IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 SA.No. 945 of 1996(D) --------------------- AS.114/1994 of ADL.SUB COURT, THALASSERY OS.130/1992 of MUNSIFF COURT, THALASSERY .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------- THUYYATH KOYYOTAN LEELA, D/O.JANAKI, EDAKKAD AMSOM, KEEZHUNNA DESOM, KANUR DISTRICT. BY ADV. MS.VIDHYA. A.C MS.SANGEETHA S.KAMATH RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------- *1. ILLATH SADANANDAN, S/O.KALLIANI, (DIED - DELETED) RETIRED SCHOOL MASTER, ELAYAVOOR AMSOM, EDACHOVVA DESOM, KANNUR DISTRICT. 2. ILLATH BANUMATHI, RETIRED TEACHER, RESIDING AT ANJARAKKANDY AMSOM, MAVILA DESOM, KANNUR DISTRICT. *R1 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 26.8.2009 IN I.A.NO.1850/2009 IN S.A. ADV. MR.V.N.RAMESAN NAMBISAN MR.C.KRISHNAN MR.R.SURENDRAN FOR R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.945 Of 1996 ---------------------- Dated this the 25th day of May, 2010. J U D G M E N T The plaintiff in O.S.No.130 of 1992 on the file of the Munsiff Court, Thalassery, is the appellant. Suit was filed for recovery of plaint schedule property on the strength of title and for recovery of an amount of Rs.14,658/- along with Rs.100/- per month as damages for use and occupation of the plaint schedule building. The trial court held that the plaintiff has title over the plaint schedule property; the second defendant's father Achuthan has tenancy right and possession over 6 X 12 six feet koles of property and further held that since there is no contract to the contrary obviating the necessity of notice under Section 106 of the Transfer of Property Act, a notice terminating the tenancy has not been issued and the tenants continue in possession and therefore the plaintiff is not entitled to recovery of possession of the suit property. The suit was dismissed. The lower appellate court confirmed the findings of the trial court. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. S.A.No.945 Of 1996 ::2:: 2. The plaintiff claimed that the plaint schedule property belong to the plaintiff under kuzhikanam right and subsequently, as per the order of the Land Tribunal, Kannur, marked as Ext.A7, Ext.A10 purchase certificate was issued in favour of the plaintiff and thus the plaintiff became the absolute owner of the property. The defendants claiming tenancy right and fixity of tenure filed an application before the very same Land Tribunal as O.A.No.7946 of 1975, making the plaintiff as an intermediary claimed that they are entitled to purchase jenm right. The application filed by the defendants was heard and disposed of along with O.A.No.1134 of 1976. The Application filed by the defendants was dismissed and the application preferred by the plaintiff was allowed. The defendants preferred appeals against the order allowing the plaintiff's application and order dismissing the O.A.No.7946 of 1975 preferred by the defendants. The appeals were heard and dismissed. Thus, the Land Tribunal's order shows that it is the plaintiff who is entitled to kuzhikkanam right and therefore entitled to purchase jenm right. The defendants denied the title of the plaintiff. The plaintiff is S.A.No.945 Of 1996 ::3:: compelled to file the present suit for recovery of possession on the basis of title. In the written statement filed by the defendants they denied the right of the plaintiff over the plaint schedule property and also denied the rental arrangement pleaded in the plaint. Defendants contended that the plaint schedule building is used as a school building and that school was under the management of the father of the second defendant from 1917 to 1942 and thereafter the management was with their mother as as per an agreement and the first defendant assigned his right in the plaint schedule property in favour of the second defendant. The defendants contended that the plaint schedule property, measuring 10 x 12 six feet koles, has been in the possession of the father of the defendants Achuthan on tenancy right. According to the defendants, the plaint schedule property was with Kelan and Achuthan on an oral lease from Chathoth tarawad and later under a registered marupat dated 15.9.1922 marked as Exts.B1. Kelan for himself and on behalf of Achuthan continued to enjoy the property and constructed a building to run the school. It is further pleaded that after the S.A.No.945 Of 1996 ::4:: death of Kelan his half right were also released to Achuthan vide Ext.B2 assignment deed by the legal heirs of Kelan and thus, Achuthan became the absolute owner of the school and he has been in possession of the property and was conducting the school. The defendants pleaded ignorance of the order passed by the Land Tribunal and also denied the title of the plaintiff and they prayed for dismissal of the suit. It is also contended that in the event of eviction the second defendant is entitled to value of improvements. Alternatively, the second defendant pleaded that he is a tenant entitled to protection under the Rent Control Act. 3. Plaintiff produced Exts.A1 to A10 to prove the title over the disputed property. Ext.A9 is the judgment of the appellate authority in A.A.No.3878 of 1978. Ext.A9 shows that the appeal preferred by the defendants stand dismissed. From Ext.A7 order of the Land Tribunal, it can be seen that the application for purchase of jenm right over the plaint schedule property filed by the defendants claiming tenancy right and fixity of tenure was dismissed by the Land Tribunal. Ext.A11 series of revenue receipts also supported the title of the plaintiff. In the S.A.No.945 Of 1996 ::5:: light of the oral and documentary evidence adduced by the plaintiff and after examining the rival contentions of the defendants, the learned Munsiff rightly concluded that the plaintiff has got title over the plaint schedule property. Learned Munsiff also found on the basis of Exts.B1, B2 and B5 documents that the father of the defendants Achuthan is a tenant of the property. Learned Munsiff also found that the tenancy in favour of Achuthan is governed by the terms of Ext.B1 marupat in which there is stipulation that the tenant shall surrender the building on demand. The learned Munsiff held that if Ext.B1 marupat were to govern the relationship the plaintiff is entitled to seek recovery of the plaint schedule property without issuing notice terminating the tenancy since Ext.B1 contained a stipulation that tenancy would be terminated on demand. Learned Munsiff found that there is no proper notice issued under Section 106 of the Transfer of Property Act and that the defendants are tenants holding over. I have examined the recitals in Exts.B1 and B5 marupat deeds. Exts.B1 and B5 shows that the tenants are occupying the property under lease arrangement originally from 1922 onwards. S.A.No.945 Of 1996 ::6:: The lease arrangement was subsequently made in to writing in Ext.B1 marupat and subsequently the terms are reiterated in Ext.B5 marupat. On a reading of Exts.B1 and B5, it can be seen that the tenants who came into occupation of the plaint schedule property under lease arrangement continue to occupy the property till the execution of Ext.B5 marupat and thereafter. The tenancy arrangement is controlled and regulated by the conditions stipulated in Ext.B1 marupat and subsequently under Ext.B5 deeds. The demise as per Ext.B5 is for a period of five years and that the lessee's right, to the property demised, ends with the period of five years. Ext.B5 is dated 16.11.1934 and the lease as per Ext.B5 will expire on 16.11.1939. Going by the terms of Exts.B1 and B5, there is determination of tenancy by efflux of time and Achuthan's tenancy does not survive after the expiration of Ext.B5 term. On the basis of the materials on record, the findings of the learned Munsiff that there is no stipulation in Ext.B5 which enables the landlord to recover possession on demand cannot stand. The finding of the learned Munsiff that the tenancy subsists and that in Ext.B5 there is no S.A.No.945 Of 1996 ::7:: stipulation which dispenses with the notice as in the case of Ext.B1 and therefore the landlord is not entitled to recover the suit property also cannot stand. The dismissal of the suit, on the basis of the finding that there is no proper notice under Section 106 of the Transfer of Property Act terminating the tenancy, requires interference by this Court. Learned counsel for the appellant also brought to this Court's notice the fact that the recitals in Ext.B1 created a contract to the contrary as stated under 106 of the Transfer of Property Act and therefore there is no need to issue any notice terminating the tenancy as contemplated under Section 106 of the Transfer of Property Act. 4. The court below also failed to appreciate the evidentiary value of Exts.A7 to A10; once land is assigned to the tenant in possession by the competent Land Tribunal, he became the absolute owner of the land. Though the contentions raised before this Court are elaborately urged in the memorandum of first appeal the lower appellate court did not properly appreciate the contentions raised and a judgment and decree was passed confirming the judgment of the trial court dismissing the suit. I S.A.No.945 Of 1996 ::8:: find that the reasons stated by the trial court as well as the lower appellate court are unsustainable in law and therefore requires intervention by this Court invoking Section 100 of the Code of Civil Procedure. In the result, the judgment and decree passed by the appellate court is set aside. A decree is passed allowing the plaintiff to recover the plaint schedule property from the defendants. The plaintiff is entitled to recover an amount of Rs.14,658/- along with Rs.100/- per month as damages for use and occupation of the building, from the date of suit till realisation as claimed in the plaint. The second appeal is allowed with costs. HARUN-UL-RASHID, Judge. bkn/-