IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 AS.No. 721 of 1998(A) ------------------------------ OS.52/1985 of SUB COURT, MANJERI .................... APPELLANT(S): PLAINTIFFS 4 &2 ------------------------------------------------- 1. RECEIVER ADVOCATE T.RAVISANKAR, AGED 34 YEARS, THARAKKAL ESTATE RECEIVER APPOINTED BY THE SUB COURT, OTTAPALAM IN OS. 32/1967. 2. THARAKKAL VARIATH SREEDEVIKAVU VARASSIAR, D/O. KUNHIKAVU VARASSIAR, AGED 67 YEARS, OTTAPALAM AMSOM, ARIYOOR THEKKUMURI DESOM, OTTAPALAM. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S): DEFENDANTS ----------------------------------------------- 1. KIZHICHITHODIYIL BHASKARAN NAIR, S/O. SREEDEVI AMMA, AGED 53 YEARS. 2. KUZHICHITHODIYIL UNNIKRISHNAN NAIR, S/O. SREEDEVI AMMA, AGED 58 YEARS. 3. KUZHICHITHODIYIL PRABHAKARAN NAIR, S/O. SREEDEVI AMMA, AGED 48 YEARS. (ALL RESPONDENTS ARE RESIDING IN MELATOOR AMSOM, PERINTALMANNA TALUK , MALAPPURAM R1 TO R3 BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE BY ADV. SMT.PRABHA R.MENON BY ADV. SRI.T.SETHUMADHAVAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 721 OF 1998 = = = = = = = = = = = = = = = Dated this the 15th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Manjeri in O.S.52/85. The suit is one for recovery of possession on the strength of title. It is the case of the plaintiff that the property belonged to the members of the family in O.S.32/67 and he is the receiver appointed by the Court to manage the property. According to him there was a total mismanagement by the family members and that had necessitated institution of the suit O.S.32/67. It is also contended that the defendants in the suit moved an application for purchase which was allowed by the Court first and reversed by the Appellate Authority and remanded by the High Court. After A.S. 721 OF 1998 -2- remand the matter was considered by the Land Tribunal along with the reference in this case and found that the defendants are tenants of the property entitled to fixity of tenure. On the basis of the same trial court dismissed the case and it is against that decision the plaintiff has come up in appeal. 2. The crux of the matter is whether the defendants are entitled to tenancy right over the property. According to defendants the property was taken on lease in the Malayalam year 1938 by Sankaran Nair from the family of the parties in O.S.32/67. Thereafter by virtue of the assignment deed in 1971 the said Sankaran Nair has transferred the property and therefore the defendants have become persons entitled to the property. The learned Tribunal had considered the material documents as well as A.S. 721 OF 1998 -3- oral evidence and held that there are documents to show that rent had been paid and further the neighbours had also been examined to prove about the oral entrustment in favour of Sankaran Nair. On the other hand the evidence of the plaintiffs is to the effect that there was no entrustment at all and the persons in O.S.32/67 were in possession. Ultimately the receiver has to agree before the Court that the present plaint schedule property is not even included in O.S.32/67. So basing upon the materials available the Tribunal held that defendants have succeeded in proving tenancy,i.e. tenancy by Sankaran Nair from the family of the plaintiffs' estate and subsequently by assignment executed by Sankaran Nair in favour of the defendants. Not it has also been brought to my notice that against the decision rendered by the Tribunal A.S. 721 OF 1998 -4- the receiver moved an appeal as A.A.29/00 before the Appellate Authority, Thrissur and for the reason best known to him the appeal was not prosecuted and it ended in dismissal. No materials are placed before me to show that the matter has been further pursued or any other decision to the contra has been given. So the finding of the Tribunal rendered in the O.A. as well as the reference case became final and therefore it has to be held on that basis also the plaintiff is not entitled to succeed. So I find from the discussions above that the defendants in this case have satisfactorily established that Sankaran Nair has taken lease of the property and subsequently they had purchased the property from Sankaran Nair and they were in possession of the property. It is also to be stated that against the order of the A.S. 721 OF 1998 -5- Land Tribunal it had given an assignment in favour of the defendants and the appeal which has been filed had been dismissed for non prosecution as well. Therefore no materials are there now at this stage to interfere with the decision rendered by the trial court and so the appeal lacks merits and the same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 721 OF 1998 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 721 OF 1998 = = = = = = = = = = = J U D G M E N T 15th July, 2010.