Kerala High Court
Ramanatha Shenoy vs P.L.Philip on 25 May, 2012
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 25TH DAY OF MAY 2012/4TH JYAISHTA 1934
CRP.No. 16 of 2010 ( )
----------------------
(AA.22/2008 of APPELLATE AUTHORITY (LR), ALAPPUZHA)
(RC.1/2003 of LAND TRIBUNAL, ERNAKULAM)
REVISION PETITIONER(S)/APPELLANTS/RESPODNENTS:
---------------------------------------------------------------------------------
1. RAMANATHA SHENOY, S/O.JADAVEDA SHENOY,
ARAKKAPPADATH, KUMBALANGHI.
2. LAKSHMIDASA SHENOY, S/O.JADAVEDA SHENOY,
-DO- -DO-
3. SREMATH, W/O.LATE RADHAKRISHNA SHENOY,
-DO- -DO-
4. PADAMALAYA, D/O. RADHAKRISHNA SHENOY,
-DO- -DO-
5. NAYANATHARA, D/O. LATE JADAVEDA SHENOY,
-DO- -DO-
BY ADVS.SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
SRI.K.S.BHARATHAN
SMT.M.A.ZOHRA
SRI.K.S.BHARATHAN
RESPONDENT(S)/RESPONDENTS:
--------------------------
1. P.L.PHILIP, S/O.THRESIA,
PERUMPALLI HOUSE, KUMBALANGHI P.O.
ERNAKULAM DISTRICT.
2. PHILOMENA JOSEPH,D/O.THRESIA -DO- -DO-
CRP No.16/10 -2-
3. JOSE PRASAD, S/O.THRESIA, -DO- -DO-
4. ANOTTA JOY, D/O. THRESIA, -DO- -DO-
5. LEELAMMA JOSEPH, D/O.THRESIA -DO- -DO-
6. ANNY JOJI, W/O. JOJI, -DO- -DO-
7. LUKESON JOSEPH S/O.C.L.JOJI -DO- -DO-
8. SHENEL JOSEPH, S/O.C.L.JOJI -DO- -DO-
9. STATE OF KERALA, REPRESENTED BY THE
DISTRICT COLLECTOR, ERNAKULAM.
BY ADV. SRI.S.VINOD BHAT
BY ADV. GOVERNMENT PLEADER
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
29-03-2012, ALONG WITH RSA. 107/2005, RSA. 151/2005, THE COURT
ON 25.05.2012 PASSED THE FOLLOWING:
P.BHAVADASAN, J.
-------------------------------------------------------------- CRP No.16/10 & RSA Nos.107 & 151of 2005
--------------------------------------------------------------
Dated this the 25th day of May 2012 Judgment CRP No.16 of 2010 This revision petition is directed against the order dated 26.11.2009 of the Appellate Authority (Land Reforms) Alleppey, whereby the appellate authority confirmed the order of the Land Tribunal dated 28.2.2008, declaring fixity of tenure in respect of 49 cents of land comprised in Survey No.1556 of Kumbalanghi village and ordering assignment of the same in favour of the applicants before it. SM proceedings were initiated for assignment of 49 cents of land comprised in Survey No.1556 of Kumbalanghi village in favour of Thresia.P.Lukose, who according to the report of the Authorised Officer, was holding the property on tenancy rights.
CRP No.16/10,RSA 107 & 151/05 2
2. In the statement filed by the claimant before the Land Tribunal, she pointed out that her father-in-law, namely, Pathrose, had taken 49 cents of property comprised in Survey No.1556 of Kumbalanghi village from the predecessor-in-interest of the respondents before the Land Tribunal as per Ext.A1 document No.280/1106 from Madhava Kini Venkiteswara Kini. A house was put up in the property and the predecessors-in-interest of the applicant as well as the applicant have been residing in the house in the property.
3. The applicant, therefore, contended that she was entitled to fixity of tenure and she was entitled to get assignment of the right, title and interest over the property by virtue of Section 72 of the Kerala Land Reforms Act since she is a cultivating tenant as contemplated under Section 2(57) of the Kerala Land Reforms Act.
4. The proceedings was resisted by the respondents before the Land Tribunal, pointing out that the applicant had no subsisting right over the property. CRP No.16/10,RSA 107 & 151/05 3 According to them, even though they admitted the lease in favour of Pathrose, their contention was that the said lease had later been cancelled and Madhava Kini Venkiteswara Kini had obtained possession of the property. Consequent on the death of Madhava Kini Venkiteswara Kini, his legal heirs are in absolute possession and enjoyment of the property and that the applicant has no right over the property involved in the proceedings. They also pointed out that there have been several proceedings in respect of the property in which their rights were confirmed and the present attempt of the applicant is only to usurp the property over which she has no right. The property has been in their absolute possession and enjoyment and they have been taking income from the property. They have taken a loan by mortgaging the property and they have been in possession and enjoyment of the property eversince the death of Madhava Kini Venkiteswara Kini.
5. Initially, by order dated 31.7.1995, the application was dismissed holding that the applicants have CRP No.16/10,RSA 107 & 151/05 4 failed to prove that they are entitled to fixity of tenure. It appears that the applicant filed an appeal which was allowed and the matter was remanded to the Land Tribunal. The Land Tribunal again considered the matter as RC No.1/03 after remand. On the basis of the evidence before it, the Land Tribunal, after remand, came to the conclusion that the applicant had succeeded in showing that she was entitled to fixity of tenure and therefore, the application was allowed and the assignment of the right, title and interest over 49 cents of property comprised in Survey No.1556 of Kumbalanghi village was ordered in favour of the applicant. The respondents took up the matter in appeal as AA No.22/08. The Appellate Authority, after independent consideration of the same, came to the same conclusion as that of the tribunal and found that the applicants are entitled to fixity of tenure and dismissed the appeal.
6. The findings of the authorities below are very vehemently challenged by the learned counsel for the CRP No.16/10,RSA 107 & 151/05 5 revision petitioner before this court. According to the learned counsel, both the authorities below have not adverted to the evidence on record and have been carried away by irrelevant considerations. Several documents have been produced by the revision petitioners to show that the property has been in their actual possession and enjoyment and there is no proper consideration of those documents. There is evidence to show, according to the learned counsel that 88 cents comprised in Survey No.1556 of Kumbalanghi village which originally belonged to Madhava Kini Venkiteswara Kini had come into possession of the revision petitioners and they have been enjoying the property as their own. Proceedings under Section 133 of Cr.PC. were initiated against them in respect of the property involved in those proceedings and so also, the property had been mortgaged for availing of a loan from a co-operative bank. These documents are sufficient to show that the property is in the actual possession and enjoyment of the revision petitioners and CRP No.16/10,RSA 107 & 151/05 6 the respondents before this court have no manner of right over the same.
7. The learned counsel for the respondents, on the other hand, pointed out that it was for the revision petitioners to show that the lease had been surrendered and the lease did not subsist.
8. According to the learned counsel, both the authorities have considered the documents produced by the revision petitioners and have come to the conclusion that it could not be said that they relate to the property involved in these proceedings. The learned counsel also brought to the notice of this court that since the Land Tribunal initially dismissed the application by order dated 31.07.1995, the revision petitioners had instituted OS No.421/95 before the Munsiff's Court, Kochi, seeking prohibitory and mandatory injunction against the respondents herein. There, the respondents had filed a counter claim also. That suit was partly decreed allowing the mandatory injunction, but refusing the prohibitory CRP No.16/10,RSA 107 & 151/05 7 injunction on the ground that the defendants in the said suit, who are the respondents herein were found to be in actual possession of the property. Both the parties the plaintiffs and the defendants filed an appeal against the judgment and decree of the trial court in OS No.421/95 as AS No.41/02 and AS No.55/02. By judgment dated 17.7.2004, the appellate court dismissed AS No.55/02 which was in favour of the plaintiffs in the suit and allowed AS No.41/02, the appeal filed by the defendants. Therefore, it was contended by the learned counsel that the revision petitioners cannot be heard to say that they are in possession of the property involved in this proceedings.
9. According to the learned counsel for the contesting respondents in the proceedings before this court, no documents whatsoever have been produced by the revision petitioners to show that there has been surrender of the lease of the year 1106 and they have no consistent case regarding the possession of the respondents before this court. The learned counsel pointed CRP No.16/10,RSA 107 & 151/05 8 out that the pleadings with regard to the possession of the respondents in these proceedings and the possession of the respondents as put forward in the suit are totally inconsistent and that is sufficient to show that the revision petitioners have no consistent case at all.
10. According to the learned counsel for the contesting respondents, both the authorities have considered the matter in detail and have come to the conclusion that the applicant is entitled to fixity of tenure and is entitled to get assignment of the right, title and interest over the property comprised in Survey No.1556 of Kumbalanghi village. That is essentially, a finding of fact and no questions of law arise for consideration warranting interference under Section 103 of the Kerala Land Reforms Act.
11. The definite stand taken by the revision petitioners before this court was that Thresia.P.Lukose, the applicant had no manner of right and her status as the widow of Lukose was also disputed. The contention was CRP No.16/10,RSA 107 & 151/05 9 that the lease taken by Pathrose from Madhava Kini Venkiteswara Kini had been surrendered and eversince then, possession has been with the landlord Madhava Kini Venkiteswara Kini, the predecessor-in-interest of the revision petitioners. The further case is that the property came to vest with Saraswathy Bai, who is the wife of Jadaveda Shenoy. Reliance is placed on the ceiling proceedings initiated against Jadaveda Shenoy in which 88 cents of property comprised in Survey No.1556 of Kumbalanghi village was shown to be in the possession of Jadaveda Shenoy. Reliance is also placed on the proceedings under Section 133 in which Saraswathy Bai was directed to cut and remove the coconut trees standing in the property so as to avoid nuisance to the public. It was also contended that the property had been mortgaged to a service co-operative bank for availing of a loan and that would negative the claim of the applicant before the Tribunbal. Reliance is also placed on the fact that out of the 88 cents obtained by Jadaveda Shenoy and Saraswathy CRP No.16/10,RSA 107 & 151/05 10 from Madhava Kini Venkiteswara Kini, 20 cents were sold by them and 20 cents were given as kudikidappu and they were in actual possession of the balance 48 cents. The contention of the revision petitioners is that there is nothing to show that the respondents before this court were ever in possession of the property.
12. There is no dispute regarding the fact that the property originally belonged to Madhava Kini Venkiteswara Kini. There is also no dispute regarding the fact that one Pathrose as per Ext.A1 produced before the Land Tribunal, had taken on lease 49 cents of property comprised in Survey No.1556 of Kumbalanghi village from Madhava Kini Venkiteswara Kini. The case of the claimant before the Land Tribunal is that the said tenancy continued till date. Their further claim was that after obtaining the property on lease, a house was put up and the predecessor-in-interest of the claimant as well as the claimant were residing in the said house till date. CRP No.16/10,RSA 107 & 151/05 11
13. The revision petitioner before this court, except for saying that the lease in favour of Pathrose was cancelled, no documents were produced to show that there was any cancellation of the lease in favour of Pathrose and that the property had reverted to Madhava Kini Venkiteswara Kini. It is interesting to note that in the proceedings before the Land Tribunal, no explanation is offered by the revision petitioners as to how the claimant before the Land Tribunal was in possession of the property involved in the proceedings. In fact, they would say that after the death of Madhava Kini Venkiteswara Kini, it devolved on his legal heirs and the revision petitioners came to be in possession of the property. It must be noticed here that initially, the application was dismissed in the year 1995. The evidence on record shows that immediately after the dismissal of the application for assignment, the revision petitioners herein instituted OS No.42/95 before the Munsiff's Court, Kochi. That was a suit for prohibitory as well as mandatory injunction against the CRP No.16/10,RSA 107 & 151/05 12 respondents herein. A copy of the plaint in that suit has been produced as Ext.A11 in these proceedings and the copy of the deposition of PW1 is produced as Ext.A12. Copy of the order of the appellate court is produced as Ext.A4.
14. The suit, it seems, was partly allowed, granting mandatory injunction as claimed by the plaintiffs in the suit, directing the defendants in the suit to demolish and remove the structure put up in the property. The prayer for prohibitory injunction was declined by the trial court on the ground that the defendants were found in possession of the property and the suit one being for injunction simpliciter, the only question that arose for consideration was as to who was in actual possession of the suit property.
15. It is seen that against the judgment and decree in OS No.42/95, two appeals were filed, namely AS No.41/02 by the defendants in the suit against that portion of the decree granting mandatory injunction. AS No.55/02 CRP No.16/10,RSA 107 & 151/05 13 was filed by the plaintiffs against that portion of the decree declining to grant prohibitory injunction. By judgment dated 17.07.2004, the appellate court allowed AS No.41/02 filed by the defendants in the suit and dismissed the appeal filed by the plaintiffs in the suit. The finding that the defendants are in possession of the property was confirmed.
16. It is evident that the fate of the RSAs will depend upon the fate of the revision petition. If the revision petition is dismissed, then, automatically, the RSAs will also have to be dismissed. If, on the other hand, the revision petition is allowed, still the question would remain whether in the light of the finding that the defendants in the suit are in actual possession of the property as on the date of suit or whether the plaintiffs in the suit will have to recover the property on the strength of title.
17. It is significant to notice that Ext.A1 is an admitted document. The petitioners before the Land Tribunal have produced Ext.A2 series which are the rent receipts produced by the applicant to show the payment of CRP No.16/10,RSA 107 & 151/05 14 rent. They have also produced the voters list as Ext.A5 which is of the year 1970 of Palluruthy L.A. Constituency to show that they are residing in the suit property involved in the proceedings. They have also produced Ext.A10 which is the assessment extract for the period 1968 to 1973 of Kumbalanghi grama panchayat which shows that the house was assessed to tax in the name of Thresia.P.Lukose.
18. It is seen from the records that Pathrose who had executed a lease in favour of Madhava Kini Venkiteswara Kini had assigned the property to one Showriar as per document No.1818/1106. The said Showriar, in turn, assigned the property to Pathrose as per document No.374/1110 which are produced as Exts.A8 and A9 before the Land Tribunal.
19. As rightly noticed by the authorities below, once Ext.A1 is admitted, the burden is on the revision petitioners to show that there has been surrender of the lease as claimed by them. At one point, it was contended CRP No.16/10,RSA 107 & 151/05 15 by them that the surrender of the lease is evidenced by a document, but no such document was produced before the authorities below. It is interesting to note that in the copy of the plaint, which is produced before this court, Saraswathy Bai claimed the said property on the basis of a document of the year 1180 ME which was not produced before the Land Tribunal in this proceedings. It is true that the revision petitioners have produced several documents to show that they are in possession of the property comprised in Survey No.1556 of Kumbalanghi village. Ext.B3 is one such document whereby it is seen that the proceedings under Section 133 were initiated and Saraswathy Bai was directed to cut and remove the two coconut trees standing in the property. Ext.B4 is the proceedings before the Land Board which says that 88 cents of property comprised in Survey No.1556 is shown to be in the possession of Jadaveda Shenoy. Ext.B6 is the document said to have been issued by the Secretary of the Kumbalanghi Service Co-operative Bank showing that a loan has been availed of CRP No.16/10,RSA 107 & 151/05 16 for purchasing fertilizers for using in the 0.330 hectares of land comprised in Survey Nos.1556, 1561 and 912 of Kumbalanghi village. Of course, they have also produced certain receipts to show that they have paid land tax in respect of the property. It is significant to notice that the first respondent before the Land Tribunal has a case that out of the 88 cents obtained by Madhava Kini Venkiteswara Kini, 20 cents was given as kudikidappu and 20 cents was sold by them. However, they did not produce any document to establish these facts. No document whatsoever was produced to show that in fact, 20 cents was given as kudikidappu and 20 cents was sold as claimed by them.
20. One must notice that Survey No.1556 of Kumbalanghi village has a large extent of property out of which 49 cents of land is claimed by the respondents herein. No documents whatsoever have been produced by the revision petitioners to show that there has been any surrender of the lease evidenced by document No.1818/1106.
CRP No.16/10,RSA 107 & 151/05 17
21. At the risk of repetition, one may note that the specific plea of the revision petitioners is surrender of the lease by Pathrose. Apart from the fact that the details of the surrender are not given, no documents are produced to show that there has been actual surrender of the property. In fact, it is claimed on behalf of the revision petitioners that there was a document evidencing surrender of the lease. The production of that document would have been the best evidence to establish their claim. No explanation is offered for the non-production of the same.
22. Ext.A10 is of some relevance in this context. It is the extract of the assessment register produced by the applicants before the Land Tribunal to show that the house in the property has been assessed in the name of Thresia.P.Lukose.
23. It is important to notice that in the petition filed before the Land Tribunal, there is no whisper of the document said to have been executed by Madhava Kini Venkiteswara Kini in favour of Jadaveda Shenoy. All that is CRP No.16/10,RSA 107 & 151/05 18 mentioned in the petitions is that there was a surrender of the lease and after the death of Madhava Kini Venkiteswara Kini, the property devolved on his legal heirs. In the petition before the Land Tribunal, there is no admission by the revision petitioners that the respondents herein are in possession of the property at any point of time subsequent to the surrender.
24. Now, one may have a look at the pleading in OS No.421/95. The copy of the plaint is produced and marked as Ext.A11. There, it is stated that Thresia.P.Lukose and others were allowed to put up a small house in the scheduled property on condition that she should return the same as and when required by the respondents. Hence, going by the pleading in OS No.421/95, it is an admitted fact that Thresia.P.Lukose is in possession of the property and she is residing in the house put up therein. It is also an admitted fact that going by the plaint in OS No.421/95, the structure in the property was put up by Thresia.P.Lukose and others.
CRP No.16/10,RSA 107 & 151/05 19
25. It can, thus be seen that the case set up in OS No.421/95 and in this proceedings are totally inconsistent and contradictory. Even in Ext.A11 plaint, the date on which possession was given is not stated. The evidence furnished by PW1 in OS No.421/95 is produced and marked as Ext.A12 before the Land Tribunal.
26. It will be useful to refer to the said deposition for the purpose of this case. In page 9 of the deposition of PW1 in OS No.421/95, it is admitted by PW1 that 49 cents was given on lease by the predecessor-in-interest of the plaintiff in favour of the predecessor-in-interest of the defendants. Then, he would say that the said lease was cancelled. He would then say that during 1967-68, the first defendant in the suit was allowed to occupy the property and put up a building therein on condition that they would give vacant possession of the building and property as and when required. But, in cross examination, PW1 would say that there is no document to evidence surrender. He would say that the property is enclosed on all the four sides by CRP No.16/10,RSA 107 & 151/05 20 fencing.
27. Now, one may refer to the evidence furnished by RW1 before the Land Tribunal on behalf of the respondents before the Tribunal. Another son of Saraswathi Bai was examined by the Tribunal. He deposed as follows :
" 1965
.
1556 49
.
.
.
."
(Husband of the applicant namely Lukose died in 1965. There was a lease arrangement between Perumpally Pathrose and his father regarding 49 cents comprised in Survey No.1556. The said lease was cancelled after the marriage of his father. After the cancellation, the property was in the possession of his father and after the death of his father, the property came in to the possession of his legal heirs who are the respondents before the Land Tribunal.) It may be noticed here that the father made mention of in the above deposition is none other than Jadaveda Shenoy, who is the husband of Saraswathi Bai. In cross examination, he has deposed as follows :
CRP No.16/10,RSA 107 & 151/05 21
" .
.
.
.
(Then, only a house was there. It is the same house as is seen now. No one used to stay in the house. The house belonged to grandfather.) .............................................................................
Q : ?
(In whose name is this house?)
A : .
.
."
(It is in our possession. I cannot say in whose name the house stands. I have not verified from the panchayat records in whose name the building stands.) Therefore, it can be seen that the the contention regarding house put up in the proposal before the Land Tribunal is inconsistent and contradictory, going by the evidence in OS No.421/95 and the evidence in SM Proceedings 7/89. While in the suit, it was admitted that the house in the property was put up by Thresia.P.Lukose and others, before the Tribunal, the contention was that when Thresia.P.Lukose and others were allowed to occupy, the building was already there and the building was put up by CRP No.16/10,RSA 107 & 151/05 22 the grandfather of the deponent.
28. It is also interesting to refer to the commissioner's report in OS No.421/95 a copy of which is produced as Ext.A6 in this proceedings. The commissioner has noticed that there is a building bearing No.KP111/200 (111/226 new number) which is situated in the middle of A schedule property. According to the commissioner, the building is a very old one and he has assessed the age of the building as nearly 100 years old. The commissioner's report shows that A schedule property in the suit is garden land having an extent of 48 cents and is having fencing of cudjan leaves on the east, north and southern sides. He has given details about the house and the materials found in the house. He also gives details of the improvements made in the property. It could, therefore, be seen from the evidence adduced before the Land Tribunal that the revision petitioners have no consistent case regarding the possession of the respondents before this court or their occupation of the building. At any rate, as rightly noticed by CRP No.16/10,RSA 107 & 151/05 23 both the authorities below, the lease in favour of Pathrose being a registered document, the burden is on the revision petitioners to prove that there has been surrender of the lease as claimed by them. There is no such evidence in this case at all. Therefore, both the authorities were justified in coming to the conclusion that the applicant was entitled to fixity of tenure. This revision petition is without any merits whatsoever and it is accordingly dismissed. No order as to costs.
RSA Nos.107 & 151/05
29. These two appeals arise out of OS No.421/95 filed by the appellants before the Munsiff's Court, Kochi for prohibitory as well as mandatory injunctions. The suit was partly decreed by the trial court granting mandatory injunction, but declined to grant the relief of prohibitory injunction. Both the defendants as well as the plaintiffs appealed against the respective portion of the decrees that went against them. The defendants filed AS No.41/02 and the plaintiffs filed AS No.55/02. The lower CRP No.16/10,RSA 107 & 151/05 24 appellate court allowed AS No.41/02 and dismissed AS 55/02 and thereby the suit, i.e. OS No.421/95 stood dismissed. RSA No.107/04 is against the judgment and decree in AS No.55/02 and RSA No.151/05 is against the judgment and decree in AS No.41/02. According to the plaintiffs, the plaint schedule property originally belonged to Madhava Kini Venkiteswara Kini and the first plaintiff and her late husband Jadaveda Shenoy obtained ownership over the plaint schedule property as per Ext.A1 dated 22.1.1118 ME. Eversince then, the property has been in their absolute possession and enjoyment and the defendants have no manner of right over the same. According to the plaintiffs, the first defendant and her husband were allowed to occupy the premises and were allowed to put up a house in the property with a condition that they should remove it as and when required by them. Except to reside in the property, the defendants have no manner of right over the suit property. The total extent comprised in Survey No.1556 of Kumbalanghi village is 88 CRP No.16/10,RSA 107 & 151/05 25 cents. Out of that 20 cents was given as kudikidappu and 20 cents was sold and the remaining 48 cents is the A schedule property. The plaintiffs have effected improvements in the property and have availed of a loan by mortgaging the property. In the ceiling proceedings, the name of Jadaveda Shenoy is shown and the plaintiffs have been paying land tax for the same. The defendants have never paid the revenue. The SM proceedings were initiated claiming kudikidappu right over the property. That was found against by the Land Tribunal and the Appellate Authority remanded the matter to the Land Tribunal holding that all necessary parties have not been impleaded. Complaining that the defendants are not allowing the plaintiffs to take usufructs for which they have no right, the suit was laid, for prohibitory and mandatory injunctions.
30. The defendants resisted the suit pointing out that even prior to the execution of the so-called Ext.A1 document in favour of Saraswathi Bhai, the property was leased out by Madhava Kini Venkiteswara Kini to the first CRP No.16/10,RSA 107 & 151/05 26 defendant Lukose Pathrose who is no more. The lease was evidenced by document No.280/1106. When the property was taken on lease, there was no building in the property and Pathrose put up a house in the property. In 1106 ME, Pathrose assigned the leasehold right in favour of one Showriar, who, in turn reconveyed it to Pathrose in 1110 ME. On the basis of the said arrangement, the plaintiffs claimed fixity of tenure or kudikidappu right over the property and that is pending consideration before the Land Tribunal. Evensince the re-assignment of the property in favour of Pathrose in 1110 ME, after the death of Pathrose, his legal heirs are in possession of the property. Jadaveda Shenoy and Saraswathi Bhai have obtained only possession of the property. They also claimed the benefit under Section 60(b) of the Easement Act. On the basis of these contentions, they prayed for dismissal of the suit.
31. Necessary issues were raised and evidence was adduced. PWs 1 and 2 were examined and Exts.A1 to A15 were marked from the side of the plaintiffs. The CRP No.16/10,RSA 107 & 151/05 27 defendants had Dws 1 and 2 examined and Exts.B1 to B3 marked. Ext.C1 s the commissioner's report.
32. The trial court, on an evaluation of the evidence, granted a mandatory injunction to remove the building but the prayer for permanent injunction was declined. Both parties filed appeals. The appeal filed by the plaintiffs was dismissed and the appeal filed by the defendants was allowed. The result was that the suit was dismissed. Hence the R.S.A.
33. Notice is seen issued on the following questions of law raised in the R.S.A. :
A. Is a party entitled to claim kudiyiruppu right/fixity of tenure and claim protection under Section 60(b) of Easement Act at the same time ?
B. Is it mandatory to have documentary evidence to show surrender of lease during the period when the Land Reforms Act was not in force and tenant not entitled to any fixity of tenure ?
C. Is the court below right in holding that it is premature to CRP No.16/10,RSA 107 & 151/05 28 enter into a finding on title when the matter is pending before the Land Tribunal ?
D. Has the court below erred in holding that relief of mandatory injunction cannot be granted without prayer for declaration of title ?
E. When the defendant claims protection under Section 60
(b) of the Easement Act, can it not be treated as an admission of plaintiff's title ?"
34. These second appeals can be disposed of on a very short ground. 48 cents of property comprised in Survey No.1556 of Kumbalanghi village is the subject matter of the SM proceedings No.7/89 before the Land Tribunal, Ernakulam. That was initially dismissed. An appeal was preferred by the applicant which was allowed and the matter was remanded for fresh consideration by the Land Tribunal. After remand, the Land Tribunal by order dated 21.12.2001, allowed the application and ordered assignment of the right, title and interest over the property comprised in Survey No.1556 of Kumbalanghi CRP No.16/10,RSA 107 & 151/05 29 village in favour of the first defendant in the suit.
35. The appeal preferred by the plaintiffs in the suit met with failure. Thereafter, they challenged the findings of the Land Tribunal before the Appellate Authority as AA No.22/08. By order dated 26.11.2009, the appeal was dismissed, confirming the order of the Land Tribunal as confirmed. That means, the right of the defendants in the suit to get the right, title and assignment of the suit property has been upheld as they had established that they are cultivating tenants as contemplated under Section 2(57) of the Kerala Land Reforms Act. The order in AA No.22/08 was challenged in CRP No.16/2010 before this court. This court considered CRP No.16/10 and the R.S.A. together and confirmed the order of the appellate authority in AA No.22/08. That means, this court has upheld the claim of tenancy put forward by the respondents before this court in CRP No.16/10. If that be so, necessarily, RSA No.107 and 151/05 are only to be dismissed.
CRP No.16/10,RSA 107 & 151/05 30
Accordingly, CRP No.16/10 and RSA Nos.107 and 151/05 are dismissed. No order as to costs.
P.Bhavadasan, Judge sta CRP No.16/10,RSA 107 & 151/05 31