IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 SA.No. 622 of 1998(G) --------------------- AS.70/1994 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.214/1987 of MUNSIFF COURT,KAYAMKULAM .................... APPELLANT(S)/ADDL.RESONDENTS 12 TO14/( LEGAL HEIRS OF PLAINTIFF): ---------------------------------------------------------------------------------------- 1. SOMANI G. CHARLIE VARGHEESE, W/O. CHARLIE VARGHEEESE, T.C. 27/1431, CHIRAKULAM ROAD, TRIVANDRUM. 2. THOMAS GEORGE VARGHEESE, PASTER N-941, SECTOR HOUSE NO.123/1 SAINT, GYANESESWAR NAGAR, C.D. CO. P.O. NEW AURANGABAD, MAHARASHTRA. 3. JOSEPH V. ALEXANDER, S/O. N. ALEXANDER, THAIMOOTTIL, MAVELIKKARA. BY ADV. SRI.G.S.REGHUNATH SRI.MOHAN JACOB GEORGE RESPONDENT(S)/APPELLANTS 1 TO 4 & RESPONDENTS 3 TO 5 & 7 TO 12/DEFENDANTS 1 TO 4 & 6 TO 14: ------------------------------------------------------------------------------------------------- 1. L. SARASWATHYAMMA, RESIDING IN KANNIAL M.C. COTTAGE, CHIRAKKADAVAM, KAYAMKULAM. 2. S. SANDHYA OF DO. DO. 3. S. SWAPNA OF DO. DO. 4. S. SURAJ OF DO. DO. 5. ABRAHAM T. VARGHEESE, POOKOICKAL VEEDU, CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE. (DIED. L.RS IMPLEADED) 6. SUDEER GEORGE VARGHEESE OF DO. DO. 7. SASI VARGHEESE OF DO. DO. 8. SURESH THOMAS VARGHEESE OF DO. (DELETED FROM PARTY ARRAY) 9. SUKESH THOMAS VARGHEESE OF DO. 10. GEORGE VARGHEESE OF DO. DO. (DELETED FROM PARTY ARRAY) 11. RANI VARGHEESE OF DO. DO. 12. P. PARUKUTTY AMMA OF DO. DO. R13 & R14 IMPLEADED. ADD. R13. ANNAMMA VARGHESE, P.O. BOX NO. 62276, JAHRA, KUWAIT 02153. ADDL. R14. DR. THOMAS VARGHESE, P.O. BOX NO. 62276, JAHRA, KUWAIT 02153. LEGAL REPRESENTATIVES OF DECEASED 5TH RESPONDENT ARE IMPLEADED AS ADDL.R13 AND R14 AS PER ORDER DATED 2.6.2005 IN C.M.P.2132/2002. THE NAMES OF RESPONDENTS 8 AND 10 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 19.6.2007 IN I.A.1031/2007. ADV. SRI. R. RAMADAS R1, R2 & R4 ADV. SRI. T. KRISHNANUNNI (SR) SRI.P.VINODKUMAR FOR R13 & R14 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/07/2011, THE COURT ON 27/07/2011 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 622 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of July, 2011. JUDGMENT The legal heirs of the original plaintiff in O.S.214 of 1987 before the Munsiff's court, Kayamkulam are the appellants. They were non-suited by the lower appellate court. 2. The plaintiff claimed to have obtained the plaint schedule property as per Ext.A1 partition deed dated 7.3.1973. Prior to the partition, the entire properties were being looked after by the plaintiff's brother Joseph T.Varghese. While he was managing the affairs, he entered into Ext.A16 agreement dated 30.5.1967 whereby the first defendant's husband Pankajakshan Pillai took the building in the property on lease for running a tutorial college. After the partition deed, intimation was given to Pankajakshan Pillai, who accepted the plaintiff as his landlord. Pankajakshan Pillai S.A.622/1998. 2 sub let a portion of the shed to one C.K.Vijayan. Plaintiff filed O.P.(R.C.) 39 of 1974 before the Rent Control Court, Kayamkulam. Eviction was ordered. Pankajakshan Pillai preferred R.C.A.5 of 1979 and the same was allowed and the plaintiff was directed to approach the civil court for eviction. Though the plaintiff filed R.C.R.P. 7 of 1982, during the pendency of the revision Pankajakshan Pillai died and since no steps were taken to implead his legal representatives, the R.C.R.P. was dismissed. Plaintiff filed O.S.138 of 1978 seeking a decree for injunction against Pankajakshan Pillai, which was decreed. Pankajakshan Pillai filed A.S.97 of 1981 before the District Court, Mavelikara and during the pendency of that appeal Pankajakshan Pillai died though the present defendants 1 to 4 were impleaded as his legal heirs, the lower appellate court held that the decree being a personal one, it did not survive. Thereafter the surrender of the premises was sought for, which was not heeded to by the legal heirs of Pankajakshan Pillai. Hence the suit. S.A.622/1998. 3 3. Defendants 1 to 3 filed a joint written statement and resisted the suit. It was contended that the partition deed on which reliance is placed has been set aside in O.S. 2 of 978 and therefore the plaintiff cannot rely on that document to seek recovery of possession of the property. Defendants 1 to 4 are residing in the building situate 35 cents comprised in Sy.No. K.878AB long prior to the suit. While Joseph T.Varghese was in possession of the above 35 cents by virtue of Ext.B1 dated 17.5.1965, he let out the land to Pankajakshan Pillai who constructed a building therein and started conducting tutorial college. Pankajakshan Pillai was paying ground rent to Joseph T.Varhese. The western portion of the 'L' shape building was used for residential purpose and it is the residence of defendants 1 to 4. Pankajakshan Pillai died on 23.7.1984. Pankajakshan Pillai is entitled to the protection of Section 106 of the Kerala Land Reforms Act. Ext.A16 is an unregistered document and it can confer no right on the plaintiffs. The suit is barred by limitation and even if the S.A.622/1998. 4 plaintiff had any possession over the suit property, it is lost by adverse possession and limitation. The plaintiff had never been in possession of 35 cents of property comprised in Sy. No.878AB and the defendants are not attorned to the plaintiff. The written statement also makes mention of various litigations between the parties. Suffice it to say, the contention appears to be that they are entitled to fixity of tenure as commercial lessees falling within the ambit of Section 106 of the Kerala Land Reforms Act. 4. On the above pleadings issues were raised by the trial court. Both sides did not adduce any oral evidence. The evidence on the side of the plaintiff are Exts.A1 to A38 and Exts.B1 to B18 are from the side of the defendants. Exts.C1, C2 and C2(a) are the commission reports and plan. The trial court on an evaluation of the evidence came to the conclusion that the defendants are not entitled to the protection of Section 106 of the Kerala Land Reforms Act and the suit was decreed. S.A.622/1998. 5 5. The disappointed defendants took up the matter in appeal as A.S. 70 of 994. The lower appellate court found that the appellants before it were entitled to the protection of Section 106 of the KLR Act and accordingly allowed the appeal and dismissed the suit. 6. Notice is seen issued on the following questions of law: “a) Is the appellate court justified in holding that Ext.B1 is a lease as contended by the defendants? b) Is not Ext.B1 an illegal and void document as the same is an unregistered document? c) Has the lower appellate court properly considered Ext.B1 and interpreted it properly and legally in coming to the conclusion that Ext.B1 is a lease? d) Are not the defendants estopped from contending that the sheds in the schedule property were constructed by Pankajakshan Pillai in view of the specific admission in Ext.B16 that the same was constructed by Joseph T.Varghese? S.A.622/1998. 6 e) What is the effect of Ext.B1 which is alleged to be created by Joseph T.Varghese who was only a co-owner at that time? f) Whether Ext.A16 creates a leasehold right or whether it is a licence to occupy the sheds alone? g) Are the defendants entitled to protection under Section 106 of the Land Reforms Act? h) On whom does the burden of proof lie to prove the ingredients of Section 106 of KLR Act? i) Is the licencee of land entitled to claim protection under Section 106 of the KLR Act? j) Is the court justified in holding that the defendants are holding the property under an irrevocable licence under Section 60 of the Easement Act when the defendant has no such plea in the written statement?” 7. Learned counsel appearing for the appellants pointed out that the finding of the lower appellate court that the defendants are entitled to fixity of tenure under Section 106 of the KLR Act is incorrect. The evidence has not been considered properly and the reason to reject Ext.A16 is irregular and improper. Execution of Ext.A16 is admitted by S.A.622/1998. 7 the defendants. Execution of Ext.B1 was disputed According to learned counsel, even assuming that Ext.B1 is genuine, there is nothing to show that the structures were put up by Pankajakshan Pillai pursuant to Ext.B1. No accounts were made available to show that expenses were met by Panakajakshan Pillai and none has gone into the box to speak about the structures said to have been put up by Pankajakshan Pillai. Even assuming that Ext.A16 is not a registered document, still it can be used for collateral purposes and it is clearly stated in the said document that the building was put up by the landlord using the funds provided by Panakajakshan Pillai. Ext.A16 is very clear in this regard. The possession of the defendants can be traced only to Ext.A16 and if that be so, they are not entitled to the protection of Section 106 of the KLR Act. It was also contended that even going by Ext.B1 the lease is after 1.4.1964 and if that be so, such a lease is hit by Section 74 of the KLR Act. Learned counsel pointed out that it is true that the defendants have produced Exts.B14 and B15 plans. S.A.622/1998. 8 But there is nothing to show that in pursuance thereof structures were put up by Pankajakshan Pillai. It was also contended that even if the execution of Ext.B1 is admitted, the same has been executed by only one of the co-owners and that cannot bind the other co-owners. In support of his contention that the lease is invalid, being one after 1.4.1964, learned counsel relied on the decisions reported in Mohammed v. Rukkiya (1994(2) K.L.T.722), Kannan v. Kunhabdulla (1981 K.L.T. SN 169). Reliance was placed on the decision reported in Kunjaiyappan v. Balakrishnan Nair (1987 (2) K.L.T. SN 71) and Suhara v. State of Kerala (1995(2) K.L.T. SN 54). It was therefore contended that the judgment and decree of the lower appellate court are clearly unsustainable both on facts and in law. 8. Learned counsel appearing for the respondents on the other hand pointed out that Section 74 of the KLR Act can have no application to the facts of the case. Section 74 applies only to Chapter II of the KLR Act and Section 106 falls outside Chapter II of the KLR Act. So also, Section 106 S.A.622/1998. 9 contains a non obstante clause which overrides Section 74 and therefore the contention that even assuming that Ext.B1 is genuine, the lease is invalid cannot be countenanced. Ext.B1 was accepted by the lower appellate court and it was found that in pursuance thereof structures were put up by Pankajakshan Pillai. The purpose for which Ext.B1 was executed is evident from the document itself. He was inducted into possession as per that document. All the ingredients necessary to attract Section 106 of the KLR Act are available in the case on hand and therefore the lower appellate court was justified in coming to the conclusion that the defendants are entitled to the protection of Section 106 of the KLR Act. In support of his contention, learned counsel relied on the decision reported in Govinda Panicker v. Sreedhara Warrier (2000(2) K.L.T. 43). It was also contended that even assuming that Ext.B1 is an unregistered document, it does not matter because for the purpose of claiming benefit under Section 106 it is not necessary that the lease deed should be a registered S.A.622/1998. 10 document. In support of the contention, learned counsel relied on the decisions reported in Ananthan Nadar v. Lakshmanan (1980 K.L.T.231) and Sulaikha Beevi v. Mathew (2001(1) K.L.T. 360). 9. Plaint schedule property consists of three items. They are 10 cents comprised in Sy. No.K881, 12 cents in Sy.No.K878B and 10 cents in K878A. The case of the plaintiff is that Pankajakshan Pillai was inducted into possession as per Ext.A16 dated 30.5.1967. If the possession of the defendants is traceable to Ext.A16, obviously they will not be entitled to claim the benefit of Section 106. However, the defendants trace their right to Ext.B1 dated 17.5.1965. They say that in pursuance to Ext.B1 and Exts.B14 and B15 plans were submitted and structures were put up by Pankajakshan Pillai for running a tutorial college. That permission was obtained for running an educational institution would be evident from Ext.B2. The respondents also rely on Exts.B8, B9 and B10 receipts issued by the plaintiff. S.A.622/1998. 11 10. There was an earlier litigation between the parties. O.S.138 of 1978 was filed against Pankajakshan Pillai seeking an injunction against him from sub letting the premises. The suit was decreed. Pankajakshan Pillai preferred an appeal. During the pendency of the appeal he died. His legal heirs came on record. The appellate court took the view that since the suit was one for injunction and since Panakajakshan Pillai died, nothing more remained to be considered and disposed of the appeal. 11. There was a petition, O.P.(R.C.) 39 of 1974 filed by the plaintiff against Panakajakshan Pillai accusing him of having sublet the premises to one Vijayan. There, Pankajakshan Pillai claimed fixity of tenure. The matter was referred to the Land Tribunal. The finding went against Pankajakshan Pillai. It is significant to notice that in the O.P. (R.C) there was no contention that Pankajakshan Pillai was entitled to the benefit of Section 106 of the Act. Pankajakshan Pillai filed appeal against the finding in the Rent Control Petition. That was allowed and the petitioner in S.A.622/1998. 12 the O.P.(R.C) was directed to approach the civil court for reliefs. Though the plaintiff filed R.C.R.P. against the said order, since the legal heirs of Pankajakshan Pillai were not impleaded as he died during the pendency of the proceedings, revision was dismissed as abated. 12. Ext.A16 is an admitted document by the defendants. The contention of the defendants is that since that document is not a registered one, it cannot be acted upon. Ext.B1 relied on by the defendants was accepted by the lower appellate court. As per that document, land was given to Pankajakshan Pillai on ground rent and he was allowed to put up structures for running a tutorial college. Exts.B14 and B15 are building plans produced by the defendants to show that Pankajakshan Pillai put up the structures. Though the plans have been produced there is absolutely no evidence at all to show that Pankajakshan Pillai had infact put up the structures. 13. One aspect needs to be noticed in this regard. The person who executed Ext.B1 was only a co-owner in S.A.622/1998. 13 management. It is well settled that a co-owner cannot create a right beyond his interest. 14. Ext.B1 is dated 17.5.1965. It is contended on behalf of the appellants that Ext.B1 being a lease after 1.4.1964 is hit by Section 74 of the Act and is invalid. True the decisions relied on by the learned counsel for the appellants go on to show that any lease created after 1.4.1964 is invalid and cannot be given effect to. However, the above contention must fail on two grounds, (i) in the light of Section 3 of the Act and (ii) on the wording of Section 106 of the Act. Section 3 and Section 106 of the Act read as follows: “3. Exemptions.- (1) Nothing in this chapter shall apply to- ........... ............. (ii) leases only of buildings, including a house, shop or warehouse and the site thereof, with the land, if any, appurtenant thereto. Explanation.- .......... ........... S.A.622/1998. 14 (iii) leases of land or of buildings or of both specifically granted for industrial or commercial purposes; or.” 106. Special provisions relating to leases for commercial or industrial purposes.- (1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of Court, where on any land leased far commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years. Explanation.- For the purposes of this section,- (a) “lessee” includes a legal representative or an assignee of the lessee; and (b) “building” means a permanent or a temporary building and includes a shed.” S.A.622/1998. 15 Section 3 deals with lease of land, building etc. Section 106 starts with a non obstante clause and it says that the provision shall have overriding effect notwithstanding anything contained contrary in the Act itself. If that be so, Section 106 overrides Section 74 and the contention of the learned counsel for the appellants has necessarily to fail. 15. Coming back to Ext.B1, true it enables Pankajakshan Pillai to put up structures in the property. The question is whether Exts.B14, B15 and B2 are sufficient to come to the conclusion that the structures were put up by Pankajakshan Pillai. In the light of the specific contention taken by the plaintiff that Pankajakshan Pillai held the property as per Ext.A16, one would have expected the defendants to mount the box and speak to their case. Atleast there should have been some efforts on the part of the defendants to show that it was Pankajakshan Pillai, who had put up the structures in the property. For reasons best known to them, no oral evidence was adduced. Apart from Exts.B14, B15 and B2 the defendants have produced S.A.622/1998. 16 Exts.B8, B9 and B10 receipts which are in the name of Pankajakshan Pillai. Exts.B8, B9 and B10 are before the execution of Ext.A16. The recitals in Exts.B8, B9 and B10 are rent received as “തറവടക” (ground rent). 16. Coming to Ext.A16, the lower appellate court rejected the same on the ground that since it is unregistered. 17. Learned counsel appearing for the respondents contended that a reading of Ext.A16 would show that it is an agreement of lease or in other words it is only an executory contract. Learned counsel also pointed out that in order to claim the benefit of Section 106 of the Act, the document need not be registered and therefore Ext.B1 goes in favour of the respondents. 18. True, in order to claim the benefit of Ext.B1, going by the decisions cited by the learned counsel for the respondents, it is not necessary that the lease deed concerned must be a registered one. S.A.622/1998. 17 19. Ext.A16, as already stated, is an admitted document. Defendants were unable to offer any explanation for the recitals in Ext.A16. The lower appellate court very held as follows: “It is clear that Exts.A16 and B16 were signed not with a free mind but under a suspicious circumstance. It is not uncommon that tenants are being compelled to agree for unreasonable terms and conditions and, it may be that Exts.A16 and B16 were signed under such a circumstance.” This is a case created by the lower appellate court. The defendants have no such case at all. They had no explanation to offer for the recitals in Ext.A16. 20. It is well settled that even if the document is not a registered one, though a lease, it can be used for collateral purposes. In the decision reported in Rai Chand Jain v. Chandra Kanta Khosla (AIR 1991 SC 744) it was held as follows: “It is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes.” S.A.622/1998. 18 21. In the decision reported in Paul v. Saleena (2004(1) K.L.T. 924) it was held as follows: “It is true that S.17 does not say that unregistered document shall not be received in evidence. S.49 bars reception in evidence of document or proceeding which is required to be registered under S.17 of the Registration Act but not registered. The Apex court in Champalal v. Samrathbai held that filing of an unregistered award under S.49 is not prohibited, what is prohibited is that it cannot be taken into evidence so as to affect immovable property falling under S.17. ......Unregistered lease could at best be looked into for ascertaining the commencement of possession, rate of rent or similar other provisions which are collateral to the principal transaction. The Court held it could never have been the intention of the legislature that under the first part of the section we should discard an unregistered document for want of registration and at the same time under the camouflage of the proviso we should be permitted to look into and rely upon all the terms of the inoperative document which do S.A.622/1998. 19 form the integral parts of the principal transaction. ....The above mentioned judicial pronouncements and the principles laid down therein would clearly show that an unregistered document cannot be used for the purpose of establishing that that document created or declared or assigned or limited or extinguished a right to immovable property. Period of lease is integral part of the agreement and not a collateral one. Unregistered lease deeds cannot be pressed into service to create, declare, assign, limit or extinguish any right, title or interest in or to the property comprised in the document.” 22. In the decision reported in K.B.Saha & Sons (P) Ltd. v. Development Consultant Ltd. ((2008)8 SCC 564) it was held as follows: “From the principles laid down in the various decisions of this Court and the High courts, as referred to herein above, it is evident that: 1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. S.A.622/1998. 20 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. In our view, the particular clause in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the appellant that the suit premises were let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was S.A.622/1998. 21 not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming part of the lease agreement. Therefore, such a clause, namely, Clause 9 of the lease agreement in this case, cannot be looked into even for collateral purposes to come to a conclusion that the respondent was liable to be evicted because of violation of clause 9 of the lease agreement. That being the position, we are unable to hold that clause 9 of the lease agreement, which is admittedly unregistered, can be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was not entitled to induct any other person other than the named officer in the same.” 23. In the decision reported in S. Kaladevi v. V.R.Somasundram ((2010) 5 SCC 401) it was held as follows: “The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall