IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH MARCH 2009 / 22ND PHALGUNA 1930 SA.NO. 361 OF 2001(B) -------------------------------- AS.34/1999 OF DISTRICT COURT ALAPPUZHA. OS.44/1994 OF ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT(S) - APPELLANTS - DEFENDANTS 2, 5, 6 & 8: ------------------------------------------------------------------------------ 1. THANKAMMA, W/O. LATE RAMACHANDRA KURUP, MANIMANDIRATHIL, VALADI MURI, NEELAMPEROOR VILLAGE. 2. SREEDEVI AMMA, D/O. DO. DO. DO. 3. MANIYAMMA, DO. DO. DO. DO. (DIED) 4. MANIKUTTAN,. S/O. DO. DO. DO. ADDITIONAL APPELLANT IMPLEADED: --------------------------------------------------- 5. MANJUSHA K.RAJEEV, D/O. LATE MANIYAMMA, RESIDING AT KOODATHINKAL HOUSE, KAVALAM VILLAGE, KIDANGARA VILLAGE, KUTTANAD TALUK. BY ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE SRI.P.GOPAL RESPONDENT(S)-RESPONDENTS- PLAINTIFF & DEFENDANTS 3, 4 & 7: ----------------------------------------------------------------------------------------------- 1. MATHAI MATHEW, S/O. MATHAI, PALLITHANATHA HOUWE, KAINADY MURI, KAVALAM VILLAGE. 2. THE SERVICE CO-OPERATIVE BANK NO.3814, KAINADY VILLAGE, P.O. KAINADY. 3. THE LAND MORTGAGE BANK NO.A-94, ALAPPUZHA. 4. OMANAKUTTAN, S/O. RAMACHANDRA KURUP, MANIMANDIRATHIL, VALADI MURI, NELLAMPEROOR VILLAGE. ADDITIONAL RESPONDENT IMPLEADED: ------------------------------------------------------ 5. MANEKSHA R.MENON, KUNNAKAD HOUSE, KAVALAM VILLAGE, KUTTANAD TALUK. ADDITIONAL APPELLANT 5 AND ADDITIONAL RESPONDENT 5 ARE IMPLEADED AND 1ST APPELLANT IS RECORDED AS L.R. OF DECEASED 3RD APPELLANT VIDE ORDER DATED 17.11.2006 IN I.A. NO.2463/2006. ADV. SRI.K.S.HARIHARAPUTHRAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW SRI.A.V.TELLES SRI.VIJO JOSE FOR R1 SRI.RAJAN NAMBRATH FOR ADDL.R.5 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. No.361 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 13th day of March, 2009 J U D G M E N T ---------------------- Defendant Nos.2, 5, 6 and 8 have preferred this second appeal on the following substantial questions of law: “(1) Has not the registry of the suit properties which are kandukrishi thanathu lands in the name of defendant No.1 extinguished the right, title and interest of the plaintiff in the suit properties and does the decision in Chuppan Nadar Narayanan Nadar v. Kumaran Kochummini and others (1971 KLT 440) require reconsideration? (2) Does such registry enure to the benefit of the plaintiff even when defendant No.1 obtained such registry after an open fight with the plaintiff? (3) If the registry does not enure to the benefit of the plaintiff, has not the defendants prescribed title by adverse possession and law of limitation? (4) Are not the improvements made by defendant No.1 enhancing the value of the land S.A. No.361 of 2001 -: 2 :- for which compensation is due to defendant No.1? 2. Parties are referred to as plaintiff and defendants for the sake of convenience. 3. Plaintiff filed the suit for redemption of mortgage in respect of the suit properties which, it is not disputed before me are 'kandukrishi thanathu lands'. According to the plaintiff, suit properties formed part of kandukrishi lands (home farm lands of erstwhile Maharaja of Travancore State). It was given on a permanent lease to one Thomman Jacob (Exhibit A1 series are the delivery lists produced to prove the auction of the said properties in favour of Thomman Jacob). While he was in possession and enjoyment of the said properties he assigned his leasehold right in favour of the plaintiff as per Ext.A4, assignment deed No.784/1955 dated 11.7.1955. Plaintiff mortgaged his leasehold right in favour of one Ouseph Ouseph as per Ext.A2, mortgage deed No.282/57 dated 5.4.1957. Ouseph Ouseph assigned his (mortgagee's) right in favour of defendant No.1 as per document No.687/1963 (which is not produced in the case). Plaintiff thereafter created puravaypa (another mortgage) for Rs.6,500/- over his leasehold right in favour of defendant No.1 as per S.A. No.361 of 2001 -: 3 :- Ext.A3, deed No.812/1963 dated 27.6.1963 fixing the period of redemption as 12 years. In the meantime the Maharaja of Travancore promulgated kandukrishi proclamation of 1154 M.E. transferring and surrendering right, title and interest in all kandukrishi lands to the Government of Travancore. Government of Travancore framed and published Rules for assignment of registry of kandukrishi lands on 11.10.1958 providing for assignment of kandukrishi lands to the lessees, assignees or mortgagees. In pursuance of that publication plaintiff and defendant No.1 applied for assignment individually. Ultimately, Government preferred the claim of defendant No.1 and granted him registry. According to the plaintiff, defendant No.1 cannot take that advantage in derogation of his right by virtue of his position as mortgagee under the plaintiff and hence the registry of the lands in his favour enured to the benefit of the plaintiff. Defendant No1. is holding that right as trustee of the plaintiff. Defendant No.1 is therefore bound to transfer the property on receipt of the mortgage and puravaypa amounts as stipulated in the deeds above referred. Defendants 2 to 5 are impleaded in the suit as subsequent encumbrancers. Defendant Nos.1 and 2 while admitting the transactions stated by plaintiff contended that defendant No.1 applied for registry of the suit properties in his name before the Special S.A. No.361 of 2001 -: 4 :- Tahsildar concerned, but that application was rejected. The appeal preferred to the District Collector was rejected. Hence defendant No.1 preferred a revision before the Government (Board of Revenue). That revision was allowed as per Ext.B1 order dated 22.9.1971. The registry of land was granted in the name of defendant No.1. Exhibit B2 is the pattayam No.A3-8022/1971. Plaintiff challenged that order in this Court in Writ Petition No.729 of 1972 but it was dismissed as per Ext.B3, order dated 20.12.1974. The suit is therefore barred by the principles of res judicata. Defendant No.1 became the absolute owner of the properties as per Ext.B1, order of the Government (Board of Revenue) granting registry in his name. In exercise of his absolute right over the suit properties defendant No.1 transferred 2.5 acres to defendant No.2, 3 acres to Maniyamma, daughter of defendant No.1 and another 2 acres to Sreedevi Amma who are necessary parties to this litigation. The creation of mortgage was void and not binding on the Government. Defendants 1 and 2 have constructed a house in the suit properties more than 20 years back spending around Rs.5 lakhs. Another sum of Rs.5 lakhs was spent for reclamation of the lands. It is incorrect to say that defendant No.1 obtained registry in favour of plaintiff. Plaintiff was only a tenant-at- will in respect of the suit properties. Defendant No.1 obtained registry S.A. No.361 of 2001 -: 5 :- as per Ext.B1 in derogation of that right. Right if any of the plaintiff is lost by adverse possession and limitation. 4. Learned Munsiff framed issues whether the suit is barred by res judicata, whether plaintiff has subsisting right over the suit properties, whether he is entitled to redeem the mortgage and whether his right is lost by adverse possession and limitation. Apart from the exhibits above referred parties have adduced oral evidence as well. Learned Munsiff answered the issues in favour of the plaintiff and granted decree for redemption of the mortgage. That judgment and decree were confirmed by the first appellate court. The first appellate court also rejected the claim of defendant No.1 for value of improvements. Hence this appeal at the instance of defendant No.2 and 5, 6 and 8 who are assignees and legal representatives of defendant No.1. Has not the registry in the name of defendant No.1 extinguished the right, title and interest of the plaintiff?: 5. It is contended by the learned counsel for defendants 2, 5, 6 and 8 that the registry of the suit properties (kandukrishi thanathu lands) in favour of defendant No.1 amounted to automatic extinction of whatever right the plaintiff had over the said properties. According to the learned counsel, the decision in Chuppan Nadar Narayanan S.A. No.361 of 2001 -: 6 :- Nadar v. Kumaran Kochummini and Others (1971 KLT 440) require reconsideration in that, though the Full Bench was considering the nature and character of registry in respect of kandukrishi 'thanathu' lands, all the decisions referred to by the Full Bench related to the registry of kandukrishi 'patta' lands which is different in nature and character from the registry of kandukrishi 'thanathu' lands. According to the learned counsel, the Full Bench has not laid down the correct law in respect of the registry of kandukrishi 'thanathu' lands. Learned counsel for the contesting respondent (plaintiff) in response stated that what was assigned by Thomman Jacob in favour of the plaintiff as per Ext.A4 is the leasehold right over the suit properties and what the plaintiff mortgaged in favour of Ouseph Ouseph as per Ext.A2 and what defendant No.1 got from Ouseph Ouseph as per document No.687/1963 is also that leasehold right. The puravaypa created by the plaintiff in favour of defendant No.1 as per Ext.A3 also is over the leasehold right of the plaintiff. Registry is only in respect of the proprietory right of the Government. Therefore the contention that the registry of suit properties in the name of defendant No.1 extinguished the leasehold right of the plaintiff cannot be sustained. 6. Kandukrishi lands are described in the Travancore State S.A. No.361 of 2001 -: 7 :- Manual by V. Nagam Aiya, Vol.III at page 325. Kandukrishi lands are described as the home farm of the sovereign and are cultivated by the tenant on behalf of the sovereign himself. The tenants holding such lands are tenants-at-will who theoratically do not possess even the right of occupancy though as a matter of fact they are not interfered with so long as the Sirkar dues are paid. In Travancore Manual by T.K. Velupillai, Vol.III at page 193 kandukrishi lands are described as sthanam properties of H.H. the Maharaja, i.e., the home farm of the sovereign and are cultivated by the tenants. Tenants have no right of property. They are mere tenants at will. But they are not interfered with so long as the dues are paid. The policy of the Government is to bring the revenue registry of the alienated kandukrishi lands into accord with actual possession by transferring registry in favour of the alienees in possession. It is also stated that kandukrishi lands are either 'pattom' or 'thanathu'. Pattom lands are those for which pattas were issued at the time of the settlement while thanathu lands are those for which no pattas are issued at the time of settlement and which are enjoyed by the tenants either on payment of the rent fixed at settlement or on kuthakapattom given by the kandukrishi department. Generally, tenants of kandukrishi pattam lands when they are renewed are entitled to get compensation for S.A. No.361 of 2001 -: 8 :- their improvements while the tenants of the thanathu lands cannot as a matter of right claim compensation. The Travancore Government framed Rules for kandukrishi lands on 8th March 1934. Rule 2(a) of the Rule says that kandukrishi lands are of two kinds; kandukrishi thanathu lands and kandukrishi pattam lands. Rule 3 states that kandukrishi Tahsildar is competent to enquire and effect the transfer of kandukrishi holdings in the revenue registers. But only transfers by inheritance and family partition shall be recognised in the case of kandukrishi thanathu lands. Other kinds of transfer in the case of such lands will entail forfeiture of the tenancy. In other words, kandukrishi pattam lands could be transferred by the tenant in any lawful manner so far as kandukrishi thanathu lands are concerned, transfer is permitted by inheritance and family partition alone and Rule 3 specifically provides that any other mode of transfer in the case of kandukrishi thanathu lands would entail forfeiture of the tenancy. Rule 4 of the Rules authorises the kandukrishi Tahsildar to issue pattas for kandukrishi pattom lands when he is satisfied that they have changed hands by virtue of outright sale voluntary or involuntary gift, partition and testamentary and intestate succession or when he, by virtue of the rules enters on behalf of the Sirkar into fresh lease arrangements in regard thereto. As regards the nature and S.A. No.361 of 2001 -: 9 :- character of tenancy in respect of kandukrishi lands it is stated in Rule 61 of Travancore Land Revenue Manual, Vol.III, page 34 that kandukrishi tenants include pattom, thanathu, irayaili, etc., and that pattas had been issued in the settlement only to the holders of pattom lands. Kandukrishi tenants whether they hold pattom or thanathu lands are mere tenants-at-will. The distinction between 'pattom' and 'thanathu' lands, according to learned counsel for the contesting defendants can be discerned from Section 8 of the Travancore Code of Civil Procedure as well. That provision created a bar on suits in relation to kandukrishi lands unless the plaint is accompanied by an order of the Government to seek redressal in civil courts. Exemption was granted to registered holders of kandukrishi pattom lands recognised by Government to recover the land from a mortgagee or lessee or to evict a trespasser. 7. The Government framed Kandukrishi Land Assignment Rules (for short, “the Rules”) in the year 1958. Rule 3 defines kandukrishi land including kandukrishi 'pattom' and kandukrishi 'thanathu' lands. Rule 5 states as under: “5(1) Kandukrishi pattom land shall be registered in the name of the pattadar, or if there has been outright assignment in whole or S.A. No.361 of 2001 -: 10 :- in part by the pattadar, in the name of the assignee to the extent necessary or if there has been a partition of the land or inheritance by succession or acquisition of title by decree of Court, in the name of the person deriving title as per such partition or succession or decree. (2) Mortgagees or lessees from pattadars of pattom lands or their assignees or representatives will continue to enjoy the existing rights even after assignment. (3) Notwithstanding anything contained in sub-rule (1) where a lessee or sub lessee is in possession of Kandukrishy Pattom land and the pattadar or any other person entitled to assignment on registry under sub-rule (1) has not filed an application for such assignment before the date specified in sub-rule (a) of Rule 10, the land shall, subject to the provisions of sub-rule (c) of Rule 10, be registered in the name of such lessee or sub-lessee, as the case may be”. According to the learned counsel for contesting defendants, Rule 5 which relates to kandukrishi pattom land admits transfer of possession in any form and Rule 5(2) indicate that the registry in respect of the pattom land recognised the right of the original lessee S.A. No.361 of 2001 -: 11 :- who transferred possession as is clear from Rule 5(2) that mortgagees or lessees from pattadars of pattom lands or their assignees or representatives will continue to enjoy the existing rights even after assignment. Rule 6 dealing with 'thanathu' lands reads as under: “6. (1) Subject to the provisions of sub-rule (2) Kandukrishi Thanathu land shall be registered in the name of the lessee, and if there has been a partition of the land or inheritance by succession or acquisition of title by decree of Court, in the name of the person deriving title as per such partition or succession or decree. (2)(a) Where a lessee has transferred the possession of thanathu land to another person whether by sale, sub-lease, Otti, mortgage or any other transaction under a registered document the land shall be registered in the name of such transferee. (b) in the case of thanathu lands involved in civil suits, such lands shall be registered in the name of the person, or persons deriving title according to the final decisions in such civil suits”. 8. Learned counsel for contesting defendants contends that S.A. No.361 of 2001 -: 12 :- Rule 6(2a) does not contemplate or recognise the presence of the transferor or preserve his right and interest but the right is conferred on the transferee who is in possession, be it by a lease, sub-lease, Otti, mortgage or any other transaction but by a registered instrument. Learned counsel contends that Rule 6(2a) extinguished the right of the transferor in 'thanathu' land once the registry is granted in the name of the transferee who is in possession under a registered instrument. According to the learned counsel though tenancy in respect of kandukrishi pattom and thanathu lands are nothing but tenancy-at- will, the tenant of the kandukrishi pattom land enjoys a better right in that he will not normally be evicted so far as he paid the Sirkar dues and, he is entitled to registry at the time of settlement if found in possession and Rule 5(2) also admits the right of the transferor whereas in the case of kandukrishi thanathu lands, though that also is a tenancy-at-will, person in possession is not entitled to get registry at the time of settlement, Sirkar is free to dispossess him at any point of time even without payment of compensation and that it is the absolute right of the Sirkar to grant the registry in favour of any person found in possession of kandukrishi thanathu lands even in derogation of the right of any other person who was earlier in possession. Once such registry is granted, it extinguished the right of the former possessor if S.A. No.361 of 2001 -: 13 :- any. To substantiate the above contentions learned counsel placed reliance on the following decisions: (i) Sankaranarayana Panikar and Others v. Kunjan Pillai and Others (XXVI TLR 184): In this case a Tharwad was in possession of kandukrishi (it is not clear whether it was pattom or thanathu) land. That land was mortgaged to the Tharwad of the defendants. Government registered the land in the name of defendant No.1 at the time of settlement. Plaintiffs wanted to get back the land. Defendants contended that the registry extinguished the title of the Tharwad of the plaintiffs. It was held that the holder of kandukrishi lands (home farm lands of the sovereign) is tenant-at-will and has no right to alienate the property by sale, gift, mortgage or in any other way without the previous consent of the Sirkar. The Sirkar has the absolute right of granting the property to any one it likes and the registry extinguished the title if any which the plaintiffs had over the properties and conferred title on defendant No.1. It was held that the Tharwad of the plaintiffs had no subsisting title to the land on the date of the suit. (ii) Parameswaran Gonvindan v. Ouseph Geevarghese Kathanar (XXIX TLR 100): In this case the S.A. No.361 of 2001 -: 14 :- owner of equity of redemption over the suit properties sought redemption of mortgage. The mortgagee's interest through intermediate transfers vested in the defendant. Defendant contended that the properties are kandukrishi lands, that patta in respect of the properties had been granted to him by the Sirkar and hence the suit is not maintainable. It was argued that the grant of patta was issued behind the back of the plaintiff. Defendant relied on the decision in Sankaranarayana Panikar's case. Court found that assuming that the plaintiff was not heard before the Sirkar decided to grant patta to the defendant in respect of the kandukrishi lands, it made no difference and that holders of kandukrishi lands are merely tenants-at- will who have no right of alienating the properties without the previous consent of the Sirkar. The grant of patta operated as extinguishment of the title of any other person in such lands. (iii) Ouseph Abraham v. Kuncherira Kuncheria and Another (XXII TLJ 813): This decision concerns kandukrishi pattam lands. Property was held jointly by the father of defendant No.1 and the paternal grant father of the plaintiff. When the plaintiff was a minor another person representing him as his next friend executed a sale deed in favour of defendant No.1 in respect of the said properties. Following that, defendant No.1 got registry of the S.A. No.361 of 2001 -: 15 :- land in his name. Plaintiff challenged the sale deed executed on his behalf as void, contending that the person who represented him was not his next friend or competent to do so. It was held that though there was perhaps a fraud on the plaintiff (regarding the execution of the sale deed) he cannot set aside the registry which the Sirkar was competent to grant or withhold from any one. Reliance was placed on the decision in Sankaranarayana Panikar's case and Ouseph Abraham's case. (iv) Subramonian Kesavan Empran, died, his heir Kesavan Narayanan Empran v. Krishnan Govindan Plappalli and Another (XXII TLJ 968): In that case question arose whether the right of the person in possession of kandukrishi lands could be attached and sold in execution of a decree against him. The Full Bench held that the person in possession has a limited right (in respect of the kandukrishi pattam lands) to be in possession until he is evicted by the Sirkar for non-payment of dues and that such right could be attached and sold. The Full Bench observed thus: “It has no doubt been ruled repeatedly by this Court that the kandukrishi tenant is only a tenant-at-will under the Crown. But even so it S.A. No.361 of 2001 -: 16 :- cannot be held that it is not an estate known to the law or that it creates no right or interest at all. No ruling has been cited in support of the contention that the right of a tenant-at-will cannot be attached and sold. Such a tenant has a right which is recognised by the law and is available against all the world except the landlord and even as against him his position is not like that of a mere tenant by sufferance while the former has its origin in a contract of letting (express or implied) the latter cannot arise by contract and is in fact only a mere fiction of the law to prevent what would otherwise be an act of trespass. A tenancy-at- will thus clearly gives rise to reciprocal rights and liabilities (Fao, Landlord and Tenant, Fifth Edition, pages 2, 445, 651)”. According to the learned counsel for the contesting defendants that limited right (even if there be any) is available only in respect of kandukrishi pattom lands and not thanathu lands. It is also contended by the learned counsel that even in the light of the Full Bench decision, right of Sirkar even with respect to kandukrishi pattom lands remained unaffected, as it was before. (v) Gnanabharanam Muthiah v. Soosamuthu S.A. No.361 of 2001 -: 17 :- Maryaviswasam Nadar (1947 TLR 558): This decision concerned unregistered puduval land. But according to the learned counsel for the contesting defendants, the reasoning applies to kandukrishi lands also. Plaintiff reclaimed the said land and made some improvements and then leased the same to defendant No.1 for a period of 10 years. Even before the expiry of the said period, plaintiff wanted to eject defendant No.1, the lessee from the said land on the ground of non-payment of rent and repudiation of obligations undertaken under the lease agreement. Defendant No.1 questioned the right of the plaintiff to claim ejectment. When the suit was pending Sirkar granted kuthakapattam lease in respect of the said property in the name of the defendants. The court pointed out that the grant terminated the rights of the lessor though the lessee was the grantee. It was also held that the Sirkar in exercise of its unfettered discretion granted the kuthakapattom right to defendant No.1 which the court cannot nullify. The principle was held applicable where the relationship between the parties is one of landlord and tenant or mortgagor and mortgagee or the like. Grant of kuthakapattom lease by the Sirkar (in favour of the defendant) obviously means eviction by the paramount title holder. (vi) Neelakanta Pillai v. Madhavan Nair (1965 S.A. No.361 of 2001 -: 18 :- KLT 356): The suit properties were kandukrishi pattam lands. It was held