IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 FAO.No. 40 of 2004() -------------------- AS.135/1998 of I ADDL. DISTRICT COURT, PALAKKAD OS.85/1972 of MUNSIFF COURT, ALATHUR .................... APPELLANTS/RESPONDENTS IN AS/DEFENDANTS 2, 4 AND 5 IN OS: --------------------------- 1. KESAVAN, AGED 70, S/O. KULLANDI, RESIDING IN KALLEKONAM, CHITHALI, KUZHALMANNAM AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. 2. VASU, AGED 67, S/O. KULLANDI, IN DO. DO. 3. GOVINDAN, AGED 64, S/O. KULLANDI, IN DO. DO. BY ADV. SRI.S.V.BALAKRISHNA IYER SRI.P.B.KRISHNAN RESPONDENT/APPELLANT IN AS/PLAINTIFF IN OS: ------------------------ SRI NARAYANA MENON, AGED 67, S/O. THANKAMALU AMMA, KOTHARAMATH, RESIDING AT PUTHENKULAM IN KUZHALMANNAM AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15.1.2008, ALONG WITH FAO NO. 42 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- F.A.O.Nos.40 of 2004 & 42 of 2004 ------------------------------------------------- Dated, this the 15th day of January, 2008 JUDGMENT Defendants 2, 4 and 5 in O.S.No.85/1972 on the file of the Munsiff's Court, Alathur are the appellants in F.A.O.No.40/2004. Defendants 5 to 11 in O.S.No.112/1972 on the file of the very same Court are the appellants in F.A.O.No.42/2004. There were three suits as O.S.No.85/1972, 86/1972 and 112/1972. All the suits were filed by the same plaintiff. The main relief sought for in all the three suits was a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule properties. The three suits were tried jointly. The trial court dismissed the suits as per judgments dated 30.3.1976. Challenging the decrees and judgment passed in O.S.Nos.85/1972 and 112/1972 the plaintiff filed appeals as A.S.Nos.269/1976 and 270/1976. The appeals were heard together and disposed of by a common judgment dated 27.10.1976. Lower appellate court took a view that since the defendants had raised a contention of tenancy the trial court was not justified in deciding the suits without getting a finding on the question of tenancy by the Land Tribunal. Accordingly the lower appellate court set aside the judgment and decrees passed in O.S.Nos.85/1972 and 112/1972 and remanded the cases to the trial court with a specific direction to refer the question of tenancy to the Land FAO.Nos.40/2004 & 42/2004 2 Tribunal having jurisdiction over the area. The Land Tribunal considered the matter and found that the defendants are cultivating tenants entitled to fixity of tenure. Records were returned to the trial court with such a finding. The trial court did not consider any other issue. By a four line judgment dated 31.1.1985 the trial court dismissed both the suits. The judgment reads as follows: “Suit for injunction. Addl.issue No.4 and issue No.3. In view of the findings by the Land Tribunal in the above issue that the defendants are tenants of the plaint schedule property the suit is dismissed with costs. The order of the Land Tribunal will form part of the judgment.” Aggrieved by the above judgment of the trial court the plaintiff filed A.S.No.87/1985 against the decree and judgment passed in O.S.No.85/1972 and A.S.No.95/1985 against the decree and judgment passed in O.S.No.112/1972. Both the appeals were again consolidated and heard together by the lower appellate court. The lower appellate court found fault with the Munsiff for not considering the other issues on merits. The lower appellate court by judgment dated 30.5.1990 set aside the judgment and decrees passed by the trial court and remanded the cases to trial court. Lower appellate court found that when the defendants set up tenancy not under the plaintiff but under a stranger, that may amount to setting up of an adverse title. Lower appellate court also found that in a suit for decree of permanent injunction the claim of the defendant that he is tenant of the property does not arise for consideration and hence it was not FAO.Nos.40/2004 & 42/2004 3 necessary to refer the case to the Land Tribunal for decision under Section 125(3) of the Kerala Land Reforms Act. It further held that even if the reference of the question of tenancy to the Land Tribunal for decision was legal, the trial court ought to have considered the claim of the plaintiff that he was in possession of the plaint schedule items on the date of suit. The lower appellate court did not consider by itself the merits of the finding entered into by the Land Tribunal. It does not set aside the finding of the Land Tribunal also. But, at the same time remanded both the cases. While remanding the matter it was observed that no further reference may not be warranted. Such an observation was made without setting aside the finding of the Land Tribunal. The above remand orders were challenged by the defendants before this Court by filing C.M.A.Nos.212/1990 and 213/1990. This Court found that the trial court did not pass a proper judgment in both the suits. This Court held that the action of the lower appellate court setting aside the decrees and judgment and remanding the matter for fresh consideration was correct. This Court also did not consider whether the finding rendered by the Land Tribunal on the question of tenancy was set aside while remanding the suits. After the orders of this Court the trial court found that defendants were in possession of the plaint schedule properties and dismissed the suits by judgment dated 20.12.1997. The trial court did not refer the question of tenancy to the Land Tribunal. On the other hand it appended the finding of the Land Tribunal on the earlier occasion to the judgment. Challenging that judgment and decrees the FAO.Nos.40/2004 & 42/2004 4 plaintiff again filed appeals as A.S.Nos.135/1998 and 136/1998 against O.S.Nos.85/1972 and 112/1972 respectively. By the impugned judgments the lower appellate court again set aside the decrees and judgments passed by the trial court and remanded the matter. Challenging the remand orders these First Appeals are filed. 2. In both the appeals initially questions of law were not framed. Subsequently the appellants in F.A.O.No.40/2004 filed I.A.No.4771/2007 for raising substantial questions of law which I had allowed. In F.A.O.No.42/2004 the appellants filed I.A.No.4775/2007 for raising substantial questions of law which was also allowed. So the appeals were heard on the substantial questions of law framed in the appeals. 3. I have heard both sides. The lower appellate court held as follows: “When the matter came up for hearing, the learned counsels appearing for the plaintiff/appellant as well as the respondents/defendants submitted that the lower court have not settled any issue with respect to the prayer for recovery of possession and also have not considered the question of recovery of possession. But only considered the relief of permanent prohibitory injunction and dismissed both the suits without go into the question of recovery of possession based on title, even though both the suits are filed for recovery of possession also as per the amended plaint and hence they fairly conceded for a remand of the matter for considering the question of recovery of possession based on title and also pressed for the same. On going through the common decree and judgment of the lower court, it can be seen that the lower court omitted to consider the question of recovery of possession based FAO.Nos.40/2004 & 42/2004 5 on title and no issues have been raised for that purpose and as such I am also on the view that it is necessary to remand the case to the lower court and hence I am inclined to set aside the decree and judgment of the lower court.” 4. Initially the suits were dismissed without referring the matter to the Land Tribunal. In the appeals those decrees and judgment were set aside and the suits were remanded with a specific direction to refer the matter to Land Tribunal. Accordingly the issues raised regarding fixity of tenure in both the suits were referred to Land Tribunal. The Land Tribunal considered the question of fixity of tenure raised by the defendants on merits and held that defendants are entitled to fixity of tenure. In the appeals filed against those judgments, though the District Judge considered law on the point, did not consider the correctness of the finding of the Land Tribunal in these cases on its merits. Those findings were not set aside. But the suits were remanded. It is true that at that time the decision of this Court that once a matter is referred to Land Tribunal and the appellate court set aside the judgment and remanded the case, there is no need for a second reference was in force. The Apex Court in Mathevan Padmanabhan v. Parameshwaran Thampi (1995 Supp (1) SCC 479) held that even after remand, the question of tenancy should be referred to Land Tribunal. So far as the parties to this case are concerned they are bound by the order of remand. The lower appellate court while setting aside the judgment and decrees for the second time did not set aside the finding of the Land Tribunal. The lower appellate court only set aside the FAO.Nos.40/2004 & 42/2004 6 findings recorded by the civil court on other issues. So the trial court again incorporated the finding rendered by the Land Tribunal as part of its judgment. I am of the considered opinion that the lower appellate court should have considered the entire appeal including the findings recorded by the Land Tribunal on the issue regarding fixity of tenure claimed by the defendants on its merits. It is very unfortunate that a suit filed in the year 1972 is still pending without any finality. Since the finding rendered by the Land Tribunal on the question of tenancy was never considered by the appellate or revisional court on its merits I am of the view that for a finality and do justice to the parties, the proper course open to me is to set aside the present orders of remand and direct lower appellate court to consider the entire matter on its merits. If the parties want to adduce additional evidence or amend the pleadings, they can very well file necessary petition before the lower appellate court. In the result, both the appeals are allowed. The common judgment and decrees passed by the lower appellate court in A.S.Nos.135/1998 and 136/1998 remanding the cases to the trial court are hereby set aside. Appeals are remanded to the lower appellate court. The lower appellate court is directed to take both the appeals back to file and dispose of the appeals in accordance with law. The lower appellate court shall consider all issues arising for consideration including the findings rendered by the Land Tribunal on the question of tenancy, on its merits, in accordance with law. Of course, if after considering the matter on merits the FAO.Nos.40/2004 & 42/2004 7 appellate court finds that the suits are to be remanded this judgment will not be a bar for the same. Parties are directed to appear before the lower appellate court on 18.2.2008. Being the suits are of the year 1972, the court below shall make every endeavour to dispose of the same as expeditiously as possible. I.A.No.403/2004 in F.A.O.No.40/2004 and I.A.No.416/2004 in F.A.O.No.42 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks