IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 RSA.No. 1025 of 2011() ---------------------- AS.101/1994 of SUB COURT, CHERTHALA OS.582/1986 of ADDL.MUNSIFF COURT,CHERTHALA .................... APPELLANT/2ND APPELLANT/3RD DEFENDANT: -------------------- PADMANABHAN RAVUKUTTAN, S/O.PADMANABHAN PADMAPURAM, THURAVOOR PANCHAYAT, WARD NO.3 VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE, CHERTHALA TALUK. BY ADV. SRI.T.K.VENUGOPALAN SRI.SHIBU JOSEPH SRI.V.V.VARGHESE RESPONDENT(S)/RESPONDENTS – PLAINTIFF & LEGAL REPRESENTATIVES OF PLAINTIFF: --------------- 1. ANANDAN DAMODARAN, KADAVAMPALLIL, VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE, CHERTHALA TALUK (DIED). 2. PADMAKSHY, W/O ANANDAN DAMODARAN, KADAVAMPALLIL VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE, CHERTHALA TALUK 688 532. 3. SIVADAS, S/O. ANANDAN DAMODARAN, KADAVAMPALLIL, VALAMANGALAM SOUTH MURI, THURAVAOOR SOUTH VILLAGE, CHERTHALA TALUK 688532. 4. NATARAJAN, S/O. ANANDAN DAMODARAN, KADAVAMPALLIL,VALAMANGALAM SOUTH MURI, THURAVAOOR SOUTH VILLAGE, CHERTHALA TALUK 688532. 5. SUSEELAN, S/O. ANANDAN DAMODARAN, KADAVAMPALLIL, VALAMANGALAM SOUTH MURI, THURAVAOOR SOUTH VILLAGE, CHERTHALA TALUK 688532. 6. KANTHIMATHY, W/O.SANKARANARAYANAN, DHANYA NIVAS, KOKKOTHAMANGALAM VILLAGE, CHERTHALA EAST MURI, CHERTHALA TALUK 688524. 7. AMBIKA, W/O. SOMAN, SABARMATHY HOUSE, KOKKOTHAMANGALAM VILLAGE, CHERTHALA EAST MURI, CHERTHALA TALUK 688524. WP(C) 1025/2011 8. THULASI, W/O. VASUDEVAN, PRASANTHI BHAVANAM MARARIKULAM NORTH VILLAGE, PERINNARMANGALAM MURI, CHERTHALA TALUK 688524. 9. RETNAKUMARI, D/O. PADMAKSHY, KADAVAMPALLIL, VALAMANGALAM SOUTH MURI, THURAVOOR SOUTH VILLAGE, WARD NO.12, THURAVOOR GRAMA PANCHAYAT, CHERTHALA TALUK 688 532. 10. SREELATHA, W/O SUDHAN, DEVIKA BHAVANAM (CHATHAMATHU) CHERTHALA NORTH VILLAGE, NORTH MURI, CHERTHALA TALUK 688524. ADV. DR.V.N.SANKARJEE FOR CAVEATER THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.1025 of 2011 ............................................ DATED THIS THE 5th DAY OF SEPTEMBER, 2011 JUDGMENT The additional third defendant in O.S.582 of 1986 on the file of Munsiff Court, Cherthala is the appellant. Respondents are the legal heirs of the original plaintiff. The suit was filed for declaration of title and mandatory injunction contending that deceased plaintiff has title to the plaint schedule property under Ext.A1 sale deed and deceased defendant, his brother was permitted to conduct the business in the thatched shed and he demolished the shed and constructed a pakka shop building. He has no right to construct the building or to continue its possession. Plaintiff sought a decree for declaration of title and mandatory injunction directing the defendant to demolish the building constructed in the plaint schedule property and to hand over possession of the plaint schedule property. 2. Before filing written statement defendant died. His widow and son, the appellant were impleaded as additional defendants 2 and 3. They filed a joint written statement contending that they RSA 1025/2011 2 are not aware of the title of the appellant to the plaint schedule property and contending that the deceased defendant took lease of half a cent of the plaint schedule property from the plaintiff in 1952 on a monthly rent of Rs.2/- and thereafter he constructed a shop building and has been conducting business therein since then and on the death of the first defendant, third defendant is conducting the business and they are entitled to fixity of tenure under Section 106 of Kerala Land Reforms Act and plaintiff is not entitled to the decree sought for. It was also contended that the benefit claimed under Section 106 of Kerala Land Reforms Act is to be referred to the Land Tribunal. 3. Learned Munsiff referred the claim under Section 106 of Kerala Land Reforms Act to Land Tribunal, Cherthala under Section 125(3) of Kerala Land Reforms Act. Land Tribunal, as per order dated 15.4.1993 rendered a finding that appellants are not entitled to the benefit of Section 106 of Kerala Land Reforms Act. No evidence was adduced before the learned Munsiff, except Ext.A1. Learned Munsiff on the evidence found that the plaintiff has title to the plaint schedule property and it was in the occupation of the first defendant, as permitted by the plaintiff RSA 1025/2011 3 that permission was revoked and therefore plaintiff is entitled to a decree for declaration of title. Additional defendants were directed to demolish the building and surrender vacant possession of the building. Appellant along with the mother challenged the decree before Sub Court, Cherthala in A.S.101 of 1994. Learned Sub Judge on re-appreciation of the evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. The defendants challenged the decree and judgment before this court in S.A.353 of 2000. This court, as per judgment dated 23.2.2011, remanded the appeal to the first appellate court for fresh disposal finding that though the finding of the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act is not binding on the first appellate court and it could be varied, modified or set aside by the appellate court, learned Sub Judge did not consider the correctness of the finding of the Land Tribunal on the basis of the records and directed learned Sub Judge to consider the question afresh. Learned Sub Judge thereafter by the impugned judgment confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. RSA 1025/2011 4 4. Learned counsel appearing for appellants and learned counsel appearing for respondents, who lodged a caveat, were heard. The argument of the learned counsel appearing for the appellants is that learned Sub Judge as per the original judgment did not consider the correctness of the finding of the Land Tribunal and this court in the judgment in S.A.353 of 2000 set aside the finding of the first appellate court and remanded the first appeal for fresh disposal making it clear that the finding of the Land Tribunal is to be considered afresh and being the final fact finding court, first appellate court has to consider the correctness of the finding of Land Tribunal but the learned Sub Judge did not consider the correctness of the finding as directed by this court. The learned counsel would argue that first appellate court confirmed the findings of Land Tribunal for the reason that no building existed in the plaint schedule property on 20.5.1967 for the reason that the building tax assessment registers produced relate only to 1963 to 1973 and thereafter 1983 to 1988 ignoring the finding of the Land Tribunal that the building was in existence from 1963 to 1973 and the finding of the first appellate court is therefore erroneous. The learned counsel RSA 1025/2011 5 argued that before the first appellate court opportunity was sought for by the appellants to adduce evidence, as no oral evidence was earlier adduced and first appellate court should have remanded the suit to enable the appellants to adduce evidence and in the light of the directions of this court in S.A.353 of 2000, finding of the first appellate court is not sustainable. The argument of the learned counsel appearing for appellant is that it is the case of the respondents that the deceased defendant was permitted to construct a building for conducting a business, as that was the argument advanced by the learned counsel appearing for the plaintiff before the Land Tribunal as seen from the findings of Land Tribunal and what was pleaded in the plaint was that defendant was permitted to conduct the business in the thatched shed and when the defendant produced assessment registers establishing that the building was in existence from 1963 onwards and the deceased defendant was shown as the owner of the building, courts below should not have accepted the case of the respondent that defendant was permitted to conduct the business in a shed belonging to the plaintiff and therefore the decree is not sustainable. RSA 1025/2011 6 5. The only question for consideration is whether appellants are entitled to the benefit provided under Section 106 of Kerala Land Reforms Act. Though fixity of tenure was claimed, in view of Section 3(v) of Kerala Land Reforms Act, even if appellants are entitled to the benefit under Section 106 of Kerala Land Reforms Act, they are not entitled to claim fixity of tenure. The only question is whether appellants are entitled to the protection provided under Section 106 of Kerala Land Reforms Act. Section 106 provides that notwithstanding anything contained in the Act, or in any other law or in any contract or in any order or decree of court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before 20.5.1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy. Therefore to claim the benefit the person claiming the benefit must plead and prove that 1) There was a lease of land 2)The lease was for commercial or industrial purpose 3)The lessee constructed buildings for such commercial or RSA 1025/2011 7 industrial purpose before 20.5.1967. If these essential ingredients are pleaded and proved, he is entitled to the benefit under Section 106 of Kerala Land Reforms Act. 6. The learned counsel made available the copy of the written statement filed by the appellants. There is no specific plea of a lease of land for commercial or industrial purpose. The plea is only that father of appellants obtained lease of half cent of property and in that land, he constructed a building to start a business and that lease was in 1952 with a liability to pay a rent of Rs.2/-. The case is not that there was a lease of land for commercial or industrial purpose. Instead the plea was that there was a lease of land and in that land a building was constructed for commercial purpose. It need not necessarily mean that the lease of land was for commercial or industrial purpose. At best it could be termed as lease of land which was utilized by the defendant for construction of a building for commercial purpose. That will not enable the defendant, even if he has constructed a building before 20.5.1967, to claim the benefit under Section 106 of Kerala Land Reforms Act. RSA 1025/2011 8 7. The plaintiff has only pleaded that a thatched shed was jointly constructed by the plaintiff and his brother and they were conducting business and later the defendant, his own brother demolished the shed and constructed a building and is doing business as permitted by him. There was no plea of a lease of land in the plaint. What was contended in the written statement is that ½ cent of land was obtained on lease by the defendant in 1952 and he constructed a building. Therefore it cannot be said that there was any admission by the plaintiff about a lease of land. Though the learned counsel appearing for appellants vehemently argued that in view of the extract of the arguments addressed before the Land Tribunal by the counsel appearing for the plaintiff recorded in the findings that defendant constructed a building in the land belonging to the plaintiff, when there is no evidence to prove the permission pleaded by the plaintiff, the extracts of the building tax register maintained by the panchayat establish that defendant was the owner of the building from 1963 onwards, the case of permission set up by the plaintiff is to be disbelieved and therefore the lease of land set up by defendants is to be accepted, I cannot agree with the submission. RSA 1025/2011 9 8. First of all, the extract of the arguments of the counsel before the Land Tribunal, shown in the findings of the Land Tribunal, cannot be taken as an admission of the plaintiff especially when that argument is against the pleading. In any case there was no admission of a lease of land. Moreover, when there is no admission of a lease of land for commercial or industrial purpose, it is a fact which is to be proved by the defendants. 9. The defendant died before the case was referred to the Land Tribunal under Section 125(3) of Kerala Land Reforms Act. Appellant did not adduce any evidence to establish the oral lease. When there is no evidence to prove a lease of land before 20.5.1967 and that too, for commercial or industrial purpose, even if the building tax assessment registers show that a building was constructed before 20.5.1967, that will not enable the appellants to claim the benefit provided under Section 106 of Kerala Land Reforms Act. In such circumstances, even though the first appellate court has not properly considered the correctness of the findings of Land Tribunal on the pleading and the evidence, it can only be found that there is no evidence to RSA 1025/2011 10 prove a lease of land in 1952 in favour of the defendant by his brother, the plaintiff and that too for commercial or industrial purpose. There is also no evidence to prove that the defendant has constructed a building for that commercial purpose before 20.5.1967. Hence no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk