IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 SA.No. 327 of 1999(E) --------------------- AS.95/1994 of DIST & SESSIONS COURT, ALAPPUZHA OS.104/1987 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT(S): -------------- 1. P.J.ANTONY S/O OUSEPH, PALLIKKATHAYIL HOUSE, SARAYU NIVAS, C.P.W.1068, CHUZHAMPALA, THIRUVANANTHAPURAM. 2. SEBASTIAN @ DEVASSY, S/O YOHANNAN, PALLIKKATHAYIL, THUMPOLY, ARYAD SOUTH VILLAGE, ALAPPUZHA BY ADVS. SRI.P.KESAVAN NAIR & SRI.K.G.CLEETUS RESPONDENT(S): --------------- EARNESTINE JOSEPH. D/O JOSEPH, THEKKE PALAKKAL HOUSE, CHETTIKKADU MURI, MARARIKULAM SOUTH VILLAGE, ALAPPUZHA (DIED) * ADDITIONAL R2 IMPLEADED 2. BERLY JOSE THEKKE PALAKKAL HOUSE, CHETTIKKAT MURI, MARARIKULAM SOUTH VILLAGE, ALAPPUZHA, PIN. 688 549 * LEGAL HEIRS OF DECEASED SOLE RESPONDENT IS IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED 08.04.2011 IN I.A. 336/2011 R2 BY ADVS. SRI.MOHAN IDICULLA ABRAHAM SMT.ELIZABETH MATHAI IDICULLA SRI.RACHEL JOSEPH SRI.MARTIN D.ALUMKARA SRI.DEVAN K.MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2011, THE COURT ON 08/07/2011 DELIVERED THE FOLLOWING: P.BHAVADASAN .J - - - - - - - - - - - - - - - - - - - - - - - S.A.No.327of 1999 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 08th day of July, 2011 J U D G M E N T Defendants in O.S.104/1987 are the appellants who suffered a decree at the hands of the trial court. Earlier appeal by them was allowed and thereafter the matter was remanded to trial court for assessing the value of building in relation to which the suit was filed. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed to be the owner of the suit property having obtained it as per Ext.A2 dated 31.01.1960. The plaint schedule consists of two items. Plaint item No.2 is the northern portion of land. According to the plaintiff, the defendant was granted permission to occupy the building for residence. It was purely a temporary arrangement and the plaintiff later revoked the permission granted but defendant did not surrender the premises. He not only did not surrender the building but also exercised :2: S.A.No.327of 1999 rights over the property adjoining the building. That necessitated the suit. 3. Defendant resisted the suit by filing a written statement and contented that the claim of the plaintiff that he is in the possession and enjoyment by the plaint schedule property was incorrect. It was pointed out that, 25 cents on the northern portion was taken on lease by the father of the first defendant from the previous jenmi. The portion taken on lease was demarcated from the rest of the property possessed by the defendant. Suffice to say that they claimed tenancy in respect of the property. 4. On the above pleadings issues were raised. Since the question of tenancy was raised, the trial court had referred the matter for the consideration of the Land Tribunal. Before the Land Tribunal parties adduced evidence. Evidence consists of testimonies of PWs 1to 3 and documents marked as A1 to A4 from the side of the plaintiff . Defendants had DWs 1to 3 examined and Exts. B1 :3: S.A.No.327of 1999 to B10 marked. After considering the evidence, the Land Tribunal came to the conclusion that the tenancy pleaded by the defendants has not been established and they are not entitled to fixity of tenure. It therefore returned its findings to the Munsiff Court from where, the reference was made. The said court adopted the findings of the land tribunal and went into the other issues and a decree was granted. 5. The dissatisfied defendants filed an appeal as A.S.95/1994 before the District Court, Alappuzha. They assailed the findings of the Land Tribunal that defendants are not entitled to fixity of tenure. They also assailed the findings on the other issues by the trial court. The lower appellate court came to the conclusion that as the building had been put up by the defendants, they are entitled to get its value. Although the lower appellate court remanded the matter to the trial court enabling the defendants to adduce evidence regarding value of the building, the other findings of the trial court were :4: S.A.No.327of 1999 confirmed. 6. In this second appeal notice is issued on the following questions. The witnesses on the side of the plaintiff should have been disbelieved and the defence witnesses ought to have been believed. The following substantial questions of law arise in this appeal namely: a) When a reference is made by a Civil Court to the Land Tribunal under Section 125 K.L.R.Act, is not Appellate Court bound to examine the correctness and legality of the findings of the Land Tribunal? b) when the evidence and circumstances indicate that a licensee has made a permanent construction pursuant to the license, is not section 60(b) of the Indian Easements Act attracted? 7. Learned counsel appearing for the appellants drew the attention of this court to paragraph 5 of the judgment of the Lower Appellate Court and contended that the findings regarding the tenancy is thoroughly unsustainable. According to the learned counsel it would appear that like :5: S.A.No.327of 1999 the trial court, the appellate court had the impression that it is bound by the findings of land tribunal and cannot go behind it. The learned counsel pointed out that lower appellate court is not justified in not considering the plea of tenancy raised by the defendants. The learned counsel reminded this court that an independent appeal from the findings of the land tribunal is not possible and that the defendants can assail the findings of the land tribunal only in the regular appeal filed against the decree of the trial court. Lower appellate court ought to have considered evidences regarding the tenancy adduced by the defendants before the Land Tribunal before it come to a conclusion that judgment and decree are sustainable. The learned counsel pointed out that lower appellate court misdirected itself both on facts and in law in confirming decree. 8. The learned counsel appearing for the respondent on the other hand pointed out that the courts below have considered the various issues agitated before it and have :6: S.A.No.327of 1999 come to the right conclusions. Land tribunal has found that the defendants are not entitled to fixity of tenure. Trial court also found that there is no plea or evidence with regard to the benefits that defendants made under Section 60(b) of the Easements Act. In the absence of such plea and in the light of the findings of the land tribunal there is no ground to interfere with the judgment of the Lower appellate court. 9. At the outset itself, I must say I am unable to accept contentions raised by the learned counsel for the respondent. The issue regarding tenancy had been referred to the land tribunal by the Trial Court. Before the land tribunal, considerable evidence was adduced by both sides, Land Tribunal came to the conclusion that defendants in the suit were not entitled to fixity of tenure. Land Tribunal had returned its findings along with records to the trial Court. As rightly pointed out by the counsel for the appellant, defendants could not have filed an independent :7: S.A.No.327of 1999 appeal from the findings of the Land tribunal. They had to agitate their claims of tenancy in the regular appeal against the judgment and decree of the Trial Court. That is what they have done. The question of tenancy is to be adjudicated by lower appellate court and it is for the said court to decide whether the findings of the Land Tribunal were justified or not. It could not have simply brushed aside the point that arose for consideration. One must remember that only Lower Appellate court can consider the challenge against the findings of land tribunal and the lower appellate court is the final court on facts. There is no discussion regarding the tenancy set up by the defendant before trial court and the Land Tribunal. Instead, lower appellate court considered claim of “Kudikidappukaran” and came to the conclusion that defendants are not entitled to any rights over the property. 10. The judgment and decree of the lower appellate court cannot be sustained in law. It is felt that the matter :8: S.A.No.327of 1999 would have to be remanded to the lower appellate court for fresh consideration in accordance with law. 11. This appeal is therefore allowed. The judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration on merits in accordance with law and in the light of what has been stated above. Parties shall appear before the lower appellate court on 04.08.2011. Lower appellate court is directed to dispose the appeal as expeditiously as possible at any rate within a period of four months from the date of appearance of the parties. Forward a copy of the judgment to lower appellate court also. There is no order as to costs. P.BHAVADASAN JUDGE kkj