Kerala High Court
Chinnayya Mudaliyar vs Vasudevan on 17 June, 2010
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 59 of 2000(F)
1. CHINNAYYA MUDALIYAR
... Petitioner
Vs
1. VASUDEVAN
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.P.G.PARAMESWARA PANICKER (SR.)
The Hon'ble MR. Justice P.BHAVADASAN
Dated :17/06/2010
O R D E R
P. BHAVADASAN, J.
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S.A. No. 59 of 2000
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Dated this the 17th day of June, 2010.
JUDGMENT
The defendant, who suffered a decree in O.S. 71 of 1985 before the Munsiff's court, Mannarghat and whose appeal was dismissed by the lower appellate court is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court.
2. According to the plaintiff, the suit property belonged in jenm to one Mannarghat Moopilsthanam and one Chellan obtained it on oral lease. He sold the property to the plaintiff's mother Masammal as per registered deed No.2550/61. Masammal constructed a shop building in the property. She assigned rest of the property except 6 cents of the property wherein the shop building situate. According to the plaintiff, Masammal had given the building on rent to the defendant. Since the defendant defaulted in payment of rent, O.S. 112 of S.A.59/2000. 2 1975 was instituted for arrears of rent. Even though the trial court decreed the suit, the first appellate court and the second appellate court were of the view that the tenancy arrangement had not been proved, and therefore the trial court decree was reversed. Thereafter Masammal sold the property to the plaintiff as per deed No.312/85 of SRO Mannarghat. It is contended that the defendant has no title to the suit property and he is only a tenant. Since his earlier suit had been dismissed on the ground that the tenancy arrangement has not been proved, the plaintiff is constrained to bring a suit on title.
3. The defendant resisted the suit. In both the written statement as well as in the additional written statement the title of the plaintiff was disputed. It is contended that the property had never been in the possession of Chellan and consequently Masammal also. Masammal had no right over the suit property. Since the judgment and decree in O.S. 112 of 1975 against the plaintiff has become final, he is not entitled to any relief. It S.A.59/2000. 3 was also contended that the suit is barred by the principle of res judicata and estoppel. The defendant contended that he had obtained the property in 1961 on an oral tenancy from Moopilsthanam. According to him, he constructed a building and began to reside there from 1975. The defendant has been keeping possession of the property as his own and even if the plaintiff had any title to the suit property, it had been lost by adverse possession and limitation. On the basis of these contentions, it is prayed that the suit be dismissed.
4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A24 from the side of the plaintiff. Defendant examined D.W.1 and had Exts. B1 to B23 marked. Exts. C1, C2, C3 and C4 are the commission reports and plans. On an appreciation of the evidence in the case, the trial court came to the conclusion that the plaintiff had title to the suit property and that the defendant had only the status of a tenant under him. Accordingly the suit was decreed. The matter was carried in S.A.59/2000. 4 appeal as A.S. 79 of 1989 before Sub Court, Ottappalam. The first appellate court on an independent evaluation of the evidence concurred with the trial court and dismissed the appeal and hence this Second Appeal.
5. The following substantial questions of law are seen raised for consideration in this Second Appeal:
"(A) Should not the rival claims of tenancy set up by the parties and arising in the suit be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act?
(B) Is not the present suit barred by res judicata in view of the decision in the suit which culminated in Ext.A2 Second Appeal?
) Are not the contentions raised by the plaintiff barred by estoppel in view of the plea taken by his predecessor in interest in the previous suit filed by her against the defendant?
(D) Does the pendency of the suit for eviction of the building filed by the assignor of the plaintiff against the defendant arrest the running of the period of limitation for adverse possession in respect of the land?
S.A.59/2000. 5 (E) Is not the judgment of the court below vitiated due to non advertence of the material documents produced by the defendant?
(F) Ext. A1 property admittedly having not been identified, is the plaintiff entitled to a decree for recovery of possession, when the defendant has raised a specific contention that the suit property is not part of Ext.A1 property?
(G) Were the courts below right in holding that the defendant has not perfected title by adverse possession?"
6. Even though the appeal memorandum contains several grounds, learned counsel appearing for the appellant confined his argument to two points, ie., 1) the decree of the trial court without referring the matter to the Land Tribunal is void and 2) that the identity of the property has not been established.
7. While the plaintiff sets up title through Masammal and Chellan, the defendant sets up his title claiming a direct lease from Moopilsthanam. It is true that Masammal instituted O.S. 112 of 1975 against the defendant S.A.59/2000. 6 claiming arrears of rent. Even though the trial court decreed the suit, the first appellate court reversed the same and that was confirmed in Second Appeal. The appellate court was of the view that the plaintiff had failed to establish the tenancy arrangement pleaded by her and therefore she was not entitled to any relief. Ext.B11 is the certified copy of the first appellate court judgment and Ext.A2 is the judgment of this court in S.A. 678 of 1979 dated 9.10.1984. It is significant to notice that even though an issue regarding title was raised in the suit, the appellate court found that, that issue was irrelevant in the context and the question was only whether the tenancy arrangement pleaded is substantiated. The finding of the trial court was not reversed on the ground of want of title, but on the ground of want of proof of the arrangement pleaded. One fails to understand as to how the earlier suit operates as resjudiata or estoppel in the present suit. In the present suit the relief prayed for was for recovery of possession on the strength of title. It was not an S.A.59/2000. 7 issue in the earlier suit at all. The courts below were therefore justified in finding that the present suit is not barred by res judicata.
8. It was very emphatically contended by the learned counsel for the appellant that the decree of the trial court is non-est. It was contended that both the plaintiff and the defendant had obtained purchase certificates and in that case, the question that arises for consideration is who was actually the tenant of the property. This issue according to learned counsel for the appellant could not have been decided by the civil court and a reference to the Land Tribunal concerned as absolutely necessary in view of Section 125(3) of the Kerala Land Reforms Act. The courts below were not justified in taking themselves the onerous duty of ascertaining who really was the tenant, which was an exercise which they could not have undertaken. Accordingly it is contended that the decree of the trial court is void in law. Learned counsel for the appellant relied on the decision reported in Mathevan Padmanabhan v. S.A.59/2000. 8 Parmeshwaran Thampi (1995 Supp (1) SCC 479). Reliance was also placed on the decision reported in Jagdish Chandra Nijhawan v.S.K. Saraf ((1999) 1 SCC
119).
9. Per contra, learned counsel appearing for the respondent contended that there is no merit in the above submission at all. It is pointed out that the purchase certificate obtained by the plaintiff was prior in point of time. If that be so, there was nothing left to be assigned to the defendant. There is no dispute as regards the question as to who is the actual tenant. When the Land Tribunal concerned assigns the property in favour of the tenant following the procedure under Section 72B etc, then it is no longer possible for the same Land Tribunal to issue purchase certificate in respect of the same property to another person. Learned counsel relied on the decision reported in Patinhare Purayil Nabeesumma v. Miniyatan Zacharias (ILR 2008(2) Kerala 1). Pointing out that even assuming that the trial court has committed an error in that S.A.59/2000. 9 regard, there is no fetter on the appellate court to decide on the issue. It was also pointed out that the reliance placed by the learned counsel for the appellant on the decisions was without basis at all.
10. True, the decisions relied on by the learned counsel for the appellant do say that whenever a question of tenancy arises for consideration, it has to be referred to the Land Tribunal. The civil court has got jurisdiction once the finding of the Land Tribunal is returned. The civil court is bound to accept the same.
11. There can be no quarrel about the above proposition at all. But the question now arises for consideration is whether a reference is necessary in the present context. The contention of the appellant is that there is a rival claims of tenancy and therefore the matter has to be referred. But is it so? There is no dispute regarding the fact that the assignment of the property as contemplated under the Land Reforms Act to the plaintiff is prior in point of time. If the properties are same, the S.A.59/2000. 10 purchase certificates issued to the plaintiff and the defendant are in respect of the same property, then naturally the purchase certificate of the plaintiff being prior in point of time has to prevail. As rightly pointed out by the learned counsel for the respondent, after the assignment in favour of the plaintiff there is nothing left to the assigned to the defendant.
12. A reference to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act is necessary only when a question regarding the rights of a tenant or kudikidappukaran arises for consideration. Merely because a person sets up a tenancy or kudikidappu right, reference is not automatic. The issue must arise for consideration in the suit.
13. It is clear that one has to refer to the decision reported in Patinhare Purayil Nabeesumma's case relied on by the learned counsel for the respondent. In the said S.A.59/2000. 11 decision the issue as to what is the course that has to be followed when two purchase certificates are issued in favour of different persons was considered. It was held as follows:
"A certificate issued under Section 72K of the Act is conclusive. One the same is found to be conclusive, the same cannot be refused to be taken into consideration for any purpose whatsoever. The only issue which, therefore,, should have been raised by the High Court was as to who was entitled thereto, keeping in view the fact that the Land Tribunal had granted certificates of assignment to both the parties. In view of the statutory scheme,both the parties could not have been given the certificates of assignment. The certificate in favour of the appellant, even otherwise, having been granted earlier and the same having not been set aside on the ground of fraud or illegality, it was conclusive even as against the Land Tribunal. The Land Tribunal, therefore, had no jurisdiction to issue a second certificate."
S.A.59/2000. 12
14. In the light of this decision, it follows that the purchase certificate issued to the plaintiff being prior in point of time prevails over the purchase certificate issued to the defendant and so long as the purchase certificate issued to the plaintiff is not set aside, that is binding on the Land Tribunal, which issued the certificate. If that be so, obviously, the question of tenancy or kudikidappu does not arise for consideration at all.
15. One more aspect may be noticed in this regard. Learned counsel appearing for the respondent drew the attention of this court to the written statement filed by the defendant. It is pointed out that even though the plaintiff claims tenancy right over the property as a cultivating tenant, the contentions in the written statement belies his claim. All that is stated in the written statement is that after taking the property on lease, a building was put up. Even the defendant had no case that he had ever cultivated or intended to cultivate the property. S.A.59/2000. 13
16. Learned counsel appearing for the appellant referred the definition of the term 'cultivating tenant' and contended that actual cultivation is not necessary. The definition reads as follows:
"S.2(8) "cultivating tenant" means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding."
17. May be true. But the fact remains that the provisions are clear to the effect that the intention must be for the cultivation of the property and not for commercial use. As pointed out by the learned counsel for the respondent, the written statement discloses that soon after the property was received by the defendant, he had put up a building therein and later started to conduct business therein. May be that going by the definition at the time he took possession of the property, he is entitled to cultivate the same. But there should be some manifestation about the intention. In this case, there is no such reflection at all. S.A.59/2000. 14 It is unnecessary to go further because the claim of the appellant based on the purchase certificate has already been found against.
18. Surprisingly enough, a dispute regarding the identity was raised before this court by the appellant. The contention raised is that even going by the plaintiff's case, Chellan had taken on lease one acre of property and had assigned it to Masammal later on. Masammal had assigned the entire property except 6 cents, which is the disputed property. Accordingly, it is contended that the commissioner had to identify the entire one acre. It was also pointed out that the appellant had produced several documents to show that he is the owner and in possession of the property.
19. The courts below did not find that the plaintiff was completely successful in establishing the identification of one acre, but there are sufficient materials on record to come to the conclusion that the suit property also included in the same. Considerable reliance was placed by both the S.A.59/2000. 15 courts below on Exts.A8 and A9 documents. Ext. A8 was executed as early as on 13.4.1970, when there was no dispute between the parties. Ext.A8 is the certified copy of the registered assignment deed executed by Masammal in favour of Kamalammal. The commissioner had occasion to verify this document and marked as plot I in Ext.C4 plan. There was candid admission on the part of D.W.1 that the property lying mainly on the western side of the plaintiff's property is the property which was in the possession of Masammal and Masammal had assigned that property to Kamalammal. Kamalammal in turn sold the suit property to Pazhaniswamy Kounder, and that is evident from Ext.A9. These facts are admitted by the defendants. Eastern boundary of this document reveal that Masammal owned property on the eastern side.
20. A perusal of the commission report will clearly show that he had identified the property on the basis of the documents and re-survey sketch. The commissioner was able to identify plot No.3 lying on the eastern side of the S.A.59/2000. 16 plaint schedule property. The eastern property is currently in the possession of Dr. Thomas, who purchased it under Ext.A10. The western boundary in Ext.A10 is described as the property owned by Masammal. The courts below were after scrutinizing the recital in Exts.A8, A9, A10 and A12 came to the conclusion that the plaint schedule property as well as the property taken in by those documents form part of one acre obtained by Chellan and later obtained by Masammal. Ext. C4 plan clearly shows the various properties identified by him. None of the documents produced by the defendant would show that the property identified by the Commissioner as plaint schedule property was ever in the possession of the defendant.
21. The disputed plot is read shaded in Ext. C4 plan. Going by the boundaries of the property as claimed by the defendant, it can be seen that the claim made by him is untrue. The defendant produced Exts. B8 and B9 to show that the suit property did not form part of Ext.A1 property. Ext.B8 is the copy of the sale deed executed by Masammal S.A.59/2000. 17 in favour of Ramathal. In that document the western boundary is described as a way having a width of 6 feet retained by Masammal. This would indicate that there was a six feet width property between items 2 and 3 in Ext. C4 plan. It is therefore contended that the eastern description of the property now owned by Dr.Thomas in his document of title were relied on by the commissioner to come to the conclusion that the plaint schedule property was owned by Masammal.
22. The lower appellate court found that there was a way between plots 2 and 3 shown in Ext.C4 plan. It is seen that D.W.1, the defendant, had admitted in his cross examination that the said pathway was left by Masammal. However the commissioner was not able to locate such a way. But that is an undisputed fact, because the defendant had admitted that there was such a pathway. Ext.B9 is the document executed by Mariyammal in favour of Kumaraswamy Muthaliar. Mariyammal was the owner of the property, which is shown as plot 4 in Ext. C4 plan. Ext.B9 S.A.59/2000. 18 shows that the eastern boundary of plot 4 was not Kakkimoopan's property. Ext.B9 also states that the vendor under the said document had obtained tenancy rights from Mooppilsthanam. One fails to understand how Ext.B9 could be of any help to the plaintiff. It may be remembered that the evidence of P.W.1 is to the effect that out of the one acre purchased as per Ext.A1, 20 cents of land was sold and 50% of the remaining property was surrendered for the formation of a road. The lower appellate court has found that the claim made by P.W.1 cannot be completely correct. The lower appellate court also felt that it is unnecessary to measure the entire one acre land as claimed by the defendant and that the property has been sufficiently identified.
23. The courts below have considered these aspects in great detail and has come to the conclusion that the identity of the property is well established and there is no basis in the said contention at all. Being a finding on fact, it calls for no interference.
S.A.59/2000. 19
24. Though not very vehemently, a faint plea was raised to rely on the judgment in O.S. 112 of 1975. It is contended that since in the said suit tenancy arrangement has been found against, the plaintiff cannot again rely on the same. It is contended that by virtue of the documents produced by the defendant, it is seen that he is the owner of the property.
25. Both the courts below have found that the property as well as the building belonged to the plaintiff. The building tax payment, as evidenced by Exts.A21(a) and A21(b), would show that the building tax register stood in the name of Masammal and she is shown as the owner of the property. That document also indicate that the defendant is only an occupier. Exts.A18 to A18(x) are the receipts evidencing payment of building tax by Masammal. D.W.1 concedes that the electric connection stood in the name of Masammal. He had also admitted that the application for connection was made by Masammal. If as a matter of fact, it was the defendant, who had put up the S.A.59/2000. 20 building and he was the owner of the building, the above documents could not stand in the name of Masammal. The defendant has no case anywhere in the written statement that any fraud was played by Masammal. The defendant placed considerable reliance on Ext.B3, which is the marupattom receipt in respect of 10 cents of land in Attappady forest. One fails to understand the utility of Ext.B3. There is nothing to show that it relates to the suit property. To crown it on, the defendant claimed that he had obtained 10 cents of property on lease from the jenmy. If it is so, the easiest thing he could have done was to produce the said document. But the for reasons best known to him, the document was not forthcoming. One may recall here that the case set up in the written statement is one of oral lease.
26. It could thus be seen that apart from the inconsistent and conflicting pleas taken by the defendant, there is nothing to show that the property was obtained by S.A.59/2000. 21 him on lease from Moopilsthanam as contended by him and he had put up the building. The courts below were therefore fully justified in holding against the defendant.
The result is that this appeal is without merits and it is liable to be dismissed. I do so with costs to the respondent throughout.
P. BHAVADASAN, JUDGE sb.
S.A.59/2000. 22 P. BHAVADASAN, J.
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S.A. No. 59 of 2000
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JUDGMENT 17.06.2010