Kerala High Court
Devu vs Respondents/Defendants & Suppl on 22 March, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
THURSDAY, THE 22ND DAY OF MARCH 2012/2ND CHAITHRA 1934
RSA.No. 298 of 2012 ()
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AS.197/2008 OF DISTRICT COURT, PALAKKAD
OS.253/2004 OF PRINCIPAL MUNSIFF COURT, PALAKKAD
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APPELLANT(S):APPELLANTS/PLAINTIFFS:
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1. DEVU, W/O.VELAYUDHAN, AGED 72 YEARS,
MANIYANKADU VEEDU, KADAMKODU,
KARINKARAPULLY, PALAKKAD DISTRICT.
2. THANKA, W/O.KRISHNAN, AGED 67 YEARS,
MURUKANI VEEDU, C.N.PURAM,
MATTUMATHA, PALAKKAD DISTRICT.
BY ADVS.SRI.BINOY VASUDEVAN
SMT.P.G.BABITHA
RESPONDENT(S):RESPONDENTS/DEFENDANTS & SUPPL.DEFENDANTS
(LEGAL HEIRS OF THE THIRD PLAINTIFF):
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1. K.SAKUNTHALA, D/O.KUNJU, AGED 54 YEARS,
MEENIKODE, METTUPALAYAM, THATHAMANGALAM,
CHITTUR TLAUK, PALAKKAD DISTRICT - 678 101.
2. K.RAMAKRISHNAN, S/O.KUNJU,, AGED 52 YEARS,
M.KALIVEPATHY VIA, EZHIMALA, USLANPATTY TALUK,
MADURAI DISTRICT - 678 105.
3. K.RAMACHANDRAN, S/O.KUNJU, AGED 49 YEARS,
M.KALIVEPATHY VIA, EZHIMALA,
USLANPATTY TALUK,MADURAI DISTRICT - 678 105.
4. RAMACHANDRAN, , AGED 47 YEARS
S/O.KAMBAYI, MANIYAKKAD VEEDU, KADAMKODU,
KARINKARAPPULLY, PALAKKAD DISTRICT - 678 101.
Kss ..2/-
...2....
RSA.NO.298/2012
5. AMBUJAKSHI, , AGED 57 YEARS,
D/O.KAMBAYI,MANIYAKKAD VEEDU, KADAMKODU,
KARINKARAPPULLY, PALAKKAD DISTRICT - 678 101.
6. SARASWATHY, , AGED 51 YEARS,
W/O.CHANDRAN, MANIYAKKAD VEEDU, KADAMKODU,
KARINKARAPPULLY, PALAKKAD DISTRICT - 678 101.
7. LEELA , W/O.BALAN, AGED 49 YEARS,
MANIYANKKAD VEEDU, KADAMKODU, KARINKARAPPULLY,
PALAKKAD DISTRICT - 678 101.
8. VASANTHA, , AGED 49 YEARS,
D/O.KAMBAYI,MANIYAKKAD VEEDU, KADAMKODU,
KARINKARAPPULLY, PALAKKAD DISTRICT - 678 101.
9. SHANMUGHAN,AGED 39 YEARS,
S/O.KAMBAYI,MANIYAKKAD VEEDU, KADAMKODU,
KARINKARAPPULLY, PALAKKAD DISTRICT - 678 101.
10. MADAVI, AGED 52 YEARS,
D/O.KALLYANI,PUTHENVEEDU,MATUMATHA,
C.N.PURAM, PALAKKAD DISTRICT - 678 101.
11. KAMALAM, D/O.KALLYANI, AGED 47 YEARS,
PUTHENVEEDU,MATUMATHA, C.N.PURAM,
PALAKKAD DISTRICT- 678 101.
BY ADV. SRI.A.SHAFEEK (KAYAMKULAM)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
22-03-2012 ALONG WITH RSA. 322/2012, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Kss
THOMAS P.JOSEPH, J.
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R.S.A. Nos.298 & 322 of 2012
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Dated this the 22nd day of March, 2012
J U D G M E N T
These Second Appeals arise from the judgment and decree of learned Munsiff, Palakkad in O.S. No.253 of 2004 and 674 of 2005 as confirmed by the learned District Judge, Palakkad in A.S. Nos.197 and 138 of 2008. Parties are referred as plaintiffs and defendants as arrayed in O.S. No.253 of 2004.
2. O.S. No.253 of 2004 is a suit for partition. Plaintiffs claimed that the suit property belonged to Raman, predecessor in interest of plaintiffs and defendants, he having obtained oral lease of the said property. The said Raman died about 30 years back. On the death of Raman the said property devolved on plaintiffs 1 to 3, Kambayi and Kalyani. Kambayi, the eldest son of Raman, died about 6 years back. Defendants 1 to 6 are the legal heirs of Kambayi while defendants 8 to 10 are the legal heirs of Kalyani. In the year, 1976 Kambayi got purchase certificate concerning the suit property, according to the plaintiffs on behalf of all legal heirs of Raman and who according to the plaintiffs are co-owners of the suit property. They demanded partition of the R.S.A. Nos.298 & 322 of 2012 -: 2 :- said property.
3. Defendants 1, 3, 5 and 7 contended that Raman had no right over the property and that he died about 70 years back. Property was obtained on lease by Kambayi from his Jenmy, Narayana Iyer. Kambayi constructed a shed in the property and was residing there with family. He constructed a tiled house as well. In the suo moto proceedings initiated in 1975, by virtue of Ext.B1, order dated 07.02.1976, Ext.B2, purchase certificate dated 04.05.1976 was issued to Kambayi. Later, Kambayi dealt with that property as if it is his absolute property. It is the further case of defendants 1, 3, 5 and 7 that Kambayi assigned the property to his son, 1st defendant as per Ext.B5, assignment deed dated 10.08.1993. Thereafter first defendant was exercising power and control over the property as if it is his absolute property. It is also the contention of defendants 1, 3, 5 and 7 that plaintiffs were able to make some corrections in the revenue records to facilitate their case for partition. First plaintiff had quarreled with her husband and came to the house of Kambayi. Kambayi allowed her to reside in the tilled shed in the suit property.
4. Fifth defendant filed O.S. No.674 of 2005 against plaintiffs 1 and 2 and others for a decree for mandatory R.S.A. Nos.298 & 322 of 2012 -: 3 :- injunction to direct them to vacate the house in the suit property (which according to defendants 1, 3, 5 and 7, Kambayi permitted the first plaintiff to occupy). That suit was resisted by plaintiffs 1, 2 and others contending that they are co-owners of the entire property and denying the allegation that permission was granted by Kambayi. Trial court on a consideration of the evidence dismissed O.S. No.253 of 2004 holding that plaint schedule property was taken on lease by Kambayi, predecessor in interest of defendants 1 to 7. Accepting their case that Kambayi allowed plaintiffs 1, 2 and others to occupy the house in the suit property, O.S. No.674 of 2005 was dismissed. Judgment and decree of the trial court were confirmed by the first appellate court. Hence these Second Appeals urging the substantial questions of law raised in the memoranda of appeals.
5. Learned counsel contended that finding that suit property was acquired by Kambayi on lease is unsustainable and it is without evidence. It is contended that Ext.X1 is sufficient indication that property was acquired on lease by Raman. Learned counsel submitted that finding entered by the courts below that Ext.X1 came into existence after 1992-93 is not correct. It is submitted by the learned counsel that resurvey was R.S.A. Nos.298 & 322 of 2012 -: 4 :- effected much prior to 1992-93 though details of resurvey may have been entered in Ext.X1 later. A further contention is that at any rate, there is a rival claim of tenancy made by parties and in the circumstances it was necessary that the issue regarding tenancy should have been referred to the Land Tribunal for a decision. Next argument is that at any rate decree for mandatory injunction given in O.S. No.674 of 2005 cannot be sustained since it is about 20 years after plaintiffs 1 and 2 and others started occupation of the house in the suit property that a decree for mandatory injunction is being given as if they are only permissive occupants of the said house. According to the learned counsel, plaintiffs 1 and 2 and others are in settled possession of the suit property and hence mandatory injunction is not the appropriate remedy.
6. Learned counsel who took notice for respondents 4 and 8 in R.S.A. No.298 of 2012 and first respondent in R.S.A. No.322 of 2012 would contend that finding entered by the courts below rest on evidence on record and involves no substantial question of law. It is contended that no reliance can be placed on Ext.X1 and that the absolute right of Kambayi in the suit property is admitted by P.W.1, son of second plaintiff. R.S.A. Nos.298 & 322 of 2012 -: 5 :-
7. Plaintiffs relied on Ext.X1, extract of the building tax register produced by the Village Officer concerned in proof of their contention that lease was in favour of Raman. In Ext.X1, owners of the property referred to therein and comprised in R.S. No.92/3 are described as (Raman , ). Trial court pointed out that resurvey was done sometime in 1992-93 and in all possibility, Ext.X1 came into existence only thereafter. Hence Ext.X1 is not sufficient to prove the claim of plaintiffs that property was acquired by Raman. It is also relevant to note that defendants 1, 3, 5 and 7 (including plaintiff in O.S. No.674 of 2005) have a contention that plaintiffs were able to manipulate the revenue records to facilitate their contention.
8. It is not disputed that in the SM proceedings initiated in the year 1975, Ext.B1 order was passed in favour of Kambayi on 07.02.1976 and he was issued Ext.B2, purchase certificate dated 04.05.1976. Though it is contended by plaintiffs that the said purchase certificate issued on behalf of all the co-owners including the plaintiffs there is no evidence in that regard, Ext.X1 itself being in a doubtful position as pointed out by the trial and first appellate courts.
9. It is appropriate to refer to other relevant documents R.S.A. Nos.298 & 322 of 2012 -: 6 :- and evidence as well. P.W.1 who is the son of first plaintiff and 1st defendant admitted that they had learned that purchase certificate was issued in the name of Kambayi in the year, 1976. Thereafter one do not find any evidence that of co-ownership right exercised by any of the plaintiffs in the suit property. On the other hand, it is seen that at least P.W.1 was admitting absolute right of first defendant over the property as per Exts.B1 and B2. Exhibit B5 is the copy of settlement deed dated 10.08.1993 executed by Kambayi in favour of his son, the first defendant concerning the entire property. First defendant stated that he created a mortgage in favour of one Lakshmanan as per Ext.B3 dated 19.08.1993. Later first defendant redeemed that mortgage as per Ext.B4. It is interesting to note that P.W.1, son of first plaintiff is an attesting witness in Ext.B4. Normally an attesting witness cannot be imputed with knowledge of contents of document. But when the parties are close relatives, it is possible to say that attesting witness was aware of contents of the documents. If that be so, P.W1 who is a close relative of first defendant cannot plead that he was unaware of contents Ext.B4 which he has attested as a witness. It is also seen that first defendant executed Ext.B6, assignment deed dated 05.01.2004 in R.S.A. Nos.298 & 322 of 2012 -: 7 :- favour of Vasantha. Exhibits B7, B8 and B10 to B13 are produced to show that first defendant was paying revenue for the property during 1992, 1993, 2003, 2004 and 2007. Exhibit B9 series are receipts produced by the contesting defendants to show that Kambayi, predecessor in interest of defendants 1 to 7 was paying revenue for the suit property from 23.01.1984 onwards.
10. On the other side as I stated, what is available is only Ext.X1 which I said arises in a doubtful circumstance. In the circumstance contention that the lease was in favour of Raman cannot be accepted. When a purchase certificate is issued in favour of Kambayi I must presume that he was the cultivating tenant of the property.
11. Yet another argument learned counsel has advanced is that on the basis of the rival claim of tenancy the question regarding tenancy should have been referred to the Land Tribunal under Sec.125(B) of the Kerala Land Reforms Act. The argument sounds attractive but cannot stand legal scrutiny. For, the Land Tribunal is bound by Ext.B1, order 07.02.1976 and the consequent purchase certificate, Ext.B2, dated 04.5.1976 issued in favour of Kambayi. Principles of res judicata will bar the Land R.S.A. Nos.298 & 322 of 2012 -: 8 :- Tribunal from entertaining and deciding the issue again. Plaintiffs have no case that Kambayi fraudulently obtained the purchase certificate. If they had such a case, the civil court was competent to decide that question who really was the tenant. Here, plaintiffs say that Kambayi obtained the purchase certificate on behalf of all of them. Civil court had the power to decide that question. Hence a reference of the question to the Land Tribunal did not arise.
12. Last argument is concerning the mandatory injunction granted in O.S. No.674 of 2005. Exhibits A1 to A4 are produced to show that plaintiffs 1 and 2 and others are residing in the house in the suit property. Those documents will not improve the case of plaintiffs 1 and 2 and others since it is admitted by defendants 1, 3, 5 and 7 (including the plaintiff in O.S. No.674 of 2005) that plaintiffs 1 and 2 and others are residing in the house in the suit property, their contention being that it is a permissive occupation under Kambayi and later under the first defendant. If it is permissive occupation that could be revoked and the occupant could be asked to vacate the premises as per a decree of mandatory injunction as the occupant whose licence is cancelled, has only a right to get reasonable time to vacate. R.S.A. Nos.298 & 322 of 2012 -: 9 :- Merely for the reason that for about 20 years plaintiffs 1 and 2 and others are residing in the house in question I am not inclined to say that it amounts to settled position as against the owners of the house and asserting their independent right so that plaintiff in O.S. No.674 of 2005 were required to file a suit for recovery of possession. It is settled position that when licence is terminated it is open to the licensor to ask for a mandatory injunction to direct the licensee to vacate the premises of course before the licensee after such termination of the licence settles down into possession asserting his own right. That situation has not arisen in this case.
13. In the above circumstance findings entered by courts below based on facts and evidence involve no substantial question of law.
Second Appeals are dismissed.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
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