Kerala High Court
Somani G.Chailie Vargheese vs L.Saraswathy Amma on 27 July, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 622 of 1998(G)
1. SOMANI G.CHAILIE VARGHEESE
... Petitioner
Vs
1. L.SARASWATHY AMMA
... Respondent
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.R.RAMADAS
The Hon'ble MR. Justice P.BHAVADASAN
Dated :27/07/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 622 of 1998
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Dated this the 27th day of July, 2011.
JUDGMENT
The legal heirs of the original plaintiff in O.S.214 of 1987 before the Munsiff's court, Kayamkulam are the appellants. They were non-suited by the lower appellate court.
2. The plaintiff claimed to have obtained the plaint schedule property as per Ext.A1 partition deed dated 7.3.1973. Prior to the partition, the entire properties were being looked after by the plaintiff's brother Joseph T.Varghese. While he was managing the affairs, he entered into Ext.A16 agreement dated 30.5.1967 whereby the first defendant's husband Pankajakshan Pillai took the building in the property on lease for running a tutorial college. After the partition deed, intimation was given to Pankajakshan Pillai, who accepted the plaintiff as his landlord. Pankajakshan Pillai S.A.622/1998. 2 sub let a portion of the shed to one C.K.Vijayan. Plaintiff filed O.P.(R.C.) 39 of 1974 before the Rent Control Court, Kayamkulam. Eviction was ordered. Pankajakshan Pillai preferred R.C.A.5 of 1979 and the same was allowed and the plaintiff was directed to approach the civil court for eviction. Though the plaintiff filed R.C.R.P. 7 of 1982, during the pendency of the revision Pankajakshan Pillai died and since no steps were taken to implead his legal representatives, the R.C.R.P. was dismissed. Plaintiff filed O.S.138 of 1978 seeking a decree for injunction against Pankajakshan Pillai, which was decreed. Pankajakshan Pillai filed A.S.97 of 1981 before the District Court, Mavelikara and during the pendency of that appeal Pankajakshan Pillai died though the present defendants 1 to 4 were impleaded as his legal heirs, the lower appellate court held that the decree being a personal one, it did not survive. Thereafter the surrender of the premises was sought for, which was not heeded to by the legal heirs of Pankajakshan Pillai. Hence the suit. S.A.622/1998. 3
3. Defendants 1 to 3 filed a joint written statement and resisted the suit. It was contended that the partition deed on which reliance is placed has been set aside in O.S. 2 of 978 and therefore the plaintiff cannot rely on that document to seek recovery of possession of the property. Defendants 1 to 4 are residing in the building situate 35 cents comprised in Sy.No. K.878AB long prior to the suit. While Joseph T.Varghese was in possession of the above 35 cents by virtue of Ext.B1 dated 17.5.1965, he let out the land to Pankajakshan Pillai who constructed a building therein and started conducting tutorial college. Pankajakshan Pillai was paying ground rent to Joseph T.Varhese. The western portion of the 'L' shape building was used for residential purpose and it is the residence of defendants 1 to 4. Pankajakshan Pillai died on 23.7.1984. Pankajakshan Pillai is entitled to the protection of Section 106 of the Kerala Land Reforms Act. Ext.A16 is an unregistered document and it can confer no right on the plaintiffs. The suit is barred by limitation and even if the S.A.622/1998. 4 plaintiff had any possession over the suit property, it is lost by adverse possession and limitation. The plaintiff had never been in possession of 35 cents of property comprised in Sy. No.878AB and the defendants are not attorned to the plaintiff. The written statement also makes mention of various litigations between the parties. Suffice it to say, the contention appears to be that they are entitled to fixity of tenure as commercial lessees falling within the ambit of Section 106 of the Kerala Land Reforms Act.
4. On the above pleadings issues were raised by the trial court. Both sides did not adduce any oral evidence. The evidence on the side of the plaintiff are Exts.A1 to A38 and Exts.B1 to B18 are from the side of the defendants. Exts.C1, C2 and C2(a) are the commission reports and plan. The trial court on an evaluation of the evidence came to the conclusion that the defendants are not entitled to the protection of Section 106 of the Kerala Land Reforms Act and the suit was decreed.
S.A.622/1998. 5
5. The disappointed defendants took up the matter in appeal as A.S. 70 of 994. The lower appellate court found that the appellants before it were entitled to the protection of Section 106 of the KLR Act and accordingly allowed the appeal and dismissed the suit.
6. Notice is seen issued on the following questions of law:
"a) Is the appellate court justified in holding that Ext.B1 is a lease as contended by the defendants?
b) Is not Ext.B1 an illegal and void document as the same is an unregistered document?
c) Has the lower appellate court properly considered Ext.B1 and interpreted it properly and legally in coming to the conclusion that Ext.B1 is a lease?
d) Are not the defendants estopped from contending that the sheds in the schedule property were constructed by Pankajakshan Pillai in view of the specific admission in Ext.B16 that the same was constructed by Joseph T.Varghese? S.A.622/1998. 6
e) What is the effect of Ext.B1 which is alleged to be created by Joseph T.Varghese who was only a co-owner at that time?
f) Whether Ext.A16 creates a leasehold right or whether it is a licence to occupy the sheds alone?
g) Are the defendants entitled to protection under Section 106 of the Land Reforms Act?
h) On whom does the burden of proof lie to prove the ingredients of Section 106 of KLR Act?
i) Is the licencee of land entitled to claim protection under Section 106 of the KLR Act?
j) Is the court justified in holding that the defendants are holding the property under an irrevocable licence under Section 60 of the Easement Act when the defendant has no such plea in the written statement?"
7. Learned counsel appearing for the appellants pointed out that the finding of the lower appellate court that the defendants are entitled to fixity of tenure under Section 106 of the KLR Act is incorrect. The evidence has not been considered properly and the reason to reject Ext.A16 is irregular and improper. Execution of Ext.A16 is admitted by S.A.622/1998. 7 the defendants. Execution of Ext.B1 was disputed According to learned counsel, even assuming that Ext.B1 is genuine, there is nothing to show that the structures were put up by Pankajakshan Pillai pursuant to Ext.B1. No accounts were made available to show that expenses were met by Panakajakshan Pillai and none has gone into the box to speak about the structures said to have been put up by Pankajakshan Pillai. Even assuming that Ext.A16 is not a registered document, still it can be used for collateral purposes and it is clearly stated in the said document that the building was put up by the landlord using the funds provided by Panakajakshan Pillai. Ext.A16 is very clear in this regard. The possession of the defendants can be traced only to Ext.A16 and if that be so, they are not entitled to the protection of Section 106 of the KLR Act. It was also contended that even going by Ext.B1 the lease is after 1.4.1964 and if that be so, such a lease is hit by Section 74 of the KLR Act. Learned counsel pointed out that it is true that the defendants have produced Exts.B14 and B15 plans. S.A.622/1998. 8 But there is nothing to show that in pursuance thereof structures were put up by Pankajakshan Pillai. It was also contended that even if the execution of Ext.B1 is admitted, the same has been executed by only one of the co-owners and that cannot bind the other co-owners. In support of his contention that the lease is invalid, being one after 1.4.1964, learned counsel relied on the decisions reported in Mohammed v. Rukkiya (1994(2) K.L.T.722), Kannan v. Kunhabdulla (1981 K.L.T. SN 169). Reliance was placed on the decision reported in Kunjaiyappan v. Balakrishnan Nair (1987 (2) K.L.T. SN 71) and Suhara v. State of Kerala (1995(2) K.L.T. SN 54). It was therefore contended that the judgment and decree of the lower appellate court are clearly unsustainable both on facts and in law.
8. Learned counsel appearing for the respondents on the other hand pointed out that Section 74 of the KLR Act can have no application to the facts of the case. Section 74 applies only to Chapter II of the KLR Act and Section 106 falls outside Chapter II of the KLR Act. So also, Section 106 S.A.622/1998. 9 contains a non obstante clause which overrides Section 74 and therefore the contention that even assuming that Ext.B1 is genuine, the lease is invalid cannot be countenanced. Ext.B1 was accepted by the lower appellate court and it was found that in pursuance thereof structures were put up by Pankajakshan Pillai. The purpose for which Ext.B1 was executed is evident from the document itself. He was inducted into possession as per that document. All the ingredients necessary to attract Section 106 of the KLR Act are available in the case on hand and therefore the lower appellate court was justified in coming to the conclusion that the defendants are entitled to the protection of Section 106 of the KLR Act. In support of his contention, learned counsel relied on the decision reported in Govinda Panicker v. Sreedhara Warrier (2000(2) K.L.T. 43). It was also contended that even assuming that Ext.B1 is an unregistered document, it does not matter because for the purpose of claiming benefit under Section 106 it is not necessary that the lease deed should be a registered S.A.622/1998. 10 document. In support of the contention, learned counsel relied on the decisions reported in Ananthan Nadar v. Lakshmanan (1980 K.L.T.231) and Sulaikha Beevi v. Mathew (2001(1) K.L.T. 360).
9. Plaint schedule property consists of three items. They are 10 cents comprised in Sy. No.K881, 12 cents in Sy.No.K878B and 10 cents in K878A. The case of the plaintiff is that Pankajakshan Pillai was inducted into possession as per Ext.A16 dated 30.5.1967. If the possession of the defendants is traceable to Ext.A16, obviously they will not be entitled to claim the benefit of Section 106. However, the defendants trace their right to Ext.B1 dated 17.5.1965. They say that in pursuance to Ext.B1 and Exts.B14 and B15 plans were submitted and structures were put up by Pankajakshan Pillai for running a tutorial college. That permission was obtained for running an educational institution would be evident from Ext.B2. The respondents also rely on Exts.B8, B9 and B10 receipts issued by the plaintiff.
S.A.622/1998. 11
10. There was an earlier litigation between the parties. O.S.138 of 1978 was filed against Pankajakshan Pillai seeking an injunction against him from sub letting the premises. The suit was decreed. Pankajakshan Pillai preferred an appeal. During the pendency of the appeal he died. His legal heirs came on record. The appellate court took the view that since the suit was one for injunction and since Panakajakshan Pillai died, nothing more remained to be considered and disposed of the appeal.
11. There was a petition, O.P.(R.C.) 39 of 1974 filed by the plaintiff against Panakajakshan Pillai accusing him of having sublet the premises to one Vijayan. There, Pankajakshan Pillai claimed fixity of tenure. The matter was referred to the Land Tribunal. The finding went against Pankajakshan Pillai. It is significant to notice that in the O.P. (R.C) there was no contention that Pankajakshan Pillai was entitled to the benefit of Section 106 of the Act. Pankajakshan Pillai filed appeal against the finding in the Rent Control Petition. That was allowed and the petitioner in S.A.622/1998. 12 the O.P.(R.C) was directed to approach the civil court for reliefs. Though the plaintiff filed R.C.R.P. against the said order, since the legal heirs of Pankajakshan Pillai were not impleaded as he died during the pendency of the proceedings, revision was dismissed as abated.
12. Ext.A16 is an admitted document by the defendants. The contention of the defendants is that since that document is not a registered one, it cannot be acted upon. Ext.B1 relied on by the defendants was accepted by the lower appellate court. As per that document, land was given to Pankajakshan Pillai on ground rent and he was allowed to put up structures for running a tutorial college. Exts.B14 and B15 are building plans produced by the defendants to show that Pankajakshan Pillai put up the structures. Though the plans have been produced there is absolutely no evidence at all to show that Pankajakshan Pillai had infact put up the structures.
13. One aspect needs to be noticed in this regard. The person who executed Ext.B1 was only a co-owner in S.A.622/1998. 13 management. It is well settled that a co-owner cannot create a right beyond his interest.
14. Ext.B1 is dated 17.5.1965. It is contended on behalf of the appellants that Ext.B1 being a lease after 1.4.1964 is hit by Section 74 of the Act and is invalid.
True the decisions relied on by the learned counsel for the appellants go on to show that any lease created after 1.4.1964 is invalid and cannot be given effect to. However, the above contention must fail on two grounds, (i) in the light of Section 3 of the Act and (ii) on the wording of Section 106 of the Act. Section 3 and Section 106 of the Act read as follows:
"3. Exemptions.- (1) Nothing in this chapter shall apply to-
........... .............
(ii) leases only of buildings, including a
house, shop or warehouse and the site thereof, with the land, if any, appurtenant thereto.
Explanation.- .......... ........... S.A.622/1998. 14
(iii) leases of land or of buildings or of both specifically granted for industrial or commercial purposes; or."
106. Special provisions relating to leases for commercial or industrial purposes.- (1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of Court, where on any land leased far commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.
Explanation.- For the purposes of this
section,-
(a) "lessee" includes a legal representative or an assignee of the lessee; and
(b) "building" means a permanent or a temporary building and includes a shed."
S.A.622/1998. 15 Section 3 deals with lease of land, building etc. Section 106 starts with a non obstante clause and it says that the provision shall have overriding effect notwithstanding anything contained contrary in the Act itself. If that be so, Section 106 overrides Section 74 and the contention of the learned counsel for the appellants has necessarily to fail.
15. Coming back to Ext.B1, true it enables Pankajakshan Pillai to put up structures in the property. The question is whether Exts.B14, B15 and B2 are sufficient to come to the conclusion that the structures were put up by Pankajakshan Pillai. In the light of the specific contention taken by the plaintiff that Pankajakshan Pillai held the property as per Ext.A16, one would have expected the defendants to mount the box and speak to their case. Atleast there should have been some efforts on the part of the defendants to show that it was Pankajakshan Pillai, who had put up the structures in the property. For reasons best known to them, no oral evidence was adduced. Apart from Exts.B14, B15 and B2 the defendants have produced S.A.622/1998. 16 Exts.B8, B9 and B10 receipts which are in the name of Pankajakshan Pillai. Exts.B8, B9 and B10 are before the execution of Ext.A16. The recitals in Exts.B8, B9 and B10 are rent received as " " (ground rent).
16. Coming to Ext.A16, the lower appellate court rejected the same on the ground that since it is unregistered.
17. Learned counsel appearing for the respondents contended that a reading of Ext.A16 would show that it is an agreement of lease or in other words it is only an executory contract. Learned counsel also pointed out that in order to claim the benefit of Section 106 of the Act, the document need not be registered and therefore Ext.B1 goes in favour of the respondents.
18. True, in order to claim the benefit of Ext.B1, going by the decisions cited by the learned counsel for the respondents, it is not necessary that the lease deed concerned must be a registered one.
S.A.622/1998. 17
19. Ext.A16, as already stated, is an admitted document. Defendants were unable to offer any explanation for the recitals in Ext.A16. The lower appellate court very held as follows:
"It is clear that Exts.A16 and B16 were signed not with a free mind but under a suspicious circumstance. It is not uncommon that tenants are being compelled to agree for unreasonable terms and conditions and, it may be that Exts.A16 and B16 were signed under such a circumstance."
This is a case created by the lower appellate court. The defendants have no such case at all. They had no explanation to offer for the recitals in Ext.A16.
20. It is well settled that even if the document is not a registered one, though a lease, it can be used for collateral purposes. In the decision reported in Rai Chand Jain v. Chandra Kanta Khosla (AIR 1991 SC 744) it was held as follows:
"It is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes."
S.A.622/1998. 18
21. In the decision reported in Paul v. Saleena (2004(1) K.L.T. 924) it was held as follows:
"It is true that S.17 does not say that unregistered document shall not be received in evidence. S.49 bars reception in evidence of document or proceeding which is required to be registered under S.17 of the Registration Act but not registered. The Apex court in Champalal v. Samrathbai held that filing of an unregistered award under S.49 is not prohibited, what is prohibited is that it cannot be taken into evidence so as to affect immovable property falling under S.17.
......Unregistered lease could at best be looked into for ascertaining the commencement of possession, rate of rent or similar other provisions which are collateral to the principal transaction. The Court held it could never have been the intention of the legislature that under the first part of the section we should discard an unregistered document for want of registration and at the same time under the camouflage of the proviso we should be permitted to look into and rely upon all the terms of the inoperative document which do S.A.622/1998. 19 form the integral parts of the principal transaction.
....The above mentioned judicial pronouncements and the principles laid down therein would clearly show that an unregistered document cannot be used for the purpose of establishing that that document created or declared or assigned or limited or extinguished a right to immovable property. Period of lease is integral part of the agreement and not a collateral one. Unregistered lease deeds cannot be pressed into service to create, declare, assign, limit or extinguish any right, title or interest in or to the property comprised in the document."
22. In the decision reported in K.B.Saha & Sons (P) Ltd. v. Development Consultant Ltd. ((2008)8 SCC
564) it was held as follows:
"From the principles laid down in the various decisions of this Court and the High courts, as referred to herein above, it is evident that:
1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. S.A.622/1998. 20
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
In our view, the particular clause in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the appellant that the suit premises were let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was S.A.622/1998. 21 not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming part of the lease agreement. Therefore, such a clause, namely, Clause 9 of the lease agreement in this case, cannot be looked into even for collateral purposes to come to a conclusion that the respondent was liable to be evicted because of violation of clause 9 of the lease agreement. That being the position, we are unable to hold that clause 9 of the lease agreement, which is admittedly unregistered, can be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was not entitled to induct any other person other than the named officer in the same."
23. In the decision reported in S. Kaladevi v. V.R.Somasundram ((2010) 5 SCC 401) it was held as follows:
"The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any S.A.622/1998. 22 transaction affecting such property. The proviso, however, would show that an unregistered document affecting immovable property and required by the 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by deed of an immovable property of the value of Rs.100 and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act.
Recently, in K.B. Saha and Sons (P) Ltd. v. Development Consultant Ltd. this court noticed S.A.622/1998. 23 the following statement of Mulla in his Indian Registration Act:
"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chie court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesoh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it."
This court then culled out the following principles:
"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
S.A.622/1998. 24
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.
In Kalavakurti Venkata Subbaiah v. Bala Gurappagari Guruvi Reddy the question presented before this Court was whether a decree to enforce the registration of sale deed could be granted. that was a case where the respondent therein filed a suit for specific performance seeking a direction S.A.622/1998. 25 to register the sale deed. The contention of the appellant, however, was that decree for specific performance seeking a direction to register the sale deed. The contention of the appellant, however, was that decree for specific performance based on unregistered sale deed could not be granted. This Court noticed the provisions contained in Part XII of the 1908 Act, particularly Section 77, and the difference of opinion between the various High courts on the aspect and observed:
"10. The difference of opinion amongst the various High Courts on this aspect of the matter is that Section 77 of the Act is a complete code in itself providing for the enforcement of a right to get a document registered by filing a civil suit which but for the special provision of that section could not be maintainable. Several difficulties have been considered in these decisions, such as, when the time has expired since the date of the execution of the document whether there could be a decree to direct the Sub-Registrar to register the document. On the other hand, it has also been noticed that an agreement for transfer of property implies a contract not only to execute the deed of S.A.622/1998. 26 transfer but also to appear before the registering officer and to admit execution thereby facilitating the registration of the document wherever it is compulsory. The provisions of the Specific Relief Act and the Registration Act may to a certain extent cover the same field but so that one will not supersede the other. Where the stage indicated in Section 77 of the Act has reached and no other relief except a direction for registration of the document is really asked for, Section 77 of the Act may be an exclusive remedy. However, in other cases it has no application, inasmuch as a suit for enforcement of a contract and other consequential or further relief. If a party is seeking not merely the registration of a sale deed, but also recovery of possession and mesne profits or damages, a suit under Section 77 of the Act is not an adequate remedy."
This Court then held that the first appellate court rightly took the view that under Section 49 of the 1908 Act, an unregistered sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property. It was held:
S.A.622/1998. 27
"11..... The document has not been presented by the respondent to the Sub-Registrar at all for registration although the sale deed is stated to have been executed by the appellant as he refuses to cooperate with him in that regard. Therefore, various stages contemplated under Section 77 of the Act have not arisen in the present case at all. We do not think, in such a case when the vendor declines to appear before the Sub-Registrar, the situation contemplated under Section 77 of the Act would arise. It is only on presentation of a document the other circumstances would arise. The first appellate court rightly took the view that Section 49 of the Act the sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property."
24. The act of the lower appellate court in completely discarding Ext.A16 cannot be countenanced. Even assuming that it could not be treated as an evidence of lease, it could very well be used for collateral purposes. Though the terms of the transaction could not be established S.A.622/1998. 28 by relying on the said document, the recitals in the document can certainly be looked into. As already stated, the defendants have offered no satisfactory explanation as to how the recitals in Ext.A16 happened to be inserted. The recitals in Ext.A16 shows that building was put up by landlord using the funds advanced by Pankajakshan Pillai and it provides for appropriation of amount towards interest from the rent payable. Even though the lower appellate court finds out a reason for the same, it is significant to notice that the defendants have no such explanation.
25. Now one may have a look at Ext.A17 which are the counterfoils of rent receipts issued to Pankajakshan Pillai. They are receipts after Ext.A16. Counterfoil dated 5.8.1968 is for rent for month of January, 1968. Counterfoil dated 10.8.1968 is for the month of February, 1968. Counterfoil dated 31.8.1968 is for the month of August, 1968. Ext.A21 counterfoil dated 8.6.1973 is for the month of May, 1973 and the next receipt is dated 8.7.1973, which is for the month of June, 1973. In all these receipts, the rent is S.A.622/1998. 29 shown to have been received for the building. One may at once notice Exts. B8, B9, B10 and Exts.A17 and A21. In Exts.B8, B9 and B10 what is specified is ' '. However, in Exts.A17 and A21 the rent is shown as having paid for the building.
26. There is absolutely no evidence to show that Ext.A16 was executed under compulsion or threat. If Ext.A16 has to be given effect to, then the possession of the defendants can be traced only to that document. One may here notice Ext.B8 produced by the defendants. Ext.A1 produced in those proceedings is Ext.A16 in the present case. The specific contention in the said case by the tenant was that he had taken the land on rent in 1962 and then after the building was put up, he entered into Ext.B1 transaction. In that case also it was observed that there was no evidence to show that Pankajakshan Pillai had put up the building. In the judgments in O.P.(R.C) and RCA evidenced by Exts.A11 and B8 respectively, the definite stand was that as per Ext.A1 the parties were holding the property. In the S.A.622/1998. 30 O.P.(R.C) proceedings, the defendants herein did not have a case that Ext.A1, which is Ext.A16 in the present suit was vitiated due to any reason. Both the rent control court and the appellate court considered Ext.A1 elaborately. It was also found that in view of Ext.A1 title to the building is concluded and the defendants cannot be heard to say otherwise. A perusal of Ext.B8 will show that the Rent Control Court as well as the Appellate Authority referred to both Exts.B1 and A16. It was based on Ext.B1 that tenancy was claimed in the said proceedings. When the matter was referred to the Land Tribunal, it appears that the tenant filed a statement to the effect that he was put in possession in 1962 and Ext.B1 was entered into only for the purpose of enabling him to put up structures. It was that claim of the tenant that was found against. The tenant in those proceedings did not claim the benefit of Section 106 of the Act. It is significant to notice that there was a specific averment in the pleadings in the said proceedings that the tenant was not entitled to the benefit of Section 106 of the S.A.622/1998. 31 Act. Inspite of that specific averment, the tenant did not choose to raise a claim seeking benefit of Section 106. However, at the appellate stage, that is the Rent control appellate authority left the issue open.
27. As already noticed, the reasons given to discard Ext.A16 altogether by the lower appellate court cannot be accepted. It is significant to notice that even the lower appellate court does not find that it was Pankajakshan Pillai who had put up the building. It only says that in all probability the building might have been put up by Pankajakshan Pillai. Nothing prevented the defendants from adducing evidence in that regard especially when it was disputed that the building was put up by Pankajakshan Pillai and it was claimed that possession of the building by the defendants was in pursuance of Ext.A16.
28. If as a matter of fact it was Pankajakshan Pillai who had put up the structures, the defendants should offer an explanation as to the reason for entering into Ext.A16 agreement. The defendants did not plead any vitiating S.A.622/1998. 32 element so as to nullify Ext.A16. There is a clear admission from the defendants regarding the execution of Ext.A16 and their subsequent conduct will also show that it has been acted upon. In the light of these items of evidence, it is extremely doubtful whether it was Pankajakshan Pillai who had put up the structure.
29. There is yet another significant aspect. In the written statement of the defendants their definite stand is that they are not in possession of any extent of land in Sy. No. K881 and they possess the land comprised in Sy. No.878A and B only. But the commission report and plan namely Exts.C2 and C2(a) show otherwise. A good portion of the structure said to have been put up by Pankajakshan Pillai is situate in K881 also. These clinching items of evidence would to a good extent strengthen the claim put forward by the plaintiff that it was pursuant to Ext.A16 that Pankajaksha Pillai continued to hold the property.
30. One cannot omit to note that the defendants have no consistent case. In the RCP proceedings, when the S.A.622/1998. 33 matter was referred to the Land Tribunal, their case was that the lease was of the year 1962 and the plaintiff had put up the structures in order to continue the lease of the building also Ext.B1 was executed. It is also important to notice that in the said proceedings, there was no claim seeking protection under Section 106 of the Act. In both the O.P.(RC) and the earlier suit, the definite stand of Pankajakshan Pillai was that he had come into possession of the land as a lessee of the land and was entitled to fixity of tenure thereby. On both the occasions the claim was found against. It is true that O.S. 138 of 1978 ultimately came to be dismissed and the issue regarding the claim of benefit under Section 106 was left open in R.C.A. But as far as the Land Tribunal is concerned, it has found that Pankajakshan Pillai is not entitled to the benefits under the KLR Act. Section 108A of the KLR Act reads as follows:
"108A. Section 11 of the Code of Civil Procedure to apply to proceedings before Land Tribunal.- The provisions of Section 11 of the Code of Civil Procedure, 1908 (Central Act 5 of S.A.622/1998. 34 1908), shall, so far as may be, apply to proceedings before the Land Tribunal."
Even assuming that res judicata is applicable to the facts of the case, the fact remains that the defendants have no consistent case.
31. As long as the defendants admit execution of Ext.A16, unless the defendants are able to offer cogent explanation as to why the recitals regarding the building were incorporated in Ext.A16, necessarily even assuming that the predecessor in interest of the defendants have come into possession by virtue of Ext.B1, their nature of possession changes after Ext.A16. This, as already noticed, is evident from the rent receipts produced by the plaintiff and defendants.
32. It is significant also to notice that at present the defendants are residing in the property. One may recall here that in the R.C.R.P. proceedings and earlier proceedings the defendants have no case that it was pursuant to Ext.B1 that the lease was granted for the first time. Lease was in S.A.622/1998. 35 earlier point of time and Ext.B1 was subsequently executed. Those claims were found against. So long as execution of Ext.A16 is not vitiated due to any reason, it could not be said that Pankajakshan Pillai is entitled to the benefit of Section 106.
The questions of law are answered in favour of the appellants. This appeal is allowed, the impugned judgment and decree are set aside and that of the trial court are restored, though for different reasons. There will be no order as to costs.
P. BHAVADASAN, JUDGE sb.