Kerala High Court
Court vs Vethala Devaswom
Author: A. Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939
SA.No. 706 of 2001
AGAINST THE JUDGMENT & DECREE DATED 14-02-2001 IN AS 79/1994 of THE VTH
ADDITIONAL DISTRICT COURT, ERNAKULAM
AGAINST THE JUDGMENT & DECREE DATED 30-11-1993 IN OS 39/1989 of PRINCIPAL SUB
COURT, KOCHI
APPELLANTS/RESPONDENTS/PLAINTIFFS
1. VETHALA DEVASWOM,
REPRESENTED BY ITS PRESENT PRESIDENT
C.J.SADANANDA PRABHU, AGED 71,
RETIRED BANK EMPLOYEE,
RESIDING AT CHANDURUTHIL,
VALAMANGALM SOUTH P.O., THURAVUR.
2. SECRETARY OF VETHALA DEVASWOM
P.A.ASOKAN V.N., S/O.V.V.NARAYANA PRABHU,
VEMBRAKAT HOUSE, PALLURUTHY NADA,
KOCHI - 6.
BY ADVS.SRI.R.D.SHENOY (SR.)
SRI.S.VINOD BHAT
RESPONDENTS/APPELLANTS/DEFENDANTS:
1. LEELA BAI, AGED 46,
D/O.LATE SREENIVASA PRABHU,
VEMBRAKATTU HOUSE, RAMESWARAM VILLAGE,
PALLURUTHY, KOCHI - 6
*2. VENKITESWARA PRABHU, AGED 44 (DIED)
S/O.LATE SREENIVASA PRABHU,
VEMBRAKATTU HOUSE, RAMESWARAM VILLAGE,
PALLURUTHY, KOCHI - 6
(LRS IMPLEADED)
3. MOHANDAS PRABHU, AGED 41,
S/O.LATE SREENIVASA PRABHU,
VEMBRAKATTU HOUSE, RAMESWARAM VILLAGE
PALLURUTHY, KOCHI - 6
4. JAYAKUMAR PRABHU, AGED 37,
S/O.LATE SREENIVASA PRABHU,
VEMBRAKATTU HOUSE, RAMESWARAM VILLAGE
PALLURUTHY, KOCHI - 6
SA.No. 706 of 2001 2
5. LALITHA KUMARI, AGED 38,
D/O.LATE SREENIVASA PRABHU,
VEMBRAKATTU HOUSE, RAMESWARAM VILLAGE
KOCHI - 6
ADDL. RESPONDENTS
ADDL.R6 SANTHAKUMARY P.N., AGED 59 YEARS,
WIFE OF VENKITESWARA PRABHU,
VEMBRAKKATTU HOUSE, MURINGOOR,
KINFRA PARK KORATTI, MURINGOOR PO,
PIN 680 309
ADDL.R7 SALINI V.V., AGED 33 YEARS,
D/O.VENKTESWARA PRABHU,
VEMBRAKATT HOUSE, MURINGOOR,
KHANNA NAGAR P.O., PIN - 680 309
ADDL.R8 POORNIMA PRABHU, AGED 32 YEARS,
D/O.VENKTESWARA PRABHU,
VEMBRAKKATT HOUSE, MELUR PANCHAYAT,
MURINGOOR P.O.680 309
(LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS
ADDL.RESPONDENTS 6 TO 8 AS PER THE ORDER DATED 11.10.2017 IN IA 1728/2017)
R1 & R3 TO R5 BY ADV. SRI.S.SREEKUMAR
ADDL.R6 TO R8 BY ADVS. SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2018, ALONG WITH SA
428/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A. HARIPRASAD, J.
-------------------------------
S.A.No.706 of 2001
&
S.A.No.428 of 2002
----------------------------------------------
Dated this the 26th day of February, 2018
COMMON JUDGMENT
Two suits were jointly tried by the Subordinate Judge, Kochi, as O.S.Nos.30 of 1990 and 39 of 1989. O.S.No.30 of 1990 was originally filed as O.S.No.215 of 1988 before the Court of Munsiff, Kochi, which was transferred to the Sub Court for joint trial with the other suit. Evidence was recorded in O.S.No.30 of 1990.
2. Gist of the pleadings are as follows:
In O.S.No.30 of 1990, it is pleaded that plaint B schedule property belonged to the defendants. Plaint A schedule is a portion of plaint B schedule property. There is a temple in plaint B schedule property belonging to Vembrakattu family. In 1067, there was a lease of plaint A schedule property in favour of the plaintiffs' predecessor in interest, by name, Manekka Prabhu, as S.A. No.706 of 2001 2 & S.A.No.428 of 2002 evidenced by Ext.A1 lease deed. In 1069, he put up a residential building therein and started residing with his family. Manekka Prabhu had two sons, by name, Anantha Prabhu and Raya Prabhu. A family partition took place in 1098 M.E. In that partition, A schedule property was set apart to the share of Anantha Prabhu. Subsequent to the death of Anantha Prabhu, another partition took place in the family in 1121 M.E.(Ext.A2) in which, A schedule was set apart to the share of Sreenivasa Prabhu. He died in 1982 and the plaintiffs are his legal heirs. In Ext.A2 partition deed, existence of an oral lease dated 3 rd Thulam 1098 was mentioned. Actually it was incorrect. Property was held by the parties as per Ext.A1 lease deed. Sreenivasa Prabhu had filed O.S.No.283 of 1966 against the second defendant and others seeking a prohibitory injunction, preventing them from trespassing into A schedule, alleging that he possessed the property under an oral lease. The suit was dismissed finding that the oral lease set up by Sreenivasa Prabhu was not established. Hence, the plaintiffs in O.S.No.30 of 1990 claimed a declaration regarding their title and sought a prohibitory injunction against the defendants as a consequential relief. S.A. No.706 of 2001 3 & S.A.No.428 of 2002
3. A joint written statement was filed by the defendants. According to them, the suit is barred by res judicata, by virtue of the decision in O.S.No.283 of 1966. In that suit, the trial court found that Sreenivasa Prabhu, the plaintiffs' predecessor in title, had no tenancy right over the property. That finding has become final. Plaintiffs are estopped from claiming any tenancy right in the property. There is no separate plot, as shown in A schedule. There exists a family temple in the B schedule property. There are thavazhis and representing each thavazhi, there are adhikaris. Late Sreenivasa Prabhu was one of the adhikaris. No property is outstanding on lease as alleged in the plaint. Hence, the suit is liable to be dismissed.
4. In O.S.No.39 of 1989, similar contentions were raised, and the plaintiffs therein (who are defendants in the other suit) claimed recovery of possession and mandatory injunction on the ground that the defendants have trespassed into certain land belonging to them and constructed structures like latrine, bathroom, shed, etc. It is the specific claim of the plaintiffs in O.S.No.39 of 1989 that Sreenivasa Prabhu abandoned his position as adhikari and mismanaged the affairs of the temple. S.A. No.706 of 2001 4 & S.A.No.428 of 2002 Thereafter he instituted O.S.No.283 of 1966. On the dismissal of the suit, he purchased three cents of property, claiming Kudikidappa right and obtained a purchase certificate through a Land Tribunal. The land possessed by him in excess of three cents is in his unauthorised occupation, which is sought to be recovered.
5. In the written statement, the defendants(plaintiffs in O.S.30 of 1990) raised similar contentions as in their plaint and sought for dismissal of the suit.
6. The trial court, after framing necessary issues, allowed the parties to adduce evidence. Two witnesses were testified on the side of the plaintiffs in O.S.No.30 of 1990 and one witness on the side of the defendants in that suit. Exts.A1 to A4 and Exts.B1 to B9 are the documents produced by the rival parties. Exts.C1 and C2 series are the Commissioner's plan and report.
7. After considering the rival contentions, the trial court decreed O.S.No.39 of 1989, allowing the plaintiffs therein to recover possession of plaint B schedule property after demolishing and removing the constructions made therein. The S.A. No.706 of 2001 5 & S.A.No.428 of 2002 defendants were directed to dismantle and remove the constructions within three months. O.S.No.30 of 1990 was dismissed.
8. Aggrieved by the decision, the plaintiffs in O.S.No.30 of 1990 filed two appeals before the Additional District Court, Ernakulam as A.S.Nos.79 and 84 of 1994. The lower appellate court, after considering the materials on record, allowed A.S.No.79 of 1994 thereby setting aside the judgment and decree in O.S.No.39 of 1989. A.S.No.84 of 1994 filed by the plaintiffs in O.S.No.30 of 1990 was dismissed, confirming the judgment and decree of the trial court. Aggrieved by the findings, both the parties have come up before this Court.
9. S.A.No.706 of 2001 is the appeal against dismissal of O.S.No.39 of 1989 and S.A.No.428 of 2002 is an appeal against dismissal of O.S.No.30 of 1990.
10. Heard the learned Senior Counsel appearing for the appellants in S.A.No.706 of 2001 and the learned counsel appearing for the appellants in S.A.No.428 of 2002. These counsel represent the contesting respondents.
11. The substantial questions of law framed in S.A.No.706 S.A. No.706 of 2001 6 & S.A.No.428 of 2002 of 2001 are as follows:
1. Is not the lower appellate court wrong in setting aside the decree for recovery of possession, prohibitory injunction and mandatory injunction applying the principles of grant of a decree for mandatory injunction simplicitor ?
2. Title to the B schedule property having been found in favour of Devaswom and right of the respondents being confined to kudikidappu purchase, was not the decree for recovery of possession sustainable? Was not the lower appellate court wrong in dismissing the suit for recovery of possession in reversal of the decree by the trial court ?
3. When mandatory injunction is a suit for recovery of possession is equal to such recovery, has not the appellate court committed a substantial wrong in relying on the principles of grant of mandatory injunction simplicitor to dismiss the suit for recovery of possession ?
12. The substantial questions of law in S.A.No.428 of 2002 are thus:
1. When there is a lease as per registered document, can the lessee be ousted in view of the Land Reforms Act ?
2. When lease as per a registered document is proved, is not the burden on the lessor to prove that lease has been S.A. No.706 of 2001 7 & S.A.No.428 of 2002 terminated ?
3. When the lease as per registered document stands proved, will the mistake committed by the predecessor in interest regarding right in the property stand against successor ?
13. Learned Senior Counsel contended that the lower appellate court thoroughly went wrong in dismissing O.S.No.39 of 1989 finding that the plaintiffs/appellants have not entitled to get recovery of possession on the strength of title. It is pointed out that the yardstick applicable to a case of a mandatory injunction was used for determining the claim of recovery of possession of plaint B schedule property on the strength of title. On a perusal of the plaint, it is seen that a portion of land beyond Ext.B2 purchase certificate, lying in the possession of the defendants in O.S.No.39 of 1989, is sought to be recovered on the strength of title. Apart from averments in the plaint, a specific prayer has been made and court fee has been paid under Section 30 of the Kerala Court Fees Act for recovery of possession. Despite that, the lower appellate court considered the suit only as a suit for mandatory injunction and misapplied the principles.
S.A. No.706 of 2001 8& S.A.No.428 of 2002
14. Per contra, learned counsel for the respondents in S.A.No.706 of 2001, who are the appellants in S.A.No.428 of 2002, would contend that the lower appellate court thoroughly went wrong in dismissing their suit without understanding legal issues involved therein. It is the case that the plaintiffs in O.S.No.30 of 1990 are the legal heirs of Sreenivasa Prabhu. Admittedly, there was a partition in the family of Sreenivasa Prabhu, evidenced by Ext.A2, of the year 1946. According to the learned counsel for the appellants in S.A..No.428 of 2002, the male children of Sreenivasa Prabhu, who were born after Ext.A2 partition deed, got a right by birth over the property. In O.S.No.283 of 1966 (judgment of which is Ext.B4) the independent rights of the male children of Sreenivasa Prabhu were not considered and therefore, Ext.B4 is not binding on them. Sreenivasa Prabhu had no authority to give up a larger right, viz; tenancy right, and claim Kudikidappa right for purchasing three cents, as evidenced by Ext.B2. It is therefore contended by the learned counsel for the appellants in S.A.No.428 of 2002 that the court below seriously erred in considering the legal rights of the plaintiffs in O.S.No.30 of S.A. No.706 of 2001 9 & S.A.No.428 of 2002 1990.
15. Controverting this argument, learned Senior Counsel for the appellants contended that Ext.B4 judgment in O.S.No.283 of 1966 has become final. There are clear findings to the effect that Sreenivasa Prabhu had no tenancy right. That finding was entered mainly for the reason that in his plaint, he did not put forward any claim on the basis of Ext.A1. Instead, he claimed oral tenancy which was not established at the time of trial. Subsequent conduct is also relevant, according to the learned counsel. After disposal of Ext.B4 suit, he went before the Land Tribunal concerned and obtained a purchase certificate in respect of three cents, confining his claiming to kudikidappa right.
16. Order passed on I.A.No.24 of 1991 in O.S.No.30 of 1990 was challenged before this Court in C.R.P.No.1358 of 1991. A learned Single Judge, after considering the rival contentions, affirmed the view taken by the trial Judge in Ext.B4 judgment that Sreenivasa Prabhu had no tenancy right over the property. Even though the appellants in S.A.No.428 of 2002 were parties in the suit in which Ext.B4 judgment was rendered, they did not S.A. No.706 of 2001 10 & S.A.No.428 of 2002 choose to challenge the judgment, which will have a direct impact on their claim of any independent right. Therefore, the findings by the courts below that claim of the appellants in S.A.No.428 of 2002 is hit by res judicata, cannot be faulted.
17. It is pertinent to note that in O.S.No.30 of 1990, there is no challenge against Ext.B4 judgment. Paragraph 4 of the averments in O.S.No.30 of 1990 was brought to my notice by the learned Senior Counsel for the respondents in S.A.No.428 of 2002, wherein the plaintiffs have clearly stated that they are claiming right through Sreenivasa Prabhu. Even though in other parts of the plaint, they have set up an independent right, in conformity with that plea no relief is claimed in O.S.No.30 of 1990.
18. Learned counsel for the appellants contended that under Section 7B of the Kerala Land Reforms Act, the appellants in S.A.No.428 of 2002 have a legal right to forward a claim of tenancy. In the light of the clear findings in the earlier round of litigation, I am not impressed about this contention.
19. Having regard to the facts and circumstances and after hearing the learned counsel on both sides, I find that the S.A. No.706 of 2001 11 & S.A.No.428 of 2002 trial court was right and the lower appellate court misdirected itself by declining the relief in O.S.No.39 of 1989. The reasons are obvious. The plaintiffs in O.S.No.30 of 1990 failed to prove a tenancy right for sustaining their claim over the property. Admittedly, the property belonged to a Devaswom. The rights of the predecessor in interest of the appellants in S.A.No.428 of 2002 can only be now confined to three cents, as revealed from Ext.B2 purchase certificate. The structures made beyond the limits of Ext.B2 property is liable to be demolished and the land is liable to be surrendered to the appellants in S.A.No.706 of 2001.
In the result, S.A.No.428 of 2002 is hereby dismissed. S.A.No.706 of 2001 is allowed. The judgment and decree passed by the lower appellate court is set aside and that of the trial court is restored. Parties are directed to suffer their costs.
SD/-
A. HARIPRASAD
JV JUDGE