IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 SA.No. 353 of 2000(A) ------------------------------- AS.101/1994 of SUB COURT, CHERTHALA OS.582/1986 of ADDL. MUNSIFF COURT, CHERTHALA .................... APPELLANTS(APPELLANTS-DEFENDANTS 2 AND 3): ------------------------------------------------------------------------------ *1. KALYANI BHARATHI, WIFE OF PADMANABHAN, PADMAPURAM, THURAVOOR PANCHAYATH, WARD NO.3, VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE. *(DIED) 2. PADMANABHAN RAMUKUTTAN, SON OF PADMANABHAN, DO. DO. * IT IS RECORDED THAT 1ST APPELLANT IS DIED, THE SECOND APPELLANT IS THE ONLY LEGAL REPRESENTATIVE OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 29/07/2002, VIDE STATEMENT C.F.2975/2002. BY ADV. SRI.T.K.VENUGOPALAN, SRI.SHIBU JOSEPH. RESPONDENT (RESPONDENT-PLAINTIFF): ---------------------------------------------------------------- **1. ANANDAN DAMODARAN, KADAVAMPALLIL, VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE. **(DIED) ** ADDL. RESPONDENTS 2 TO 10 IMPLEADED ADDL. R2: PADMAKSHI, W/O.ANANDAN DAMODARAN, KADAVAMPALLIL, VALAMANGALAM SOUTH MURI, THURAVOOR. ADDL. R3: SIVADAS, S/O.ANANDAN DAMODARAN OF -DO- -DO-. ADDL. R4: NATARAJAN, S/O. -DO- -DO-. ADDL. R5: SUSEELAN, S/O. -DO- -DO-. SA.No. 353 of 2000(A) ADDL. R6: KANTHIMATHY, WIFE OF SANKARA NARAYANAN, DHANYA NIVAS, KOKKOTHAMANGALAM VILLAGE, CHERTHALA EAST MURI, CHERTHALA TALUK. ADDL. R7: AMBIKA, WIFE OF SOMAN, SABARMATHY HOUSE, KOKKOTHAMANGALAM VILLAGE, CHERTHALA EAST MURI, CHERTHALA TALUK. ADDL. R8: THULASI, WIFE OF VASUDEVAN, PRASANTHI BHAVANAM, MARARIKULAM NORTH VILLAGE, PERINNER MANGALAM MURI, CHERTHALA TALUK. ADDL. R9: RETNAKUMARI, D/O.PADMAKSHI KADAVAM PALLIYIL, THURAVOOR SOUTH VILLAGE, VALAMANGALAM SOUTH MURI, WARD NO.12, THURAVUR GRAMA PANCHAYATH, CHERTHALA TALUK. ADDL. R10: SREE LATHA, W/O.SUDHAN, DEVIKA BHAVANAM, (CHATHAMATHU), CHERTHALA NORTH VILLAGE, NORTH MURI, CHERTHALA TALUK. ** ADDL. RESPONDENTS 2 TO 5 AND 6 TO 10 ARE IMPLEADED AS THE LHRS OF DECEASED SOLE RESPONDENT AS PER THE ORDER DATED 23/03/2010 IN I.A. NOS.133/2006 AND 604/2007 RESPECTIVELY. R6 TO R10 BY DR.V.N.SANKARJEE, ADV. SRI.V.N.MADHUSUDANAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. ------------------------------------- SA No.353 of 2000-A ------------------------------------- Dated this the 23rd day of February 2011 Judgment The additional defendants 2 and 3 in OS No.582/86 before the Munsiff's Court, Cherthala, are the appellants. They were brought on the party array consequent on the death of the original defendant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff and the original defendant are siblings. The suit was one for declaration of title and mandatory injunction. The plaint allegation was that the plaint schedule property is a part of a larger extent of one acre and 17 cents of land obtained by the plaintiff as per Ext.A1 document. It is claimed that the plaintiff and the original defendant jointly put up a thatched shed in the suit property and started a business therein. In 1979, the defendant demolished the thatched shed and put up a SA 353/2000 2 building in the suit property. When the plaintiff questioned the action of the defendant, he asserted rights over the building and the property. This has necessitated the suit. 3. The suit was resisted by the defendants. Their main contention was that they are entitled to fixity as per Section 106 of the Kerala Land Reforms Act and they are not liable to be evicted from the suit property. 4. The trial court raised necessary issues for consideration, based on the above pleadings. Ext.A1 sale deed was marked from the side of the plaintiff and no other evidence was adduced by both sides. Though it was unnecessary, going by the decisions of this court, the trial court referred the question of claim made by the defendants under Section 106 of the Kerala Land Reforms Act to the Land Tribunal concerned. The Land Tribunal returned the finding that the defendants are not entitled to the protection of the said provision. Incorporating the said finding, a decree was passed in favour of the plaintiff. SA 353/2000 3 5. The defendants carried the matter in appeal as AS No.101/94 before the Sub Court, Cherthala. In the memorandum of appeal, the main contention taken is that the finding of the Land Tribunal that the defendants are not entitled to the protection of Section 106 of the Kerala Land Reforms Act, is erroneous and requires consideration. The lower appellate court simply held that no convincing reasons are given by the learned counsel for the appellants to reverse the finding of the Land Tribunal and accordingly, dismissed the appeal. That has brought the defendants before this court. 6. Notice is seen issued on the following questions of law raised in the second appeal : A)Whether a suit for recovery of possession of a building in an area over which the Kerala Buildings (Lease and Rent Control) Act are made applicable by the Government of Kerala is maintainable ? B)Whether a civil court has jurisdiction to pass a decree allowing recovery of possession of a building in an area SA 353/2000 4 over which the Kerala Buildings (Lease and Rent Control) Act is applicable ? C)Whether on the facts and circumstances of the case, the appellants are entitled to the benefits of Section 106 of the Kerala Land Reforms Act ? 7. It has to be mentioned here that questions A and B do not arise for consideration at all. There is no pleading before the courts below nor was any attempt to adduce any evidence in that regard. As regards Issue C, there seems to be some substance. The issue regarding the benefit under Section 106 of the Kerala Land Reforms Act was referred to the Land Tribunal, though it was not necessary to do so. Whatever that be, the Land Tribunal returned the finding against the defendants and it was incorporated by the trial court and a consequent decree was passed in favour of the plaintiff. 8. One must remember that the lower appellate court is the appellate authority as regards the findings of the Land Tribunal also because an independent appeal SA 353/2000 5 against the finding of the Land Tribunal on a reference is not possible. Moreover, the lower appellate court is the final authority on facts. A reading of the lower appellate court judgment does not indicate the nature of contentions raised before the lower appellate court with regard to the claim under Section 106 of the Kerala Land Reforms Act urged by the defendants. All that is stated is that no convincing reasons are given to reverse the findings of the Land Tribunal. 9. The Land Tribunal has found that at least in 1963, there was a shed in which the original defendant had been conducting business. It is true that later on, the shed was demolished and a building was put up. The Land Tribunal went on to hold that the defendants are not entitled to the protection of Section 106 of the Kerala Land Reforms Act, solely on the ground that there was no evidence of lease of the land by the plaintiff to the original defendant. It was the said finding that has been incorporated by the trial court in its judgment. The lower SA 353/2000 6 appellate court ought to have gone into the materials before it and ought to have entered a finding regarding the claim made before the said court. That has not been done. It ought to have considered in detail the contentions raised before it. 10. For the above reasons, the judgment and decree of the lower appellate court are clearly unsustainable in law and they are liable to be set aside. I do so and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated herein above. The parties shall appear before the lower appellate court on 30.03.2011. The lower appellate court shall make every endeavour to dispose of the case as expeditiously as possible, at any rate, within three months from the date of appearance of the parties before it. P.Bhavadasan, Judge sta SA 353/2000 7 SA 353/2000 8