IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 LA.App..No. 1046 of 2009 (A) --------------------------------- LAR.16/2008 OF ADDL. SUB COURT, THALASSERY ------------ APPELLANT(S): CLAIMANTS 3 & 4 ------------------------------------- 1. THE MANAGING DIRECTOR/OPERATION MANAGER, M/S.PADMAVATHI CASHEW AND COFFEE LTD., CHONADAM, TTHALASSERY. 2. KALLADAN RAJAN,S/O. CHATHU, KOOVENTAVIDA HOUSE, P.O. NALUTHARA, PANTHAKKAL 673 370 BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V SRI.U.SYAM KUMAR RESPONDENT(S): CLAIMANTS 5 TO 9 ----------------------------------------- 1. PUTHENVEETTIL MANAKKADAN, VASUDEVAN, S/O. MANAKKADAN, PALLIKKANDI ROHINI, 'ATHULYA' P.O. DHARMADOM-THALASSERY, KANNUR DISTRICT. 2. PUTHEN VEETTIL MANAKKADAN KAMALA D/O.ROHINI 'ULLAS' (P.O.)DHARMADAM - THALASSERY KANNUR DISTRICT. 3. PUTHENVEETTIL MANAKKADAN VIMALA D/O. ROHINI 'ULLAS', P.O. DHARMADAM-THALASSERY 4. THE GOVERNMENT OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KANNUR DISTRICT. 5. THE EXECUTIVE ENGINEER, K.S.T.P. - DIVISION, KANNUR P.O. POOVATHUR, CHAVAKKAD, THRISSUR. ADV. SRI.C.P.PEETHAMBARAN FOR R1 TO 3 SR. GOVERNMENT PLEADER SRI.C.R.SHYAMKUMAR THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & K. HARILAL, JJ. ------------------------------------------------ L. A. A. No.1046 of 2009 ------------------------------------------------ Dated this the 20th day of December, 2011 JUDGMENT Pius C. Kuriakose Under challenge in this appeal preferred by the claimants A, B and C namely 1) the Managing Director, PL Finance and Investment Ltd., 2) the Managing Director, PL International Ltd. and 3) the Operation Manager, M/s Padmavathi Cashew and Coffee Ltd. is the award passed by the Land Acquisition Reference Court in a reference under Section 30 of the Land Acquisition Act. Under the impugned award, the learned Subordinate Judge has ordered release of the entire compensation amount in dispute - ` 2,42,057/- being the compensation determined in respect of 0.0285 hectors of land to claimants 5 to 7 who are respondents 1 to 3 in this appeal. The property in dispute was admittedly and evidently taken over from the possession of the appellants. Going by the documentary evidence produced before the L. A. A. No.1046 of 2009 -2- Reference Court which consisted of Exts.A1 to A17 the juristic status of the appellants over the properties in dispute was that of lessees continuing in possession after the expiry of the lease period. The ownership of the property in jenmam vested with Manakkadan family to which respondents 1 to 3 belong. The learned Subordinate Judge under the impugned award has come to the conclusion that nobody other than respondents 1 to 3 who are members of Manakkadan Tarwad the Jenmies can have any claim over the disputed amount of ` 2,42,057/-. 2. A reading of the claim statement filed by the appellants will show that their claim over the disputed property was one of possession only. According to them, they have been possession as lessees up to 1989 when the period of lease expired. Even after the expiry of the period of lease they have continued in possession as lessees by holding over. Respondents 1 to 3 did not have any possession or other interest over the property in question so as to entitle them to compensation in terms of Section 23 of L. A. A. No.1046 of 2009 -3- the Land Acquisition Act. Under the impugned award the learned Subordinate Judge repelled all their contentions. 3. In this appeal, various grounds are raised challenging the finding of the learned Subordinate Judge. Sri.C.Vathsalan, the learned counsel for the appellant would open his submissions by referring to Section 106 of the Land Reforms Act and submitted that in terms of Section 106 of the Land Reforms Act, the appellants have complete immunity from eviction. Since the appellants have complete statutory immunity from eviction, the Jenmam right which respondents 1 to 3 are claiming over the properties as members of the Jenmi family is of nominal value only. Sri.Vathsalan would then submit that even if it is assumed that Section 106 of the Land Reforms Act does not apply, then also the appellants have to be treated as cultivating tenants entitled for fixity of tenure as the instant land was agricultural in nature. If the appellants are treated to be cultivating tenants then there will be statutory fixity in terms of Section 13 and 72(f) of the Kerala Land Reforms Act. L. A. A. No.1046 of 2009 -4- 4. Mr.Vathsalan also submitted that since 1989 when the period of lease expired, the appellants have been possessing the property as of right, in denial of title if any of the real owner openly and peacefully. Hence, whatever title which respondents 1 to 3 were having over the property has been lost to them by adverse possession and limitation. This vital aspect of the matter was never considered by the Reference Court at all. Once this is considered, it will have to be found that the entire amount under deposit is to be released to the appellants. 5. Per contra, Mr.Peethambaran, learned counsel for respondents 1 to 3 submitted that the appellants claim based on Section 106 of the Land Reforms Act cannot succeed. Section 106 can apply only in cases where on the land leased out for commercial purposes, the lessee has constructed the buildings on the land in dispute extending to 2.85 Ares. The appellants have admittedly not put up any building on that land. Mr.Peethambaran also submitted that the case based on Section 106 of the Land Reforms Act was L. A. A. No.1046 of 2009 -5- not pursued in evidence. He pointed out that the above case is not properly founded in the pleadings raised by the appellants. Coming to the plea that the appellants are to be treated as cultivating tenants entitled to fixity of tenure in terms of Section 13 of the Land Reforms Act and with eligibility for assignment in terms of Section 72F of the same Act, Mr.Peethambaran submitted that commercial lease and agricultural lease are entirely different and conflicting concepts. In the instant case, the appellants could not have claimed anything other than a commercial lease. Answering the argument of Mr.Vathsalan that the appellants have prescribed a title for themselves by adverse possession and limitation, Mr.Peethambaran submitted that such a contention is not raised at all. In the absence of contention, the plea cannot be entertained. Coming to the argument that respondents 1 to 3 do not represent all the members of the Manakkad Tarwad, Mr.Peethambaran submitted that whether or not there are other members in the Tarwad entitled for a share in the compensation is a L. A. A. No.1046 of 2009 -6- matter to be decided in a suit for partition or other reliefs which may be instituted by the members of the Tarwad and that the appellants, who are not members of the Tarwad, cannot be allowed a say in the matter. 6. We have given our anxious consideration to the rival submissions made at the Bar. We have carefully gone through the award passed by the Reference Court. We have made a quick survey of the evidence available on record. We shall first deal with the contention that the appellants have prescribed a title for themselves by adverse possession and limitation. According to us, this contention need not be considered in the absence of even rudimentary pleadings from the side of the appellants. Moreover, we find that on the appellants own admission, the possession to begin with was that of lessees under the Tarwad and thereafter the possession was as lessee by holding over. Here again the possession could have not have been adversed to the real owners title. 7. Coming to the arguments that the appellants are L. A. A. No.1046 of 2009 -7- cultivating tenants entitled to fixity of tenure in terms of Section 13, we find that the evidence documentary and oral indicates that the lease which had been given to the appellants and their predecessors was one for commercial purposes. Hence, the appellants can never raise a plea of cultivating tenancy and fixity of tenure over the property in question. 8. Coming to the plea that the appellants had absolute immunity from eviction and therefore, the right which the respondents could claim, was at best to receive rent and the said right cannot have much value, we find here again that even the plea of benefit under Section 106 is not properly raised in pleadings. Even assuming that there was proper pleading and proof for substantiating the appellants' claim that they have right under Section 106 of the Kerala Land Reforms Act, we are of the view that the said right is only the right of immunity from eviction by the landowner. The said right is not immunity from being dispossessed under the provisions of the Kerala Land Acquisition Act. In L. A. A. No.1046 of 2009 -8- the instant case, State has exercised its powers of eminent domain and acquired the property for a public purpose. By such acquisition, whatever rights the appellants could have claimed under Section 106 has become insignificant. 9. Now the only surviving question is as to whether the appellants are entitled for any compensation for the possessary control which they were having over the property in question. According to us, the possessary right, which the appellants were having over the property was a valuable right as it could have continued till the appellants were evicted in due process of law from the property. Evicting the appellants would not have been a very easy task as necessarily respondents 1 to 3 would have been compelled to go in for legal proceedings. We feel that the possessary right ,which the appellants were enjoying upon the property has to be valued. It is in evidence that there were no improvements upon the property. No building much less trees were there. No evidence as to any income being realised by the appellants from the property in dispute is L. A. A. No.1046 of 2009 -9- there. Keeping this crucial inputs in my mind, we fix the value of the possessary right which the appellants were enjoyed over the property at the time of acquisition at ` 42,057/-. We allow the appeal to the extent of directing release of ` 42,057/- to the appellants from out of the amounts under deposit. We are told that the entire amount is lying in deposit with a Bank pursuant to the orders passed by the Reference Court. Needless to mention that the appellants will be entitled for release of ` 42,057/- together with the interest which has accrued upon the above portion since the date of deposit. Upon production of this judgment, the Bank Manager will, subject to orders passed by the Reference Court, release so much of the amount to the appellants. The appeal is allowed to the above extent, however without any order as to costs. It is needless to mention that if the other members of Manakkad Tarwad are aggrieved by the release of the balance amount to respondents 1 to 3, their remedy will be to go in for a regular civil suit for partition and allied reliefs arraying L. A. A. No.1046 of 2009 -10- respondents 1 to 3 as defendants. Sd/- PIUS C. KURIAKOSE JUDGE Sd/- K. HARILAL JUDGE kns & ksk/- //True Copy// P. A. TO JUDGE