IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 RSA.No. 817 of 2008() --------------------- AS.41/2001 of ADDL. DISTRICT COURT (SPL.COURT), KOTTAYAM OS.161/1995 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANT/RESPONDENT/DEFENDANT: -------------------------------------------------- SASIDHARAN, S/O.MADHAVN ACHARAY, KAITHAKAATU (H), MANJOOR KARA, KOTHANALLOOR VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S)/APPELLANT/PLAINTIFF: ---------------------------------- SADASIVAN, S/O.MADHAVAN ACHARY, KAITHAKAATU (H),MANJOOR KARA, KOTHANALLOOR VILLAGE. ADV. SRI.A.BALAGOPALAN SRI.K.SANEESH KUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.S.A.NO.817/2008 ORDER IN I.A.NOS.1962/2008, 2681/2008 & 207/2009 IN R.S.A.NO.817/2008 DISMISSED. 06.10.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.817 OF 2008 (E) ----------------------------------- Dated this the 6th day of October, 2010 J U D G M E N T The defendant in O.S.No.161 of 1995 before the Munsiff Court, Ettumanoor is the appellant. Suit was one for recovery of possession on the basis of title, filed by the respondent/plaintiff. Resisting the suit claim, the appellant/defendant, among other contentions, had also set up a plea of tenancy. As mandated under Section 125 (3) of the Kerala Land Reforms Act, the question of tenancy was referred to the Land Tribunal for determination. Admittedly, a suo motu proceedings was also then pending over the tenancy claim of the defendant over the suit property in which evidence had been collected. Hence when a reference was made by the civil court the Land Tribunal, having regard to the evidence already taken, considered the reference with suo motu proceedings and determined the question of tenancy canvassed by the appellant/defendant, and entered a finding in his favour. The finding with the records R.S.A.NO.817/2008 2 transmitted back to the civil court, accepting that finding, as mandated by the Statute, the trial court declined recovery and dismissed the suit. Against the dismissal of the suit, the respondent/plaintiff preferred an appeal as A.S.No.41 of 2001 before the Additional District Court, Kottayam. Pending that appeal, the common order passed by the Land Tribunal in SM proceedings and also the reference made from the civil court was also subjected to an appeal by the plaintiff before the Appellate Authority concerned under the Kerala Land Reforms Act. The Appellate Authority dismissed the appeal of the plaintiff, against which, there was a revision before this Court as C.R.P.No.502 of 2007. Noticing that parallel proceedings in respect of the claim canvassed by the defendant had arisen on the basis of a reference from a civil court in a pending civil suit and also by a separate suo motu proceedings, this Court set aside the orders passed by the Land Tribunal as confirmed by the appellate authority, directing consideration of the question of tenancy by the lower appellate court, before which, the appeal against the dismissal of the suit was then pending. This court R.S.A.NO.817/2008 3 also ordered that suo motu proceedings taken by the Tribunal shall stand closed. Pursuant to such orders passed in the revision, the lower appellate court, after hearing both sides, disposed the appeal, by which, after entering the findings on the materials placed that the tenancy claimed canvassed by the respondent/defendant was baseless, a decree was granted in favour of the plaintiff as applied for in his suit. Impeaching the correctness of that decree passed by the lower appellate court in reversal of the dismissal of the suit, the defendant has preferred this appeal. 2. Substantial question of law raised in the appeal is thus: (i) When the trial court which framed issues 1 and 2 as to whether the plaintiff is entitled to claim over the plaint schedule property and whether the plaintiff is entitled to recover the plaint schedule property from the defendant, refrained from recording the findings on those but merely incorporated the finding of the Land Tribunal returned under Sec.125 (3) of the Kerala Land Reforms Act, was the lower appellate court justified in entering on the merits of the case otherthan R.S.A.NO.817/2008 4 considering the legality of the finding of the Land Tribunal, particularly, when the plaintiffs did not adduce any evidence in support of issues and 2 ? At the time of hearing, it is practically conceded by both sides that after receipt of the findings from Land Tribunal in answer of the reference made by the trial court on the question of tenancy covered by issue No.3 raised in the suit, both parties did not lead any evidence in the case, and accepting the finding of the Land Tribunal, the trial court had dismissed the suit. In such circumstances, the question emerging for consideration is whether the lower appellate court was justified in granting a decree for recovery of possession on the basis of title to the respondent/plaintiff without examining the other contentions raised by the defendant in his written statement and also affording an opportunity to him to substantiate the challenges raised to the suit claim. True, by raising the plea of tenancy, it could be stated that the defendant had admitted the title of the plaintiff over the suit property. Solely on the basis of the materials tendered before the Land Tribunal, which was R.S.A.NO.817/2008 5 competent enough only to examine the question referred to, that is, the claim of tenancy and that alone, it was not proper on the part of the lower appellate court to decide the suit claim of the plaintiff for recovery on the basis of his title, especially, where no opportunity had been provided to both parties to prove their respective case canvassed in the suit. After going through the judgment rendered by the lower appellate court, I find that the finding entered that the claim of tenancy canvassed by the defendant is devoid of any merit, interfering with the finding otherwise rendered by the Land Tribunal, is fully justified in the proved facts and circumstances of the case. The defendant, who filed the written statement in 1995 had contended that he has been in possession of the plaint schedule property for the last twenty five years and, thus, he is entitled to claim tenancy over the suit property. Suit property is having an extent of only five cents. In evidence before the Land Tribunal, it seems that he had developed a case that his possession had been in continuation of his predecessor from 1959 onwards. Whatever be the evidence let in the claim, in his written statement tenancy R.S.A.NO.817/2008 6 was set up on the basis of possession over a period of twenty five years before the filing of the written statement in 1995, clearly demonstrate that the claim so canvassed was unworthy of any merit as it is barred under Section 74 of the KLR Act. In fact, it is evident that on the contention raised by the defendant, the tenancy canvassed by him did not arise for consideration and the trial court should have struck off that issue, and no reference to the Land Tribunal was required even if a previous reference, suo motu proceedings, was then pending over the issue. Whatever that be, now it has to be held that the claim of tenancy canvassed by the defendant, which has been negatived by the lower appellate court, has to be treated as final and conclusive and it should not be permitted to be agitated again afresh. 3. The judgment rendered by the lower appellate court, in the facts of the case, has to be set aside, but, confirming its finding with respect to the negativing of the claim of tenancy canvassed by the defendant. It is ordered accordingly. The suit is remitted to the trial court with direction to dispose it as R.S.A.NO.817/2008 7 expeditiously as possible, at any rate, within a period of six months. Parties are directed to appear before the court below on 02.11.2010. Send the records forthwith. Appeal is disposed of accordingly, directing both sides to suffer their costs. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.817/2008 8