IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 SA.No. 223 of 1998(B) ------------------------------- AS.33/1992 of SUB COURT, HOSDRUG O.S.NO.219/1985 OF MUNSIFF OF HOSDURG .................... APPELLANT(S): ---------------------- 1. K.V.CHANDAN KUNHI, SON OF MEETHALA VALAPPIL MANIKKOM, RESIDING AT MOHAKOTH, KILIYIKODE VILLAGE, P.O.KILIKODE, CHERUVATHUR(VIA) HOSDURG TALUK. BY ADVS. SRI.C.M.ANDREWS SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE RESPONDENT(S): ------------------------- 1. THONDIYIL KUNHATHA, W/O. MEETHALA VALAPPIL KANNAN. 2. THONDIYIL CHIRUTHA KUNHI, D/O. MEETHALA VALAPPIL KANNAN. 3. THONDIYIL KUNHI KANNAN, SON OF -DO- -DO- 4. THONDIYIL ROHINI, D/O. -DO- -DO- 5. THONDIYIL SREEDHARAN, SON OF -DO- -DO- R1 TO R5 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO. 223/1998 J U D G M E N T No representation for the appellant. Appeal is dismissed for default. No costs. 15/12/2010 SD/- P.S.GOPINATHAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE sts P.BHAVADASAN, J. ---------------------------- S.A.No. 223 of 1998 --------------------------------- Dated this the 7th day of March, 2011 JUDGMENT The plaintiff in O.S.No.219/1985 before the Munsiff's Court, Hosdurg, who was non-suited by both the courts below, is the appellant. 2. The necessary facts are as follows: The plaint schedule properties formerly belonged to the plaintiff's mother Meethale Valappil Manikkom as per Ext.A1 dated 25.03.1934. She obtained tenancy right under the jenmi Chervathur Veerabhadra Devaswom. It is pointed out that Manikkam's brother Kannan was residing in the house in the suit property with Manikkom to help her in the management of the property. On the death of Manikkom, her right and possession over the suit property devolved upon the plaintiff as the only legal heir. The plaintiff orally permitted Kannan to reside in the house and accordingly Kannan was residing there and was assisting the plaintiff in managing the property. Later, the plaintiff had to go various places due to his employment. The property was in actual possession and enjoyment of the plaintiff. Kannan died on 08.04.1979 and the defendants are the widow and children of Kannan. Thereafter, the 5th defendant was asked to look S.A.No. 223 of 1998 2 after the property. On 25.06.1985 plaintiff came to know that Kannan had obtained purchase certificate in respect of the suit property in his favour as per the order dated 17.04.1976 in O.A.No.6596/76. The plaintiff has filed appeal against the said order as A.A.No.153/1985 which is pending now. Pointing out that the defendants have no manner of right over the property the suit was laid. It is made clear that no relief was sought for in respect of the house in the property. 3. The defendant resisted the suit. They pointed out that Ext.A1 has not been acted upon. In fact Kuzhikanam right was obtained by Kannan and he was paying rent to the jenmi. The allegation that all payments were made and receipts obtained by Kannan were on behalf of Manikkam was specifically denied. It is also contended that the plaintiff being a village officer, was a highly influential person and had managed to get documents concocted to defeat the rights of the defendants. They claimed that the house in Item No.1 was constructed by Kannan and his wife. Defendants 2 to 5 were born and brought up in that house and had their education in the nearby school. Pointing out that the plaintiff had no manner of right over the suit property they prayed for a dismissal of the suit. S.A.No. 223 of 1998 3 4. Based on the above pleadings, necessary issues were raised by the trial court. Issue No.6 related to the claim of tenancy made by Kannan in the suit property. 5. One could have expected the trial court to refer the question of tenancy to the Land Tribunal as required under Section 125(3) of the Kerala Land Reforms Act. But it seems that evidence was adduced before the said court and thereafter records were sent to the Land Tribunal. The documents send over were marked by the Land Tribunal. The Land Tribunal returned the finding that Kannan is not entitled to tenancy rights and it was the plaintiff was entitled to fixity of tenure. When that finding was returned to the trial court, the trial court came to the conclusion that plaintiff right has been lost by adverse possession and limitation and dismissed the suit. 6. The matter was carried in appeal as A.S.33/1992 before the Sub Court, Hosdurg filed by the plaintiff. The lower appellate court on a consideration of the materials found that Ext.A1 document on which the plaintiff had placed considerable reliance had not been acted upon and that finding of the Land Tribunal that Manikkom is entitled to tenancy rights cannot be sustained. Therefore, though from other reasons dismissal of the suit was confirmed. Hence the Second Appeal. S.A.No. 223 of 1998 4 7. Notice is seen issued on the following substantial questions of law: 1. In a suit for recovery of possession on the strength of title, in the event of the issue regarding title being settled in favour of the plaintiff, is not the burden of proving adverse possession and limitation cast on the defendants? 2. When it is found that the plaintiff's predecessor-in-interest (Chandan) had a leasehold right over the property and when it is also held that the said person had executed a registered Kuzhikkanom Assignment Deed relating to the property in favour of plaintiff's mother, is not the court below clearly in error in undoing the legal effect of such a registered deed by holding that the same was not intended to be acted upon, in the absence of concrete evidence and proof to that effect and in contravention of the judicial dictum on that point ? 3. When in a suit there is a reference under Section 125(3) of the Kerala Land Reforms Act regarding the issue of tenancy, and when the finding by the Land Tribunal forms a part of the Judgment, are not the courts below obliged to read and consider the material evidence as a whole ? 4. In view of the rival tenancy right claimed by the defendants in the suit, are they justified in raising the inconsistent plea of acquisition of adverse possession as S.A.No. 223 of 1998 5 well ? 5. Are not the courts below in error while allowing the defendants plea of adverse possession and limitation purely on the basis of rent and assessment receipts produced by the defendants when the voters list produced by the plaintiffs unmistakably shows that the defendants were never in continuous possession, if at all they were in possession ? 8. The learned counsel appearing for the appellant pointed out that the procedure followed by the courts below are contrary to law. It was after recording the evidence in the trial court, the matter was sent to the Land Tribunal. The trial court could not have allowed the parties to adduce evidence regarding the question of tenancy at all. Apart from that learned counsel pointed out that the lower appellate court has observed that since some of the documents produced and marked in the case are not before the said court, the said court need not consider those documents at all. The lower appellate court has omitted to note that claim of Kannan was oral tenancy while the plaintiff claimed right through his mother as per Ext.A1. There were documents to show that she had paid the rent to Jenmi and those documents clearly showed that the entrustment was to Manikkom, the S.A.No. 223 of 1998 6 mother of the plaintiff and that Ext.A1 had in fact been taken off. At any rate, the learned counsel stated that entire procedure followed by the trial court and as well as the lower appellate court cannot be justified in law. 9. Per contra the learned counsel appearing for the respondent pointed out that the procedure followed by the courts below may not be proper. But attention was drawn to the fact that the trial court has considered the matter in detail and found that some of the documents produced by the plaintiff had been manipulated and concocted documents for the purpose of the case. Such a person according to the learned counsel for the respondent does not deserve any sympathy and this court may consider as to whether at this distance of time the matter should be re-agitated. 10. Though there is considerable force in the contentions raised by the learned counsel for the respondent, since the procedure followed by the trial court as well as the appellate court are totally illegal and irregular, it is difficult to sustain the judgments and decree of the said courts. It is seen that the question of tenancy claimed by the defendant was raised as an additional issue and surprisingly enough the trial court instead of immediately referring the issue the Land Tribunal for a decision on the question of tenancy under Section S.A.No. 223 of 1998 7 125(3) of the Kerala Land Reforms Act went on to take evidence by itself. After having completed taking of the evidence the matter was referred to the Land Tribunal. The Land Tribunal marked the deposition given by the witnesses before the trial court. This procedure followed is clearly contrary to Section 125(3) of the Kerala Land Reforms Act and cannot be sustained. 9. As far as the lower appellate court is concerned in paragraph 8, it is seen observed that Exts.A7 to A11 were not before the said court. Instead of ascertaining whether they were actually available or without calling for the documents from the authority the court concerned, the lower appellate court simply goes on to observe that it need not consider those documents. The lower appellate court has omitted to note that the plaintiff places considerable reliance on those documents. Further the Land Tribunal had found the plaintiff's mother Manikkom had executed Ext.A1 document and it was therefore a disputed claim of rival tenancy. The Land Tribunal had returned the finding in favour of the plaintiff. Thereafter, the question of adverse possession had been gone into by the trial court. Thus it can be seen that the judgment and decree of the both the courts below are unsupportable in law. In the result, this appeal is allowed, the judgment and decree of S.A.No. 223 of 1998 8 the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. Parties shall appear before the trial court on 06.04.2011. Office shall send back the records forthwith. There will be no order as to costs in this appeal. P.BHAVADASAN, JUDGE. ln