IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 AS.No. 137 of 1997() -------------------- OS.18/1992 of SUB COURT, KASARAGOD .................... APPELLANT: ----------- K.M.IBRAHIM, S/O. MOIDEEN KUNHI CHOORIPALLA HOUSE, NEKRAJE VILLAGE AND POST KASARAGOD TALUK. BY ADV. SRI.P.K.MUHAMMED RESPONDENTS: ------------- 1. C.H.KORGA S/O. BEDU. 2. C.H.SHEENA S/O. BEDU 3. SMT. CHANIYARU W/O. BEDU. BY ADV. SRI.V.V.ASOKAN SMT.JIJIMOL J.VADAKKEN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/ 7 /2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT NO REPRESENTATION TODAY ALSO. DISMISSED FOR DEFAULT. 11.7.2008 SD/- PIUS C.KURIAKOSE, JUDGE. ORDER ON CMP NO.1159/97 IN A.S. NO.137/97 DISMISSED /TRUE COPY/ P.A. TO JUDGE. PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - A.S.No.137 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 5th December, 2008 JUDGMENT Some of the submissions of Mr.P.K.Muhammed, learned counsel for the appellant have appeal. He submitted that the Land Tribunal and for that matter the learned Subordinate Judge did not bother to mark even those documents which had been produced by the plaintiff along with the suit. As many as five documents including the registered sale deed executed by Guruva in favour of the appellant had been produced along with the suit. These documents having been transmitted by the Sub Court to the Land Tribunal were part of the records of the reference case and could not have been ignored by the Land Tribunal. He submitted that the failure of the appellant to adduce evidence was not wilful. . Mr.S.Chandrahasa Shetty, Senior Counsel who was appearing for the appellant had become physically incapacitated due to various ailments and was not in a position to monitor the conduct of the case personally. Though it is true that a junior attached to his office cross-examined the respondents- witnesses before the Land Tribunal, the said junior failed to get the documents which had been already produced along with the suit marked and to produce other documents which could have been A.S.No.137/97 - 2 - produced as a result of which serious prejudice has been occasioned to the appellant. He submitted that appreciation of even the evidence on record by the Tribunal was highly improper. According to him, Ext.B1 letter could not help the respondents case at all. Exts.B2 and B3 were respectively final assessment and demand notice regarding land tax and basic tax receipts. Payment of tax by one co-owner can enure only for the benefit of all co-owners and these documents, at any rate, would not establish the claim of cultivating tenancy raised by the respondents over the property in question. Learned counsel submitted that Ext.C1 report which has been relied on by the Tribunal to accept the respondents case of tenancy itself stated that the respondents were not successful in producing any documentary evidence to support their plea of oral lease by late Kariya in favour of their predecessor Bedu. Mr.Muhammed placed before me true copy of the applications submitted by the present respondents before the Land Tribunal on the basis of which S.M.Proceedings No.146/92 were initiated. He submitted that the definite case of the present respondents in those proceedings was that the contract rent agreed upon was Rs.5/- per year. But those proceedings were not pursued by the respondents who have comeforward with an entirely different A.S.No.137/97 - 3 - rate regarding contract rate in answer to the suit. The inconsistency of the case of the respondents itself improbablises the plea of tenancy. Mr.Muhammed submitted that even otherwise it is very difficult to accept the case of a son that his father who was having other children also had given the entire properties extending to 72 cents on oral lease to him. The evidence adduced before the Land Tribunal were not sufficient to establish the case of the oral lease, according to Mr.Muhammed. 2. Learned counsel for the respondents would resist the submissions of Mr.Muhammed. She would argue that the available evidence was to the effect that pursuant to the oral lease Bedu and his successors-in-interest have been in exclusive possession and enjoyment of the properties. Both the buildings which presently exists on the property were put up by Bedu or the present respondents. The appellant did not adduce any evidence before the Land Tribunal and much less evidence to substantiate the objections filed to Ext.C1 report of the Revenue Inspector. She highlighted that the appellant do not have any possessory control over any portion of the suit schedule property. 3. In reply Mr.Muhammed would refer to the order of the A.S.No.137/97 - 4 - Munsiff's Court, Kasaragod in I.A.No.2228/91 in O.S.No.477/91, a suit which had been filed earlier by the appellant and submit that under that order the learned Munsiff has entered a finding that the jural status of the appellant and the respondents in respect of the properties was that of co-owners. Counsel submitted that the above interim order was never varied and that the respondents actually took advantage of that interim order under which injunction was refused on the reason that the parties are co-owners. 4. Having scanned the evidence on record and the order of the Land Tribunal which is appended to the judgment of the learned Subordinate Judge and having considered the submissions addressed at the Bar, I feel that there is justification for affording yet another opportunity to the appellant for adducing evidence and for substantiating the case. But I am not inclined to grant that opportunity unconditionally since I find that there was laches on the part of the appellant in adducing evidence at the right time before the Land Tribunal. The finding of the Land Tribunal being what it is, perhaps, not much purpose would have been served by adducing evidence before the Sub Court. But it should be noticed that before the Sub Court also the appellant did not think in terms of adducing A.S.No.137/97 - 5 - any evidence and much less getting the documents which he had produced along with the suit marked in evidence. However, on considerations of justice, I become inclined to grant opportunity to the appellant on terms. 5. The result of the above discussion is that the judgment under appeal and the order of the Land Tribunal dated 16.7.1996 in R.C.No.9/93 which is appended to the judgment under appeal are set aside and the case is remanded to the Land Tribunal. Transmit the entire records including the records received from the Land Tribunal to the Land Tribunal, Kasaragod (Special Tahsildar(LR) No.II, Kasaragod). The Land Tribunal will post R.C.No.9/93 for evidence. The appellant will adduce whatever evidence he has at his command to substantiate his case. If the appellant adduces evidence, the respondents should be permitted to adduce counter evidence, if they so choose. On the basis of the entire evidence which comes on record in the case, the Tribunal will hear the parties again and pass revised order in R.C.No.9/93. The revised order will be sent by the Land Tribunal along with the records including the records of the R.C.case to the Subordinate Judge's Court, Kasaragod to the files of O.S.No.18/92 and upon receiving the revised order and records from A.S.No.137/97 - 6 - the Land Tribunal, the learned Subordinate Judge will hear both sides on the basis of the revised orders/findings entered by the Land Tribunal and will pass revised judgment in the suit. The Land Tribunal will complete the enquiry and pass orders within four months of receiving records from this court and the Sub Court will pass revised judgment within three months of getting revised order and records from the Land Tribunal. The above directions will become operative only on condition that the appellant pays to the respondents through their counsel in this court or in the court below within one month from today a sum of Rs.15,000/- by way of cost. If cost as ordered above is not paid, this order will not become operative, in which case the impugned judgment and decree will stand confirmed. Since the order of remand is necessitated on account of the default of the appellant, I am not inclined to order refund of court fee. The appeal is allowed as above. srd PIUS C.KURIAKOSE, JUDGE