IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 RSA.No. 1114 of 2006(G) ----------------------- (AGAINST THE DECREE IN AS.90/1993 of ADDL.DISTRICT COURT,KOTTAYAM AND IN OS.918/1988 of ADDL.M.C.,KOTTAYAM) .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------- ELIZABETH GEETHA IYPE, VATTAKUNNEL NATTASERY KARA, PERUMBAIKKAD VILLAGE. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL RESPONDENT / RESPONDENTS / DEFENDANT : ------------- 1. KOTTAYAM DISTRICT EX-SERVICE MEN'S WELFARE CO-OPERATIVE SOCIETY LTD.,NO.2675, PULIMOOD JUNCTION, KOTTAYAM REP.BY ITS PRESIDENT, SRI.RAJASEKHARAN NAIR, KOORAPPALLIL HOUSE, ERAMALLOOR KARA, PUTHUPALLY VILLAGE. 2. KOTTAYAM DISTRICT EX-SERVICE MEN'S WELFARE CO-OPERATIVE SOCIETY LTD.,NO.2675, PULIMOOD JUNCTION, KOTTAYAM REP.BY ITS SECRETARY, P.V.CHACKO, PANAPARAMBIL, VELLOOR KARA, PAMPADY VILLAGE. BY ADV. SRI.P.K.RAVISANKAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.PADMANABHAN NAIR, J. ------------------------------- R.S.A.No.1116 of 2006 ------------------------------- Dated this the 13th February, 2008. J U D G M E N T The plaintiff in O.S.No.918/88, on the file of the Additional Munsiff's Court, Kottayam, is the appellant. Appellant filed the suit for recovery of possession of suit property with arrears of rent and mesne profits. The case of the appellant is that the predecessor- in-interest of the appellant let out the land on lease to one Nanu Achary in the year 1119 M.E. It was averred that he had constructed buildings in the property and was conducting a motor workshop over there. It was further averred that on 5.12.1122 M.E., a society by name 'The north Travancore Ex-service Mens Transport and Industrial Co-operative Society Limited' purchased the buildings and machineries erected in the plaint property from Nanu Achary. But the lease hold right in the property was not assigned as he had no right to do so. It was averred that the Society took the property which was the site on which the buildings stood on lease from the plaintiff's predecessor and started doing business. It was averred that society committed default in payment of rent and sub let a portion of the building to another person without the knowledge and consent of the plaintiff. It was also R.S.A.No.1114/2006 2 contended that Society acquired right over the building alone and it has no right over the land. Hence it is not entitled to get protection under Section 106 of the Kerala Land Reforms Act. The defendants filed a written statement contending that averment that it purchased the building and machineries erected by Nanu Achary is false. It was averred that on 5.12.1122 M.E., Nanu Achary assigned his lease hold right in the property to the society and thereafter the defendant attorned to plaintiff's predecessor and continued as a lessee till they executed a fresh lease on 22.8.1922. It was further contended that the lease was renewed from time to time. It was also averred that the building which was assigned to respondent was a petty construction, which was demolished and a pucca building was constructed. It was contended that the plaintiff received rent from E.N.George for the period from July 1985 to December 1985, who trespassed into a portion of the suit property. It was also contended that plaintiff refused to accept the land from the defendant. The averment that the Society inducted a sub-tenant was denied. It was further averred that the defendant filed O.S.No.400/1986 to evict trespasser and the suit was decreed. It was also contended that there was no valid termination of tenancy and defendants are entitled to get protection under Section 106 of the Kerala Land Reforms Act. R.S.A.No.1114/2006 3 Appellant did not adduce any evidence, either oral or documentary. The defendants produced Exts.B1 to B3 and examined DW.1 The Trial Court found that the case of the plaintiff that the defendants purchased buildings is not correct, but material on record shows that Nanu Achary, the original lessee assigned his lease hold right to the first defendant. The Trial Court further found that the first defendant is entitled to get protection under Section 106 of the Kerala Land Reforms Act and dismissed the entire suit. Challenging that decree and judgment, appellant filed A.S.No.90/1993 before the District Court, Kottayam, and that was dismissed on 22.11.2000. Challenging the concurrent findings, the plaintiff has filed this Second Appeal. 2. The appeal was filed with a delay of 2026 days. I had condoned the delay and admitted the appeal on the following questions of law. “1. Are the courts below legally right in deciding the issue as to whether the protection under section 106 of the Kerala Land Reforms Act can be provided to the respondent on its own without referring that question to the Land Tribunal ? R.S.A.No.1114/2006 4 2. Whether the Civil court can decide the question as to whether a lessee is entitled to the protection under section 106 of Kerala Land Reforms Act without obtaining a finding on that question from the land Tribunal ? 3. Whether the courts below are right in holding that a society registered as per the provisions of the Co-operative Societies Act is entitled to the protection available under section 106 of Kerala Land Reforms Act ? 4. Whether the term 'lessee' in section 106 of Kerala Land Reforms Act will include a registered society ? 5. Whether the protection under section 106 of Kerala Land Reforms Act can be provided to a lessee who is not conducting any industrial or commercial activity in the building situated in the leased premises and whether that protection can be provided only on the ground that the lessee at a previous point of time was conducting an industrial or commercial activity in the building in question ? 6. Whether the courts below are correct in holding that the lease in favour of Nanu Achary had not been terminated by the transfer of buildings alone in favour of the society and whether the courts below are correct in finding that the lease hold right was transferred by Nanu Achary in favour of society ? 7. Whether a lessee who is conducting business on the basis of a fresh lease after the termination of the previous lease and who had not constructed any building in the demised premises can claim the protection of section 106 of the Kerala Land R.S.A.No.1114/2006 5 Reforms Act on the strength of the building constructed by the previous lessee whose lease had been terminated ?” 3. The learned counsel appearing for the appellant has argued before me that question of protection claimed under Section 106 of the Kerala Land Reforms Act is a matter to be decided by the competent Land Tribunal and the Civil Court is having no jurisdiction to decide the issue. It is argued that defendant in this case is a Co- operative Society, which will not come within the definition of 'person', a lessee under Section 106 of the Kerala Land Reforms Act. It is also argued that the defendant society had become defunct and it was not doing any business, and the defendant has sub let a portion of the building to a stranger who is in possession, and as such, on the date of the suit, the defendant was having no possession over the land and it was not doing any business. All these arguments were countered by the learned counsel for the defendants contending that the defendant had not sub let any portion of the building and it was doing business. Plaintiff did not go to box or adduce any evidence before the trial court. The case was being conducted by power of attorney. The appeal was also filed by the power of attorney. It is seen that the power of attorney holder died on 18.5.1994, and thereafter, another R.S.A.No.1114/2006 6 power of attorney was executed in favour of one Biju @ Mathew. There is absolutely nothing on record to show that power of attorney holder appeared and conducted the case. So, though the judgment of the lower appellate court is on merits, there is absolutely no material to show that anybody appeared and argued for the appellant. In fact, the contention of the appellant in the second appeal is that subsequent power of attorney holder colluded with the defendant and was acting against the interest of the appellant. Hence, she has cancelled the power of attorney executed in his favour. Considering all aspects of the matter, I am of the view that it is only just and proper that the appellant is given an opportunity to argue the appeal on its merits. 4. The learned counsel appearing for the appellant submits that the specific case put forward by the plaintiff is that tenant was a co-operative society which become defunct and it was not doing any business in the property. It is also argued that tenant sub let a portion of the building and the sub lessee was in possession, and as such, Society which had already become defunct is not entitled to claim any protection under Section 106 of the Kerala Land Reforms Act. It is also submitted that the courts below have not raised any issue on that point. It is open to the appellant to file necessary R.S.A.No.1114/2006 7 applications before the lower appellate court to frame additional issues or to adduce additional evidence before the lower appellate court. If such petitions are filed, the lower appellate court shall consider the same and pass appropriate orders, in accordance with law. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court in A.S.No.90/1993 is hereby set aside. The matter is remanded back to the District Court, Kottayam. It is open to the parties to file necessary application to amend pleadings and to adduce necessary evidence, if so advised, before that court. Parties shall appear before the lower appellate court on 15.3.2008. K.PADMANABHAN NAIR, JUDGE nj.