IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 SA.No. 101 of 1995() -------------------- AS.43/1987 of ADDL.SUB COURT,THRISSUR OS.246/1981 of MUNSIFF COURT,THRISSUR .................... APPELLANT(S)/APPELLANT/DEFENDANT: -------------- KAIDRU, S/O.KUNJAHAMED, MULAMPARAMBIL HOUSE, PAPPINIVATTOM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE ADV.SMT.VANAJA MADHAVAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- ABDUL GAFOOR, S/O.THODUPULLIYIL BAVU, PAPPINIVATTOM VILLAGE, KODUNGALLUR TALUK. BY ADV. SHRI K.S.BHARATHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON 25/03/2009 DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A.No.101 of 1995 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 25th day of March, 2009 J U D G M E N T ---------------------- As per verumapat chit No.974/1955 dated 10.8.1955 executed by the appellant in favour of the predecessor-in-interest of the respondent, suit property was given into the possession of the appellant for constructing shop building and conducting trade therein for a period of 3 years fixing the rent at Rs.24/- per year payable in 12 instalments on the 10th of each calender month. Appellant accordingly constructed shop building and was conducting trade therein. While so, suit property was assigned to the respondent as per assignment deed No.326/1973. In the meantime, S.M.P. No.4396 of 1973 was initiated as if the appellant is a cultivating tenant of the suit property entitled to fixity of tenure and purchase the right of the landlord under the Kerala Land Reforms Act (for short, “the Act”). The Land Tribunal dismissed the application. Appellant unsuccessfully challenged that order in A.A. No.845 of 1977. Appellant refused to vacate the premises as demanded by the respondent. Appellant, in reply to the notice demanding vacant possession contended that he is a commercial lessee entitled to the protection of Sec.106 of the Act. According to the respondent the said plea of the appellant is barred by res judicata S.A. No.101 of 1995 -: 2 :- and estoppal in view of the decisions in S.M.P. No.4396 of 1973 and A.A. No.845 of 1977. Respondent sued the appellant for eviction with rent arrears. Appellant contended that he is entitled to the protection of Sec.106 of the Act as he is a commercial lessee as pursuant to the lease he has constructed shop building and is conducting trade therein from 1955 onwards. He has established a rice and flour mill in the suit property. Appellant is not aware of the assignment in favour of the respondent. It is also contended that claim for rent arrears is time barred. Learned Munsiff among other things raised the following issues: “(i) Whether the plaint lease is a commercial lease under the K.L.R. Act? (ii) Whether the defendant has fixity of tenure in the plaint schedule?” The issues were referred to the Land Tribunal for finding. The Land Tribunal observed that Ext.A2 evidenced only a licence, there is no evidence to show that the appellant constructed shop building in the suit property before 20.5.1967 and hence is not entitled to the protection of Sec.106 of the Act. Learned Munsiff accepted that S.A. No.101 of 1995 -: 3 :- finding, answered the other issues in favour of the respondent and ordered eviction with rent arrears. Appellant challenged the judgment and decree before the first appellate Court. The first appellate court concurred with that finding and dismissed the appeal. Hence, this second appeal. 2. The substantial questions of law raised for a decision are: “(i) Whether the permission granted to construct a building is an essential indication of transfer of possession in favour of the appellant to constitute arrangements as a lease and not a licence? (ii) Whether the construction of the building in the property will create an interest in the property so as to confer the appellant with the status of a lessee? (iii) Whether Ext.A2 is a lease or licence, if it is a lese whether the appellant is entitled to fixity under Section 106 of the K.L.R. Act?” 3. It is contended by the learned counsel for appellant that the Land Tribunal was not justified in finding that Ext.A2 is only a S.A. No.101 of 1995 -: 4 :- licence since it is admitted by the respondent that it is a lease. It is also contended by the learned counsel that there is evidence to show that appellant has constructed the building in the suit property pursuant to Ext.A2 and has been conducting trade therein even before 20.5.1967 and hence the Land Tribunal ought to have found that the appellant is entitled to the protection of Sec.106 of the Act. The first appellate court was not justified in overlooking the evidence and rejecting the contention of the appellant. Learned counsel for the respondent contended that there is no evidence to show that the appellant constructed shop building in the suit property before 20.5.1967 and at any rate, the decisions in S.M.P. No.4396 of 1973 and A.A. No.845 of 1977 would operate as res judicata against the claim of the appellant as to the protection of Sec.106 of the Act. 4. Exhibit B10 is the copy of the order dated 5.2.1977 in S.M.P. No.4396 of 1973 of Kodungallur Land Tribunal. That was a suo moto proceeding initiated on the premise that appellant is a cultivating tenant of the suit property. Appellant was arrayed as applicant in the said proceedings. The respondent (respondent No.2 in that case) filed written statement contending that land was leased to the appellant for commercial purpose as per Ext.A2 (Ext.B1 in that S.A. No.101 of 1995 -: 5 :- proceeding) and hence the appellant is not entitled to fixity of tenure. Exhibit B10 shows that the authorised officer conducted enquiry and submitted report that the appellant is conducting trade by constructing shop building in the suit property. The Land Tribunal found that the lease was for conducting trade by constructing shop building, appellant constructed shop building, is engaged in trade and that appellant is not a cultivating tenant of the holding and hence not entitled for assignment of landlord's right under Sec.72 of the Act. Accordingly the application was dismissed. Appellant challenged that order before the Appellate Authority (L.R.) in A.A. No.845 of 1977. Exhibit B11 is the copy of the judgment dated 30.10.1980 in A.A. No.845 of 1977. It was contended on behalf of the appellant that he is a cultivating tenant as per the Act and that though Ext.A2 (Ext.B1 in that proceeding) is said to be a lease for commercial purpose, appellant is entitled to prove the real nature of the transaction under Sec.12 of the Act. The Appellate Authority found that there is no ground for interference and dismissed the appeal. 5. Notwithstanding Exts.B10 and B11, issue regarding protection of Sec.106 of the Act was referred to the Land Tribunal for finding. The Land Tribunal however, observed that Ext.A2 is only a S.A. No.101 of 1995 -: 6 :- licence and that there is no evidence to show that the appellant constructed the shop building in the suit property before 20.5.1967. It is admitted by the respondent that Ext.A2 is a lease and he had even issued notice under Sec.106 of the Transfer of Property Act terminating the tenancy. Hence the question whether Ext.A2 is a lease or licence did not actually arise for determination. 6. As to the question whether Ext.A2 permitted the appellant to construct building and conduct trade therein, it is true that Ext.A2 is only for a period of three years and it is stated in Ext.A2 that on the expiry of the said period of three years appellant would either vacate the suit property after demolishing the building or receive cost of construction as may be determined by intermediaries. Concededly, appellant continued in the suit property even after the expiry of the period of three years stipulated in Ext.A2. Learned Munsiff has found that the appellant is a tenant holding under Sec.116 of the Transfer of Property Act. 7. It is however, seen that though the respondent had raised a contention that in view of the decisions in Exts.B10 and B11 the claim of the appellant for protection of Sec.106 of the Act is barred by res judicata and estoppal, learned Munsiff has not framed an issue S.A. No.101 of 1995 -: 7 :- regarding that. True, an issue regarding constructive res judicata was raised but, that was based on the contention raised by the appellant that Exts.B10 and B11 operated as res judicata against the respondent. 8. Learned counsel for the respondent placing reliance on the decisions in Kamalakshy Amma v. Vijayan (1988 (2) KLT 498) and Vijayan v. Kamalakshy Amma (1994 (1) KLT 942 (SC) contended that since the appellant had not raised the question of commercial lease and protection of Sec.106 of the Act in Ext.B10 proceeding, his claim that he is entitled to the protection of Sec.106 of the Act is barred by res judicata and estoppal. Counsel for the appellant on the other hand, relied on the decision in Abdulrahiman v. Abdulla Haji (1991 (1) KLT 702) and Kunhambu v. Hanumantha Shanbogue (2000 (1) KLJ 541) to contend that principle of res judicata did not apply. It is also contended by the learned counsel for appellant that in view of the non- obstante clause in Sec.106 of the Act, respondent cannot raise the plea of res judicata or estoppal. 9. I am unable to accept the contention that the plea of res S.A. No.101 of 1995 -: 8 :- judicata is barred by the non-obstante clause in Sec.106 of the Act. Section 108A of the Act inserted by Act 27of 1979 has expressly made Sec.11 of the Code of Civil Procedure, so far as may be, applicable to proceedings before the Land Tribunal as well. This provision has been taken note of by a Division Bench of this Court in P.V. Jinan v. Spl.Tahsildar (2007 (3) KLJ 193). Hence it is open to the respondent to raise the plea of res judicata and estoppal. 10. On the question whether the plea of the appellant that he is a commercial lessee is barred by res judicata or constructive res judicata or even estoppal, I find as already stated above that the learned Munsiff has not framed an issue regarding that and the courts below have not adverted to that contention. Therefore, it is not appropriate for this Court while considering second appeal to raise an issue regarding that and consider the question for the first time. The proper course is to direct the trial court to raise an issue regarding that and enter a finding. 11. As per the decision of the Division Bench of this Court in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43) it is not necessary for the civil court to refer the question of commercial lease under Sec.106 of the Act to the Land Tribunal for S.A. No.101 of 1995 -: 9 :- finding since Section 125(3) of that Act does not exclude the jurisdiction of the civil court to consider and decide a claim regarding commercial lease. Therefore, I make it clear that it will be open to the learned Munsiff to consider whether the appellant is entitled to the protection of Sec.106 of the Act. 12. The result of my above discussion is that the finding entered by the courts below that appellant is not entitled to the protection of Sec.106 of the Act is liable to be set aside and the matter remitted to the learned Munsiff for consideration of the said issue and also to consider whether the claim of the appellant for protection of Sec.106 of the Act is barred by res judicata, constructive res judicata or estoppal in view of Exts.B10 and B11 after framing necessary issue regarding that. It is made clear that the decree for realisation of rent arrears till the date of suit is not being disturbed. As future rent is allowed till surrender of possession and the issue of recovery of possession is to be decided by the learned Munsiff, that part of the decree is liable to be set aside and it will be open to the learned Munsiff to grant appropriate relief regarding rent payable from the date of suit while disposing of the case. 13. No other point arose consideration. S.A. No.101 of 1995 -: 10 :- Resultantly, the second appeal is allowed and the judgments and decrees of the courts below to the extent it related to the decree for eviction and rent from the date of suit are set aside in the following lines: (i) Finding entered by the courts below that the appellant is not entitled to the protection of Sec.106 of the Kerala Land Reforms Act is set aside. (ii) Case is remitted to the Court of Munsiff Kodungallur, to consider whether the claim of the appellant that he is entitled to protection of Sec.106 of the Act is barred by res judicata, constructive res judicata and/or estoppal in view of the decisions in Exts.B10 and B11 after framing necessary issue and also to decide whether the appellant is entitled to the protection of Sec.106 of the Act, if requested after giving both sides opportunity to adduce further evidence in that regard. (iii) Parties to suffer their costs in this appeal. (iii) Parties shall appear in the Court of S.A. No.101 of 1995 -: 11 :- Munsiff, Kodungallur on 26.5.2009. Registry is directed to send back the records immediately. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.101 OF 1995 =================== J U D G M E N T 25TH MARCH, 2009