IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 RSA.No. 287 of 2004() --------------------- O.S.227/1986 OF MUNSIFF COURT, MANJERI A.S.69/1995 OF DISTRICT COURT, MANJERI APPELLANTS IN RSA/APLNTS.2 TO 8 IN A.S.LRS.OF DFDT ---------------------------------------------------------------------- 1. ABDUL MAJEED, S/O. LATE ARANHI ALI, NILAMBUR AMSOM AND DESOM, P.O. NILAMBUR-679 329, ERNAD TALUK, MALAPPURAM DISTRICT. 2. SAFIYA, D/O. LATE ARANHI ALI, -DO- -DO-. 3. NOORJAHAN, D/O.LATE ARANHI ALI, -DO-. 4. MOYINKUTTY, S/O.LATE ARANHI ALI, -DO-. 5. ARIFA, D/O. LATE ARANHI ALIA, -DO- -DO-. 6. MOHAMMED ISMAIL, S/O. LATE ARANHI ALI, -DO-. 7. M.PATHUMMAKUTTY, W/O. LATE ARANHI ALI, -DO-. BY ADV. SRI.N.SUBRAMANIAM RESPONDENT(S): PLAINTIFF/RESPONDENT: ------------------------------------ KANHIRALA MAMMACHAKUTTY UMMA, S/O. UNNIPOKKU, MAMPAD AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT-676 542. ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE FOR R1 AD.SMT.PRABHA R.MENON THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.287 OF 2004 --------------------------------------------- Dated 22nd March, 2011 JUDGMENT Legal heirs of Ali, the original defendant in O.S.227/1986 on the file of Munsiff court, Manjeri are the appellants. Respondent is the plaintiff. The suit was originally instituted seeking a decree for permanent prohibitory injunction. Ali was the sole defendant. Respondent contended that she has absolute title and possession of the plaint schedule property and the deceased defendant attempted to trespass into the property claiming that he is tenant in respect of the property. It is contended that defendant has no right or possession whatsoever. Later after remand the plaint was amended seeking recovery of RSA 287/04 2 possession of the plaint schedule property contending that after filing of the suit defendant trespassed into the plaint schedule property and hence she is entitled to get recovery of possession on the strength of title. Ali resisted the suit contending that the property was originally entrusted to Athan Moyin under a registered lease deed in 1942 and Athan Moyin granted an oral sub lease in favour of Thettan Mohammad and he granted a sub lease in favour of the defendant in 1962 and since then he has been in possession of the property and therefore, the respondent is not entitled to the decree sought for. Learned Munsiff as per judgment dated 31/5/1989 dismissed the suit. It was challenged in A.S.53/1989. Appeal was allowed and suit was remanded permitting the respondent to amend the plaint. It is thereafter the suit was amended seeking a RSA 287/04 3 decree for recovery of possession on the strength of title. Learned Munsiff by judgment dated 31/5/1995 granted a decree for recovery of possession. The defendant challenged the judgment before District Court, Manjeri in A.S.69/1995. During the pendency of the appeal Ali died and appellants were impleaded as additional appellants. Learned District Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. Additional appellants challenged the judgment in this appeal. 2. Second appeal was admitted formulating the following substantial question of law. When the matter regarding the question of tenancy and the eligibility for purchasing the RSA 287/04 4 rights of the landlord is pending before the concerned Land Tribunal, are the courts below justified in finding that the affected party (the predecessor-in-interest of the appellants) had no fixity of tenure and he is not a tenant. 3. The substantial question of law was formulated as the tenancy claimed by the deceased defendant was not finally settled at that time. Though the Land Tribunal allowed Ali to purchase jenm right as per order dated 23/8/1977 in S.M.proceeding 567/1977, that order was challenged in A.A.99/1982. By order dated 30/5/1983 the order of the Land Tribunal was set aside and S.M.Proceedings was remanded to Land Tribunal. Thereafter by order dated 7/10/1989 Land Tribunal dropped the proceedings finding that Ali is not a RSA 287/04 5 cultivating tenant. Ali challenged the order before Appellate Authority in A.A.133/1989. That appeal was dismissed confirming the order of Land Tribunal on 5/1/1991. That order was challenged before this court in C.R.P.669/1999. The C.R.P was allowed and order of the Appellate Authority and the Land Tribunal were set aside and S.M.Proceedings was remanded back to the Land Tribunal for fresh disposal. Land Tribunal thereafter by order dated 14/1/2005 once again dropped the S.M.Proceedings finding that appellants herein, who were impleaded as legal heirs of the deceased Ali are not cultivating tenants. That order was challenged before Appellate Authority, Thrissur in A.A.8/2005. By order dated 5/3/2009 the appeal was also dismissed. C.R.P.163/2010 was later filed, challenging that order. Therefore, when the second appeal was admitted formulating the RSA 287/04 6 substantial questions of law, the S.M.Proceedings was pending before the Land Tribunal as it was remanded by this court in C.R.P.669/1999. It is in such circumstances, a substantial question of law was formulated. But subsequently, the appeal was dismissed by the Appellate Authority and C.R.P.163/2010 was filed before this court challenging the order of the Appellate Authority. That revision petition was heard along with the second appeal. By separate order, C.R.P.163/2010 was dismissed confirming the order of the Appellate Authority which confirmed the order of the Land Tribunal. Therefore question of tenancy has now finally settled. If that be so, the substantial question of law is to be amended holding that question of tenancy is finally settled. 4. The suit subsequent to the amendment is one for recovery of possession on the RSA 287/04 7 strength of title. Title of the respondent is not disputed. The only contention raised is that the original defendant is a cultivating tenant entitled to fixity of tenure. By order in C.R.P.163/2010 it is finally concluded that Ali is not the cultivating tenant and is not entitled to fixity of tenure. Therefore, appellants, the legal heirs cannot claim that they are cultivating tenants entitled to the protection of Kerala Land Reforms Act. If that be so, they cannot resist the claim for recovery of possession based on title. In such circumstances, there is no merit in the appeal. Appeal is dismissed. No costs. M.SASIDHARAN NAMBIAR, JUDGE. uj.