IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 SA.No. 388 of 1998(D) ------------------------------- AS.51/1992 of ADDL.DISTRICT COURT, ALAPPUZHA OS.204/1978 of ADDL. MUNSIFF COURT,ALAPPUZHA. .................... APPELLANT(S): APPELLANT/DEFENDANT ------------------------------------------------------------ MARANKULANGARA DEVASWOM, KATTOOR MURI, MARARIKULAM SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT, REPRESENTED BY ITS PRESIDENT. BY ADV. SRI.P.S.KRISHNA PILLAI RESPONDENT(S): RESPONDENT/PLAINTIFFS ----------------------------------------------------------------- 1. KAVAMMA KAVERIAMMA, MATTRATHIL HOUSE, KATTOOR MURI, MARARIKULAM SOUTH VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. *2. P.CHANDRASEKHARAN PILLAI, DO. DO. HOUSE DO. DO.(DIED) 3. P.RAMANADHA PILLAI, DO. DO. HOUSE, DO. DO. 4. P.RAVEENDRANATHAN PILLAI, DO. DO. HOUSE DO. DO. 5. BALASUNDHARAN PILLAI, DO. HOUE, DO.DO. 6. KAVERIAMMA VIJALAKSHMIAMMA, DO. HOUSE, DO. DO. tss S.A. NO.388/1998 *ADDL. 7 & 8 IMPLEADED. 7. SARADAMMA, WIDOWN OF P.CHANDRASEKHARN PILLAI, MATTATHIL HOUSE, KATTOOR MURI, MARARIKULAM VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. 8. SAVITHA, D/O. SRADAMMA, DO. HOUSE, DO. DO. *ADDL. R7 & R8 ARE IMPLEADED AS THE LR'S LOF THE DECEASED SECOND RESPONDENT VIDE ORDER DTD. 15.7.2010 IN IA. 593/M2010. ADV. SRI.J.OM PRAKASH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/04/2011 , ALONG WITH SA NO. 613 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ---------------------------- S.A.Nos.388 and 613 of 1998 --------------------------------------- Dated this the 6th day of April, 2011 JUDGMENT Two suits namely O.S.Nos.204/1978 and 757/1982 were disposed of by a common judgment by the Additional Munsiff, Alleppey. O.S.No.204/1978 was decreed and O.S.No.757/1982 was dismissed. O.S.204/1978 seems to have been treated as the leading case. A.S.50//1992 was preferred by the first defendant in O.S.No.757/1982 and A.S.51/1992 was preferred by the plaintiff in O.S. 204/1978 before the Munsiff's Court, Alappuzha. The lower appellate court disposed of the appeal by a common judgment and both the appeals were dismissed. S.A.388/1998 is directed against the judgment and decree in A.S.51/1992. S.A.613/1998 is directed against the judgment and decree in A.S. 50/1992. The parties and facts are hereinafter referred to as they are available before the trial court in O.S. 204/1978. 2. The property involved in this case has an extent of 50 cents and admittedly belonged to the defendant Devaswom in the suit. The case put forward by the plaintiff in O.S.204/1978 was that their predecessor-in-interest late Vasudeva Kurup had obtained the property on assignment by virtue of Ext.A2 dated 29.08.1117. That S.A.Nos.388 and 613 of 1998 2 was executed by one Velayudha Kurup in favour of Vasudeva Kurup, who obtained the property on lease as per Ext.A1 dated 09.07.1101 from the Devaswom. Subsequent to Ext.A2, Vasudeva Kurup had obtained purchase certificate in respect of the same. The grievance of the plaintiff was that while they were enjoying the property, the defendants along with other persons trespassed into the suit property and reduced it into their possession. Therefore, they had laid a suit for recovery of possession on the strength of title. 3. The defendants resisted the suit. They admitted the execution of Ext.A1 document. However, the contention was that it is only a license and not a lease deed and therefore subsequent proceedings before the land tribunal are void. They pointed out that the plaint schedule property forms part of the temple property. It was contended by them that even though Ext.A1 was executed actual possession was not handed over to Velayudha Kurup allowed him to put up a Bhajanamadam or to make improvements in the property. Therefore, Velayudha Kurup could not have assigned the property to Vasaudeva Kurup. They contended that the purchase certificate obtained by Velayudha Kurup was a result of fraud and collusion since at the relevant time the president of the Devaswom was closely related to the Vasudeva Kurup. Their further contention was that S.A.Nos.388 and 613 of 1998 3 the plaint schedule property, being part of the temple property, is exempted under Section 3(X) of the Kerala Land Reforms Act. 4. The Devaswom, the defendant in O.S.204/1978, inbturn instituted O.S.757/1982 for cancellation of the purchase certificate obtained by Vasudeva Kurup on the basis of which O.S.204/1978 was laid. The averments in the plaint are similar to the contentions in the written statement taken in O.S.204/1978. The defendants in the said suit resisted the suit filed by the Devaswom on the basis of contentions similar to the allegations in the plaint in O.S.No. 204/1978. The trial court, as already noticed, treated O.S.204/1978 as a leading case and evidence was adduced in the said case. 5. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts. A1 to A8 from the side of the plaintiffs. Defendants examined DWs 1 and 2 and had Exts. B1 to B4 marked. On an appreciation of the evidence in the case, the trial court granted the following reliefs: 1. O.S.No.757/1982 is dismissed with cost of the defendants therein. 2. Plaintiffs in O.S.No.204/1978 are given a decree for recovery of possession of plaint schedule property S.A.Nos.388 and 613 of 1998 4 from the defendants. 3. Plaintiffs in O.S.204/1978 are entitled to get mesne profits at the rate of Rs.100/- per year till they obtain possession of the property or for three years from the date of this decree whichever event occurs first. 4. Plaintiffs in O.S.No.204/1978 are entitled to realise their costs. 6. The Devaswom aggrieved by the judgment and decree of the trial court preferred appeal is before the lower appellate court, the result of which are already made mention of earlier. 7. Notice is seen issued on the following substantial questions of law in S.A.388/1998 and S.A.No. 613/1998: S.A.388/1998 1. Does Ext.A1 document create any lease in respect of the plaint item? Is it not a document evidencing licence for putting up of a Bhajanamadom for the convenient worship of the believers of the locality? 2. Is not the plaint item on exempted land under S.310 of the KLR Act? Are the reasonings of the court below for finding this question against appellant correct? Legal or sustainable on the materials on record? 3. On the facts and in the circumstances of the case, is not Ext.A5 purchase certificate issued by the land tribunal, Alappuzha liable to be cancelled or set aside is void and vitiated by fraud and collusion? S.A.Nos.388 and 613 of 1998 5 4. Are the plaintiffs in O.S.204/78 entitled to recovery of possession of the plaint item on the cause of action alleged in the plaint? 5. In view of the facts that Ext.A1 evidences a lease and not a licence and that the plaint item is exempted under S.310 of the KLR Act, are the plaintiffs in O.S. 204/78 entitled to recovery of possession of the plaint item even assuming that the claim of the plaintiffs in O.S. 757/82 is barred by limitation? 6. Is not Ext.A5 purchase certificate void in view of the licence created by Ext.A1 and in the light of the exemption granted to the plaint item under S.10 of the K.L.R. Act. S.A.No. 613/1998 1. Does Ext.A1 document create any lease in respect of the plaint item? Is it not document evidencing license for putting up of a Bhajanamadom for the convenient worship of the believers of the locality? 2. Is not the plaint item an exempted land under S.3 of the KLR Ac? Are the reasonings of the court below for finding this question against appellant correct, legal or sustainable on the materials on record? 3. On the facts and in the circumstances of the case, is not Ext.A5 purchase certificate issued by the land tribunal, Alappuzha liable to eb cancelled or set aside is void and vitiated by fraud and collusion? 4. Are the plaintiffs in O.S. 204/78 entitled to recovery of possession of the plaint item on the cause of action alleged in the plaint? 5. In vie of the facts that Ext.A1 evidences a lease land not a license and that the plaint item is exempted under S.3 S.A.Nos.388 and 613 of 1998 6 of the KLR Act, are the plaintiffs in O.S.204/78 entitled to recovery of possession of the plaint item even assuming that the claim of the plaintiffs in O.S. 757/82 is barred by limitation? 6. Is not Ext.A5 purchase certificate void in view of the license created by Ext.A1 and in the light of the exemption granted to the plaint item under S.3 of the KLR Act? 8. The learned counsel appearing for the appellants contended that both the courts below have grievously erred in law and in facts in construing Ext.A1 as a lease deed. Possession always remained with the Devawom and the assignee, in fact was only a licensee, had only a limited interest and therefore, he could not have assigned the property under Ext.A2. If Ext.A1 is to be construed as a licence, then the proceedings of the Land Tribunal is without jurisdiction and Devaswom is not bound by the purchase certificate issued by the Land Tribunal concerned. It is also contended that since the Land Tribunal has no jurisdiction to issue purchase certificate as the transaction was only a licence, it was not necessary for the Devaswom to challenge the proceedings before the Land Tribunal as it is ab initio void and without jurisdiction. 9. In reply, the learned counsel appearing for the respondents pointed out that it is idle for the Devaswom now to contend that Ext.A1 is a license deed. According to the learned counsel, such a S.A.Nos.388 and 613 of 1998 7 plea has no foundation in the pleadings before the trial court and it was raised by the first time before the lower appellate court. Apart from the above fact, the learned counsel also pointed out that the evidence in the case clearly discloses that possession was in fact given to the person in whose favour Ext.A1 was executed and he had made improvements in the property. According to the learned counsel, merely because the Bhajanamadam as required under the Ext.A1 document was not put up, that does not make the document a license. In support of the contention various documents and evidence in the case are relied on by the learned counsel for the respondents. It was contended that plea of fraud and collusion has no basis because it can be seen that in the proceedings before the Land Tribunal the Devaswom did contest the matter. Even assuming that at the relevant time the president of the Devaswom was the close relative of the Vasudeva Kurup, the later president had no relation whatsoever with Vasudeva Kurup. The learned counsel contended that if the Devaswom was aggrieved by the issuance of purchase certificate it has to resort to such remedies as are available to it under law. It could not be said that Ext.A1 document is only a license and that the Devaswom is entitled to ignore the purchase certificate as one issued without jurisdiction. S.A.Nos.388 and 613 of 1998 8 10. According to the learned counsel appearing for the respondents both the courts below have considered the matter in considerable detail and the findings are based on appreciation of the evidence in the case. Therefore, these appeals are to be dismissed. 11. The essential question that arises for consideration is regarding the nature of Ext.A1 document. While the appellant would contend that it only a license, the respondents contended that it is a lease. Both the courts below have concurrently found that it is a lease deed. 12. One may now have a look at the relevant recital in the said document. “ÈßBZæAÞøáÍ¼ÈÎÀ¢ ÕÏíMßºîí ¦øÞÇÈ È¿JßæµÞUáKÄßÈá¢ ÈßBZ ¦ÕÖcÞVÅ¢ çÕIçÆÙmBZ æºÏñáÈ¿KáæµÞUáKÄßÈá¢ çÕIß ¿ß ØíÅÜJßÈáÄùMÞG¢ ÉÃ¢ ²çKÎáAÞÜá¢ ¦IáçÄÞùá¢ ¿ß çÆÕØbJßçÜAáçÕIß ÍøÃAÞV ÉAW æµÞ¿áJí µáùßÕÞBßÏá¢ È¿KáæµÞUáKÄßÈá¢ ØNÄßºîá¢ ¨ÉÞG ©¿O¿ß ¦ÇÞø¢ ®ÝáÄßÄKßøßAáKá.” 13. It is true that the document mentioned about the Bhajanamadam but the document also enables the person to effect improvements. One has to remember that the extent of property is S.A.Nos.388 and 613 of 1998 9 50 cents. Admittedly, improvements have been effected. It could not be said that possession was not handed over to the person and it remained in the possession of Devaswom. Subsequent dealings with the property by the person in favour of whom Ext.A1 was executed and the subsequent assignees clearly show that it was in the nature of lease deed and not a license. Plaintiffs in O.S.204/1978 have produced Exts.A4, A4(a) and A4(b) evidencing payment of rent to the Devaswom. They have also produced Ext.A6 document to show that the property has been in the exclusive possession of Vasudeva Kurup. If that be so, the assignment evidenced by Ext.A2 by Velayudha Kurup to Vasudeva Kurup cannot be treated as illegal or without authority. On a reading of Ext.A1 document, it could not be said that it is a licence pure and simple. On the other hand it could be seen that Velayudha Kurup took possession of the property for certain purpose. The mere fact that the Bhajanamadam as such has not been established does not mean that the document cannot be said to be a lease deed. Further, it is significant to notice that the proceedings were initiated before the Land Tribunal by Vasudeva Kurup for assignment of the property. 14. True, there seems to be some mischief played by the Devaswom in contesting the matter. The learned counsel for the S.A.Nos.388 and 613 of 1998 10 appellant pointed out that devaswom was not aware of the matter for a long time. By the time, they came to know about it the proceedings were already over and that was a result of fraud and collusion. It is contended that the purchase certificate was obtained by fraud and collusion. 15. The proceedings show that there was independent enquiry by the Land Tribunal. The Land Tribunal satisfied that Vasudeva kurup was actually a cultivating tenant. 16. It was pointed out by the learned counsel for the respondents that Ext.A2 is only a voidable document and if the Devaswom was aggrieved by the issuance of purchase certificate they had to approach the Land Tribunal or such other authority under the Kerala Land Reforms Act. Without resorting to any such remedy, they cannot now be heard to say that the issuance of purchase certificate was without jurisdiction. 17. The Devaswom had filed an appeal before the Land Tribunal Appellate Authority which was beyond the period of limitation and the appeal was dismissed. Consequent to the dismissal of the appeal, Devaswom did not pursue the matter as per the provisions of the Kerala Land Reforms Act. It could not be said that the proceedings are without jurisdiction and the Devaswom can ignore the same. S.A.Nos.388 and 613 of 1998 11 There is nothing to show that anything prevented the Devaswom from pursuing the matter further when the appeal was dismissed as barred by limitation by the appellate authority. 18. In the decision reported in (AIR 1959 SC 798) Balakrishna v. Sree D.M. Sansthan, it was held that when the transaction or the proceedings were void one, it is not necessary for challenge the same in the light of above discussion. It is significant to notice that the plaintiffs in O.S.No.204/1978 adduced convincing evidence to show that the property was actually put in possession of Velayudha Kurup and has transferred it to Vasudeva Kurup. Both the courts below have accepted the case put forward by the plaintiffs. 19. As already noticed, it is not possible, in the light of the evidence adduced in the case to hold that Ext.A1 is a license. The plaintiffs in O.S.No.204/1978 had a case that after the issuance of the purchase certificate, Devaswom trespassed into the property and reduced it into their possession and they instituted the suit. Devaswom strongly disputed that the plaintiffs are in possession of the property. Ext.A6 belies this contention. That shows that a portion of the property was given under an arrangement to another person and he has surrendered the same. This has to be taken along with the issuance of purchase certificate, under Section 72 K of the S.A.Nos.388 and 613 of 1998 12 Kerala Land Reforms Act. A purchase certificate is issued to the person who is in actual possession of the property. It is not shown that the courts below have erred in any manner in coming to the conclusion that Ext.A1 is a lease transaction and not a license as contended by the Devaswom. If that be so, it cannot be said that the issuance of purchase certificate is without jurisdiction and Devaswom is entitled to ignore the same. Purchase certificate has been issued by a statutory authority after following the procedures under the relevant statute and it is a conclusive of the right, title and interest over the property of the person to whom it is issued. Both the courts below have properly considered the evidence on record. No grounds are made out to interfere with the judgment and decree of the lower courts. These appeals are without merits and they are dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln