IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 RSA.No. 1188 of 2011() ---------------------- AS.268/2006 of ADDL. DISTRICT COURT (SPECIAL), KOTTAYAM OS.106/1997 of ADDL.MUNSIFF COURT,KOTTAYAM .................... APPELLANTS/APPELLANTS IN A.S./DEFENDANTS 8 TO 10 -------------------------------------------------------------------------------- 1. K.SUNIL, S/O.K.G.KARUNAKARAN, KARTHALACKAL HOUSE, POOVATHURUTH P.O KOLLADU , KOTTAYAM-686012 2. K.ANIL,S/O.K.G.KARUNAKARAN, KARTHALACKAL HOUSE, POOVATHURUTH P.O KOLLADU , KOTTAYAM-686012 3. K.BINIL, S/O.K.G.KARUNAKARAN, KARTHALACKAL HOUSE, POOVATHURUTH P.O KOLLADU , KOTTAYAM-686012 BY ADV. SRI.N.SUBRAMANIAM '' M.S.NARAYANAN '' P.T.GIRIJAN, '' JOY C. PAUL RESPONDENTS 1 TO 3/RESPONDENTS 1 TO 3 IN A.S./PLAINTIFFS -------------------------------------------------------------------------------------------- 1. ST.GEORGE CHURCH, PUTHUPPALLY, REP.BY THE TRUSTEES(KAIKKIARANMAR) PRESENT TRUSTEES; 2. N.K.MATEHW NELLISSERIL HOUSE, P.O.KOLLAM -686029 3. P.T.THOMAS, PALAKUNNEL HOUSE, PUTHUPALLY P.O.,686011 KOTTAYAM DIST RESPONDENTS 4 TO 9/RESPONDENTS 4 TO 9 IN A.S./DEFENDANTS 2 TO 7 IN O.S. 4. KRISHNAN THAKAPPAN,S/O.CHENNI, VADAKKATHU VEEDU, KAKKOOR KARA, NATTAKOM VILLAGE, NATTAKOM P.O-686013 5. KOCHUKUNJU GOPALAN (DIED)KANNANKARA VEEDU, KUZHIMATTOM, PANACHIKKADU-686102 6. KRISHAN VASU, KARITHALACKAL HOUSE, PANCHIKKADU, KOTTAYAM-686102 7. PACHU SUKUMARAN, KARITHALACKAL HOUSE, PANACHIKKADU, KOTTAYAM-686102 8. KUTTAN GOPALAN, PANCHIKKADU, KOTTAYAM-686102 9. K.O.KARUNAKARAN, S/O.SANKU UNNIRA, PANACHIKKADU, KOTTAYAM. RESPONDENTS NO.10/RESPONDENT NO.10 IN AS/NON PARTY TO THE SUIT 10. K.G.SASIKUMAR, S/O.KOCHUKUNJU GOPALAN, KANNANKARA VEEDU, KUZHIMATTOM, PANACHIKKADU VILLAGE.686 102. R10 IS NOT A DEFENDANT IN SUIT. SANKU UNNIRA DIED ON 31.3.99 AND APPELLANTS AND RESPONDENT NO.9 K.O. KARUNAKARAN ARE RECORDED AS HIS LEGAL HEIRS BY THE COURTS BELOW) THE FORMER TRUSTEES OF THE CHURCH AS SEEN IN THE LOWER APPELLATE COURT JUDGMENT ARE NO MORE THE TRUSTEES. SO THE PRESENT TRUSTEES ARE IMPLEADED IN THE R.S.A. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 1188 OF 2011 =========================== Dated this the 4th day of November,2011 JUDGMENT Defendants 8 to 10 in O.S.106/1997 on the file of Additional Munsiff Court, Kottayam are the appellants. Respondents 1 to 3 are the plaintiffs. Suit was for recovery of possession with mesne profits. Plaint schedule property is 1.51 acre in survey No.342/6/1A, (resurvey No.453, 454, 45D) and 86 cents in survey No.342/6B (resurvey No.452, 453, 454 of Panachikkad Village of Kottayam Taluk together 2.37 acres. Respondents 1 to 3 contended that the plaint schedule property belongs to the Church and the Church was represented by a receiver appointed by the Additional District Judge, Ernakulam in O.S.196/1977. The property was in the possession of Sub Divisional Magistrate as per order in M.C.12/1975. During RSA 1188/2011 2 the pendency of the proceedings, deceased first defendant with the connivance of parishioners started cultivation in the property. He filed O.A.921/1975 before the Land Tribunal, Kottayam for purchasing the jenm right claiming to be the tenant entitled to fixity of tenure. In the O.A. proceedings, defendants 2 to 6 got themselves impleaded claiming to be the legal heirs of the father of the first defendant contending that their father obtained the property on lease and all the children including first defendant are entitled to the fixity of tenure. Though the Land Tribunal allowed the O.A. on 31.10.1977 in favour of the first defendant alone, defendants 2 to 6 filed an appeal challenging the order before the Appellate Authority. It was dismissed. Challenging that order CRP was filed before this court. This court remanded the O.A to the Land Tribunal, after setting aside the orders, for fresh disposal. Land Tribunal thereafter found that first defendant or his father are not entitled to fixity of tenure. RSA 1188/2011 3 First defendant challenged that order before appellate authority in LRAS 115/1986. Defendants 2 to 6 filed LRAS 83/1986 challenging that order. Both the appeals were dismissed on 17.10.1988. First defendant challenged that order before this court in CRP 2050/1989. By Ext.A2 order this court finding that there was no lease in favour of the first defendant and he is not entitled to fixity of tenure and that the proceedings were initiated without obtaining leave of the court when a court receiver is functioning, dismissed the CRP. The suit was thereafter filed seeking recovery of possession with mesne profits. 2. First defendant resisted the suit contending that he has been in absolute possession and enjoyment of the property for the last 75 years as a tenant and therefore he is entitled to fixity of tenure and defendants 2 to 6 have no right whatsoever in the property and even if first defendant is not a cultivating tenant, he is entitled to the value of improvements. Defendants RSA 1188/2011 4 2 to 6 contended that the property is in the possession of the first defendant and they have no objection in the plaintiff recovering possession of the property from him. As first defendant died during the pendency of the suit seventh defendant was impleaded as the legal heir. Seventh defendant filed a written statement contending that first defendant has executed a registered will whereunder seventh defendant has no right in the property and suit is bad for non joinder of the legatees under the will. 3. Learned Munsiff originally granted a decree in favour of the plaintiff. It was challenged before District Court in A.S.51/2003. The District Court remanded the suit finding that seventh defendant did not substantially represent the estate of the first defendant and therefore all his legal heirs are to be impleaded. Subsequently appellants were impleaded as defendants 8 to 10. They filed a written statement contending that the rights of the first defendant vests with them and RSA 1188/2011 5 defendants 2 to 7 are unnecessary parties and they are entitled to fixity of tenure, reiterating the contentions raised by the first defendant. It was also contended that in case it is found that plaintiff is entitled to a decree for recovery of possession, defendants are entitled to get the value of improvements. Learned Munsiff by the decree and judgment dated 31.3.2006 granted a decree for recovery of possession finding that the first defendant or the appellants are not tenants entitled to fixity of tenure under the Kerala Land Reforms Act and they were directed to surrender vacant possession of the plaint schedule property. Learned Munsiff also held that appellants are entitled to value of improvements and it is to be fixed in the execution proceedings and on deposit of the value of improvements plaintiffs are entitled to take delivery of the property. Appellants challenged the decree before Additional District Court, Kottayam in A.S.268/2006. Learned Additional District Judge on reappreciation of the RSA 1188/2011 6 evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellants was heard. 5. The argument of the learned counsel is that courts below did not consider the question whether the first defendant was a licensee and failed to note that if he is a licensee he would be a deemed tenant as provided under section 10 of the Kerala Land Reforms Act and if so first defendant is entitled to fixity of tenure. Learned counsel argued that though the earlier petition filed by the first defendant claiming tenancy was dismissed by the Land Tribunal and that order was confirmed by Ext.A2 order by this court, the question whether first defendant is a deemed tenant and is entitled to the benefit under section 10 of the Kerala Land Reforms Act was not agitated or considered and in such circumstances when Ext.A2 order itself shows that plaintiffs contended that RSA 1188/2011 7 first defendant is a licensee, courts below erred in granting a decree. It was argued that the courts below should have found that appellants being the successors of the first defendants are entitled to fixity of tenure and therefore the decree for recovery of possession is not sustainable. 6. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 7. First respondent Church is admittedly the owner of the plaint schedule property. Appellants are claiming that first defendant was a cultivating tenant and on his death his rights now vests with the appellants and therefore they are entitled to fixity of tenure. The first defendant had earlier filed O.A.921/1975 before the Land Tribunal, Kottayam claiming fixity of tenure. During the pendency of the O.A defendants 2 to 6 got themselves impleaded claiming that the tenancy was in favour of Chenni, the father of the first RSA 1188/2011 8 defendant and defendants 2 to 6 and therefore they are all joint cultivating tenants entitled to fixity of tenure. Land Tribunal allowed the O.A. in favour of the first defendant. Defendants 2 to 6 challenged that order before the Appellate Authority in LRAS 14/1978. The Appellate Authority dismissed the appeal. It was challenged before this court in CRP 757/1981 by defendants 2 to 6. This court set aside the order of the Land Tribunal and directed the Land Tribunal to consider the application afresh and decide whether Chenni was the original cultivating tenant and if so on his death the right would devolve on all the legal heirs or the first defendant is the cultivating tenant. Land Tribunal thereafter finding that neither Chenni nor the first defendant are cultivating tenants, dismissed the O.A. The first defendant and defendants 2 to 6 filed separate appeals before the Appellate Authority challenging that order. Both the appeals were dismissed. First defendant challenged that order before this RSA 1188/2011 9 court in CRP 2050/1989. It was dismissed under Ext.A2 order. Though learned counsel vehemently argued that CRP was mainly dismissed on the ground that this court found that OA was filed at a time when court receiver was appointed by the court was functioning and without obtaining the sanction of the court, the O.A. was filed, Ext.A2 order shows that the tenancy claimed by the first defendant was considered on merit. This court found that though first defendant claimed that he obtained lease from Parat Pattasseril Kochu and paid rent to him and subsequently to his daughters, Kochu died eight years prior to 1972 and first defendant had no case that at any point of time he paid rent to the church and if he was a tenant of the Church rent would have definitely been paid to the Church. In view of this findings it was held that first defendant is not a tenant of the plaint schedule property belonging to the Church. Though it was contended before this court that as the remand order in CRP 757/1981 was only to consider the RSA 1188/2011 10 interse dispute between the first defendant and defendants 2 to 6, this court held that it was an order of open remand and the Land Tribunal was directed to consider whether there exists a tenancy and in such circumstances the finding of the Land Tribunal that first defendant is not entitled to the fixity of tenure was confirmed. True, the question whether the first defendant being a licensee is entitled to the fixity of tenure as provided under section 10 of the Kerala Land Reforms Act was not considered in Ext.A2 order. But I cannot agree with the submission of the learned counsel that for the said non consideration, first defendant and the appellants being his successors in interest are entitled to claim fixity of tenure once again. When the first defendant has claimed tenancy, he should have claimed the tenancy on all the grounds available to him. He cannot prefer an O.A claiming to be a tenant under a lease and on its dismissal claim to be a deemed tenant. In view of Ext.A2 order RSA 1188/2011 11 finally settling the claim of tenancy, courts below were perfectly justified in holding that first defendant is not entitled to fixity of tenure. 8. As the plaintiffs have title to the plaint schedule property, and defendants have no right to continue in possession of the property, the decree for recovery of possession granted warrants no interference. The trial court granted the decree providing that appellants are entitled to the value of improvements and directed fixation of the quantum of value of improvements to be paid, in the execution proceedings. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006