Indian Kanoon - Search engine for Indian Law

7. Learned senior counsel, Sri.M.C. Sen appearing for the appellants Sri.Gopikrishnan Nambiar appearing for respondents 9 to 13 who supports the appellants, and Sri.O.Ramachandran Nambiar, learned counsel appearing for the contesting respondents were heard.

8. Learned senior counsel appearing for the  appellants argued that first appellate court grossly erred in appreciating the evidence and also the law. Learned counsel relying on the decision of the Apex Court in Chandy Varghese v. Abdul Khader (2003(3) KLT 553)argued that Ext.B4 purchase certificate conclusively establish the independent title of the appellants and the first appellate court was not justified in considering the correctness of the oral lease, in the light of the purchase certificate, in view of Section 72K of Kerala Land Reforms Act. Learned counsel also argued that Land Tribunal on a reference under section 125(3) of Kerala Land Reforms Act, based on the evidence, entered a factual finding that second respondent was the cultivating tenant entitled to fixity of tenure and the said finding should not have been reversed in the light of Ext.B3 purchase certificate and Ext.B4 order of the Land Tribunal which has become final. Learned counsel also argued that though the surrender of Ext.B36 lease obtained by the first defendant and the mother was not evidenced by any documentary evidence, the  evidence and the attending circumstances establish the surrender and a subsequent lease in favour of the second defendant. Learned senior counsel pointed out that under Ext.B1, Padmavathi Amma who was examined as DW1, obtained the intermediary right of Padinhare Pockiarath tarwad and her evidence establish the oral surrender as well as the oral lease and the fact that subsequent to 1952 the pattam was being paid by the second defendant and he has been paying the basic tax from 1969 onwards would establish that there was a surrender of the original lease in favour of the first defendant and the mother and a subsequent oral lease in favour of the second defendant. Learned senior counsel also argued that payment of the pattam to the ultimate jenmi kovilakam is proved as Ext. B9 to B12 receipts were obtained by the second defendant from the kovilakam and they establish that subsequent to the oral lease of 1952 it was the second defendant who was paying the pattam and in such circumstances first appellate court should have upheld the defence case that Ext.B36 lease obtained by the first defendant and Chinnathayi was surrendered in 1952 and when DW1 Padmavathi Amma was in possession of the properties second defendant obtained the properties on oral lease in 1952 and since then he has been in exclusive possession and enjoyment of the properties and neither first defendant nor the legal heirs of Lakshmanan or Savithri are entitled to any share.

605) argued that the possession proved under Ext.B36 is presumed to be continued. The argument is that if a thing or a state of things is shown to  exist, an inference of its continuity within a reasonably proximate time, both forward and backwards could be drawn. Learned counsel also pointed out that evidence of DW1 does not establish either an oral surrender by the first defendant and Chinnathayi or a subsequent oral lease in favour of second defendant,as according to DW1 she has no personal knowledge of the alleged oral surrender or subsequent oral lease. Learned counsel pointed out that till 1960, when mother Chinnathayi died, the property has been in the joint possession of first defendant and Chinnathayi and on the death of Chinnathayi, her rights devolved on all her children including the second defendant and therefore possession of the second defendant subsequent to 1960 could only be as a co-owner and for and on behalf of all the co-owners. Learned counsel also pointed out that though second defendant contended that there was an oral lease obtained from Padmavathi Amma, no rent receipt was produced to establish payment of pattam to Padmavathi Amma and the rent receipts produced  evidence payment of pattam to the ultimate jenmi payable by Padmavathi Amma and even if the amounts were paid by the second defendant, it could only be for and on behalf of Chinnathayi and first defendant and will not establish either a surrender or a subsequent oral lease. Learned counsel argued that the question of a subsequent oral lease would arise, only if there was an earlier surrender and when there is no evidence to prove the surrender, the alleged oral lease must necessarily fall. Relying on the decisions of the Honourable Supreme Court in L.N.Aswathama and another v. P. Prakash (2009) 13 SCC 229), MD.Mohammad Ali v. Jagadish Kalita and others (2004)1 SCC 271), Darshan Singh v. Gujjar Singh(2002) 2 SCC 62), Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri (2000) 6 SCC 735), Annasaheb Bapusaheb Patil v. Balwant alias Balasaheb Babusaheb Patil(AIR 1995 SC

10. All the parties are admitting that the plaint schedule properties originally belonged to Chirakkal kovilakam and they were outstanding in the possession of the first defendant and  Chinnathayi under Ext.B36 registered marupat dated 6.2.1941. The said lease was granted by Padinhare Pockiarath tarwad, who in turn was holding the lease-hold right under Chirakkal Kovilakam. When the plaintiffs and the supporting defendants contended that Ext.B36 lease continued and the first defendant and Chinnathayi, the lessees under the lease, were in joint possession of the property till 1960 when Chinnathayi died and her one half right devolved on all the children and they were in joint possession and therefore plaint schedule properties are available for partition, appellants and the supporting defendants contended that Ext.B36 lease was later surrendered by Chinnathayi and the first defendant in 1952 and thereafter the properties were obtained by the second defendant under an oral lease from Padmavathy Amma. It cannot be disputed that the oral lease set up by the second defendant, could only be accepted, if there was a surrender of Ext.B36 lease. Ext.B36 establishes that the property covered under Ext.B36 lease was  outstanding in the possession of Chemmaniyan Bappu Vydiar, who surrendered the lease under Ext.B2 registered surrender deed in favour of Padmavathi Amma. Ext.B2 establishes that, the lease surrendered thereunder was the one obtained by Bappu Vaidyar for a period of four years under registered marupat 558 of 1899. Ext.B2 with Ext.B36 would establish that even in 1899 when a marupat was granted in favour of Bappu Vydiar it was granted under a registered deed and later when the lease was surrendered on 6.2.1941 it was also by a registered surrender deed. Later when the properties were granted on lease in favour of the first defendant and Chinnathayi, it was also under Ext.B36 registered marupat executed. It is thus absolutely clear that Padinhare Pockiarath tarwad was granting lease and obtaining surrender of the lease only by registered documents. If that be the case, if there was a surrender of Ext.B36 lease in 1952, as claimed by the second defendant, it would have been only by a registered surrender deed. The very fact that there is no case for the second  defendant that Ext.B36 lease was surrendered by a registered document, it is clear that there was no such surrender. Moreover, in view of section 42 of the Malabar Tenancy Act a surrender of the lease could only be by a registered document. Section 42 reads:-

When the Malabar Tenancy Act mandates that there cannot be a surrender of the kuzhikanam right by a tenant in favour of the landlord other than by a registered document and a landlord is not competent to accept the surrender except by a registered document, it is futile for the appellants to contend that there was an oral surrender of Ext.B36 lease. Though the learned senior counsel appearing for the appellants and the counsel appearing for the supporting respondents vehemently argued that continuous possession of the second defendant and payment of pattam by the second defendant, eventhough Lakshmanan was the eldest son of Chinnathayi, would establish that there was a surrender of lease and a creation of an independent lease in favour of the second defendant, on the facts, I cannot agree. When the properties were obtained by Chinnathayi, even if the pattam payable to the landlord was paid by one  of the sons and not by the mother or the son who obtained the properties along with the mother, under the registered marupat, it cannot be said that the payment made by the other son was under a separate lease and not for and on behalf of the mother. When the pattam is payable by the mother as well as one of the sons, there is nothing unusual in one of the sons obtaining receipts for payment of pattam. It could only be treated as a payment made by the tenant under Ext.B36 and not for an independent lease. As rightly pointed out by the learned counsel appearing for the contesting respondents, eventhough the second defendant examined DW1,the landlady, her evidence only establishes that she has no personal knowledge with regard to either the alleged surrender or the alleged oral lease. Her evidence is that it was all done by her husband. It is clear from her evidence that she has given evidence only to support the second defendant due to her closeness with the wife of the second defendant. Added to this, Ext.B26 and B37 levy notices produced by the  first defendant also disprove the alleged surrender. Ext.B26 notice was served on the first defendant directing him to pay the levy in respect of 3.15 acres of paddy land, which includes item No.1 of the plaint schedule properties namely 85 cents in Survey No.10/1. That notice was dated 26.10.65. Ext.B37 is another similar notice obtained by the first defendant on 15.9.1966 directing to pay levy in respect of 3.33 acres including 73 cents in Sy.No.9/4 and 80 cents in Sy.No.10/1 which are admittedly the plaint schedule properties. Both the notices were issued under Order 4 of the Kerala Paddy Levy Collection Order. Learned counsel appearing for the appellants argued that though levy notices were produced, no receipt for payment of levy was produced and therefore based on the notices it cannot be found that first defendant was in possession of the properties. True, no receipt is produced to prove that levy as demanded under Ext.B26 and B37 notices were paid by the first defendant. But the second defendant has no case  that he had received any such notice directing him to measure paddy in respect of plaint schedule properties. When those notices were issued based on the cultivation register prepared by the Village Officer, as the records show that first defendant was cultivating those paddy fields, Ext.B26 and B37 would definitely establish that even after 1952 first defendant has been in possession of the properties, which will not be the case if there was a surrender and a fresh oral lease in 1952 as claimed by the second defendant. It is also pertinent to note that the fact that first defendant constructed a shop building on the southern portion of the plaint schedule properties was not disputed. First defendant in his written statement contended that the shop building was constructed in 1957 by him. Though it was deposed by DW4, who was examined on behalf of the contesting defendants that the shop building was constructed in 1964, as pleaded by the second defendant in the additional written statement, the evidence of DW1 that the shop building was in  existence in 1957 was not challenged in cross examination. In such circumstances, the case of the second defendant that he permitted the first defendant to put up a shop building on the southern portion of the plaint schedule properties cannot be accepted as the alleged permission was in 1964 when the building was constructed in 1957. The case of the first defendant that he constructed the shop building in the lease hold property obtained by himself and the mother can only be accepted.