approached the trial court seeking a decree of specific performance
against the Executive Officer of the Devaswom for renewal of the lease
ipso facto will not lead to a conclusion that they had waived the right
under Section 13(1). Taking this Court through the scheme of the
Kerala Land Reforms Act, 1963 the learned counsel contended that
even if the tenants abandoned the tenanted premises, the landlord is
not empowered to enter into the land held by the tenants. Even if the
tenants were to surrender the tenanted premises, they can do it only
through an application filed before the Land Tribunal under Section
51B of the Kerala Land Reforms Act, 1963. The learned counsel
concluded his arguments by saying that Section 74 only prohibits
creation of future tenancies and that he would assert before this Court
that the renewal of lease is not creation of a new lease, but rather it is
continuation of the earlier lease. The learned counsel is also in unison
with the submission of the learned Senior Counsel,
Sri.T.Sethumadhavan, that if it is found that Ext.B3 lease deed is hit
by Section 74, the same will have to be ignored by this Court and that
the defendants are entitled to fall back on the assignment by
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M/s.Supreme Industries in favour of M/s.United Planters and thus
assert their right for fixity of tenure. In short, both, the learned Senior
Counsel as well as the learned counsel appearing for the other
appellants, would require this Court to ignore Ext.B3 lease deed and
proceed with the consideration of the appeals.
SUBMISSIONS ON BEHALF OF RESPONDENT/PLAINTIFF-
DEVASWOM
6. Per contra, Sri.P.B.Subramanyan, the learned counsel
appearing for the plaintiff-Devaswom, strongly countered the
submissions of the learned Senior Counsel for the appellants and
contended as follows:
i. Contentions now raised before this Court do not find a place in
the pleadings in the written statement filed on behalf of the
defendants. It is further submitted that the written statement
filed on behalf of the defendants 1 to 4 categorically contains an
averment that the lessor is bound to renew the term of the lease
and that the lessor is bound by the contractual terms of the lease.
ii. If as a matter of fact, the tenants are banking upon the lease deed,
which by itself is a contract and therefore, the entitlement for
fixity of tenure under Section 13(1) is out of question. Specific
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reference is made to paragraph Nos.6, 7 & 12 of the written
statement.
iii. The devolution of title up to M/s.United Planters is clearly spelt
out in para 11 of the written statement. Surprisingly, none of the
documents showing devolution of title is produced before the
court. As regards the claim under the Malabar Tenancy Act, 1929
the learned counsel pointed out that the benefit conferred on a
tenant under the Malabar Tenancy Act is no longer available on
the promulgation of the provisions of the Kerala Land Reforms
Act, 1963 and that the parties will have to be governed by the
Repeal and Saving clause under Section 132 of the Kerala Land
Reforms Act, 1963.
iv. In support of his contention, relied on the decision of the
Division Bench of this Court in Ammukutty Amma v.
Viswanatha Iyer [1986 KLT 905].
v. In the facts of the case, deemed tenancy under Sections 6A and
7D of the Kerala Land Reforms Act, 1963 does not arise for
consideration because the lease is created by a contract. In
support of his contention, relied on a Single Bench decision of
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this Court in Sree Chathankulangara Bhagavathi
Devaswom v. Nair Service Society [2023 KHC 852].
vi. As regards the applicability of the provisions of the Malabar
Tenancy Act, 1929, the learned counsel relied on the decision of
the Single Bench in Poddar Plantations Limited v.
Thekkemariveettil Madhavi Amma [2014 (1) KLT 439].
vii. Lastly, it is pointed out that the moment the tenants disown
Ext.B3, the entire edifice of the case built by them would collapse.
The case built up by the tenants as could be seen from the suits
filed for specific performance, is that the lessor is bound to renew
the lease on expiry of the contractual period of lease. Therefore,
when the tenants trace their very right to the contract of lease,
once it is disowned, the claim for fixity of tenure will necessarily
collapse.
viii. So far as the value of improvements, it is pointed out that the
defendants did not adduce any evidence before the trial court and
that, in order to fill up the lacuna, they filed an application for
the appointment of an Advocate Commissioner. The report of
the Advocate Commissioner would show that the assessment of
the value of the improvements is without any basis.
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ix. While hearing a first appeal under Section 96 of the Code of Civil
Procedure, the first appellate court cannot allow the appellants
therein to fill up the lacuna by permitting them to take out an
Advocate Commissioner for local inspection and accept the
report without any adjudication. He further pointed out that
even if such a report is solicited, unless the conditions specified
under Order-XLI Rule 27(1)(aa) of the Code of Civil Procedure,
1908 are not satisfied, the report cannot be received in evidence.
x. Creation of tenancy after 1.4.1964, is hit by Section 74 of the
Kerala Land Reforms Act, 1963 and thus the appellants are not
tenants but encroachers to the Devaswom land and are thus not
entitled to claim value of any improvements. Therefore, it is
contended that the findings of the first appellate court while
granting the decree for the value of improvements are without
any basis and not supported by any evidence.
7. Sri.R.Lakshmi Narayan, the learned Senior Counsel
appearing on behalf of the Malabar Devaswom Board supported the
findings of the courts below and the submissions of
Sri.P.B.Subramanyan. He further pointed out that Ext.B17 show
cause would categorically show the extent of damages caused to the
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forest by the lessees. He further pointed out that the claim for the
value of improvements is certainly an equitable right, but in the light
of the indisputable fact that the tenants had caused large extent of
deforestation and committed illegal felling of the trees, they are not
entitled to the benefit. Further, it is pointed out that the tenants have
no right to continue in the leasehold property and thus the decree
passed by the courts below for recovery of possession is perfectly
correct and is liable to be sustained.
8. I have considered the rival submissions raised across the
bar and perused the judgments rendered by the courts below and the
records of the case
SUBSTANTIAL QUESTIONS OF LAW
9. Multifaceted substantial questions of law needs to be
addressed by this Court in these appeals. The appellants claim fixity
of tenure and questions the inadequacy in the quantum of
compensation granted to them towards the value of improvements.
The respondent plaintiff raised a cross objection to the appellate
decree granting compensation to the tenants towards the value of
improvements. The appellants also seek for mandatory injunction to
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renew the lease. Succinctly the substantial questions of law are as
follows:
a) Substantial questions of law in RSA Nos.514/2012 to
(i) Is not judgment of appellate court on the contention
regarding fixity of tenure illegal and without jurisdiction?
(ii) Is not finding in paragraph 14 of the judgment of lower
appellate court that there is implied surrender of tenancy on
the culmination of the lease period against the mandatory
provision laid down in Sec.51 of the Kerala Land Reforms
Act?
(iii) Is the appellate court entitled to deny the right of option
given to the tenant relying on Sec.29 of the H.R.&C.E. Act,
1951 holding that sanction of the Commissioner is a
precondition for renewing the lease?
(iv) Are not appellants entitled to tack on their right and
possession over the plaint schedule property on the basis of
Exts.B1 and B2?
b) Substantial questions of law in RSA No.446/2012
I. When the trial court has not raised an issue regarding fixity
of tenure under the Kerala Land Reforms Act and has not
referred the matter to the Tribunal for a finding on that
question, is not the first appellate court bound to raise an
issue on fixity of tenure and refer it to the Land Tribunal?
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II. Is not the judgment of the first appellate court on the
contention regarding fixity of tenure illegal and without
jurisdiction?
III. Is the suit for mandatory injunction to vacate maintainable
in view of the evidence in the case that appellants are tenants
of the plaint schedule property from 1907?
IV. Are not the appellants entitled to fixity of tenure over the
plaint schedule property in view of the provisions contained
in Secs.6A, 6B, 7, 7D and Sec.13 of the Land Reforms Act?
V. When the commissioner has reported that the value of
improvements effected by the appellants will come to
Rs.4,36,32,573/- can the court unilaterally reduce the same
by holding that the appellants are entitled to the value of
improvements effected only after Ext.B3?
VI. Are not the appellants entitled to tack on their possession as
lessees from 1907 and claim value of the entire
improvements affected by them and their predecessor?
c) Substantial questions of law in RSA No.1490/2011
I. When Article (1) of Ext.B3 specifically provides that the
lessees are entitled to exercise an option to renew the lease
for a further period of 30 years after the expiry of 30 years
from 15.03.1967, can the lower court rely on Article 4(3) of
Ext.B3 which relates to renewal for any other period than
what is provided in Article (1), for holding that the renewal
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of lease can be had only after obtaining sanction under
Sec.29 of HR & CE Act?
II. Is it not clear from a reading of Article (1) of Ext.B3 and
Article 4(3) of the said document that Article 4(3) is
applicable only if the lessee is exercising the option to renew
the lease for any other period than what is provided in
Article (1) of Ext.B3?
III. Are not the lessees entitled to renewal of the lease for a
further period of 30 years on the expiry of Ext.B3 in view of
the specific provision in Article (1) of Ext.B3, as the lessees
have admittedly exercised the option to renew the lease
before the expiry of the period provided in Ext.B3?
d) Substantial questions of law in RSA No.1333/2012
i. When the trial court has not raised an issue regarding fixity
of tenure under the Kerala Land Reforms Act and has not
referred the matter to the Land Tribunal for a finding on that
question, is not the first appellate court bound to raise an
issue on fixity of tenure and refer it to the Land Tribunal?
ii. Is not the appellant entitled to rely on the possession over
the plaint schedule property on the basis of Exts.B1 and B2,
deeds?
iii. Is not the appellant entitled to rely on the possession as
lessee from 1907 and claim value of the entire improvements
affected by him and his predecessor?
iv. Is not the finding of the first appellate court on the issue
regarding fixity of tenure illegal and without jurisdiction?
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v. Whether the finding of the first appellate court that there is
implied surrender of tenancy on the culmination of the lease
period is against the mandatory provisions laid down in
Sec.51 of the Kerala Land Reforms Act?
vi. Is not the appellant entitled to fixity of tenure over the plaint
schedule property in view of the provisions contained in Secs.
6A, 6B, 7, 7D and Sec.13 of the Kerala Land Reforms Act?
vii. Whether the respondents are entitled to refuse to renew the
lease on the ground that it will be against its interest?
viii. Whether the finding of the first appellate court that the
original lease was regarding a private forest and for planting
rubber is sustainable in the light of the evidence adduced in
the case?
e) Substantial questions of law in Cross Objection
Nos.47/2014, 48/2014 & 49/2014
i.) Whether the lower appellate court was justified in allowing
the claim for value of improvements by relying on the report
of the Advocate Commissioner?
ii.) Whether the Appellants are entitled to claim value of
improvements at all?
JUDICIAL EVALUATION
10. In the light of multifaceted substantial questions of law
raised as above, it is imperative that this Court deals with certain
vexed issues touching upon the rival claim. The issues, which this
Court must address, are discussed serially.
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a) Whether the Civil Court ought to have referred the claim of
fixity of tenure to the Land Tribunal under Section 125(3) of the
Kerala Land Reforms Act, 1963?
11. The appellants assert before this Court that the claim for
fixity of tenure ought to have been referred to the Land Tribunal by
the civil court and failure to do so is fatal inasmuch as the civil court
lacks jurisdiction to proceed with the suit. Further consideration of
the appeals will necessarily revolve around the question as to whether
the appellants are entitled to claim fixity of tenure. Ultimately, if this
Court were to conclude that the lease deed in question falls outside
the purview of the Kerala Land Reforms Act, 1963, then, it will be a
futile exercise to have the matter referred to the Land Tribunal.
Before considering this question in detail, it would be expedient to
consider the impact of Section 125 (3) of the Kerala Land Reforms Act,
1963. Section 125 (3) reads as under:
"125. Bar of jurisdiction of Civil Courts.-
(1) Xxxxxxx
(2) xxxxxxx
(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
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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.
12. The scope of Section 125 of the Kerala Land Reforms Act,
1963 has been considered in a catena of decisions of this Court and
therefore, this Court does not intend to burden itself by referring to
the precedents on the point. The proposition of law expounded by
this Court in numerous decisions leads to a conclusion that, the courts
should exercise a greater amount of caution while considering the
plea to refer the question of tenancy to the Land Tribunal.
13. In Kesava Bhat v. Subraya Bhat [1979 KHC 346 :
1979 KLT 766 (FB)], a Full Bench of this Court held that unless the
question of tenancy actually arises for consideration, there is no
obligation under Section 125(3) of the Kerala Land Reforms Act, 1963
to make a reference to the Land Tribunal. The mere incorporation of
an unnecessary and irrelevant plea of tenancy in written statement is
not to be taken as the basis for the reference under Section 125(3).
14. However, this Court must address the applicability of the
precedents cited by the learned Senior Counsel for the appellants. In
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Kesava Bhat (supra), a Full Bench of this Court held that the
decision of the civil court without compliance with Section 125(3) &
(5) of the Kerala Land Reforms Act, 1963 in a suit where there is a
question of tenancy, is a nullity.
15. In Vadakkekkara Koran v. Gowri [2024 KHC 779]
(authored by ES(J)), it was held that the scheme of the Kerala
Land Reforms Act, 1963 envisages that the question of tenancy be
decided by an authority constituted under the Act and that the
jurisdiction of the civil court is barred.
16. However, the fundamental question is whether the
reference to the Land Tribunal must be made on a mere asking. It
would be wholly impermissible for this Court to hold that as soon as
the plea of tenancy is raised in the written statement, it is obligatory
on the part of the civil court to refer the same to the Land Tribunal. It
will be easy for the unscrupulous tenants to delay the proceeding by
raking up an unwanted claim of tenancy, if, on facts, the claim does
not actually arise. That is the reason why this Court has repeatedly
cautioned the civil courts to exercise restraint while referring a claim
under Section 125(3) of the Kerala Land Reforms Act, 1963.
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17. The decision in Vadakkekkara Koran (supra) is
clearly distinguishable on the facts. In the aforesaid decision, this
Court had taken the view that the jurisdiction of the civil court is
barred when a question of tenancy is raised, especially since the claim
of tenancy was independently prosecuted by the tenant before the
Land Tribunal and thereafter before the appellate authority by
invoking the statutory scheme contained under the Kerala Land
Reforms Act. The decision of the Full Bench in Kesava Bhat (supra)
regarding the ouster of jurisdiction of civil court must be viewed as a
general proposition of law and cannot be applied to the present facts,
especially without looking into the question as to whether the claim
of tenancy is genuine or not. Therefore, this Court is of the considered
view that there is no merit in the argument of the learned Senior
Counsel for the appellants that the jurisdiction of the civil court is
barred because of the plea of fixity of tenure was not referred to the
land tribunal.
(b) Whether Exts.B1 and B2 lease deeds fall outside the
purview of the Kerala Land Reforms Act, 1963?
18. Specific case of the plaintiff is that Exts.B1 and B2 lease
deeds fall outside the purview of the Kerala Land Reforms Act, 1963
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and therefore, no legal right flows into the hands of the appellants out
of Ext.B3 lease deed. To test this argument, one needs to delve little
deep into the provisions of the Act
19. The Kerala Land Reforms Act, 1963 came into existence
w.e.f. 1.4.1964. Section 3 of Chapter-II provides for exemptions. In
the peculiar facts of this case, two provisions fall for extensive
consideration of this Court, Sections 3(1)(vii) and 3(1)(viii). Sections
3(1)(vii) and 3(1)(viii) are extracted hereunder:
"3. Exemptions.- (1) Nothing in this Chapter shall
apply to-
xxx xxx xxx
(vii) leases of private forests:
Provided that nothing in clauses (i) to (vii) shall apply
in the cases of persons who were entitled to fixity of
tenure immediately before the 21st January, 1961, under
any law then in force or persons claiming under such
persons; or
(viii) tenancies in respect of plantations exceeding
thirty acres in extent:
Provided that the provisions of this Chapter, other
than sections 53 to 72S shall apply to tenancies in
respect of agricultural lands which are treated as
plantations under sub-clause (c) of clause (44)
of Section 2."
20. Impact of Section 3(1)(vii), which pertains to the lease of
private forests, needs to be dealt with a little more deeply. Though an
attempt has been made before this Court to point out that the
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definition of "private forest" must be made with reference to Section
2(47) of Kerala Land Reforms Act, 1963, this Court does not see any
difficulty in accepting the said argument. Section 2(47) is extracted
hereunder:
"2. Definitions- In this Act, unless the context
otherwise requires,-
xxx xxx xxx
(47)"private forest" means a forest which is not
owned by the Government, but does not include--
(i) areas which are waste and are not enclaves
within wooded areas;
(ii) areas which are gardens or nilams;
(iii) areas which are planted with tea, coffee, cocoa,
rubber, cardamom or cinnamon; and
(iv) other areas which are cultivated with pepper,
arecanut, coconut, cashew or other fruit-bearing trees
or are cultivated with any other agricultural crop;"
21. A further plea is also raised that the relevant date for
applying the definition of private forest under the Kerala Land
Reforms Act, 1963 should be the date on which the Act came into
existence and not with reference to the date on which the lease deeds
were executed. To ascertain the nature of the property leased out in
1907 as per Ext.B1, it is worthwhile to refer to certain clauses under
Ext.B(1). Clause 2 of Article 4 of Ext.B(1) reads as under:
"Article 4
xxx xxx xxx
2. The lessee shall have full power and authority
from time to time and at all times during the
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continuance of the lease or any extension
thereof to convey, assign or transfer absolutely
or by way of mortgage or sub lease the whole or
any portion of his interest in the land hereby
leased or demised or all or any of his obligations
and interests hereby created to any person or
persons, Company or Companies and subject to
such condition or conditions as may be agreed
upon between him and such person or persons,
Company or Companies. He shall also be at
liberty to open up the said land or any portion
thereof for the cultivation of rubber or any
other cultivation and for the purpose to fell
timber and have the use of the same for all
purposes consistent with the use of the said land
for rubber or other cultivation and to erect
buildings and machinery thereon."
Turning to the schedule of the property, it is specifically mentioned in
Ext.B1 as follows:
"The forests and parambas belonging to
Elakoothambara, Akamalavaram Patimare
Muri".
Ext.B1 was followed by Ext.B2. The schedule reads as under:
"The forests and parambas belonging to
Elakoothambara, Akamalavaram Patinhare
Muri re. Survey Numbers 616-B/1, 616-C/1,
617/9, 12 & 14 and 825 and the remaining
unsurveyed portion."
In Ext.B3, there is more clarity in the schedule showing the extent.
Schedule to Ext.B3 reads as under:
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"Schedule
Elak Rubber Estate-Total extent. - 1000 acres, 400
hectares. Property situated in Akamalavaram,
Patinhare Muri, in Kadukkamkunnam amsom and
desom, Palghat taluk, Palghat District within the
Registration Sub District and District of Palghat.
Description,
1. A block - Old Rubber Plantation Surveyed portion.
Re-survey Nos.616 B/1 2.53 acres (1.012 Hectares)
616 C/1 10.03 " (4.012 " )
617/9 4.06 " (1.624 " )
617/12 7.37 " (2.948 " )
617/14 122.54 " (49.016 " )
825 228.79 " (91.516 " )
B Block - New Rubber Plantation unsurveyed portion.
161.00 acres (64.4 hectares)
C Block -New Rubber Plantation-unsurveyed portion.
115.00 acres (46 hectares)
D Block. Forest area (not planted) Unsurveyed portion.
88.68 (35.472 hectares)
Total 740.00 acres (296 hectares)
Four Boundaries
East : Mayappara Thodu
South : S.Nos.616A, 616 B, 616 C/1; 826; 561;
617/19; 556; 617/29 B; 617/28 A; 617/22;
640; 617/18; 617/17; 617/21; 638;
617/20 A; 630 B; 630 A; 617/7; 617/24;
617/13; 617/15 and 617/8.
West : Valiya Puzha;
North : Kalliyarapuzha; Pilanthodu; Poovanchola
and Mayappara Hill.
2. E Block. Forest area (not planted)
Unsurveyed portion -217.00 acres.
(868 hectares)
F Block. New Rubber Plantation-
Unsurveyed portion -43.00 acres.
(17.2 hectares).
Total. 260.00 acres (104 hectares).
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Grand Total. 1000 acres (400 hectares).
Four Boundaries:
East : Anakkal Thodu, Vellamara Kilaru and Hills
South : S.Nos.385; 384; 386; 387; 383; 392; 391; 432;
431; 430; 433; 591; 595; 601 and 616A.
West : Mayappara Thodu.
North : Valiyakadu; Naicken Tharisu Kadu; Anakkal
Kadu in Chudukattu Kunnu."
22. The cumulative reading of the Schedule to the lease deeds,
throws up an entirely different perspective to the case. At the time of
grant of lease, the properties were certainly private forest, which
cannot be disputed by the defendants. No doubt, a permission to
change the character of the private forest was granted to the original
lessee with liberty to clear the timbers and planting rubber trees and
doing other cultivation. In the present case, there cannot be any
dispute that on the date of coming into force of the Kerala Land
Reforms Act, 1963 the property in question retained its character of a
private forest even though not to its entirety. Once it is concluded that
the land in question retained the character of private forest, it is not
possible for this Court to interpret the lease deed in such a manner
so as to bring certain portions of the deeds within the purview of
Kerala Land Reforms Act and to take out the remaining portion out of
the purview of the Act. Such a differential construction is not proper.
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Therefore, this Court is inclined to conclude that property covered by
the lease deeds in question falls squarely within the definition of
"private forest" and thus, is taken out of the purview of the Kerala
Land Reforms Act, 1963.
23. Yet another infirmity that stems out of the argument
raised on behalf of the appellants by the learned Senior Counsel,
Sri.T.Sethumadhavan, is that Ext.B3 is a lease of Rubber Plantation
as well as a private forest. The extent of leasehold property is 1000
acres. Under the Kerala Land Reforms Act, exemption is available to
plantation, only if the holding is less than 30 Acres. Therefore, if the
extent held by a lessee is for more than 30 Acres, by operation of the
statute, such lease is taken outside the purview of the Kerala Land
Reforms Act, 1963. Therefore, since the cumulative holding in the
present case is 694.32 Acres, it is not difficult for this Court to
conclude that the lease is outside the purview of the Act.
24. Before this Court moves forward, it must address the
applicability of the three decisions cited by the learned Senior
Counsel for the appellants.
25. In Nandanasseri Kalpakasseri Damodaran Nair &
Ors.v. Thiruvambadi Rubber Company Ltd.
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[S.A.No.193/1997 dated 26.7.2010], a Single Bench of this Court
held that once the property had been cleared of trees etc., the lessee is
allowed to cultivate the same, and it can no longer be said that the
lease was of a private forest. The learned Single Judge concluded
relying on the decision of this Court in Ipe v. Pramathan
Namboodiripad [1988 (2) KLT 277]. The decision in
Nandanasseri Kalpakasseri Damodaran Nair (supra) was
affirmed by the Supreme Court in N.K. Rajendra Mohan v.
Thirvamadi Rubber Co. Ltd. & Others [(2015) 9 SCC 326].
26. A reading of the decision of the Supreme Court in N.K.
Rajendra Mohan (supra) shows that there was only one lessee who
continued to hold the property on expiry of the period of 36 years
from 21.6.1918. Moreover, in the said lease deed there was no mention
regarding private forest. Still further, by the time suit for eviction was
filed the entire area was converted to a plantation. Further, the
acceptance of the rent by the landlord was construed by the Supreme
Court as an assent to continue with the lease even after its expiry.
That apart, the lessee in that case had planted the rubber trees after
taking the property for lease and thus qualifying for the fixity of tenure.
Even in Ipe (supra), the position was the same.
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27. However, in this case it is not so. In this case, original
lease to Cecil Hall admittedly was that of a private forest, and
thereafter the trustee renewed the lease in favour of M/s.Elak Rubber
Company and M/s.Stanes and Company Ltd. Admittedly, at the time
of renewal of the lease for 30 years in the year 1937, the property
retained the character of a private forest. If the renewal of the lease is
taken, then it is for both plantation as well as private forest. Therefore,
when a lease is executed in respect of plantation, it is taken out of the
purview of the Act.
28. However, the learned Senior Counsel for the appellants,
Sri.T.Sethumadhavan contended that when the renewal of the lease is
made it must be construed as continuation of the earlier lease and
thus there is a continuity in the lease. This Court is unable to subscribe
to the argument, especially in the light of the decision of the Supreme
Court in State of UP & Others v. Lalji Tandon (Dead) through
LRs [(2004) 1 SCC 1], wherein it was held by the Supreme Court
that when the lessee exercises the option for renewal of the lease deed
and renewed the lease deed, a fresh lease comes into existence.
29. Moreover, the evidence adduced by the defendants
(lessees) is conspicuously silent on the nature of the cultivation
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carried out in the leasehold land as on 1.4.1964. Therefore, evidently,
the entire 1000 Acres of land was not cultivated by the original lessee
as a rubber plantation. Even if this Court were to assume that there
existed a rubber plantation, the moment a fresh lease deed is executed
in the year 1937 for a period of 30 years, a lease is created in respect
of the plantation. Therefore, as on 1.4.1964, when the Act came into
existence, the lease in question was in respect of both 'private forest'
and 'rubber plantation' thus taking it outside the purview of the
Kerala Land Reforms Act, 1963.
30. Moreover, when Ext.B3 was executed for 1000 Acres, a
large portion of the land was already under cultivation and, therefore,
the said lease can only be presumed to be that of the plantation for
more than 30 Acres, thus taking out the same outside the purview of
the Kerala Land Reforms Act, by applying the exemption clause under
Section 3(1)(viii) of the Act.
31. That apart, defendants 5 to 9 and others who claimed that
they are the individual partners of M/s.United Planters had no such
case pleaded or proved that it is M/s.United Planters which had done
the plantation in the leasehold property. It is in this context that the
description of the property covered in the Schedule to Ext.B3 assumes
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significance. Therefore, as on the date of execution of Ext.B3, since
rubber plantation existed, the lease is not covered by the provisions
of the Kerala Land Reforms Act, 1963. Therefore, the irresistible
conclusion is that the lease deeds in question do not come within the
purview of the Act.
c) Whether Ext.B3 lease deed is valid?
32. An incidental question regarding the validity of lease must
be addressed by this Court on the validity of Ext.B3 because it touches
upon the claim of the defendants for fixity of tenure. It must be noted
that, though the learned Senior Counsel opened his submissions
before this Court by contending that Ext.B3 can only be construed as
one in continuation of the earlier lease deeds and thus, the defendants
are entitled to fixity of tenure. But, towards the conclusion of his
argument, the learned Senior Counsel submitted that Ext.B3 lease
deed is a void document because it militates against Section 74 of the
Kerala Land Reforms Act, 1963. After raising this argument, the
learned Senior Counsel Sri.T.Sethumadhavan went ahead and raised
a plea that since the assignment in favour of M/s.United Planters by
M/s.Supreme Industries is during the years 1963 and 1964 the said
partnership firm is entitled to get fixity of tenure and since the
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appellants being the partners of the firm are automatically entitled to
fixity of tenure. This aspect will be dealt with later in this judgment.
33. As regards the claim of fixity of tenure based on deeds of
assignment of 1963 and 1964, it is imperative for this Court to notice
that the assignment deeds in question were not tested before the trial
court in evidence. Though, belatedly an attempt is made to produce
the two assignment deeds in favour of M/s. United Planters on the
date on which these appeals were taken up for final hearing, through
an application under Order-XLI Rule-27 of the Code of Civil
Procedure, 1908, this Court is firm in its view that the application
cannot be entertained at the Second Appellate stage and the same
only deserved to be rejected . At any rate, the argument now raised
does not find a place in the pleadings of the defendants in their written
statement.
34. Coming back to the validity of Ext.B3, it must be noted
that Section 74 of the Kerala Land Reforms Act, 1963 creates a bar for
creating future tenancy. The moment this Court applies the principle
laid down by the Supreme Court in Lalji Tandon (supra), it is
beyond cavil that Ext.B3 lease must be construed as a fresh lease deed
in violation of Section 74 of the Kerala Land Reforms Act, 1963,
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rendering it void ab initio. This Court is fortified in arriving at this
conclusion because of the conscious act of the appellants in disowning
Ext.B3. Once the lease deed is held to be void then tenant cannot
derive any benefit out of it. Moreover, since the appellants
themselves have disowned Ext.B3, naturally, the entire edifice based
on which these appeals are built upon will collapse and no further
deliberation needs to be done by this Court. However, since other
legal issues are raised before this Court, this Court will necessarily
deal with the same for the sake of completion.
(d) Effect of Malabar Tenancy Act, 1929
35. This question assumes significance in the context of the
claim of the appellants that, since the possession was given to the
lessee in 1907 and that his assignee continued to be in possession and
further, the devolution of the title of the appellants is traceable to the
predecessor who was in possession as on the coming into force of the
Malabar Tenancy Act 1929, the subsequent assignees are entitled to
fixity of tenure under Section 21 of the Malabar Tenancy Act 1929.
36. The Malabar Tenancy Act, 1929 (Tamil Nadu Act No.XIV
of 1930) was promulgated by the State of Tamil Nadu and received
the assent of the Hon'ble Governor on 28.3.1930 and it applied to the
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Malabar Area, which fell under the control of the erstwhile State of
Tamil Nadu prior to the coming into the force of the States
Reorganization Act, 1956. While dealing this question, this Court may
have to further deliberate on the issue as to whether the benefit under
the Malabar Tenancy Act, 1929 will continue to enure to the benefit of
the appellants, notwithstanding the promulgation of the Kerala Land
Reforms Act, 1963. The argument of the learned Senior Counsel for
the appellants is primarily based on the basis of Section 21 of the
Malabar Tenancy Act, 1929. Section 21 of the Malabar Tenancy Act,
1929 reads as under:
"21. Right of certain classes of tenants to
fixity of tenure.
Notwithstanding any contract to the contrary,
whether entered into before or after the commencement
of this Act, every cultivating verumpattamdar, every
customary verumpattamdar, every kanamdar, every
kanam-kuzhikanamdar, every kuzhikanamdar, every
tenant of a kudiyiruppu and every holder of a protected
ulkudi shall have fixity of tenure in respect of his
holding and shall not be evicted therefrom except as
provided in this Act:
Provided that no tenant of a commercial site shall
have fixity of tenure in respect thereof unless
immediately before the commencement of the Malabar
Tenancy (Amendment) Act, 1951, he had fixity of tenure
in such site or a right to obtain a renewal of his tenancy
in respect thereof:
Provided further that, in the case of a kanamdar
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whose kanartham exceeds forty per cent of the value of
the janmi's rights in the holding, the kanamdar shall not
have fixity of tenure.
Explanation. - For the purposes of the foregoing proviso,
the janmi's rights in the holding shall be valued-
(i) in the case of a kanam existing on the date of the
commencement of the Malabar Tenancy Act, 1929, at
twenty times the excess of (a) the annual fair rent of the
holding as payable on that date under that Act over (b)
the annual assessment then payable thereon;
(ii) in the case of a kanam created after such
commencement and before the date of the
commencement of the Malabar Tenancy (Amendment)
Act, 1951, at twenty times the excess of (a) the annual
fair rent of the holding as payable under the Malabar
Tenancy Act, 1929, on the date of the kanam over (b) the
annual assessment then payable thereon;
(iii) in the case of a kanam created on or after the date
of the commencement of the Malabar Tenancy
(Amendment) Act, 1951, if and to the extent the kanam
relates to wet land, at thirty times the excess of (a) the
annual fair rent of the holding payable on the date of the
kanam under the Malabar Tenancy Act, 1929, as
amended by the Amendment Act aforesaid, over (b) the
annual assessment then payable thereon, and if and to
the extent the kanam relates to garden or dry land, at
twenty-five times such excess."
37. However, the argument overlooks the fact that by
operation of Section 2 of the Malabar Tenancy Act, 1929 certain
exemptions are provided. Section 2 of the Act reads as under:
"2. Exemptions - Nothing in this Act shall
apply to-
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(1) lands transferred by a landlord for felling timber
or for planting tea, coffee, rubber, cinchona or any other
special crop prescribed by a rule made by the State
Government or the erection of any building for the
purpose of, or ancillary to, the cultivation of such crop,
or the preparation of the same for the market or land let
only for fugitive cultivation:
Provided that no rule under this clause shall affect
any land in respect of which any tenant has a right of
fixity of tenure under this Act, so long as such right
subsists, or
(2) any transaction relating only to the usufruct of
trees,or
(3) any building owned by a landlord including a
house, shop or warehouse, and the site thereof, together
with the garden or land appurtenant thereto, but not
including a hut belonging to a landlord, in any ulkudi."
38. When a query was raised by this Court as regards the
applicability of the exemption clause, Sri.M.Gopikrishnan Nambiar,
the learned counsel appearing for the appellants in RSA
Nos.446/2012 and 1490/2011, pointed out that the exemption is only
provided for planting of rubber trees and not for cultivation. However,
this Court is unable to subscribe to the aforesaid argument because
admittedly, when Ext.B1 lease deed was entered, it was primarily for
felling timbers and planting rubber trees and therefore, as on the date
of coming into the force of the Malabar Tenancy Act, 1929, Ext.B1
lease deed is taken out of the purview of the Act. Still further, a
cursory reading of Section 21 also shows that the fixity of tenure is to
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be granted to every cultivating verumpattamdar or customary
verumpattamdar or kanamdar or kanam-kuzhikanamdar or
kuzhikanamdar or a tenant of kudiyiruppu or holder of a protected
ulkudi or a kudikidappu etc. It is not shown before this Court as to
how the appellants would fall within the definition of any of the
categories mentioned under Section 21 of the Malabar Tenancy Act,
1929. That apart, once this Court finds that Ext.B1 falls within the
exempted category under Section 2, no further deliberation on the
issue of entitlement for fixity of tenure under Section 21 of Malabar
Tenancy Act, 1929 requires to be done by this Court.
39. Yet another reason as to why this Court must negate the
claim of the appellants for fixity of tenure under Section 21 of the
Malabar Tenancy Act, 1929 is the insertion of Section 132(3) under
the Kerala Land Reforms Act, 1963. Section 132(3) provides for
saving of certain proceedings and is of a restrictive nature. Sub-
Section (3) of Section 132 reads as under:
"132. Repeal and Savings -
xxx xxx xxx
(3) Notwithstanding the repeal of the
enactments mentioned in sub-section (2),
(a) any decree passed before the
commencement of this Act for the eviction of a
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tenant from his holding, pursuant to which
eviction has not been effected, may, on the
application of the tenant or the landlord, be
reopened and the matter may be disposed of in
accordance with the provisions of this Act;
(b) any suit for restoration filed
under section 24 or section 26 or sub-section (3)
of section 53 of the Malabar Tenancy Act, 1929
or any application for determination of fair rent
made under section 16 of that Act or any
application for fixation of fair rent made
under section 9 of the Madras Cultivating
Tenants (Payment of Fair Rent) Act, 1956 and
pending disposal at the commencement of this
Act shall be disposed of in accordance with the
provisions, of the said Acts as if those Acts had
not been repealed:
(c) (i) where the decree-holder, plaintiff,
appellant or petitioner, as the case may be, is a
person entitled to resumption of land under this
Act, he shall have the right to apply to Court to
allow resumption of the holding or any part
thereof to which he is entitled;
(ii) the application under sub-clause (i)
shall be made within one year from the
commencement of this Act and shall contain a
statement of facts in support of the claims of the
applicant and also the names and addresses of
all persons who have interest in the holding
either as owner, lessee or kudikidappukaran:
(iii) the court shall dispose of the
application as if it were an application for
resumption before the Land Tribunal under this
Act;
(d) notwithstanding anything contained
in section 11 of the Code of Civil Procedure, 1908,
the right conferred on the decree-holder,
plaintiff, appellant or petitioner, as the case may
be, under sub-clause (i) of clause (c) shall not be
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deemed to take away or in any manner affect his
right to apply for resumption under this Act."
The impact of sub-Section (3) of Section 132 of the Kerala Land
Reforms Act, 1963 on the Malabar Tenancy Act, 1929 is no longer res
integra in the light of the decision of the Division Bench of this Court
in Ammukutty Amma v. Viswanatha Iyer [1986 KLT 905].
Paragraph 6 of the said decision reads as under:
"6. There is another angle from which the learned
counsel for the respondent met the contention based on
S.43 of the Malabar Tenancy Act. Even assuming that
the said Act continued to be in force till the coming into
force of the Kerala Land Reforms Act, the legislature has
clearly expressed its intention that all the rights created
under the Malabar Tenancy Act were not to survive
subsequent to the repeal of the Act. All provisions
regarding tenancies, in the Kerala Land Reforms Act
have been included in Chapter II of that Act which starts
with S.3. The said section says that nothing in Chapter
II shall apply to "tenancies in respect of land or of
buildings or of both created by persons having only life
interest or other limited interest in the land or in the
buildings or in both". This is mentioned in clause (vi) of
sub-s.(1). A proviso inserted after clause (vii) is quoted:
''Provided that nothing in clauses (i) to (vii) shall
apply in the cases of persons who were entitled
to fixity of tenure immediately before the 21st
January, 1961, under any law then in force or
persons claiming under such persons".
S.132(3) of the Kerala Land Reforms Act provides that
certain actions taken pursuant to the repealed Acts are
to continue in the manner specified in that sub-section.
It is contended by the learned counsel for the
respondent that the legislature, by including the said
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proviso and by providing that certain actions taken
under the Malabar Tenancy Act are to continue, has
"manifested its intention" that despite the repeal of the
Malabar Tenancy Act, only certain rights which accrued
or were acquired under the said Act will survive. Under
S.4 of the Kerala Interpretation and General Clauses Act
"where any Act repeals any enactment hitherto made or
hereafter to be made, then unless a different intention
appears, the repeal shall not affect any right, privilege,
obligation or liability acquired, accrued or incurred
under any enactment so repealed", (emphasis supplied)
Dealing with S.132 vis-a-vis S.4 of the Kerala General
Clauses Act a Division Bench of this Court has held in
Adamkutty v. Damodaran Nambudiri (1970 KLT 321)
that
"By the enactment of S.132(3) the new legislation
manifests an intention contrary to the provisions
of S.4 of the Interpretation and General Clauses
Act; a different intention such as is contemplated
by the Section as being sufficient to prevent the
preservation of a right or privilege acquired or
secured under a repealed Act may arise by
necessary implication and full effect has to be
given to the repeal subject to any provision in the
repealing statute itself".
Whenever there is a repeal of an enactment the
consequence laid down under S.4 of the Kerala
Interpretation and General Clauses Act will follow
unless a different intention appears. In the case of a
simple repeal there is hardly any room for expression
of a different intention. But when the repeal is
followed by fresh legislation on the same subject,
provisions of that legislation must be looked into for
the purpose of determining whether they indicate a
different intention (vide State of Punjab v. Mahar
Singh, AIR 1955 SC 84). We respectfully agree with
the observations of the Division Bench in
Adamkutty's case cited supra. The result is that we
hold that no right specified or dealt with under the
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Malabar Tenancy Act, except those specifically made
mention of in S.132(3) read with proviso to S 3 of the
Kerala Land Reforms Act, will survive, after the
repeal of that Act. A proper understanding of the
relevant provisions of the Malabar Tenancy Act, 1929,
the Agrarian Relations Act, 1961 and the Kerala Land
Reforms Act, 1963, in the light of S.4 of the Kerala
Interpretation and General Clauses Act, as explained,
by the Supreme Court in State of Punjab v. Mahar
Singh (AIR 1955 SC 84) which was followed in T.
Barai v. Henry Ab Hoe (AIR 1983 SC 150 at Page 156)
and by this Court in Adamkutty's case (1970 KLT 321)
fortifies the above view. The decision of the Supreme
Court in State of Gujarat v. Shri Ambica Mills (AIR
1974 SC 1300 at page 1307) explains the legal effect of
a few provisions of the Act being declared void by the
courts."
Thus, the claim for fixity of tenure under the provisions of the Malabar
Tenancy Act, 1929 will survive only subject of Section 132(3) of the
Kerala Land Reforms Act 1963. Once it is concluded that except so
provided under Section 132(3) no other right of the tenant survives, it
is not difficult for this Court to conclude that the claim of the
appellants for fixity of tenure is liable to be rejected.
(e) Whether deemed tenancy exists in the present case?
40. Normally, once this Court concludes that the claim for
fixity of tenure under Section 21 of the Malabar Tenancy Act 1929 is
repelled, there cannot be any question whether the appellants can fall
back on the principles of deemed tenancy. However, since the
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contention is raised, this Court must deal with the issue. Sections 6A
and 7D of the Kerala Land Reforms Act, 1963 deals with the deemed
tenancy and it read as under:
"6A. Certain persons who were holding land
on or after 1st December 130, to be deemed
tenants.-Notwithstanding anything to the
contrary contained in any law, or in any
contract, custom or usage, or in any judgment,
decree or order of Court, a person in possession
of immovable property in any area in the State
to which the Malabar Tenancy Act, 1929,
extended, whether as mortgagee or otherwise,
shall be deemed to be a tenant if--
(a) the property in his possession consists of
agricultural land;
(b) he or any of his predecessors-in-interest was
holding the property as a tenant on or after the
1st day of December, 1930; and
(c) the tenancy was terminated after the 1st day
of December, 1930 and before the
commencement of this Act, but his
predecessors - in - interest or himself
continued in possession of the property,
without interruption, whether as a mortgagee
with possession or otherwise, from the date of
such termination till the commencement of this
Act.
Explanation I.-- For the purposes of clause (b),
"tenant" means a tenant as defined in the
Malabar Tenancy Act, 1929, as in force on the 1st
day of November, 1956.
Explanation II.-- An interruption for a period
not exceeding an agricultural year immediately
following the termination of the tenancy shall
not be deemed to be an interruption for the
purposes of clause (c)."
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xxx xxx xxx
"7D. Certain persons occupying private
forests or unsurveyed lands to be deemed
tenants.--
Notwithstanding anything to the
contrary contained in section 52 or any other
provision of the Transfer of Property Act, 1882,
or any other law, or in any contract, custom or
usage, or in any judgment, decree or order of
Court, any person in occupation at the
commencement of the Kerala Land Reforms
(Amendment) Act, 1969, of the land of another
situate in Malabar, to which the provisions of
the Madras Preservation of Private Forests Act,
1949 (XXVII of 1949), were applicable on the
11th day of April, 1955 or which was unsurveyed
on that date, shall be deemed to be a tenant if he
or his predecessor-in-interest was continuously
in occupation of such land for not less than two
years within a period of twelve years
immediately preceding the 11th day of April,
1967."
41. This issue needs to be addressed in two parts; a) claim
under Section 6A, and b) claim under Section 7D. A reading of Section
6A, may first appear to be in favour of the appellants. But then, the
argument for qualifying the appellants as deemed tenants primarily
fails to address how they satisfy the conditions under clause (c) of
Section 6A. Under the said clause, the appellants must satisfy that the
tenancy was terminated after the 1st day of December, 1930 and
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before the commencement of this Act, but his predecessors - in -
interest or himself continues in possession of the property without
interruption from the date of such termination till the
commencement of the Act. In this case, when the lease was
terminated in 1937, the original lessee was not in possession.
Similarly, during the currency of the said lease, the lessee assigned his
property to one Thattil Kochuvareed who in turn assigned his right to
M/s.Supreme Industries and M/s Supreme Industries to M/s United
Planters. Thus, on the date of commencement of the Kerala Land
Reforms Act 1963, neither the original lessee nor the appellants were
in possession of the plaint schedule property.
42. Of course, it may be possible for the appellants to contend
that their immediate predecessor, M/s.Supreme Industries, was in
possession of the land and hence they are entitled to protection. But
then, the fundamental question is, since M/s.Supreme Industries was
in possession of the property under a deed of assignment of leasehold
rights, whether such possession would entitle the assignee to claim
the status of deemed tenant. Here, one must remember that the
possession of M/s.Supreme Industries was through an assignment of
contract of lease. It has also come out that the rights under the
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assignment deed was transferred to M/s United Planters. This court
cannot remain oblivious of the fact that the provisions of Section 6A
envisages protection to the person who is in possession of the
property under a transaction which gives a colour of lease and not
otherwise. Therefore, when a lessee assigns the leasehold property
during the currency of a lease, the assignee cannot qualify itself as a
deemed tenant.
43. Coming to the claim under Section 7D, this Court is of the
considered view that the principles governing the applicability of
Section 6A will also apply with equal force. Sri P.B.Subramanyan, the
learned counsel appearing for the plaintiff-Devaswom, would,
however, point out that the claim for deemed tenancy under Sections
6A and 7D of the Kerala Land Reforms Act, 1963 has to be rejected in
its entirety in the light of the decision of the Single Bench of this Court
in Sree Chathankulangara Bhagavathi Devaswom v. Nair
Service Society [2023 KHC 852]. Paragraphs 20 to 22 of the
aforesaid decision are extracted for reference:
"20. Being a tenant under the Act, the
defendant in the suit is entitled to all the
benefits conferred on a tenant by the Act unless
expressly excluded by the Statute. So, the
defendant would ordinarily be entitled for the
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benefit of fixity of tenure under Section 13 of the
Act. However here comes the application of the
exemption clauses under Section 3(1) of the Act.
Section 3(1)(vii), as noticed first above, exempts
the applicability of Chapter II of the Act (the
chapter which contains Section 13 providing for
fixity of tenure) to leases of private forests.
21. Admittedly the defendant is in possession
of the plaint schedule property under a 'lease of
private forest'. The same is, in no ambiguous
terms, stated in the written statement thus,
"4. The allegation contained in para 2 of
the plaint to the effect that the plaint
schedule property is a private forest is
admitted; not only that, MPPF Act was
applicable to the said forest as well, as set
out in the lease deed and it was after
obtaining permission from the District
Collector as envisaged in the MPPF Act,
that the lease deed was executed. True
that there are recitals in the lease deed
regarding surrender after 36 years and
on payment of compensation regarding
the value of improvements.".
Therefore, Chapter II does not apply to the case
at hand. The defendant is thus, not entitled to
claim the benefit of fixity of tenure under
Section 13 of the Act.
22. Even assuming that Section 7D applies in
the case of the defendant, it may not be of any
avail. As noticed earlier, the benefit of deemed
tenancy would enure to a person who is not a
tenant. It implies that he is not in possession
under any lease arrangement. In such case he
would become a deemed tenant under the Act
and thus would be entitled for the benefits
under Chapter II of the Act. The benefits would
accrue to a deemed tenant who is thus in lawful
possession but under an arrangement short of a
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lease. However, in the case of the defendant
herein, the possession being admittedly under a
lease of private forest, again, the application of
Chapter II is excluded as noted above."
This court is in complete agreement with the views expressed by the
Single Bench in the above decision and thus the claim of the
appellants to qualify themselves as deemed tenants must fail.
44. It is also pertinent to mention that the decision of this
Court in Sree Chathankulangara Bhagavathi Devaswom
(supra) was taken before the Supreme Court in Special Leave to
Appeal Nos.2752 - 2754 of 2024 and the Supreme Court refused to
interfere with the judgment of the Single Bench as regards the claim
of deemed tenants over 50 Acres of private forest and issued the
limited notice insofar as the extent of 16 Acres is concerned.
Therefore, this Court is of the considered view that the contention
raised on behalf of the appellants that they are entitled for the benefit
of Sections 6A and 7D of the Kerala Land Reforms Act, 1963 is liable
to be rejected.
(f) Whether the partners of a firm are entitled to fixity of
tenure on the property of the firm?
45. It is important for this court to address this issued since
the appellants claim fixity of tenure as partners of M/s.United
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Planters. Surprisingly the claim for fixity of tenure in terms of Section
13(1) of the Kerala Land Reforms Act, 1963 is raised for the first time
before this Court.
46. Order-VIII Rule-2 of the Code of Civil Procedure, 1908,
requires the defendants to raise in their pleadings all matters to show
that the suit is not maintainable or that the transaction is either void
or voidable in the point of law and all such grounds of defense. When
this defect was pointed out by this Court, the learned Senior Counsel
for the appellants countered it by pointing out that the claim of the
appellants being statutory in nature, it was the duty of the trial court
to have gone into the said question. However, the contention must
fail for obvious reasons.
47. Admittedly, the leasehold right from 1937 onwards was
vested in a firm, namely M/s.Stanes and Company / M/s.Elak Rubber
Company. This right was subsequently assigned in favour of one
Thattil Kochuvareed and later to M/s.Supreme Industries and later to
M/s.United Planters. Notwithstanding the assignment, M/s.United
Planters went ahead and executed renewal of the lease with the
Devaswom on 22.12.1969 for 1000 Acres. At this juncture, Ext.B17
assumes importance. Under Ext.B17 show cause notice, the
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Government had proposed to cancel the sanction given by the
Commissioner of HR&CE Department on the ground that the
sanction violated the provisions of the Madras Preservation of Private
Forest Act, 1949. Though the said notice was challenged before this
Court, this Court did not interfere with the same presumably because
the period of lease had by that time expired. But then, once the
Government recalled the order giving sanction for renewal of the lease,
the consequence is that Ext.B3 lease deed loses its efficacy. Once
Ext.B3 loses it efficacy, M/s United Planters had no right to assign the
lease in favour of the appellants. Thus, the possession of the
appellants, if any, is under a void lease deed.
48. That apart, even assuming that in the absence of a formal
order cancelling the lease deed, the lease deed may survive, even then
it is difficult to uphold its efficacy because of Section 74 of the Kerala
Land Reforms Act, 1963. Perhaps, finding that Section 74 may
operate against the appellants, the appellants have given up the right
based on Ext.B3 lease deed. Therefore, when there is a conscious
relinquishment of the claim, though for the first time raised before
this Court, that fact cannot be ignored by this Court under any
circumstances. Hence, it must be irresistible to conclude that the
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claim of the appellants must fail. But then, it is further contended by
the learned Senior Counsel that, notwithstanding the fact that the
appellants had given up their claim under Ext.B3, they are entitled to
fixity of tenure under Section 13(1) of the Kerala Land Reforms Act,
1963 based on the admission of the plaintiff and also in the light of
the fact that the partnership firm was dissolved and an inter-se
arrangement was entered between the partners of the firm.
49. This Court has bestowed its anxious consideration on the
aforesaid point. The defendants 1 to 4 as well as 5 to 9 in their
separate written statements, have clearly delineated the devolution of
title from M/s.United Planters to the defendants. A cursory glance at
the averments in paragraph 11 of the written statement of defendants
5, 7, 9 to 15 would show that the devolution is based on the execution
of registered documents during various periods prior to the
partnership firm being dissolved. The transaction per se appears to
be illegal because, M/s.United Planters, appears to have sold various
extent to other firms. Though, it is asserted before this court that the
partners of such firms are none other than the partners of M/s.United
Planters, there is no evidence to sustain the said plea. Therefore, this
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court is not in a position to test the veracity of the statement made by
the learned Senior Counsel for the appellants across the bar.
50. Be that as it may, at some point of time, there appears to
have been a conscious act of dissolution of the firm in terms of Section
39 of the Indian Partnership Act, 1932. It is further stated that a
subsequent partition took place. These pleadings are not supported
by any evidence. Though it may be possible to hold that the partners
of the firm, which was entitled for fixity of tenure, could still claim the
benefit of the fixity of tenure in the name of the firm, the said right
would devolve only after the dissolution of the firm and a registered
document being executed conferring the rights of the partners. No
evidence is available to support such conclusion and hence this Court
has no other alternative but to reject the claim of the appellants.
51. Yet another glaring defect which stares at the face of the
appellants is that most of the transactions appear to have been done
during the subsistence of the firm, M/s.United Planters. Though the
partners of the firm are entitled to sell the property of the partnership
firm, it must be followed by a resolution of the firm. There is nothing
before this Court to conclude that the sale in favour of the individual
partners was in exercise of the powers of the partners under Section
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19 of the Indian Partnership Act, 1932 and was preceded by a valid
resolution. No explanation is forthcoming as to why the defendants
consciously chose to withhold the assignment deeds by which they
derived the right title and interest over the property. However, a
fervent plea was raised on behalf of the appellants that there is an
admission on behalf of the plaintiff as regards the possession of the
defendants. It is true that in paragraph 1 of the plaint, it is stated that
the defendants are in possession of the plaint schedule property
comprising of 694.32 Acres. But then, unless the defendants are able
to satisfy this Court that the character of possession is legal and valid,
they are not entitled to claim the fixity of tenure.
52. Moreover, this Court cannot remain oblivious of the fact
that the possession of the defendants over the property was only after
the execution of the fresh lease deed in the year 1969. This Court has
already held that the execution of the lease deed is hit by Section 74
of the Kerala Land Reforms Act, 1963 and thus, the defendants cannot
claim any right based on a void lease.
53. In conclusion, this Court holds that since the lease deed in
favour of the partnership firm, namely M/s.United Planters is a void
lease, no right flows into the hands of the defendants based on the
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assignment in their favour and the possession becomes precarious
and thus the possession is that of encroachers.
CLAIM FOR VALUE OF IMPROVEMENTS
54. The claim under the Kerala Compensation for Tenants
Improvements Act, 1958, is a highly debatable issue in the present
appeals. While dealing with this issue, the Court must address three
sub-issues; (i) the scope and extent of the power of the appellate court
under Section 96, (ii) effect of a void lease & (iii) effect of disowning
the lease.
i) Scope and power of the appellate court under Section
96 of the CPC.
55. Before touching upon the said issue, it is worthwhile to
mention that in the original written statement filed on behalf of the
defendants, there was no plea raised for the value of improvements
made by the defendants. But the defendants appeared to have filed
an additional written statement wherein such a plea was raised. More
pertinently, no evidence was adduced by the defendants before the
trial court supporting their plea for the value of improvements.
Therefore, the trial court rejected the claim. But during the first
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appellate stage, the appellants preferred an application for taking out
an Advocate Commissioner. The Advocate Commissioner filed
Ext.C1(a) report. An expert opinion was also solicited by the first
appellate court by appointing one of the officers of the Rubber Board,
who filed a report, Ext.C1(b). The contention now raised before this
Court is that the value of improvements as fixed by the first appellate
court cannot be sustained because the first appellate court failed to
notice the existence of the report from the Rubber Board, which is
more beneficial to the defendants. The plaintiff has preferred Cross
Objections, which are mainly directed against the findings of the first
appellate court on the grant of compensation towards the value of
improvements. Thus, this Court is called upon to judge the
sustainability of the findings of the first appellate court solely based
on the report of the Advocate Commissioner.
56. It is now trite law that the first appellate court under
Section 96 of the Code of Civil Procedure, 1908, can reappreciate the
evidence to find out whether the findings of the trial court are
sustainable or not. In the present case, however, the first appellate
court had exercised the power under Section 96, not based on the
evidence adduced by the parties before the trial court but also on the
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basis of evidence in the form of the report of the Advocate
Commissioner. The first appellate court no doubt has the power to
appoint an Advocate Commissioner for ascertaining facts for the
proper disposal of the appeal. However, the said power must be used
sparingly and only if it is found that there is a defect or shortcomings
in the report of the Advocate Commissioner at the trial stage. But, to
solicit further evidence at the appellate stage to fill up the lacunae that
occurred at the trial stage cannot be permitted.
57. At any rate, having obtained the report, it would be wholly
impermissible for the first appellate court while exercising the power
under Section 96 of the CPC to accept additional evidence at the
appellate stage de hors the mandate under Order-XLI Rule-27 of the
CPC, and also to accept the same even if not supported by any
evidence. Accepting such a proposition would necessarily lead to a
situation where the findings of the trial court could be unseated on
additional materials produced at the first appellate stage, even if it did
not meet the conditions prescribed under Order-XLI Rule-27 of the
CPC. Therefore, this Court is inclined to think that the entire exercise
of the first appellate court in soliciting a report through the Advocate
Commissioner and reversing the judgment and decree declining the
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claim for value of improvements made by the defendants is per se
uncalled for.
58. That apart, it is pertinent to note that apart from the
report of the Advocate Commissioner, no independent evidence was
adduced by the parties to sustain the plea of the claim of
improvements. Therefore, it is a case where the defendants
attempted to fill up the lacuna by introducing fresh materials before
the first appellate court. A reading of the judgment of the first
appellate court would clearly depict the complete non-application of
mind to the additional evidence in the form of the report of the
Advocate Commissioner.
ii. Effect of a Void Lease.
59. The claim for value of improvements is raised based on the
Kerala Compensation for Tenants Improvements Act, 1959 (Act 29 of
1958). Section 2(d) defines tenant. It includes lessee, sub-lessee,
mortgagee or sub mortgagee or in good faith believing himself to be a
lessee, sub-lessee, mortgagee of the land in possession. The question
is whether the appellants qualify themselves within the definition.
The claim for value of improvements must be judged in the context of
the case where the appellants claim as sub-lessees under a void lease.
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Moreover, the deeds of assignments are not produced. Therefore,
once the possession of the appellants is concluded as precarious, it is
difficult for this Court to hold that the appellants will come within the
definition of tenants under Section 2(d) of the Act 29 of 1958. The Act
is not intended to protect the encroachers and the same do not permit
them to take shelter under the Act.
60. Under normal circumstances, with the deliberation as
above, the issue could have been concluded. However, this position
was slightly deviated by a Full Bench of this Court in Augusty
Devassia v. Haridasan Nair [1998 (2) KLT 6 (FB)], wherein it
was held that it cannot be held that in all cases, where the transferee
who finds out later that the transferor had no title whatsoever to pass
on to him under the document will not be entitled to claim
compensation for the value of improvements as a tenant coming
under clause (iii) of Section 2(d) of the Kerala Compensation for
Tenants Improvements Act, 1958.
61. However, the decision may not help the appellants
because once it is held that the appellants will come under the
definition of sub-lessee for want of evidence, the benefit of clause (iii)
of Section 2(d) cannot be given. Moreover, when possession of the
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appellants is traceable to a lease prohibited by the statute, the
possession becomes precarious. The conscious act of the defendants
in not disclosing the nature of the transaction, as reflected in
paragraph 11 of the written statement of defendants 5, 7, 9 to 15, leads
to an irresistible conclusion that the possession of the defendants
cannot be construed as a legal possession.
62. At any rate, this Court is inclined to conclude that because
of the peculiar facts, the decision of the Full Bench will not apply,
since the impact of Section 74 of the Kerala Land Reforms Act, 1963
was not considered. The issue that came up before the Full Bench was
whether a transfer by a mother over a property in which the minors
right was involved, was voidable or void at the instance of the minor.
The Full Bench further stated that whatever be the reason for avoiding
a sale deed whether as a document which is voidable at the instance
of one of the parties or as a document which was inherently void due
to any defect in the title or lack of title at all of the transferor or due to
any other vitiating factor like the one that was present in that case, the
transferee would be a person who had come into possession of the
land belonging to another pursuant to the transaction. Thus, it was
concluded that while making improvements thereon, whether he was
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labouring under a bona fide belief that he is entitled to do so, is a
matter to be decided on the facts of each case. It was further held that
it cannot be held that in all cases where a transferee who finds out
later that the transferor had no title whatsoever to pass on to him
under the document, will not be entitled to claim compensation for
value of the improvements as a tenant coming under Clause (iii). The
Full Bench was not called upon to consider the impact of an act
prohibited by the statute. In the present case, M/s.United Planters
knowing fully well that there is a bar to create future tenancy,
proceeded to execute the lease deed on 22.12.1969. The appellants
claim that they were assigned with the rights of M/s.United Planters
under the said deed. Once a transaction is prohibited by law, the
appellants, who are beneficiaries of such transaction, cannot derive
any right on the ground that their possession is bona fide. If that be
so, at the time of entering Ext.B3 contract, they were quite aware
that the same is hit by Section 74 of the Kerala Land Reforms Act,
1963.
63. In Haryana Wakf Board v. State of Haryana & Ors
[(2019) 13 SCC 382], a similar question arose before the Supreme
Court as to whether a lessee who is holding a property under a void
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lease is entitled for compensation under the provisions of the Land
Acquisition Act, 1894. The Supreme Court negated the claim of a
lessee for compensation for the land acquired under a void lease. This
is precisely why this Court concluded that the decision of the Full
Bench cannot be uniformly applied.
64. On the overall consideration and taking note of the
conduct of the defendants, especially in the light of the overwhelming
allegations against them as revealed from Ext.B17, that they had gone
ahead with the act of cutting and removing trees outside the leasehold
area, which had led to several complaints from the public regarding
unauthorized felling of the teak-wood trees, coupled with the fact that
they have consciously given up the claim based on Ext.B3 lease deed
and that the lease deed executed after coming into force of the Kerala
Land Reforms Act, 1963 being a void lease, the possession of the
defendants is certainly precarious and cannot be given a legal colour.
iii. Effect of disowning the lease.
65. For the sake of completion, this Court felt it would be
apposite to address this issue, especially when certain intriguing facts
stare on the face of the records regarding the transaction between
M/s.Supreme Industries and M/s.United Planters. It is conceded
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before this Court that M/s.Supreme Industries derived the rights of
the lessee, M/s.Elak Rubber Company / M/s.Stanes and Company
Limited. It has come out from the pleadings that M/s.Supreme
Industries assigned its right to M/s.United Planters. The deliberation
on this issue could have been more simple, if M/s.United Planters had
stopped immediately after the assignment in their favour in the years
1963 and 1964. But then, it appears that they had gone ahead and
negotiated with the landlord for the execution of renewal of the lease
deed on 22.12.1969. Therefore, there is no difficulty for this Court to
conclude that whatever right M/s.United Planters had over the
leasehold properties; the said right becomes unenforceable because
of the execution of the subsequent lease deed, thereby rendering the
assignment deeds redundant. This is more so because M/s.United
Planters could not have claimed rights in a dual capacity, one as an
assignee of the lessee and that of a lessee directly under the lessor,
namely the Devaswom.
66. In other words, when a fresh lease deed was executed, a
new privity of contract was created between M/s.United Planters qua
the Emoor Bhagavathy Devaswom. Therefore, it is safe to conclude
that the rights under the original assignment pale into insignificance.
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67. To complicate matters further, the appellants have
disowned Ext.B3 before this Court. Though repeatedly this Court
cautioned the appellants as to whether they intend to disown Ext.B3
lease deed, the learned Senior Counsel as well as the learned counsel
appearing for the appellants in RSA Nos.446/2012 and 1490/2011
were in unison in their submission that Ext.B3 is a redundant
document under Section 74 of the Kerala Land Reforms Act, 1963 and
therefore, they are entitled to disown the same. Perhaps the
submission was made before this Court, thinking that even if Ext.B3
goes, the defendants, being the successors of the assignee under
Ext.B2 lease, were entitled to claim fixity of tenure. This Court cannot
but notice the fact that such a mutually destructive plea is being raised
by the appellants only to their peril.
68. Even if this Court were to conclude that the defendants
were not entitled to claim fixity of tenure based on Ext.B2 lease deed,
the claim for compensation could have been sustained on other
grounds. However, since the defendants have given up their claim
under Ext.B3 lease deed, the claim for compensation must be negated.
This is more so because dehors Ext.B3, the possession of the
defendants become precarious and qualifies it as a trespasser over the
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plaint schedule property. That be so, no bona fides could be attributed
to the defendants' possession, thereby taking their claim out of the
purview of the Kerala Compensation for Tenants Improvements Act,
1959.
ANSWERS TO THE SUBSTANTIAL QUESTIONS OF LAW.
69. In the light of the discussions as above, this Court will
proceed to answer the substantial questions of law framed in each
appeal. Though certain substantial questions of law framed may
overlap with the ones framed in connected appeals, since they were
framed separately in each appeal, it becomes obligatory for this Court
to answer the same separately.
Substantial Questions of law in RSA Nos.514/2012 to
(i) Is not judgment of appellate court on the contention
regarding fixity of tenure illegal and without jurisdiction?
Ans. In the light of the findings of this Court that the possession
of M/s.United Planters is traceable to a contract of lease, and in the
light of the decision of this Court in Sree Chathankulangara
Bhagavathi Devaswom v. Nair Service Society [2023 KHC
852], the claim of fixity of tenure under Sections 6A and 7D of the
Kerala Land Reforms Act, 1963 and also the claim of deemed tenancy
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is unsustainable. Moreover, since the claim for fixity of tenure under
Section 13(1) of the Kerala Land Reforms Act, 1963 has not been
specifically pleaded by the defendants in their written statements, the
same cannot be raised for the first time in the second appeal. Hence,
the decisions of the first appellate court and the trial court on the
claim of fixity of tenure are perfectly valid.
(ii) Is not finding in paragraph 14 of the judgment of lower
appellate court that there is implied surrender of tenancy on the
culmination of the lease period against the mandatory provision laid
down in Sec.51 of the Kerala Land Reforms Act?
Ans. Since the renewal of the lease constitutes a fresh lease as
such and that the said lease being hit by Section 74 of the Kerala Land
Reforms Act, 1963 and also in the light of the fact that the tenants had
completely disowned Ext.B3, and that the tenancy is not in
continuation of the earlier agreements, inasmuch as there is no
continuity of the tenants-lessees, the findings of the first appellate
court cannot be said to be unsustainable. Rather, this Court is
inclined to conclude that the provisions of Section 51 of the Kerala
Land Reforms Act, 1963 are not attracted because the appellants were
not able to prove that they came into possession under a valid lease.
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Therefore, the question of applicability of Section 51 of the Kerala
Land Reforms Act, 1963 does not arise.
(iii) Is the appellate court entitled to deny the right of option
given to the tenant relying on Sec.29 of the H.R.&C.E. Act, 1951
holding that sanction of the Commissioner is a precondition for
renewing the lease?
Ans. Even if the lease deed contained a clause of renewal, an
option being given to the lessee is only directory and not mandatory
and binding upon the lessor. Therefore, even if the lessee exercises
his right of option for renewal, it is not automatic that the lessor
should be tied to the option exercised by the lessee. Moreover, in the
light of the provisions of Section 29 of the HR & CE Act, 1951 under
which the plaintiff Devaswom is being governed, the sanction of the
Commissioner is a pre-requisite one. Even if the Commissioner
grants a sanction, it is not mandatory for the Trustee to abide by the
sanction and execute the lease, if the execution of the lease is against
the interest of the Temple.
(iv) Are not appellants entitled to tack on their right and
possession over the plaint schedule property on the basis of Exts.B1
and B2?
Ans.: Normally, the assignee of a lease is entitled to tack on the
possession of the predecessor. In the present case, the devolution of
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title as described from the pleadings in the written statement of the
defendants 5, 7 & 9 to 15 show that the property was transferred by
Cecil Hall to M/s.Elak Rubber Company through its agents
M/s.Stanes and Company Ltd. and thereafter a fresh lease deed was
executed in favour of M/s. Elak Rubber Company and the lease
assigned to Thattil Kochuvareed and to M/s.Supreme Industries and
thereafter to M/s.United Planters. Inasmuch as M/s.United Planters
has gone ahead and executed a fresh lease deed with the Devaswom,
and in the absence of any evidence to show how the devolution of title
happened from M/s.United Planters to the defendants, the
defendants are not entitled to tack on the possession of the
predecessor in interest.
Substantial Questions of Law in RSA No.446 of 2012.
(i) & (ii) The answers to the first and second substantial
questions of law framed in this appeal are one and the same given by
this Court to the first question in RSA No.514/2012 and connected
cases. Hence, the same are not separately answered. The answer
given to the said question will govern the same.
(iii) Is the suit for mandatory injunction to vacate
maintainable in view of the evidence in the case that appellants are
tenants of the plaint schedule property from 1907?
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Ans.- Yes. The suit for mandatory injunction is maintainable,
especially since it has come out in evidence that the possession of the
appellants is under a void contract of lease which they themselves
have disowned before this Court. Since the appellants are not the
tenants of the plaint schedule property from 1907, the plea is actually
a misnomer.
(iv) Are not the appellants entitled to fixity of tenure over the
plaint schedule property in view of the provisions contained in
Secs.6A, 6B, 7, 7D and Sec.13 of the Land Reforms Act?
Ans.- In the light of the discussion made by this Court that the
appellants' predecessor was holding the property under a contract of
lease, they cannot claim the benefit of Sections 6A, 6B, 7 and 7D of
the Kerala Land Reforms Act 1963. Similarly, the claim for fixity of
tenure under Section 13 is rejected because the same is neither
pleaded nor supported by evidence, especially since possession of the
appellants is under a void lease which is hit by Section 74 of the Kerala
Land Reforms Act, 1963.
(v) When the Commissioner has reported that the value of
improvements effected by the appellants will come to
Rs.4,36,32,573/-, can the court unilaterally reduce the same by
holding that the appellants are entitled to the value of improvements
effected only after Ext.B3?
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Ans.- In view of the specific finding rendered by this Court that
the lease in question falls outside the purview of the Kerala Land
Reforms Act, 1963 and that the possession of the appellants are that
of encroachers, and that the appellants will not fall within the
definition of tenant under Section 2(d)(i) of the Kerala Compensation
for Tenants Improvements Act, 1958, they cannot claim value of
improvements.
(vi) Are not the appellants entitled to tack on their possession
as lessees from 1907 and claim value of the entire improvements
affected by them and their predecessor?
Ans.-The appellants are not entitled to tack on the possession
of the predecessor for claiming value of improvements since they are
only encroachers over the property, and no legal right flows into their
hands. Since the appellants are found to be not tenants coming under
Section 2(d)(i) of Act 29 of 1958, the question of tacking on possession
of predecessors does not arise for consideration.
Substantial Questions of law in RSA No.1490 of 2011.
(I) When Article (1) of Ext.B3 specifically provides that the
lessees are entitled to exercise an option to renew the lease for a
further period of 30 years after the expiry of 30 years from 15.03.1967,
can the lower court rely on Article 4(3) of Ext.B3 which relates to
renewal for any other period than what is provided in Article (1), for
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holding that the renewal of lease can be had only after obtaining
sanction under Sec.29 of HR & CE Act?
Ans.- The clause in the lease deed giving an option to the lessee
for renewal of the lease cannot operate to the detriment of the interest
of the lessor. There is no peremptory requirement on the part of the
trustee of the temple to renew the lease merely because the right of
option has been exercised by the lessee. To hold otherwise will erode
the proprietary rights of the trustee over the property of temple. At
any rate, going by the mandate of Section 29 of the Madras Hindu
Religious and Charitable Endowments Act, 1951, the renewal of a
lease can only be done with prior sanction of the commissioner.
Moreover, since this Court has found that the lease itself is void, the
question is merely academic and that the lessee will not get any right
under the deed.
(II) Is it not clear from a reading of Article (1) of Ext.B3 and
Article 4(3) of the said document that Article 4(3) is applicable only if
the lessee is exercising the option to renew the lease for any other
period than what is provided in Article (1) of Ext.B3?
Ans.- Article 1 of Ext.B3 merely speaks of the period of lease,
whereas Article 4(3) speaks about the option for the lessee to seek
renewal of the lease. It is incorrect to state that Article 4(3) will apply
only if the lessee is opting to renew the lease for a period other than
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one mentioned in Article 1. This is more so when the requirement to
obtain prior sanction of the Commissioner is not contractual but a
statutory one. Hence, it is held that irrespective of the tenure for
which the lease is sought to be renewed, Article 4(3) will apply.
(III) Are not the lessees entitled to renewal of the lease for a
further period of 30 years on the expiry of Ext.B3 in view of the
specific provision in Article (1) of Ext.B3, as the lessees have
admittedly exercised the option to renew the lease before the expiry
of the period provided in Ext.B3?
Ans.- The lessees are not entitled for renewal since the
Commissioner has not granted permission to renew the same. Even if
he had granted permission, since the said lease itself is found to be
void and that there is no evidence to prove as to how the appellants
came into possession of the plaint schedule property, the possession
of the appellants can only be that of encroachers.
Substantial Questions of law in RSA No.1333/2012.
(i) When the trial court has not raised an issue regarding
fixity of tenure under the Kerala Land Reforms Act and has not
referred the matter to the Land Tribunal for a finding on that question,
is not the first appellate court bound to raise an issue on fixity of
tenure and refer it to the Land Tribunal?
Ans.- Since the discussion above leads to a conclusion that the
claim of fixity of tenure does not actually arise in this case, and that
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the reference to the Land Tribunal is not mandatory under Section
125(3) of the Kerala Land Reforms Act, the first appellate court is not
bound to refer the same to the Land Tribunal.
(ii) Is not the appellant entitled to rely on the possession over
the plaint schedule property on the basis of Exts.B1 and B2, deeds?
Ans.- The appellant is not entitled to rely on the possession on
the basis of Exts. B1 and B2 lease deeds since he has consciously given
up his right under Ext.B3 before this Court. Moreover, the assignment
in favour of the appellant is not supported by evidence.
(iii) Is not the appellant entitled to rely on the possession as
lessee from 1907 and claim value of the entire improvements affected
by him and his predecessor?
Ans.- Since the appellant does not fall within the definition of
tenant under Section 2(d)(i) of Act 29 of 1958, he is not entitled to rely
on the possession of their predecessor. Still further, in the absence of
any evidence to show as to how the appellant came into possession of
the plaint schedule property, no question of relying on possession of
the predecessor arises.
(iv) Is not the finding of the first appellate court on the issue
regarding fixity of tenure illegal and without jurisdiction?
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Ans.- The answer given by this Court on substantial question
of law no.(i) in RSA No.514/2012 and connected cases, will also
govern the above question.
(v) Whether the finding of the first appellate court that there
is implied surrender of tenancy on the culmination of the lease period
is against the mandatory provisions laid down in Sec.51 of the Kerla
Land Reforms Act?
Ans.- Since Exts.B1 and B2 lease deeds fall outside the
purview of the Kerala Land Reforms Act 1963, the question of
application of Section 51 of the Act does not arise for consideration.
Consciously, the appellant has disowned Ext.B3 before this Court.
Hence, the question of applicability of Section 51 of the Kerala Land
Reforms Act 1963 does not arise for consideration at all.
(vi) Is not the appellant entitled to fixity of tenure over the
plaint schedule property in view of the provisions contained in Secs.
6A, 6B, 7, 7D and Sec.13 of the Kerala Land Reforms Act?
Ans.- In view of the answer given by this Court to substantial
question of law No.(iv) in RSA No.446 of 2011, the same will govern
this question also.
(vii) Whether the respondents are entitled to refuse to renew
the lease on the ground that it will be against its interest?
Ans.- No suit for mandatory injunction will lie to direct the
lessor to renew the lease. The lessor is the best person to judge
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whether the lease is in its interest or not. Moreover, in view of the
serious allegations such as overreaching the area of the lease and
committing the acts of cutting and removing the teakwood trees and
other valuable timbers, the courts cannot direct the lessor to renew
the lease despite their entertaining a feeling that the renewal is not in
its interest.
(viii) Whether the finding of the first appellate court that the
original lease was regarding a private forest and for planting rubber
is sustainable in the light of the evidence adduced in the case?
Ans.- The finding of the first appellate court is that the lease is
with regard to private forest and the planting of rubber is sustainable.
The evidence in this case unequivocally suggests that as on the date of
coming into force of the Kerala Land Reforms Act, 1963, i.e. 1.4.1963,
the lease was in respect of a private forest as well as a rubber
plantation, which was more than 30 acres. Hence, the lease deed is
taken outside the purview of the Act.
Substantial questions of law in Cross Objections Nos.
47/2014, 48/2014 and 49/2014.
(i) Whether the lower appellate court was justified in
allowing the claim for value of improvements by relying on the report
of the Advocate Commissioner?
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And
(ii) Whether the Appellants are entitled to claim value of
improvements at all?
Ans.- The appellants herein have not established that they came
into possession through a process known to the law. Admittedly,
Ext.B3 lease deed is hit by Section 74 of the Kerala Land Reforms Act
1963. Further, the appellants have disowned the said lease deed
during hearing of the appeals. Conscious attempt to conceal the
nature of assignment in their favour leads this Court to conclude
adversely against the appellants herein. That apart, the claims for
improvements are not supported with any independent evidence.
Since the possession of the appellants can only be qualified as
encroachers, the first appellate court was not justified in awarding
compensation to them. In fact, the appellants are not entitled to any
compensation at all. Therefore, the substantial questions of law are
answered in favour of the cross-objector/plaintiff-Devaswom.
CONCLUSION
69. In fine, based on the discussions as above, it is imperative
for this Court to hold that the appellants are not entitled to fixity of
tenure under the provision of Section 13(1) of the Kerala Land
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Reforms Act, 1963 nor are they deemed tenants under Sections 6A
and 7D of the Act. Ext.B3 lease deed is a void document and no right
flows into the hands of the appellants, thereby disentitling them to
claim any compensation for the value of improvements. Resultantly,
in the light of the answers given to the substantial questions of law
framed by this Court, all the appeals are liable to be dismissed, and
the Cross Objections are liable to be allowed.
70. Resultantly, the judgment and decree of the Addl. Sub
Court, Palakkad, in OS No.94/2001 and connected cases dated
31.3.2008, as affirmed in the common judgment and decree in AS
Nos.176/2008 & connected cases by the Additional District Court-II,
Palakkad, granting recovery of possession in favour of the plaintiff-
Devaswom, is sustained. The judgment and decree of the first
appellate court in AS Nos.176/2008 & 231/2008 granting the value of
improvements is reversed and the judgment and decree in OS No.94
of 2001 is restored. Costs of the respondents in the appeals and cost
of the cross objectors in the cross objection will follow.
Sd/-
EASWARAN S.
JUDGE
jg
