IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 RSA.No. 164 of 2005() --------------------- AS.214/1989 of DISTRICT COURT, THALASSERY OS.72/1982 of PRL.SUB COURT.,THALASSERY APPELLANTS :- RESPONDENTS 24 TO 29/DEFENDANTS 22 & 24 TO 28 -------------------------------------------------------------------------------------------------------- 1. POOSARI GOURI, W/O.VASUDEVAN, RESIDING AT PUSHATHI AMSOM, EDACHERY DESOM. 2. BABU RAJENDRA PRASAD, RESIDING AT DO.DO. 3. VIJAYALAKSHMI ALIAS JAYAMMA, RESIDING AT PUZHATHI AMSOM EDACHERI DESOM. 4. USHA, RESIDING AT DO.DO. 5. SREEJA, RESIDING AT DO.DO. 6. BHAGAVAN PRASAD, RESIDING AT DO.DO. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SRI.T.SETHUMADHAVAN RESPONDENT(S): RESPONDENTS 2 TO 23 & 30 TO 32/PLAINTIFFS 2 TO 4 & DEFENDANTS 4 & 6 TO 14 & 16 TO 21 & LRs OF D3, LRs of D5, LRs of D1 & LRs of D15) D1, D2, D3, D5 & D15 DIED. -------------------------------------------------------------------------------------------------------------------------- 1. BALAKRISHNAN P., POOSARI HOUSE, NEAR MUTHAPPANKAVU, P.O.KOTTALI, KANNUR-16. 2. P.PUSHPALATHA, C/O.P.BALAKRISHNAN, R/AT DO.DO. 3. RADHAKRISHNAN, SPINNER, RESIDING AT DO.DO. 4. NARAYANI, R/AT DO.DO. 5. P.PREMALATHA, D/O.LAKSHMANAN, RESIDING AT NAIVELI PROJECT, MADRAS, C/O.BALAKRISHNAN, POOSARI(H), P.O.KATTALI, KANNUR-16. 6. SISTER SHAKUNTHALA, RESIDING AT WESTINDES ISLAND, C/O.BALAKRISHNAN. 7. SISTER NALINI BAI, NURSE, C/O.BALAKRISHNAN. 8. EERAYI SUJA, D/O.KOUSALLIA, RESIDING AT PUZHATHI AMSOM DESOM, C/O.PARAPURATH JAYASREE. 9. PARAPRATH JAYASREE, D/O.VASUDEVAN, RESIDING AT DO.DO., GOKULAM, P.O.KOOTTALI, KANNUR-16. 10. CHAKKAPOYYAN PADMAJA, D/O.ROHINI, RESIDING AT DO.DO.DO. 11. CHAKKAPOYYAN MALLIKA, W/O.DANANJAYAN, R/AT DO.DO. 12. CHAKKAPOYYAN NISHA BABY, D/O.KUNHIRAMAN, R/AT DO.DO. 13. POOSARI AMMU, W/O.KRISHNAN, PUZHATHI AMSOM, EDACHERI DESOM, NEELAGIRI. 14. N.C.SEETHAMMA, D/O.KRISHNAN, RESIDING AT DO.DO. 15. N.C.GANESHAN, S/O.KRISHNAN, R/AT PUZHATHI AMSOM, EDACHERI DESOM. 16. N.C.PRAKASHAN, S/O.KRISHNAN, RESIDING AT DO.DO. 17. N.C.VIJAYALAKSHMI, D/O.KRISHNAN, RESIDING AT DO.DO. 18. PUSHPA, D/O.KRISHNAN, RESIDING AT DO.DO. 19. MANOJ KUMAR, S/O.KRISHNAN, RESIDING AT DO.DO. 20. RAJAMMA, W/O.N.C.NARAYANAN, KOTTALI POST, PUZHATHI AMSOM. 21. N.C.HARIHARAN, S/O.N.C.NARAYANAN, KOTTALI POST, PUZHATHI AMSOM. 22. THARA, D/O.DO.DO.DO. 23. BINDU ALIAS INDIRA, D/O.DO.DO.DO. 24. VARUN, DO.DO.DO. 25. ANION, S/O.NARAYANAN, DO.DO.DO. 26. UNNI, S/O.DO.DO. 27. VENUGOPAL P., S/O.LATE KRISHNAN WARDER, POOSARI HOUSE, P.O.KOTTALI, KANNUR-16. 28. PUSHPA P., D/O.LATE KRISHNAN WARDR, DO. DO. 29. JAYASREE POOSARI, D/O.DO.DO.DO. 30. POOSARI NARAYANAN, S/O.POOSARI GOVINDAN, GOKULAM HOUSE, KOTTALI P.O., KANNUR DISTRICT-670 016. (DIED LRS IMPLEADED) 31. POOSARI RAMAN, S/O.POOSARI GOVINDAN, DO.DO 32. ANNAMALA SREEDEVI, D/O.DO. ANNAMALA HOUSE, NEAR MUTHAPPANKAVU, KOTTALI P.O., KANNUR DISTRICT-670 016. 33. POOSARI AKHIL, S/O.POOSARI KRISHNAN, R/AT DO.DO. 34. POOSARI ANJU (MINOR),REP.BY POOSARI KRISHNAN D/O.POOSARI KRISHNAN, R/AT DO.DO. 35. POOSARI BALAGOPALAN, S/O.POOSARI GOVINDAN, R/AT DO.DO. 36. SEETHALAKSHMI, W/O.N.C.VELAYUDHAN, NEELAGIRI HOUSE, KOTTALI P.O., KANNUR-670 016. 37. N.C. VARUN, S/O.N.C.VELAYUDHAN, R/AT.DO. 38. N.C.VIVEK, S/O.N.C.VELAYUDHAN, R/AT DO.DO. 39. N.C.VIPIN, S/O.N.C.VELAYUDHAN, R/AT DO.DO. ADDL.R40 TO R45 IMPLEADED. 40. POOSARI GIRIJA, W/O.POOSARI NARAYANAN, GOKULAM HOUSE, KOTTALI P.O. KANNUR DISTRICT.670 016 41. ANNAMALA PRASANNA, W/O.MADHUSOODANAN, ANNAMALA HOUSE, PO KOTTALI, KANNUR-16. 42. P.PRABHA, W/O.GIREESAN, GOKULAM HOUSE, KOTTAKUNNU, MANANTHAVADI, WAYANAD DISTRICT. 43. P.PRADEEPAN, S/O.POOSARI NARAYANAN, GOKULAM HOUSE, KOTTALI P.O. KANNUR DISTRICT-670016 44. PRAVEEN, S/O.POOSARI NARAYANAN, PUTHIYA VEEDU, PO. PALLIKUNNU, KANNUR-4. 45. KIRAN, S/O.POOSARI NARAYANAN (MINOR) GOKULAM HOUSE, KOTTALI P.O KANNUR DISTRICT-670 016. (MINOR REPRESENTED BY HIS MOTHER POOSARI GIRIJA) (ADDL.RESPONDENTS 40 TO 45 ARE IMPLEADED AS THE LRS OF DECEASED R30 AS PER ORDER DATED 9/2/2007 IN I.A.2351/05.) BY ADV. SRI.O.RAMACHANDRAN NAMBIAR FOR R17,R30 to R35 SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE FOR R8, R9,11 & 12 SRI.T.G. RAJAGOPAL SRI.M.GOPIKRISHNAN NAMBIAR SRI.ANTONY MATHEW FOR R1 TO 3, R5 TO 7 SRI.ANTONY MATHEW FOR R40 TO R45 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/06/2011, THE COURT ON 8/7/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 164 OF 2005 =========================== Dated this the 8th day of July,2011 JUDGMENT Defendants 22 and 24 to 28 in O.S.72/1982 on the file of Sub Court, Thalassery are the appellants. Plaintiffs 2 to 4, defendants 4 and 6 to 14 and 16 to 21 and legal heirs of defendants 3 and 5 and 15 are the respondents. First plaintiff and the second defendant died during the pendency of the first appeal. Plaintiffs instituted the suit for partition and separation of their shares in the plaint schedule properties. Item No.1 of the plaint schedule properties is 50 cents in R.S.No.10/1, item No.2, 61 cents in R.S.No.10/1 and item No.3 961/2 cents in R.S.No.9/4 of Puzhalur village of Kannur Taluk. Properties admittedly originally belonged to Chirakkal Kovilakam on jenm right. Under Ext.B36 registered marupat R.S.A.164/2005 2 the properties were obtained by the first defendant and mother Chinnathayi from Padinhare Pockiarath tarwad, who had kanam right under the jenmi kovilakam. Chinnathayi admittedly died in 1960. Apart from first defendant, Chinnathayi had two sons and one daughter. Defendants 1 and 2 and Lakshmanan are her sons and Savithri the daughter. When the second defendant died, defendants 22 and 24 to 28 were impleaded and defendant No.10 was recorded as his legal heirs. Lakshmanan admittedly died in 1968 and plaintiffs and defendants 6 to 8 are his legal heirs. Savithri admittedly died in 1975 and defendants 3 to 5 and deceased Krishnan were her legal heirs. Defendants 14 to 21 are the legal heirs of deceased Krishnan. Plaintiffs contended that under Ext.B36 marupat, mother Chinnathayi and the first defendant were in possession of the plaint schedule properties and on the death of Chinnathayi, her one half right devolved on her legal heirs and plaintiffs and defendants 6 to 8 are entitled to 1/4 shares over the one half share of Chinnathayi in the plaint R.S.A.164/2005 3 schedule properties and first defendant is entitled to the remaining one half share and also the 1/4 share of one half share of Chinnathayi. It was also contended that subsequent to the death of Chinnathayi, properties have been in the joint possession of the first defendant and other legal heirs of Chinnathayi, including the plaintiffs, and plaintiffs are entitled to get their 1/8 share separated with share of profits, contending that till two years prior to the institution of the suit, they were given the share of profits. First defendant filed a written statement admitting the rights under Ext.B36 registered marupat, but contending that there was an oral partition between the mother and the first defendant in 1956 and the southern portion of the properties viz R.S.10/1 was taken by the first defendant and he has been in possession of that property since then and he constructed a three roomed tiled shop building and also effected improvements and item 1 and 2 of the plaint schedule properties are therefore not available for partition as it has been in the R.S.A.164/2005 4 exclusive possession of the first defendant under the oral partition. It was also contended that if it is found that the oral partition cannot be accepted, the said properties are to be allotted to him, without valuing the improvements. First defendant contended that on the death of Chinnathayi, second defendant was managing the northern portion of the properties obtained under Ext.B36 and he is entitled to 1/4 share therein and if the oral partition is not accepted, he is entitled to 5/8 shares. Later he filed an additional written statement contending that the plaint schedule properties do not exclusively belonged to the second defendant and the properties were in his joint possession along with the mother till her death and the plea of defendants 22 to 28 that second defendant was in exclusive possession of the properties for the last 30 years and therefore the rights of others was lost by ouster and adverse possession is not correct. 2. Second defendant in his written statement contended that plaint schedule properties were R.S.A.164/2005 5 originally obtained on lease by Pockiarath tarwad from Chirakkal Kovilakam and they granted a lease in favour of Chemminiyan Koren as per registered marupat 558/1899 with liability to pay pattom of 400 Edangazhies of paddy. On the death of Koren, it was in the possession of Chemmaniyan Bappu Vaidyar, who surrendered the property under Ext.B2 registered surrender deed dated 6.2.1941. While Pockiarath tarwad was in the possession of the properties, Chinnathayi and the first defendant obtained the properties on lease for a period of four years under Ext.B36 marupat on 6.2.1941 agreeing to pay the same pattam. It was contended that though first defendant and Chinnathayi were in possession of the properties on verum kozhu right, they could not raise cultivation and failed to pay the pattam promptly and for the pattam due to Chirakkal Kovilakam, a suit was instituted by the Chirakkal Kovilakam against the karnavan of Pockiarath tarwad, first defendant and his mother Chinnathayi. Later first defendant and Chinnathayi failed to pay the pattam and therefore in Kanni R.S.A.164/2005 6 1128 M.E, the properties were surrendered to the Pockiarath Padmavathi Amma to whom the properties were allotted by the Pockiarath tarwad. It was contended that after the said surrender, second defendant obtained the properties from Padmavathi Amma under an oral lease on first Dhanu 1128 for a period of four years, with liability to pay an annual pattam of 400 Edangazhies of paddy, providing that out of that paddy 265 edangazhies of paddy are to be paid to the Kovilakam on behalf of Padmavathy Amma and the remaining is to be paid to Padmavathi Amma directly. It was contended that since 1128 Dhanu first defendant has been in exclusive possession of the plaint schedule properties as a tenant under her and neither the first defendant nor Chinnathayi has been in joint possession of the properties and the second defendant has been paying the pattam and also assessment and while so he purchased the jenm right from the Land Tribunal under Ext.B3 order of the Land Tribunal, Kannur in O.A.477/70. Ext.B4 purchase certificate was also issued to him. It R.S.A.164/2005 7 was contended that therefore second defendant alone has right to the plaint schedule properties and they are not available for partition. It was also contended that while the second defendant has been in possession of the properties, first defendant was permitted to construct a shop building on the southern portion of the properties in 1964 and first defendant has no right over the remaining portion of the properties. Later five cents, being the south eastern portion of the properties was assigned by the second defendant to 'Cannanore Ceramics' as per registered sale deed dated 11.2.1982. Defendants 9 to 13 are the partners. The said five cents are not in the possession of the second defendant. It was also contended that the second defendant is not liable to pay any share of profits. The wife and children of deceased Krishnan, brother of defendants 3 to 5, are necessary parties and the plaintiffs are not entitled to any share. Second defendant later filed an additional written statement contending that defendants 14 to 21 the legal heirs of R.S.A.164/2005 8 Krishnan who were later impleaded, also had no right or possession to the plaint schedule properties and therefore they are not entitled to any share. 3. Defendants 3 to 5 filed a joint written statement admitting the rights under Ext.B36 marupat and contending that in 1956 the properties were already divided by Chinnathayi and first defendant and first defendant has been in possession of the southern portion exclusively and the northern portion was in the possession of Chinnathayi and it is available for partition between the legal heirs of Chinnathayi and they are entitled to get 1/4 share in item No.3 of the plaint schedule properties, being the legal heirs of deceased Savithri and item No.1 and 2 of the plaint schedule properties are not available for partition. Defendants 6 to 8 filed a joint written statement admitting the plaint allegations and claiming 1/8 share. Defendants 9 to 13 filed a joint written statement adopting the contentions of the second defendant. Defendant 14 to 21 filed a R.S.A.164/2005 9 written statement claiming 1/8 share due to Krishnan namely 1/32 shares. Defendants 3 to 8 and 14 to 21 filed a written statement contending that second defendant had no exclusive right and the plea of ouster and adverse possession is not sustainable. 4. Defendants 22 to 28, after they were impleaded as legal heirs of the second defendant, filed a written statement adopting the contentions raised by the second defendant. Later the written statement was got amended inserting a plea of ouster and adverse possession contending that second defendant has been in exclusive possession of the plaint schedule properties openly and uninterruptedly for a period of more than 30 years ousting the rights, if any, of the plaintiffs and other defendants. 5. Learned Sub Judge referred the claim for tenancy raised by the second defendant to the Land Tribunal under section 125(3) of the Kerala Land Reforms Act. Land Tribunal rendered a finding that the second defendant is a cultivating tenant R.S.A.164/2005 10 entitle to fixity of tenure. As the Sub Judge is bound by the said finding, it was accepted and the suit was dismissed. Plaintiffs challenged the judgment before District Court, Thalassery in A.S.214/1989. Learned District Judge on reappreciation of the evidence found that reference to the Land Tribunal was uncalled for as second defendant was not claiming tenancy from the ancestors of any of the co-owners and the actual dispute is whether there was a separate entrustment in favour of the second defendant and whether there was a surrender of Ext.B36 lease. Learned District Judge on the evidence found that there is no evidence to prove the surrender or a subsequent oral lease and therefore held that the plaint schedule properties have been in the possession of the first defendant and Chinnathayi under Ext.B36 lease and they continued in the joint possession of the legal heirs of Chinnathayi and the first defendant, and therefore plaintiffs, second defendant, the legal heirs of Savithri and Lakshmanan are entitled to their shares. A R.S.A.164/2005 11 preliminary decree was passed. It was challenged before this court in S.A.566/1992. This court as per judgment dated 10.12.2003 set aside the judgment of the learned District Judge holding that first appellate court was not justified in ignoring the findings of the Land Tribunal and when there was reference under section 125(3) of the Kerala Land Reforms Act and the findings forms part of the finding of the trial court, first appellate court though competent to set aside, modify or vary the findings, is bound to consider the findings and directed the first appellate court to dispose of the appeal afresh. Learned District Judge thereafter by judgment dated 27.10.2004, allowed the first appeal and passed a preliminary decree holding that plaint schedule properties are available for partition and they are to be divided into eight equal shares and the legal heirs of the first defendant are entitled to five shares and plaintiffs and defendants 6 to 8 together are entitled to one share and defendants 3 to 5 and 14 to 21 together are entitled to one share and R.S.A.164/2005 12 defendants 22 to 28 (must be defendants 10 and 22 to 28) jointly are entitled to one share and five cents assigned by the second defendant is to be allotted to the share of defendants 22 to 28 and the reservation claimed is to be decided in the final decree proceedings. The said judgment is challenged by the legal heirs of deceased second defendant in this appeal. 6. The second appeal was admitted formulating the following substantial questions of law. 1) Is the lower appellate court having found that Exts.B3 and B4 are not vitiated by fraud or collusion justified in holding that the half right of the first defendant was available for partition? (ii) Are not Exts.B3 and B4 in the facts and circumstances of the case conclusive in view of Section R.S.A.164/2005 13 72 K of the K.L.R Act? (iii) Is not the conduct of the first defendant in having not applied for the assignment of the jenmi's right in respect of the plaint schedule properties while applying for and obtaining certificate of purchase in respect of other items of properties held by him under the jenmi relevant to indicate that he did not exercise any manner of right over the properties in dispute? (iv) Does not the receipt of the land acquisition compensation by the 2nd defendant in respect of a portion of the plaint schedule property to the R.S.A.164/2005 14 exclusion of the first defendant and plaintiffs fortify the contentions of the 2nd defendant? v) When admittedly the demand for a share by the plaintiffs was not acceded to by the 2nd defendant after the death of Govindan, the father of the plaintiffs in the year 1968, is not the plea of adverse possession and ouster set up by the 2nd defendant proved since the suit has been filed only 12 years thereafter? 7. Learned senior counsel, Sri.M.C. Sen appearing for the appellants Sri.Gopikrishnan Nambiar appearing for respondents 9 to 13 who supports the appellants, and Sri.O.Ramachandran Nambiar, learned counsel appearing for the contesting respondents were heard. 8. Learned senior counsel appearing for the R.S.A.164/2005 15 appellants argued that first appellate court grossly erred in appreciating the evidence and also the law. Learned counsel relying on the decision of the Apex Court in Chandy Varghese v. Abdul Khader (2003(3) KLT 553)argued that Ext.B4 purchase certificate conclusively establish the independent title of the appellants and the first appellate court was not justified in considering the correctness of the oral lease, in the light of the purchase certificate, in view of Section 72K of Kerala Land Reforms Act. Learned counsel also argued that Land Tribunal on a reference under section 125(3) of Kerala Land Reforms Act, based on the evidence, entered a factual finding that second respondent was the cultivating tenant entitled to fixity of tenure and the said finding should not have been reversed in the light of Ext.B3 purchase certificate and Ext.B4 order of the Land Tribunal which has become final. Learned counsel also argued that though the surrender of Ext.B36 lease obtained by the first defendant and the mother was not evidenced by any documentary evidence, the R.S.A.164/2005 16 evidence and the attending circumstances establish the surrender and a subsequent lease in favour of the second defendant. Learned senior counsel pointed out that under Ext.B1, Padmavathi Amma who was examined as DW1, obtained the intermediary right of Padinhare Pockiarath tarwad and her evidence establish the oral surrender as well as the oral lease and the fact that subsequent to 1952 the pattam was being paid by the second defendant and he has been paying the basic tax from 1969 onwards would establish that there was a surrender of the original lease in favour of the first defendant and the mother and a subsequent oral lease in favour of the second defendant. Learned senior counsel also argued that payment of the pattam to the ultimate jenmi kovilakam is proved as Ext. B9 to B12 receipts were obtained by the second defendant from the kovilakam and they establish that subsequent to the oral lease of 1952 it was the second defendant who was paying the pattam and in such circumstances first appellate court should have upheld the defence case that Ext.B36 lease R.S.A.164/2005 17 obtained by the first defendant and Chinnathayi was surrendered in 1952 and when DW1 Padmavathi Amma was in possession of the properties second defendant obtained the properties on oral lease in 1952 and since then he has been in exclusive possession and enjoyment of the properties and neither first defendant nor the legal heirs of Lakshmanan or Savithri are entitled to any share. Learned senior counsel argued that the admitted fact that under Ext.B8 partition deed entered into by Chinnathayi and her children, the joint properties were divided and plaint schedule properties are not included therein would establish that all the joint properties were divided and if the plaint schedule properties were outstanding under Ext.B36 lease, they also would have been divided at the time of Ext.B8 partition and it also probabilise the case of exclusive possession and enjoyment by the second defendant under the oral lease of 1952. Learned senior counsel argued that Ext.B5 notice issued under section 3 of the Kerala Land Acquisition Act for Pazhassi Project R.S.A.164/2005 18 only to the second defendant and compensation was received by the second defendant alone would further establish that second defendant alone is having right over the plaint schedule properties. It was argued that first defendant was permitted to construct a shop building by the second defendant on the southern portion of the properties and he is in possession of that portion alone and he has not been in possession of the remaining portion of the plaint schedule properties and therefore it is to be found that plaint schedule properties are not available for partition. Learned counsel then argued that in any case, even if it is to be found that Ext.B36 lease was subsisting and the respondents are co-owners, as the evidence establish that second defendant has been in exclusive possession and enjoyment of the properties, the title of the co-owners was lost by ouster and adverse possession. It was pointed out that evidence of PW1 establish that subsequent to the death of the mother in 1960, second defendant denied the rights of the plaintiffs and was R.S.A.164/2005 19 asserting his independent right and has been in exclusive possession of the properties and therefore there was ouster and adverse possession and on that ground also, it is to be found that plaint schedule properties are not available for partition. Learned counsel appearing for respondents 9 to 13 reiterated the same arguments. 9. Learned counsel appearing for the contesting respondents pointed out that Ext.B36 lease was created under a registered document and therefore if there was any surrender of the lease, it would have been evidenced by a registered surrender deed as is the case with the surrender by the earlier tenant evidenced by Ext.B2 and there is no evidence to prove the surrender of Ext.B36 lease. Learned counsel relying on Section 114(d) of Indian Evidence Act and the decisions of the Apex Court in Nathoo Lal v. Durga Prasad (AIR 1954 SC 355), Ambika Prasad Thakur v. Ram Ekbal Rai (AIR 1966 SC 605) argued that the possession proved under Ext.B36 is presumed to be continued. The argument is that if a thing or a state of things is shown to R.S.A.164/2005 20 exist, an inference of its continuity within a reasonably proximate time, both forward and backwards could be drawn. Learned counsel also pointed out that evidence of DW1 does not establish either an oral surrender by the first defendant and Chinnathayi or a subsequent oral lease in favour of second defendant,as according to DW1 she has no personal knowledge of the alleged oral surrender or subsequent oral lease. Learned counsel pointed out that till 1960, when mother Chinnathayi died, the property has been in the joint possession of first defendant and Chinnathayi and on the death of Chinnathayi, her rights devolved on all her children including the second defendant and therefore possession of the second defendant subsequent to 1960 could only be as a co-owner and for and on behalf of all the co-owners. Learned counsel also pointed out that though second defendant contended that there was an oral lease obtained from Padmavathi Amma, no rent receipt was produced to establish payment of pattam to Padmavathi Amma and the rent receipts produced R.S.A.164/2005 21 evidence payment of pattam to the ultimate jenmi payable by Padmavathi Amma and even if the amounts were paid by the second defendant, it could only be for and on behalf of Chinnathayi and first defendant and will not establish either a surrender or a subsequent oral lease. Learned counsel argued that the question of a subsequent oral lease would arise, only if there was an earlier surrender and when there is no evidence to prove the surrender, the alleged oral lease must necessarily fall. Relying on the decisions of the Honourable Supreme Court in L.N.Aswathama and another v. P. Prakash (2009) 13 SCC 229), MD.Mohammad Ali v. Jagadish Kalita and others (2004)1 SCC 271), Darshan Singh v. Gujjar Singh(2002) 2 SCC 62), Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri (2000) 6 SCC 735), Annasaheb