IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 SA.No. 603 of 2000(E) --------------------- AS.1158/1994 of SUB COURT,NEYYATTINKARA OS.17/1993 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANT/APPELLANT/DEFENDANT: ----------- VELAYUDHAN PILLAI, KESAVAN NAIR, AGED 50, PARAYAMVILAKATHU PUTHEN VEEDU, ARANKAMUGAL, ATHIYANNOOR DESOM AND VILLAGE, FROMKALAYILVEEDU, -DO- AMSOM, -DO- VILLAGE. BY ADV. SRI.R.T.PRADEEP RESPONDENTS/RESPONDENTS/PLAINTTIFFS: ------------- 1.RAMAKRISHNA PILLAI RETNAKUMAR, AGED ABOUT 27, THEKKAKOODILLA VEEDU, ATHIYANNOOR DESOM AND VILLAGE, FROM KALAYIL VEEDU, -DO AMSON, -DO- VILLAGE. 2.KOMALAVALLI AMMA SREEKALA AGED ABOUT 22 YEARS, -DO- -DO- -DO- 3.RAMAKRISHNA PILLAI RAJESHKUMAR, AGED ANOUT 20 YEARS, -DO- -DO- -DO-(DIED) BY ADV. SRI.VADAKARA V.V.N.MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 8/02/2008, THE COURT ON 15.2.2008 DELIVERED THE FOLLOWING: ORDER IN C.M.P. NO. 1565 OF 2000 IN S.A. NO. 603 OF 2000. DISMISSED 15.2.2008 Sd/-(HARUN-UL-RASHID, JUDGE) HARUN-UL-RASHID, J. --------------------------------------------- S.A.NO. 603 OF 2000 --------------------------------------------- Dated this the 15th day of February, 2008 JUDGMENT This Second Appeal filed by the defendant is directed against the judgment and decree dated 25.1.2000 in A.S. No.1158 of 1994 on the file of the Sub Court, Neyyattinkara. The appeal was admitted on 10.8.2000 and notice was issued on the following substantial questions of law: i. Whether the proof of witness to the registration of a document is sufficient proof of execution of document in terms of sections 68 and 69 of Evidence Act when neither the executant nor the attesting witnesses are alive to prove the execution of the document? ii. When a document is disputed to be fabricated or concocted, whether the document can be accepted in evidence without proof of signature and handwriting of person alleged to have signed or written the document? iii.As Ext.A1 is ab initio void on being executed by the mortgagor who has no right with respect to the mortgaged property whether the possession of appellant in pursuance of the oral lease recited in Exhibit A1 which is the genesis of possession and the possession thereafter on the strength of S.A.NO.603/2000 2 Exhibit A1 would be adverse or not? iv.The lease recited in Exhibit A1 is rendered void by Section 74 of the Land Reforms Act whether the possession of defendant in pursuance to the lease is per se adverse or not? v. Whether the relegation of the plea of fixity of tenure taken by the appellant to be decided along with the other issues involved in the suit at the final stage without making a reference to the Land Tribunal to decide the question of fixity of tenure vitiated the trial or not? 2. The suit was one for redemption of mortgage. The 1st Additional Munsiff's Court, Neyyattinkara decreed the suit allowing the plaintiffs to redeem mortgage and recover possession of the plaint schedule property on deposit of the mortgage amount of Rs.2,700/- and other ancillary reliefs. The appeal filed by the defendant was dismissed by the lower appellate court confirming the judgment and decree passed by the trial court. The parties to this appeal are referred to as the plaintiffs and defendant as in the suit, O.S. No.17 of 1993. 3. It is the plaintiffs' case that their father had executed a mortgage deed in favour of the defendant in respect of the plaint schedule property on 12.5.1975. The plaintiffs who are the legal heirs of the deceased father S.A.NO.603/2000 3 Ramakrishna Pillai had demanded redemption of the mortgage. Since the defendant failed to comply with the demand, the above suit was filed. The defendant disputed execution of the mortgage deed and denied the title of Ramakrishna Pillai. He had also contended that the plaint schedule property originally belonged to Kalai tarwad and that in the year 1963, the property was entrusted on lease in his favour by some members of that tarwad. He thus claimed fixity of tenure. 4. On the side of the plaintiffs, PWs.1 to 3 were examined and Exts.A1 to A11 were marked. The defendant was examined as DW.1 and Exts.B1 to B3 were marked on his side. PW.1 is a witness to Ext.A1, PW.2 is the son of another witness to Ext.A1 and PW.3 is the scribe of Ext.A1. The trial court believed the testimonies of PWs.1 to 3 and the other attending circumstances and concluded that Ext.A1 was executed by the parties to it. The trial court found that Exts.A2 to A7 would go to show that one Komalavally Amma who is the mother of the plaintiffs had purchased the jenm right of the plaint schedule property along with some other properties. The trial court also relied on Ext.A9 which is a previous mortgage deed in respect of the plaint schedule property executed by the parents of the plaintiffs in favour of one Rejeswari and Ext.A8 release deed executed by the said Rajeswari subsequently. The trial court also S.A.NO.603/2000 4 analysed the oral and documentary evidence tendered by the defendant and held that except the deposition of the defendant, no other evidence has been adduced to prove the contentions raised by him. The trial court, after appreciating the evidence on record held that the plaintiffs had title over the plaint schedule property. The defendant also raised a contention that lease is a superior right and mortgage an inferior right and, therefore, the inferior right will not merge with the superior right and hence he has got fixity of tenure in the property. 5. In the appeal filed by the defendant as A.S. No.1158 of 1994, the lower appellate court reappreciated the evidence on record. The appellate court also considered the contention of the appellant/defendant that the course adopted by the trial court is illegal and that the trial court ought to have referred the question of fixity of tenure under Section 125(3) of the Kerala Land Reforms Act, 1963 (hereinafter referred to as “the Act”) to the Land Tribunal. The prima facie finding entered by the trial court as well as the appellate court is that the question of tenancy had not arisen in the suit. Therefore, there is no necessity to make a reference under Section 125(3) of the Act. The tenancy arrangement proved in this case is dated 10.3.1969. As per Section 74 of the Act, any tenancy created after 1.4.1964 is void. Therefore, the contention that the claim of S.A.NO.603/2000 5 tenancy ought to have been adjudicated by the Land Tribunal is without any merit. 6. The question whether Ext.A1mortgage deed was executed by Ramakrishna Pillai in favour of the defendant was again agitated before the appellate court. The appellate court found that execution of Ext.A1 document is proved by the evidence of PWs.1 to 3. The appellate court held that when the plaintiffs proved the proper execution of the mortgage deed in favour of the defendant, the lower court was correct in granting a decree in favour of the plaintiffs permitting them to redeem the mortgage in respect of the plaint schedule property. In the light of the evidence on record, the contention of the appellant that Ext.A1 is void as the mortgagor has no right or title in respect of the plaint schedule property cannot stand. The burden to prove the execution of Ext.A1 has been discharged. The claim of the appellant that he is a lessee entitled to fixity of tenure has been examined in the right perspective and the appellate court rightly held that such claim has no statutory backing. The plea of adverse possession is also totally unsustainable in view of the fact that the defendant is a mortgagee who is liable to release his right on remittance of the mortgage amount. I find no reason to interfere with the concurrent findings entered by the courts below. No question of law, much less any substantial S.A.NO.603/2000 6 question of law arises for consideration in this appeal. In the result,the appeal fails and it is accordingly dismissed with costs. (HARUN-UL-RASHID, JUDGE) sp/ S.A.NO.603/2000 7 HAURN-UL-RASHID, J. S.A.NO.603 OF 2000 JUDGMENT 15th FEBRUARY, 2008