Kerala High Court
Nalini Kochamma Alias Saraswathi ... vs P.Karunakaran Nair on 29 July, 2013
Author: K. Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 15TH DAY OF OCTOBER 2014/23RD ASWINA, 1936
RSA.NO. 1174 OF 2006 (F)
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A.S.NO.168/1997 OF III ADDITIONAL DISTRICT COURT, TRIVANDRUM
O.S.NO. 1258/1981 OF II ADDITIONAL MUNSIFF COURT,TRIVANDRUM
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APPELLANT(S) / 2ND RESPONDENT / 2ND PLAINTIFF:
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NALINI KOCHAMMA ALIAS SARASWATHI PILLAI,
D/O.NEELAMMA PILLA KOCHAMMA,
NANTHAVANATHU AMMA VEEDU, PERUMTHANNI MURI,
PALKULANGARA VILLAGE, TRIVANDRUM.
BY ADV. SRI.G.S.REGHUNATH
RESPONDENTS/APPELLANTS/1ST RESPONDENT AND DEFENDANTS/1ST PLAINTIFF :
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1. P.KARUNAKARAN NAIR,
S/O.PARAMESWARAN PILLAI, MOOZHKARA VEEDU, ERAVIPEROOR,
PALKULANGARA VILLAGE, TRIVANDRUM.
2. B.JANAKI PILLAI,
D/O.BHAGAVATHI PILLAI, RESIDING AT DO. DO.
* 3. B.SUKESINI AMMA, DO. DO. (DIED)
4. B.MRINALINI AMMA, DO. DO.
5. B.PADMINI AMMA, DO. DO.
6. P.VIJAYACHANDRAN NAIR,
RESIDING AT DO. DO., REP.BY THE POWER OF ATTORNEY HOLDER,
1ST RESPONDENT.
7. M.A.PADMAKUMAR,
MOOZHIKKARA VEEDU, ERAVIPEROOR,
PALKULANGARA, TRIVANDRUM.
8. JAYASENAN, RESIDING AT DO. DO.
* RESPONDENT 7 AND 8 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED
3RD RESPONDENT AS PER ORDER DATED 29.07.2013 IN MEMO BEARING
C.F.NO.4581 OF 2013.
Msd. ..2/-
..2..
RSA.NO. 1174 OF 2006
9. SOBHA VIJAYAN, RESIDING AT DO. DO.
10. VINOD KUMAR, RESIDING AT DO. DO.
** 11. P.NEELAMMA PILLAI KOCHAMMA,
NANTHAVANATHU AMMA VEEDU, PERUMTHANNI MURI,
PALKULANGARA VILLAGE, TRIVANDRUM.(DELETED)
** RESPONDENT NO.11 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF
THE APPELLANTS, AS PER ORDER DATED 29.07.2013, IS MEMO BEARING
C.F.NO.2242 OF 2009.
R1, R2 & R4 TO R10 BY ADV. SRI.R.S.SARAT
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 18-08-2014, ALONG WITH RSA.NO.614 OF 2007, THE COURT
ON 15-10-2014 DELIVERED THE FOLLOWING:
Msd.
K. HARILAL, J.
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R.S.A. Nos.1174 of 2006 &
614 of 2007
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Dated this the 15th day of October, 2014
JUDGMENT
These Regular Second Appeals are filed challenging the common judgment passed in A.S. Nos.168/97 and 178/97 on the files of the III Additional District Court, Thiruvananthapuram. The appellant in both these appeals is the second plaintiff in the Original Suit No.1258/81 on the files of the II Additional Munsiff's Court, Thiruvananthapuram, and the respondents are the defendants and their legal heirs in interest therein. The Original Suit was one for extinguishment of intermediary right, declaration of title and recovery of possession. The defendants filed R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 2 :- a counter claim for a decree declaring their title over the plaint schedule property and to get recovery of the property with mesne profit. The trial court, after considering evidence on record, dismissed both the suit and the counter claim. Aggrieved by the dismissal of the suit, the plaintiffs filed A.S.No.178/97 and the defendants filed A.S.No.168/97, challenging the dismissal of the counter claim. After re-appreciating the evidence on record, the District Court dismissed A.S. No.178/97 filed by the plaintiffs and allowed A.S. No.168/97 filed by the defendants. Aggrieved by the dismissal of A.S.No.178/97 and the decree allowing counter claim in A.S. No.168/97 the second plaintiff has preferred R.S.A. No.614/07 and R.S.A. No.1174/06 respectively. Thus, the legality, propriety and correctness of the concurrent finding whereby the suit filed by the plaintiffs has been dismissed and the divergent finding whereby the first Appellate Court has allowed the counter claim are under challenge in these R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 3 :- Regular Second Appeals.
2. The case of the plaintiffs can be recapitulated as follows:- Plaint schedule properties are Sree Pandaravaka lands which originally belonged to Sree Padmanabha Swamy Temple. It was given to the predecessors of the family of the defendants and they were enjoying the said property under the customary law to enjoy such lands until determined by the temple. While they were in enjoyment, they executed a mortgage deed in the year 1071 M.E. Thereafter, the predecessors of the defendants on 17/3/1088 M.E./8-11-1912 AD executed a mortgage in favour of the mother of the 1st plaintiff for a total consideration of Rs.2,000/- with the direction to redeem the prior mortgage of 1071 M.E. Thus, the mother of the 1st plaintiff got possession and right of enjoyment over the said property. Thereafter the superior mortgage was redeemed as per the said direction. Neither the defendants nor their predecessors were in possession R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 4 :- of the property after 1071M.E. All improvements now in the property belong to the plaintiffs who are in possession from 1088 M.E. While the plaintiffs were in possession, the Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 (for short 'the Act') had been passed and came into force from 1-8-1971. Under the said Act, paramount title over the plaint schedule properties which belonged to Sree Padmanabha Swamy Temple vested in the State of Kerala with an obligation to grant patta to land holders. Pursuantly, patta had been granted to the plaintiffs and after the issuance of patta in their favour, plaintiffs have become absolute owners in possession of the said property. Defendants, if at all, have only some intermediary right, that right is liable to be extinguished. Even though the plaintiffs have a right to get reimbursement of the mortgage money from the defendants, they have voluntarily given up the same and are satisfied with a declaration that defendants' R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 5 :- intermediary right has been extinguished and they have no further subsisting right over the plaint schedule property. The defendants have taken delivery of the plaint schedule property in execution of the decree in O.S. No.567/1958 of Munsiff's Court, Thiruvananthapuram. They are in possession of all delivered items without any separate boundaries. In these circumstances the plaintiffs are entitled to get their title to the plaint schedule properties declared and recovery of the same from the defendants with mesne profits @ Rs.170/- per annum. Plaint schedule items have to be ascertained and delivered to the plaintiffs and the portion for use as public road is also to be separately demarcated.
3. The defendants 1 and 3 to 8 filed a written statement and the defendants 5 and 7 filed an additional written statement raising a counter claim. The contentions raised in the written statement filed by the defendants can be recapitulated as given R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 6 :- below:- They contended that the suit is not maintainable. Suit is filed against the second defendant, who is dead. Plaint schedule properties were mortgaged by the members of the family of the defendants in the year 1088 M.E. in favour of the mother of the 1st plaintiff. As per the recital in the superior mortgage of 1088, earlier mortgage of 1071 was redeemed. Plaintiffs are in possession of the plaint schedule properties as mortgagees only. The value of improvements and compensation were assessed in O.S.No.567/1958. Sree Pandaravaka Land (Vesting and Enfranchisement) Act, 1971 is not applicable to the facts of this case. Suit properties do not come within the category of lands dealt with by the said Act. Plaintiffs cannot be treated as 'land holders' as defined in the Act. Admittedly, plaintiffs are not persons who hold lands directly under Sree Padmanabha Swamy Temple. As they are not entitled to claim any independent right, they are not entitled to R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 7 :- apply for and obtain patta in their name. Defendants are not parties to the proceeding by which plaintiffs claimed to have obtained patta. Patta, if at all obtained, is obtained by fraud and suppression of material facts. Patta is void against the defendants. Issue of patta proceedings is vitiated by lis pendens by virtue of decree and execution proceeding in O.S.No.567/1958. By the issuance of patta, title and right of defendants over schedule properties had not been lost. Defendants are not intermediaries in the schedule property. Defendants continued to be mortgagors with their right to redeem the same. Defendants had obtained a decree for redemption of mortgage against the plaintiffs in O.S.No.567/1958, which is now pending execution before the II Additional Munsiff's Court, Thiruvananthapuram and plaintiffs are in the party array. The issuance of patta was not raised before the trial court or the execution court in O.S.567/8 by the plaintiffs. The claim now urged R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 8 :- should have been raised in the above suit before the trial court as well or the execution court. As such, the present claim is barred by constructive res judicata. Contentions now raised in this suit are those which relate to the execution, discharge and satisfaction of the decree in O.S.No.567/1958. As such, suit is barred by Section 47 of the C.P.C. Even if patta is validly obtained based on their possession over the properties as mortgagees, that right should enure to the benefit of these defendants, who are mortgagors of the property by virtue of Section 90 of Indian Trusts Act. Earlier, this suit was decreed as the defendants could not appear before court due to valid grounds. The ex parte decree was set aside by the District Court and this was upheld by this Court. In the meanwhile, plaintiffs obtained delivery of the property in execution of the decree. As such, the defendants are entitled to get delivery of the property as they are absolute jenmies of the property. Plaintiffs are not entitled to R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 9 :- get declaration of their title and recovery of the same. The defendants are entitled to get a decree declaring their title over the plaint schedule properties and allowing recovery of the properties with future mesne profits @ Rs.170/- per annum. Hence they prayed for dismissing the suit and allowing the counter claim.
4. To the counter claim raised by the defendants, the plaintiffs filed a written statement challenging the maintainability of the counter claim filed after 13 years and resisting the reliefs prayed for in the counter claim. The reliefs prayed for are barred by the law of limitation. The defendants can get their title declared only if they challenge and set aside the patta issued by the competent revenue authorities to the plaintiffs by resorting to statutory remedies provided under Sec.11 or 12 of the Act, as the plaintiffs are the land holders come within the purview of the Act. Similarly, challenge against patta is not maintainable before the civil court in view of the express bar of jurisdiction of R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 10 :- the civil court under Sec.17 of the Act. Thus, the counter claim is not maintainable, in any case.
5. The learned counsel for the appellants/plaintiffs advanced arguments challenging the concurrent findings whereby the suit has been dismissed and the Appellate Court's Judgment whereby the counter claim has been allowed. According to the learned counsel, the courts below failed to note that the plaint schedule properties are admittedly Sree Pandaravaka lands and hence the provisions of the Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 would be applied to the plaint schedule properties. The courts below failed to note that the right of the defendants as mortgagors is extinguished by Act 20 of 1971 and their equity of redemption had been lost as a result of the said statute. The finding of the courts below that Exts.A1 and A2 are hit by lis pendens is absolutely illegal and wrong. The courts below went wrong by finding that Exts.A1 and A2 are hit by lis pendens.The R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 11 :- courts below failed to note that the possession of the plaintiffs over plaint schedule property on the date of coming into force of Act 20 of 1971 was that of the assignees of the defendants. The well settled law that a counter claim can be raised only regarding a cause of action which arose before the filing of the written statement or before the period fixed for filing written statement, is failed to be understood by the courts below. The inclusive definition under Section 2(f) of Act 20 of 1971 that the plaintiffs are assignees of Sree Pandaravaka lands and hence a landholder as defined under the said Act is ignored by the courts below.
6. Per contra, the learned counsel for the respondents/ defendants advanced arguments justifying the concurrent findings whereby the suit stands dismissed, and the divergent findings whereby the counter claim stands allowed by the Appellate Court. According to him, the courts below rightly found that Exts.A1 and A2 pattas are hit by the R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 12 :- doctrine of lis pendens and the suit is hit by Section 47 of the C.P.C. To fortify the said argument, the learned counsel drew my attention to Section 52 of the Transfer of Property Act and Section 47 of the C.P.C. and cited the decisions reported in N.S.S.Narayana Sarma and others v. M/s. Goldstone Exports (P) Ltd. and others (AIR 2002 SC 251), Venkitarama Iyer v. Vesu Amma and others (1995 (3) ILR 436), Chirag Enterprises, Merchant and Commission Agents v. Star Traders, Merchants and Another (2012 (4) KHC 271) and the decision of this Court in Thankamma v. Mathai Mathew (S.A.361/01). Further, he drew my attention to Section 2(f) of the Act, which defines the term "landholder" and contends that the plaintiffs can never be landholders as they have no possession over the property directly from Sree Padmanabha Swamy Temple. According to him, the benefit under the said provision is available to the person who holds the land directly from the temple. Similarly, Exts.A1 and A2 R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 13 :- pattas are vitiated by non joinder of necessary parties, as they have been obtained behind the back of the defendants, who are the actual beneficiaries under the Act. Even if the plaintiffs attain any right, title or interest over the property under Section 3 or 4 of the said Act, the same would enure on behalf of the defendants or to their benefit under Section 90 of the Indian Trust Act.
7. At the time of admission of the appeals, this Court formulated the following substantial questions of law for the decision in these Second Appeals:-
1) Is the finding of lower court that the plaintiffs are not land holders of Sree Pandaravaka lands, illegal and wrong in view of the clear admission of defendants that the possession of plaintiffs over plaint schedule property is under the mortgage deed of 1088 M.E.?
2) When the right, title and interest of Sree Padmanabha Swamy Temple are R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 14 :- vested in the land holders and extinguished by virtue of Act 20 of 1971, are not the plaintiffs entitled to obtain patta from the special Tahsildar for Sree Pandaravaka lands even if no application for that purpose is filed?
3) Has not the lower court committed
grave illegality in holding that the
plaintiffs should have made the
defendants a party to Exts.A1 and A2
proceedings or mentioned their details in the statement filed before the Special Tahsildar for Pandaravaka lands?
4) Is not the finding of lower court that Exts.A1 and A2 are hit by lis pendens illegal and wrong in view of the fact that it is by virtue of Act 20 of 1971 that the said right are obtained by plaintiff?
5) Has not the lower court illegally and wrongly exercised its jurisdiction in allowing the counter claim of defendants regarding which cause of cation arose R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 15 :- after the filing of the written statement?
6) Is not the finding of lower court that the suit is barred by Section 47 of C.P.C.
illegal and wrong?
8. Being the Regular Second Appeals filed under Section 100 of the C.P.C., this Court must remember the scope and extent of jurisdiction. Needless to say, the jurisdiction must be confined to the questions:
(1) Whether there is any illegality or impropriety in any of the findings or any perversity in the appreciation of evidence from which those findings have arrived at, in the impugned judgment?
(2) Whether the questions of law framed above are to be decided in these Second Appeals?
9. Curiously, the facts are not disputed in this case. Admittedly, the properties are Pandaravaka lands which belong to Sree Padmanabha Swami R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 16 :- Temple. The predecessors of the defendants were given in possession for performing customary duties to the temple. They mortgaged the plaint schedule properties in the year 1071 M.E. and subsequently executed a superior mortgage in the year 1088 M.E. in favour of the 1st plaintiff's mother with a right to redeem prior mortgage. The 1st plaintiff's mother accordingly redeemed the mortgage of 1071 M.E. and got possession of the plaint schedule properties in the capacity as mortgagee. On her death, plaintiffs came in possession of the plaint schedule properties. While so, the defendants in the capacity as mortgagors, instituted a suit as O.S.No.567/1958 before the Munsiff's Court, Thiruvananthauram, for redemption of mortgage and a preliminary decree was passed on 31/8/1962. But after the chequered career of appeals arose from preliminary decree as well as final decree, ultimately, on 3/8/1979 the final decree was passed in O.S.No.567/1958 directing the plaintiffs herein to R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 17 :- deliver the possession of the plaint schedule property to the defendants herein. The plaintiffs failed to put the defendants herein in possession of the plaint schedule property, and whereupon the defendants preferred an Execution Petition. During the pendency of the Execution Petition, the plaintiffs filed this suit. Their specific case in the present suit is that Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 (for short 'the Act'), came into force on 1/8/1971 and by the provisions of which all rights of Sree Padmanabha Swami Temple in Sree Pandaravaka lands were extinguished and those rights were vested in the plaintiffs. Consequently, every land holder was given ownership in the said land by issuing the required patta; and they also obtained Exts.A1 and A2 pattas in respect of the plaint schedule properties under the provisions of the said Act. Pursuant to Exts.A1 and A2 pattas, they had paid basic tax for the plaint schedule properties as per Ext.A3 tax receipt. R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 18 :- Thus, in the present suit, they claimed absolute right and exclusive possession over the plaint schedule properties on the strength of Exts.A1 and A2.
10. Admittedly, the plaintiffs' mother got possession over the property by virtue of the superior mortgage in the year 1088 M.E. and continued, without any interruption till the defendants got delivery of the property in execution of the decree in O.S.No.567/1958 on 12/8/1982. But, curiously, this suit was decreed ex parte and in execution of the decree, the plaintiffs again got possession over the property by way of re-delivery. Though the ex parte decree was set aside subsequently, and even now the plaintiffs are in possession of the property.
11. Let us examine the case of the defendants raised in the counter claim. It is the case of the defendants that the proceedings by which the plaintiffs obtained Exts.A1 and A2 pattas were vitiated by principles of lis pendens because during the R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 19 :- pendency of the execution proceedings in O.S.No.567/1958, the plaintiffs had obtained the same behind their back. The final decree was passed on 8/3/1979; but Exts.A1 and A2 pattas were issued on 16/8/1978. Thus, during the pendency of redemption suit - O.S.No.567/1958 the plaintiffs obtained Exts.A1 and A2 pattas and thereby the said pattas are hit by the doctrine of lis pendens. Secondly, the provisions under the Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 are not applicable to the plaintiffs' property, as the plaintiffs do not come under the definition of "landholder" contemplated under Sec.2(f) of the Act. The person who holds the land directly would come under the definition; but here the plaintiffs are not so; but the defendants got the property directly from temple. Thirdly, since the title which is said to have been conferred under the provision of the above Act has not been raised in the execution proceedings, the same is hit by Sec.47 of R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 20 :- the Cr.P.C. Fourthly, since the right and title of the plaintiffs were decided in the earlier suit O.S. No.567/1958, the said right, if any, under the Act is barred by constructive res judicata. Even if patta is validly obtained based on their possession as mortgagees, that right should enure to the benefit of the defendants. Lastly, since Exts.A1 and A2 pattas are invalid and under law the defendants are entitled to get delivery of the property after declining their title over the property.
12. Let us analyse the findings of the courts below in the impugned judgments under challenge. Going by the judgments passed by the trial court and the appellate court, it could be seen that neither the trial court nor the appellate court had framed any specific issue or raised any point for decision pertaining to the applicability of the Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 in the instant case. Thus, at the outset itself, I find that the R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 21 :- prime issue, which ought to have been raised and considered is seen left omitted. Coming to the judgment of the trial court, while considering other issues, the learned Munsiff made an observation that the plaintiffs' right to be a land holder can only be an assignee under Sec.2(f) of the Act. The right which the defendants had over the land was assigned to the plaintiffs by execution of mortgage deed in the year 1088 M.E. So the right of the defendants as holder of land directly under the temple cannot be lost. It is not the plaintiffs alone but the defendants also would come under the definition of "land holder". In short, both are land holders.
13. Coming to the judgment passed by the appellate court, though no specific point is seen raised, while considering other issues, made an observation that the plaintiffs are not 'landholders' falling under Sec.2(f) of the Act. According to the appellate court, the person who holds Pandaravaka land directly from R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 22 :- the temple alone would come under the "land holder"
contemplated under Sec.2(f) of the Act and in the instant case, the plaintiffs' predecessors were not holding the property directly from the temple as they are the mortgagees under the defendants. The legality of this finding deserves to be considered at first.
14. In view of the pleadings, evidence on record and the concurrent findings of the courts below thereon, let us consider the questions of law framed in this Regular Second Appeal.
15. It is apposite and profitable to extract Secs.2(f), 3 and 4 of the Act which read as under:
"Sec.2. Definitions.- In this Act, unless the context otherwise requires.-
(a) x x x x x
(b) x x x x x
(c) x x x x x
(d) x x x x x
(e) x x x x x R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 23 :-
(f) "landholder" means a person who holds Sree Pandaravaka land directly under the Temple on Pattom, Otti, Jenmom, Kudijenmom or Danam or under any other tenure by whatever name called, and includes his heirs, legal representatives and assigns but not include a person who holds Sree Pandaravaka Thanathu lands on Kuthakapattom.
(3) Extinghishment and vesting of certain rights of the Temple.- (1) Notwithstanding anything contained in any law or contract or in any judgment, decree or order of court, with effect on and from the appointed day.-
(a) all rights, title and interest of the Temple in all Sree Pandaravaka lands held by landholders shall stand extinguished;
(b) all rights, title and interest of the Temple in all Sree Pandaravaka Thanathu lands, except those R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 24 :- referred to in sub-section (2), shall vest in the Government;
(c) Every building which immediately before the appointed day belonged to the Temple and was then being used as an office in connection with the administration of the Melkanganam branch of the Sree Pandaravaka Department and for no other purpose, shall vest absolutely in the Government free of all encumbrances.
4. Landholders to be vested with proprietary right.--
Notwithstanding anything contained in any law or contract or in any judgment, decree or order of court, with effect on and from the appointed day.-
(a) every landholder shall, subject to the provisions of section 8, have full proprietary right in the land comprised in his holding, and such right shall be heritable and alienable; R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 25 :-
(b) except as provided in section 13, no landholder shall be liable to pay rent to the Temple."
16. On an analysis of Sec.2(f), which defines "land holder", I am of the opinion that two categories of persons who hold temple's land are seen included in the definition. Firstly, persons who hold Sree Pandaravaka Land directly under the temple on pattom, Jenmom, KudiJenmom, or Danam or under any other tenure by whatever name called. Secondly, the legal heirs, legal representatives and assigns of the persons described under the 1st category i.e., legal heirs, legal representatives and assigns of the persons who directly held the land under temple on pattom, jenmom etc. But the trial court erroneously found that both the plaintiffs and the defendants are assigns of the land. I am unable to accept the argument on the reasons that according to Secs.2(f) and (3), the person who holds either directly or as a heir, legal R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 26 :- representative or assign on and from the appointed day alone would get the right by extinguishment of temple's right. Thus, holding of land is sine qua non for falling under the definition. In the instant case, indisputably, the plaintiffs alone are holding the property on the appointed day i.e., 1/8/1971. More specifically the defendants have no case that they were holding the property on the appointed day. The possession which the plaintiffs got by virtue of superior mortgage executed in the year 1088 M.E. was continuing, uninterruptedly till the date of commencement of the Act and the appointed day thereunder. Therefore, I find that the finding of the trial court that both plaintiffs and defendants are assigns of the temple is illegal and unsustainable
17. Similarly, without analysing the definition of "land holder" in its correct perspective, the appellate court has arrived at an erroneous finding that the persons who hold directly under the temple alone R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 27 :- would come within the definition. Needless to say, the 1st Appellate Court has lost sight of the 2nd category in the above definition. I have no hesitation to hold that the expression "his" inserted in between 'includes' and 'heirs', in the second limb of the definition refers to 'person' who directly held the land under the temple, i.e., assigns of the person who directly held the land under the temple. Here, the plaintiffs are the assigns of the defendants who held the land under the temple. If that be so, the plaintiffs are persons who squarely come under the 'land holder' defined under Sec.2(f) of the Act. So, I find that the plaintiffs are 'land holders' of Pandaravaka land as on the appointed day ie., 1/8/1971.
18. Coming to Secs.3 and 4, it is seen that both provisions begins with a non-obstante clause i.e., notwithstanding anything contained in any law or contract or any judgment, decree or order of the court, with effect on and from appointed day. When R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 28 :- applying the non-obstante clause, even though the preliminary decree for redemption was passed on 31/8/1962, by the commencement of the above Act on 1/8/1971, the preliminary decree became redundant, unenforcible and got inconsequential, by the operation of law. Thus, the extinguishment of temple's right, title and interest under Sec.3(a) of the Act and vesting of full property right over the land holder are the automatic and consequential outcome effected by the operation of law.
19. Admittedly, the plaintiffs are mortgagees and the defendants are mortgagors. If the decree for redemption has lost its enforceability on the operation of law, by the commencement of the Act, the decree could not have been executed against the plaintiffs who are land holders under Sec.2(f) of the Act. The final decree has been passed in the year 1978, after the commencement of the Act. If the preliminary decree has already lost its enforceability, needless to R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 29 :- say, the final decree passed after the commencement of the Act also is of no consequence at all by the operation of Secs.3 and 4 of the Act. Thus, the final decree is not an executable one as the decree itself is void ab initio. In this analysis, I find that the plaintiffs are landholders contemplated under Sec.2(f) of the Act and the defendants' right and title over the properties had been extinguished by Sec.3(a) of the Act and the proprietary right vested on the plaintiffs under Sec.4 of the said Act. The questions 1 to 3 are answered as above.
20. The next point to be considered is, whether Exts.A1 and A2 proceedings are hit by the doctrine of lis pendens?
21. The statutory mandate under Sec.52 of the Transfer of Property Act is a prohibition against transfer of property or any transaction otherwise dealt with by any of the party to the suit or proceedings so as to affect the right of any other party thereto under R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 30 :- any decree or orders, which may made therein except with the authority of the court. If that be so, the next question is, whether the plaintiffs have effected any act or transaction affecting the right of the defendants during the pendency of the suit or proceedings? In the instant case, the plaintiffs had not transferred the plaint schedule property during the pendency of O.S.No.567/1958 or its appeal or final decree proceedings. I have already found that even though preliminary decree for redemption was passed in the year 1962, the decree has lost its enforceability on the operation of non-obstante clause by the commencement of the Act. More over, by the operation of non-obstante clause, not only the enforceability of the decree or order but also anything contained in any law for the time being also have lost its applicability and force. If that be so, the right of redemption provided under Sec.60 of the Transfer of Property Act also has lost its force and enforceability. R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 31 :- Consequently, final decree also could not have been passed, particularly, when the preliminary decree had lost its enforceability by the extinguishment of right under Section 3 (a) of the Act and vesting of full propriety right on the land holder under Sec.4(a) of the Act. Therefore, it cannot be held that Exts.A1 and A2 pattas were obtained in a way affecting the right of the defendants. The issuance of patta to the landholder is a corollary or consequential proceeding pursuant to the extinguishment of the right of the temple and corresponding vesting of that right on the landholder.
22. The next point to be considered is, can the steps taken by the plaintiffs under the Sree Pandaravaka Lands (Vesting and Enfranchisement) Rules, 1974 (for short 'the Rules'), be deemed to an act or dealing affecting the right of the defendants?
23. Admittedly, the plaintiffs were holding the land on the appointed day under Section 3 of the Act and I have already held that they are land holders R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 32 :- under the Act. Rule 3 of the Sree Pandaravaka Lands (Vesting and Enfranchisement) Rules, 1974 mandates that each land holder shall, within six months from the date of commencement of the Rules furnish to the Special Tahsildar a statement duly signed by him showing the extent, ownership and other particulars of the Sreepandaravaka lands held by him in Form No.1 on the 31st day of July, 1971. The Rules have come into effect on 16/10/1974. Needless to say, a statutory liability was cast on the land holder to file such a statement in the specific Form before 16/4/1975. When the Rule specifically prescribes a specified time it was incumbent upon the plaintiffs to file such a statement, as they were indisputably holding the land on 31/7/1971. It cannot be treated as an act or dealing affecting the right of the defendants. Actually, the defendants were not holding the land on 31/7/1971 and had it been otherwise, they could have filed such a statement under Rule 3 claiming vesting of land under R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 33 :- the Act on them. But the defendants have not chosen to do so as they were not in possession of the property. Going by Form No.1 it is seen that it is a prescribed form which requires the particulars specified in each column. No space is provided for adding anything, which is not required in the form. So, the question of non-joinder of the defendants as necessary parties does not arise and the filing of statement under Rule 3 can be justified as they are the actual possessor of the land.
24. More over, the statement filed by the plaintiffs was not forthcoming in evidence. In this context, the court below went wrong by fixing burden of producing the same on the plaintiffs. According to Sec.102 of the Indian Evidence Act, the burden of proof lies on that person who would fail if no evidence all were given on either side. Here, the counter claim was filed by the defendants challenging the legal validity of Exts.A1 and A2 pattas. If that be so, the burden to R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 34 :- cause production of the statement filed under Rule 3 of the above Rules by the plaintiffs was on the defendants and they have not done so. Thus, the defendants miserably failed to prove that the plaintiffs have transferred or otherwise dealt with so as to affect rights of the defendants. On the other hand, the plaintiffs have furnished statement in the form in compliance with the mandatory requirement under Rule 3 only. It cannot be said to be a clandestine act or proceedings initiated behind the back of the defendants. In this analysis, I find that the doctrine of lis pendens has no application in the instant case and the suit is not hit by Sedc.52 of the Transfer of Property Act.
25. Going by the decision in Venkitarama Iyer's case (supra), it could be seen that the proposition laid by the above decision cannot be applied to the instant case as the facts of the said case are entirely different and distinct. There, the plaintiffs filed a suit for R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 35 :- recovery of possession and the defendants resisted the suit by raising lease hold right. Thus, the right of lease was the disputed issue involved in the suit. During the pendency of that suit the Land Tribunal, in a suo moto proceedings, upheld the right of tenancy set up by the defendants and issued patta to the defendants. But here, the status and right of parties under the mortgage was not a disputed issue, and the suit was one for redemption of mortgage only. While so, by the commencement of a new enactment, the right, title and interest over the property are conferred to the defendants. In short, the right automatically vested on the plaintiffs. More over, I have already held that, in the instant case, conferment of right, title and interest to the land holder cannot be said to be a transfer defined under Sec. 52 of the Transfer of Property Act and it is an automatic vesting of right, title and interest on the land holder by the operation of law. Therefore, this decision also will not render any help to the R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 36 :- defendants.
26. The next question to be considered is, whether the suit was hit by Sec.47 of the C.P.C.? Going by the impugned judgments passed by the courts below the findings on this question are divergent. The trial court rejected the said contention; but in appeal, the 1st Appellate Court accepted the said contention. As rightly noted by the trial court, the scope of enquiry under Sec.47 is confined to determination of questions relating to execution, satisfaction and discharge, of the decree only. Here the cause of action of the present suit has arisen, when the defendants took possession of the property in execution of the decree in O.S. No.567/1958, despite the extinguishment of defendants' right and accrual of right on the plaintiffs. In that context, I am of the opinion that issue involved in the suit is not one relating to execution or discharge or satisfaction and the reliefs declaring extinguishment R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 37 :- of defendants' right and the vesting of right on the plaintiffs can be given in an original suit only. That apart, the cause of action pleaded in the suit is one which arose consequent to the execution of the decree. But the appellate court went wrong and found that the issue ought to have been raised in the execution side of O.S.No.567/1958. The said finding is illegal and unsustainable under law and the findings of the trial court are justifiable.
27. The learned counsel for the respondents cited N.S.S.Narayana Sarma and others v. M/s. Goldstone Exports (P) Ltd. and others (AIR 2002 SC 251) and drew my attention to the scope and extent of jurisdiction under Section 47 and Order 21 Rule 97 of the C.P.C. to fortify his arguments. But I have already held that though the right accrued on the plaintiffs by the commencement of the Act, and cause of action has arisen when the defendants took possession of the property in execution of the decree, despite the R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 38 :- automatic extinguishment of the defendants' right. In that circumstance, the plaintiffs can be justified in filing a fresh suit seeking declaration of extinguishment under the Act. Such a relief could not be obtained in execution proceedings. So the above decision cited by the defendants' counsel would not render any help or aid to fortify the point.
28. The learned counsel for the defendants further cited Chuppan Nadar Narayanan Nadar v. Kumaran Kochummini and others [1971 KLT 440 (F.B)] to show the effect of Section 3 of the Act, on the right of redemption of the mortgagor. Going by the above decision, I am of the opinion that Section 3 of the Act is not analogous with Rule 6(2) of the Rules for assignment on Registry of Kandukrishi Lands, framed under Land Assignment Act. Section 3 of the Act confers absolute right, title and interest to the landholder, unlike the provisions under Rule 6(2) of the above Rule. Therefore, either the principle or the R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 39 :- proposition laid down in the above decision cannot be made applicable to the instant case.
29. The learned counsel for the defendants further cited an unreported decision in S.A.No.361/ 2001 and pointed out that once a mortgage always a mortgage and it cannot be terminated by any way other than the procedure provided under the Transfer of Property Act and the vesting of right on the plaintiffs would enure on behalf of the defendant or to his benefit as mortgagor. I have meticulously considered the applicability of the above decision in the instant case; but I find that the said decision is not applicable to the instant case for the following reasons: Firstly, as I have held above, going by the Kundukrishi Land Assignment Rules and Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, it could be seen that either Rule 5, or Rule 6 of Kundukrishi Land Assignment Rules is not analogous with Sec. 3 or Sec.4 of the Sree Pandaravaka Lands (Vesting and R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 40 :- Enfranchisement) Act. The nature and extent of right conferred on the mortgagee under the former Act is entirely different and the right conferred under the said Act is having a lesser scope and extent only, when comparing with the latter enactment. There, there is a statutory compulsion only to register the land in the name of the lessee. The legal impact of such registry of land is not specified under the Rules. But in the latter enactment, Sec.6 extinguishes all right, title and interest of the temple in all Sree Pandaravaka lands held by the landholder including the legal representatives and assigns of the persons who hold the Sree Pandaravaka lands directly under the temple on pattom, otti, jenmom, kudijenmom or danam. Such an exhaustive and sweeping provision conferring an absolute right on the landholder is seen absent in the former enactment. That apart, I am of the opinion that even if a mortgage is always a mortgage, it can be terminated by the operation of a R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 41 :- new law, by the commencement of fresh enactment as in the instant case. Considering the exhaustive definition of 'landholder', including assigns of mortgagor, who held the land under the temple the right, title and interest conferred to such assigns under Sec.3 or Sec.4 of the said Act, would not enure to the benefit of the mortgagor under Sec.90 of the Indian Trust Act as argued by the learned counsel for the defendants.
30. The next question to be considered is whether the counter claim by way of additional written statement by the defendants 5 and 7 is maintainable in view of the statutory mandate under Order 8 Rule 6-A of the C.P.C. It is profitable and apposite in this context to extract the relevant provisions of the said Rule which reads as follows:
"6-A.Counter-claim by defendant.--
(1) A defendant in a suit may, in addition to his right of pleading a set-off R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 42 :- under rule 6, set up, by way of counter-
claim against the claim of the plaintiff, any right or claim in respect of a cause of action according to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not."
On an analysis of the above section, it could be seen that the defendant has been granted a right to file a counter claim raising any right or claim in respect of a cause of action which has been arisen either before or after the filing of the suit; but such counter claim must have been filed before the defendant has delivered his defence or before the time limited for delivering his defence has expired. Put it differently, the counter claim must have been filed along with the written statement or before the time limited for delivering the R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 43 :- written statement has expired.
31. In Ramesh Chand Ardawatiya v. Anil Panjwani (AIR 2003 SC 2508), the Apex Court held that the counter claim must necessarily find its place in the written statement. Once the right of the defendant to file the written statement has been lost or the time limited for delivery of the defence has expired, then, neither the written statement can be filed as of right nor a counter claim can be allowed to be raised.
32. Coming to the instant case, admittedly, the written statement has filed on 18/3/1982 and the counter claim has been filed on 13/8/1995. Going by the written statement, it could be seen that the defendants were well aware about the issuance of patta under the said Act to the plaintiffs and they challenged the validity of the same. But they have not filed a counter claim to set aside the said patta. The defendants should have filed the counter claim along with the written statement as they were well R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 44 :- aware about the legal consequence of the issuance of patta. But they have raised the counter claim after 13 years, without a petition to accept the same filed belatedly. Hence in view of the statutory mandate under Order 8 Rule 6-A of the CPC, I have no hesitation to hold that the counter claim is not maintainable under law.
33. That apart, the challenge against Exts.A1 and A2 pattas before the civil court is not maintainable in view of the express bar of jurisdiction of the civil court under Sec.17(2) of the Act. According to Sec.17(2) of the Act, no order granting patta shall be liable to be questioned in any court of law. Moreover, if the defendants were aggrieved by the issuance of Exts.A1 and A2 pattas, they could have challenged the same either under Sec.11 or Sec.12 of the Act, which provides right of appeal and revision respectively. Similarly, the cause of action stated in the counter claim is unbelievable as well as unfounded in view of R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 45 :- the admitted facts. The suit was filed on 26/10/1981 and immediately the defendants appeared in the suit. Thus, they got notice of Exts.A1 and A2 pattas. But the counter claim by way of additional written statement is seen filed on 13/8/1995, after 13 years, stating that cause of action has arisen on 12/8/1982. The period of limitation to set aside Exts.A1 and A2 begins to run from the date of receipt of the copy of the plaint i.e., the date of knowledge. Apparently, prayer for setting aside Exts.A1 and A2 is barred by limitation. Unless and until Exts.A1 and A2 are setting aside, title cannot be declared in favour of the defendants as prayed for in the counter claim. But the learned District Judge, without considering all the legal issues, allowed the counter claim without proper application of mind. Thus, the counter claim is not sustainable on merits for the above reasons also.
34. Going by the decision in Raja Sailendra Narayan Bhanj Deo v. Kumar Jagat Kishore Prasad R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 46 :- Narayan Singh and others (AIR 1962 SC 914), it is seen that while considering the legal consequences and effect of Secs.14 and 4(d) of the Bihar Land Reforms Act, 1950 on the right of redemption of mortgagor, the Apex Court held as follows:
"It is clear from S. 14 and S. 4
(d) of the Bihar Land Reforms Act, 1950, that a mortgagee cannot recover the amount due to him from the mortgaged tenures which have vested in the Government except by following the procedure laid down in S. 14. In the light of the provisions contained in Ss. 4 (d) 14,18(3) and 35, it is clear that a redemption decree obtained by the mortgagor cannot be given effect to after the notification issued under the Bihar Land Reforms Act 1950 since thereafter the mortgaged tenures become vested in the State of Bihar free from all encumbrances. The tenures having vested in the State of R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 47 :- Bihar, the mortgagee has no longer any interest in the tenures nor is he in possession of them. He cannot carry out the decree by reconveying the tenures to the mortgagor or put him into possession. The mortgagor as a security ceases to exist for the mortgaged properties vest in the State of Bihar under the Act free from from all encumbrances. The mortgagor in his turn also ceases to be entitled to the mortgaged properties. He has hence no right to redeem them. Therefore, the decree for redemption which has been previously passed, becomes infructuous".
35. It is true that there is a little difference as regards vesting of right consequent on the commencement of the new enactment. According to Secs.14 and 4(d) of the Bihar Land Reforms Act, the right and title over the property vest in the Government by the commencement of the said Act. R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 48 :- But in the instant case, the right, title and interest over the property vest in the land holder himself directly and issuance of patta is a procedure corollary after the vesting of land directly on the land holder. But the principle laid down by the Supreme Court in the above decision as regards the consequence by the commencement of the new enactment on the right of the mortgagor to redeem the mortgage is squarely applicable to the instant case also. In the above decision, the Apex Court held that consequent to the commencement of the Bihar Land Reforms Act, mortgagor ceases to be entitled to mortgaged properties and he has hence no right to redeem them and therefore the decree for redemption which has been previously passed become infructuous. I find that this principle squarely applies to the instant case also. More over, this decision would support my earlier finding that once a mortgage is always a mortgage, but it can be terminated on the operation of R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 49 :- law by the introduction of a new enactment.
36. The decision in Bhaskaran Nair v.
Sankaranarayanan Nair and another (1991 KHC 312), this Court held as follows:
"8. Now the lands stand vested in the Government under S.3 of the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981 (for short the Act). All right, title and interest of the land owners held by holders thus vested in Government abolishing services or obligations attached to service inam lands free of all encumbrances. That means, any encumbrance created stands extinguished. Under S.5, the land holders are entitled to get assignment of the right, title and interest of the land owner vested in the Government free of all encumbrances. Procedure for that purpose is provided in Ss.6, 7, 8 and 9. Under S.18, there is bar against the jurisdiction of civil court also on these R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 50 :- matters. When the land is vested in the Government free of all encumbrances and the land holder is given the right to get assignment of such rights, what follows is that nobody else is entitled to enforce any right."
The legal effect and impact of an enactment on the right of a mortgagor, caused by the vesting of right, title and interest on the actual land holder by that enactment, underlying in this decision can also be relied on in the instant case, to decree the suit.
37. In the light of the above discussions, I find that the courts below have omitted to consider the prime issues raised above. The appellants are the land holders defined under Sec.2(f) of the Act and the temple's right got extinguished under Sec.3 of the Act and vested on the appellants by virtue of Sec.4 of the Act. In view of the non-obstante clause under Sec.3 of the Act, the decree for redemption passed in O.S. No.567/1958 has lost its enforceability and the same is R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 51 :- of no consequences at all. The issuance of Exts.A1 and A2 pattas are the proceedings corollary to the vesting of full proprietary right on the appellants under Sec.4 of the Act. Consequently, the same are not hit by the doctrine of lis pendens, particularly when the preliminary decree passed in O.S.No.567/1958 has lost its enforceability, on the operation of law, by the commencement of the Act on 1/8/1971. The courts below have miserably failed to consider the questions of law in its correct perspective and the findings are vitiated by illegality and irregularity, so also the appreciation of evidence is vitiated by gross perversity.
38. Consequently, the impugned judgment and decree passed by the court below are set aside and the Original Suit No.1258/1981 will stand decreed and the counter claim raised by the defendants 5 and 7 will stand dismissed.
These Regular Second Appeals are allowed R.S.A. Nos.1174 of 2006 & 614 of 2007 -: 52 :- accordingly. The parties shall bear their respective costs.
Sd/-
(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge