IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 SA.No. 62 of 2002(G) -------------------------- (AS.439/1998) of IST ADDITIONAL DISTRICT COURT,THRISSUR) (OS.583/1988 of PRINCIPAL SUB COURT, THRISSUR) .................... APPELLANT(S): APPELLANT/2ND DEFENDANT: ------------------------------------------------------------------- DROUPATHY, W/O.CHULLIPARAMBIL GOPALAKRISHNAN, ENGADIYOOR AMSOM AND DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S): RESPONDENTS/PLAINTIFF & DEFENDANTS 1,3 TO 5 IN OS ------------------------------------------------------------------------------------------------------------- 1. SRI.KESAVAN, (DIED) S/O.CHULLIPARAMBIL KRISHNAN, ENGADIYOOR AMSOM, CHAVAKKAD TALUK, P.O.ENGADIYOOR, THRISSUR DISTRICT. 2. GOPALAKRISHNAN, S/O.CHULLIPARAMBIL KRISHNAN, ENGANDIYOOR AMSOM, CHAVAKKAD TALUK, P.O.ENGADIYOOR, THRISSUR DISTRICT. 3. UNNIKRISHNAN, S/O.GOPALAKRISHNAN, CHULLIPARAMBIL HOUSE, ENGANDIYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR DIST. 4. ANANDAVALLI, D/O.GOPALAKRISHNAN, CHULLIPARAMBIL HOUSE, ENGANDIYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR DIST. 5. GHOSHA, D/O.GOPALAKRISHNAN, CHULIPARAMBIL HOUSE, ENGANDIYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. SA.No. 62 of 2002 -2- ADDL.6. LAKSHMY, W/O.LATE KESAVAN, CHULLIPARAMBIL, ENGANDIYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. (THE LEGAL HEIR OF DECEASED IST RESPONDENT IS IMPLEADED AS ADDITIONAL 6TH RESPONDENT AS PER ORDER DATED 21.5.2008 IN CMP No.220/2003) R2 TO R5 BY ADV. SRI.DILIP J. AKKARA . R6 BY ADV. SRI.VAKKOM N.VIJAYAN SMT.V.RENJU SRI.P.ANIYAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/07/2009, ALONG WITH CRP NO. 893 OF 2001 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A ---------------------------------------------- Dated, this the 16th day of July, 2009 J U D G M E N T Being connected these cases are disposed of by this common judgment. The second appeal arises out of O.S.No.583/1988 on the file of the Subordinate Judge of Thrissur. The appellant is the 2nd defendant in the said suit. The suit was filed for injunction and alternatively for recovery of possession on the strength of title. The Ist defendant in the suit is the husband of the appellant and respondent 3 to 5 are the children of the appellant and the Ist defendant. I shall refer to plaintiff as Sri.Kesavan and the appellant as Draupathy. 2. The husband of Draupathy is referred to as Gopalakrishnan. The case in the plaint in brief was as follows:--Gopalakrishnan is the younger brother of Kesavan. Kesavan went to Malaysia in 1935 in search of a job and he assumed the name Kumaran. In 1969 he returned from Malaysia and settled in India. He had purchased the plaint schedule property as per document No.322/1954 through his S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -2- father Krishnan. There was a tiled double storeyed building in the property which is there even now. His father was looking after the property for him when he was away. Father died in 1963. Kesavan's brother Sankaran looked after the property thereafter. Gopalakrishnan was not having any building under the family partition. He sought permission to reside in the building in the plaint schedule property. He was allowed to reside on condition that he should not make any alteration. Accordingly, Gopalakrishnan started residence there in 1964. 3. The remaining defendants including the appellant began to reside in the house as the wife and children. Kesavan is enjoying the plaint schedule property except the building after his return in 1969. When Kesavan further insisted for possession the vacant possession of the building, his brother Gopalakrishnan filed O.A.No.145/1972 before the Land Tribunal claiming leasehold right over the property. The application was dismissed in the year 1980. The appeal filed was also dismissed in 1987 and the said decision has become final. It is essentially on these allegations that the suit came to be filed. S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -3- 4. Defendants except the 5th defendant filed a joint written statement. Therein it was specifically alleged that Sri.Gopalakrishnan had taken the property on leasehold arrangement. He and the appellant together constructed a new building there in 1956 and that defendants are enjoying the property. CRP No.1359/1988 was filed before the High Court against the decision of the appellate authority and it is still pending. It is also stated that even if Kesavan is having any right over the property that that has already been lost by adverse possession. Additional written statement was also filed. 5. The trial court framed the following issues: 1. Whether the plaintiff is entitled to the mandatory injunction sued for? 2. What are the damages for which the plaintiff is entitled? 3. Whether the plaintiff is entitled to the prohibitory injunction sued for? 4. Whether the plaintiff is entitled to eviction on the strength of title? 5. Whether the suit is barred by adverse possession and limitation? S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -4- 6. The suit was instituted in the year 1988. The trial court found that pending the suit Suo Motu proceedings No.53/1993 were initiated in the year 1993 by the Land Tribunal, Kodungallur proposing to assign the rights of the landlord in favour of Draupathy on the basis that she is the cultivating tenant. The trial court has decreed the suit by granting a decree of recovery of possession of the plaint schedule property including the building thereon besides awarding damages. The trial court took note of the proceedings initiated by the husband of Draupathy which I have already adverted to. The fact that the High Court had dismissed the CRP filed against the order of the appellate authority vide Ext.A4 was also taken note of. The trial court further took note of the plea of leasehold right set up by the appellant. It is found that the Draupathy is estopped from raising such a contention which is contrary to her earlier written statement. Still further it found that there is no bonafides or genuineness in her plea. By order dated 30.9.1996 the predecessor-in-interest of the learned trial S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -5- Judge had already entered a finding that the question of tenancy projected by Draupathy does not arise for consideration under Section 125 of the Kerala Land Reforms Act (hereinafter referred to as “the Act”). The trial court made reference to this Court's judgment reported in Sundaran v. Mohammed Koya (1995 (2) KLT 115) for the proposition that Civil Court is competent to make such finding. The trial court also rejected the case of adverse possession finding that the possession of Draupathy was permissive on the basis that Kesavan's title was proved by Ext.A1 title deed which is admitted by Draupathy in the witness box. The trial court pronounced the judgment on 16th March,1998. Shortly, thereafter on 29.6.1998 the Land Tribunal, Kodungallur proceeded to pass orders in the S.M.Proceedings by holding that Draupathy is a cultivating tenant under S.2 (57) of the Act. Kesavan carried the matter in appeal by way of A.A.No.95/1998 before the appellate authority which was unsuccessful and consequently he has filed the CRP which is being disposed of by me in this common judgment. 7. The first appellate court has confirmed the S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -6- finding of the trial court. 8. I heard Sri.N.P.Samuel, learned counsel for the appellant and Smt.V.Ranju learned counsel for the respondents. 9. A Full Bench of this Court in Venkitarama Iyer v. Vesu Amma (1995 (2) KLT 295 (FB) has taken the stand that the Land Tribunal is bound by the principle of lis pendens and when suit is pending in the Civil Court, the Suo motu proceedings initiated during the pendency of proceedings of the Civil Court is hit by doctrine of lis pendens. The Court, inter alia held as follows. “6. Section 52 enacts the principle that during the pendency of litigation nothing new should be introduced. The section cannot be confined to transfer of immovable property alone. It interdicts other sorts of dealings with property affecting the rights of the adversary in the suit or other proceeding. In other words, creation of any right in immovable property during pendency of a suit or proceeding adverse to the interests of the opposite party is also hit by the rule. As the very purpose of the doctrine of lis pendens is to subject the litigating parties and others who seek to acquire rights in immovable property pending litigation to the power and jurisdiction of the court where the dispute is pending for decision, one of the parties S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -7- cannot be allowed to scuttle the final result of the pending action before the civil court. The extinguishment of the title of the plaintiff as a result of the Tribunal's order in the suo motu proceedings would definitely be hit by the doctrine of lis pendens. Otherwise the order of the Land Tribunal obtained pending suit would extinguish plaintiff's right in the property enabling the defendant to become the title holder. In view of the pendency of the civil suit such situation cannot be legally allowed. 7. Contention of the defendant that he has not done anything illegally and that he obtained the landlord's right from the Land Tribunal on the basis of a legal order and so the doctrine of lis pendens would not apply is not tenable. As the effect of the doctrine is not to annul the order of the Land Tribunal but only to render it subservient to the rights of the parties to the litigation defendant cannot lay any claim on the basis of Ext.B6. As the entire controversy between the parties was pending adjudication in the civil court and as tenancy has been claimed by the defendant, naturally the matter was referred to the Land Tribunal under S.125 (3) of the Kerala Land Reforms Act. Though the trial court is bound by the finding of the Land Tribunal, the appellate courts are not bound by it. As the entire controversy was before the civil court with the appellate courts not bound by the decision of the Land Tribunal on a matter referred to it under S.125 (3) of the Kerala Land Reforms Act it was not open to the defendants to circumvent the decision of the civil court by initiating suo motu proceedings before the Land Tribunal. Even if suo motu proceedings was not initiated at the instance of the defendants they should have apprised the Tribunal of the pendency of the civil suit and S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -8- avoided parallel proceedings.” 10. In the light of this authoritative pronouncement of this Court, the Second Appeal filed is only to be dismissed for the simple reason that the suit is filed in the year 1988 and it is pending the said civil suit that suo motu proceedings are commenced in the year 1993. The suit is decreed as already noted in March, 1998 and the suo motu proceedings are brought to the conclusion in June, 1998. So, it is clear that the suo motu proceedings in this case commenced and was proceeded with during the pendency of the suit. The trial court has taking note of the proceedings initiated at the instance of the husband of Draupathy wherein he claimed tenancy right upto this Court and found that there is no merit in the case of the appellant based on the alleged tenancy right set up by her. However, Sri.N.P.Samuel, learned counsel for the appellant confronted with the Full Bench decision of this Court would submit that the said judgment is incorrect. According to him, S.52 of the Transfer of Property Act which provides for lis pendens may not apply at all to the facts of this case. He pointed out that the suo S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -9- motu proceedings under S.72 ( c) of the Act was initiated by the statutory authority contemplated under the Act and the Land Tribunal is not a party to the suit. The decision of the Land Tribunal ultimately is binding on the party and he is bound to accept the decision. He relied on the following decisions in support of his case: Samarendra v. Krishna Kumar {AIR 1967 SC 1440}, Jayaram Mudaliar v. Ayyaswami {AIR 1973 SC 569}. He also invited my attention to the decisions in Illachi Devi (D) by L.Rs. and others vs. Jain Society, Protection of Orphans India and others {AIR 2003 SC 3397} and in Karnataka State Financial Corporation vs. N.Narasimahaiah and others { (2008) 5 SCC 176}. Last of the two decisions were canvassed before me for establishing the point that the courts must adopt the Golden Rule of interpretation and for the proposition that on the application of golden rule in regard to S.52 of the Transfer of Property Act the suo motu proceedings by the Land Tribunal in this case would not be hit by doctrine of lis pendens. He made a further plea that the decision of the Full Bench is to be ignored by me and I should follow the dictum of the Supreme S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -10- Court. 11. In the decision reported in Illachi Devi (D) by L.Rs. and others vs. Jain Society, Protection of Orphans India and others {AIR 2003 SC 3397} the Court was dealing with Succession Act and therein the Court proceeded to hold as follows: “42. This Court again in Harbhajan Singh v. Press Council of India and Others (2002 3 SCC 722) stated the law thus: “Clearly, the language of sub-section (7) of Section 6 abovesaid, is plain and simple. There are two manners of reading the provision. Read positively, it confers a right on a retiring member to seek renomination. Read in a negative manner, the provision speaks of a retiring member not being eligible for renomination for more than one term. The spell of ineligibility is cast on “renomination” of a member who is “retiring”. The event determinative of eligibility or ineligibility is “renomination” and the person, by reference to whom it is to be read, is “ a retiring member”. “Retiring member” is to be read in contradistinction with a member/person retired sometimes in the past, and so, would be called a retired or former member. “Re” means again and is freely used as prefix. It gives colour of “again” to the very with which it is placed. “Renomination” is an act or process of being nominated again. Any person who had held office of member sometime in the past, if being nominated now S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -11- cannot be described as being “again nominated”. It is only a member just retiring who can be called “being again renominated” or “nominated”. No other meaning can be assigned except by doing violence to the language employed. The legislature does not waste its words. Ordinary, grammatical and full meaning is to be assigned to the words used while interpreting a provision to honour the rule--the legislature chooses appropriate words to express what it intends and therefore, must be attributed with such intention as is conveyed by the words employed so long as this does not result in absurdity or anomaly or unless material-intrinsic or external- is available to permit a departure from the rule. Cross in Statutory Interpretation (3rd Ed., 1995) states: “The governing idea here is that if a statutory provision is intelligible in the context of ordinary language, it ought, without more to be interpreted in accordance with the meaning an ordinary speaker of the language would ascribe to it as its obvious meaning unless there is sufficient reason for a different interpretation................Thus, an 'ordinary meaning' or 'grammatical meaning' does not imply that the Judge attributes a meaning to the words of a statute independently of their context or of the purpose of the statute but rather that he adopts a meaning which is appropriate in relation to the immediately obvious and unresearched context and purpose in and for which they are used. By enabling citizens (and their advisers) to rely on ordinary meanings unless notice is given to the contrary the legislature contributes to legal certainty and predictability for citizens and to greater transparency in its own decisions both of which S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -12- are important values in a democratic society.” 44. It is equally well settled that when the Legislature has employed a plain and unambiguous language, the Court is not concerned with the consequences arising therefrom. Recourse to interpretation of statutes may be restored only when the meaning of the statute is obscure. The Court is not concerned with the reason as to why the Legislature thought it fit to lay emphasis one category of suitors than the others. A statute must be read in its entirety for the purpose of finding out the purport and object thereof. The Court in the event of its coming to the conclusion that a literal meaning is possible to be rendered would not embark upon the exercise of judicial interpretation thereof and nothing is to be added or taken from a statute unless it is held that the same would lead to an absurdity or manifest injustice. It is well- established that a disabling legislation must be characterised by clarity and precision. In the present instance the prohibitions laid down by Sections 223 and 236 of the Act are categorical and comprehensive and leave no scope for creative interpretation.” 12. I would think that it may not be open for me to venture to act upon these submissions made by the learned counsel for the appellant in the teeth of the authoritative dictum of the Full Bench which I have already noted dealing specifically with the question as to whether suo motu proceedings taken pending civil suit have any value in the light S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -13- of the doctrine of lis pendens. In Samarendra v. Krishna Kumar {AIR 1967 SC 1440} the Court was no doubt dealing with a case under S.52 of the Transfer of Property Act. The Court reiterated the principle that though S.52 did not apply to involuntary alienations, the principle of lis pendens applies to such alienations. The Court proceeded to hold as follows: “.................But, under Section 52 which incorporates the doctrine of lis pendes, during the pendency of a suit in which any right to any immovable property is directly and specifically in question such a property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect he rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. Under the Explanation to that section the pendency of such a suit commences from the date of its institution and continues until it is disposed of by a final decree or order and complete satisfaction or discharge of such a decree or order has been obtained. The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holdar v. Monohur, (1888) 15 Ind. App 97 (PC) where the facts were almost similar to those in the instant S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -14- case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that the principle of lis pendens applies to such alienations. (See Nilkant v. Suresh Chandra, 1885) 12 Ind App 171 (PC) and Motilal v. Karrabuldin, (1897) 24 Ind App 170 (PC). It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High court, the doctrine of lis pendens must apply to his purchase and as aforesaid he was bound by the result of that suit. In the view we have taken that the final foreclosure decree was competently passed by the Trial Court, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and the High Court was in error in allowing it and in passing the said order of remand directing the Trial Court to re- open the question of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree.” 13. In Jayaram Mudaliar v. Ayyaswami {AIR 1973 SC 569} the Apex Court was considering the scope of S.52 of the Transfer of Property Act. The Court, inter alia held as follows: “50. It is evident that the doctrine as stated in Section 52, applies not merely to actual transfers of right which are subject-matter of litigation but S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -15- to other dealings with it “by any party to the suit or proceeding so as to affect the right of any other party thereto.” Hence, it could be urged that where it is not a party to the litigation but an outside agency, such as the tax Collecting authorities of the Government, which proceeds against the subject matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation, the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward.” 14. The learned counsel for the appellant also relied on the decision of the Calcutta High Court in Chotalal Shaw v. Ram Golam Shaw and others {AIR 1975 Cal.436} to contend that, even if there is any mandatory provision it can be waived by the party in whose favour the provision of law stands. In that case the Court held as follows: “Even if there is any mandatory provision which confers any right or privilege or advantage to any S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -16- of the parties to the litigation, such right, privilege or advantage may be waived by the party in whose favour the provision of law stands.” 15. The learned counsel relied on the decision of the Calcutta High Court to contend that in this case while it is true that suo motu proceedings was taken pending civil suit, it is noteworthy that Kesavan was made a party, he appeared in the proceedings and by his participation in the proceedings it must be treated that he has waived his right to contend that the proceedings under S.72 ( c) of the Act are to be ignored and that the doctrine of lis pendens therefore will not apply. He pointed out that Kesavan did not point out before the Land Tribunal or before the appellate authority that there is no jurisdiction and that the matter should not be proceeded further. Having courted the decision before the authorities which turned out to be against him it is not open to Kesavan to contend that the decision of the Land Tribunal as confirmed by the appellate authority is to be ignored, he contends. He, of course, pointed out that the decision of the Land Tribunal as confirmed by the appellate authority cannot be interfered with lightly in proceedings under Section 102. In that regard he S.A.No.62 of 2002-G & C.R.P.No.893 of 2001-A -17- relied on the decision in Chandy Varghese v. Abdul Khader {2003 (3) KLT 553 (SC}. He would submit that actually on merits also the appellant is entitled to claim tenancy rights as there was evidence before the