IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 RSA.No. 1318 of 2010() ---------------------- AS.42/2002 of I ADDL. DISTRICT COURT, KOLLAM OS.141/1992 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT/RESPONDENT/PLAINTIFF: ------------------------------------------ GOURIAMMA THANKAMMA @ SUMATHYKUTTY AMMA, PALOOR VEEDU, KOTTACKUPPURAM MURI, KULASEKHARAPURAM VILLAGE. BY ADV. SRI.B.KRISHNA MANI RESPONDENT/ADDL.2ND RESPONDENT/LEGAL HEIR OF DEFENDANT --------------------------------------------------------------------------- PARAMESWARA KURUP, S/O.NEELAKANDA KURUP, CHANGANTHOTTATHU VEEDU, ANATTU VADAKKU, KOTTACKUPURAM MURI, KULASEKHARAPURAM.P.O., 690544. ADV. SRI.P.GOPAL SRI.B.MURALEEDHARAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1318 OF 2010 --------------------------------------------- Dated 8th March, 2011 JUDGMENT Appellant is the plaintiff in O.S.141/1992 on the of Munsiff's Court, Karunagappally. Respondent is the legal heir of deceased defendant. Appellant instituted the suit seeking a decree for declaration that Ext.A3 decree granted in favour of deceased defendant in O.S.231/1990 by Munsiff, Karunagappally is not valid and binding on her and also a decree to set aside Ext.A3 decree and for permanent prohibitory injunction restraining the deceased defendant from executing the decree against plaint schedule property. Appellant contended that plaint schedule property originally RSA 1318/10 2 belonged to Changanthottathu family and prior to 1101 ME, plaint schedule property was obtained on lease by Gouri, the mother and her sister Laksmi Amma, on an annual pattam of Rs.20/- from the Karanavan of Changanthottathu tharavadu and since then, they have been in possession of the property. On 25/12/1962 appellant obtained the property and since then she has been in possession of the property. It is contended that O.S.231/1990 was instituted by the deceased defendant and appellant was not a party to the suit. Though after coming to know about the decree, she filed an application to get herself impleaded it was dismissed with liberty to institute a fresh suit and therefore, the suit is instituted. Appellant would contend that Ext.A1 decree in O.S.231/1990 is not binding on her as she was RSA 1318/10 3 not a party to the suit and the decree is not valid and binding on the plaint schedule property and so it is to be set aside. 2. Defendant resisted the suit contending that plaint schedule properties were set apart to deity of Changanthottathu family and affairs of Palur Bhagavathy temple were included in the partition deed of 1101 and as per the provisions of partition deed, affairs of the temple were managed by the Karanavan of the family. From 1101 to 1106, Narayana Kurup and from 1107 to 1116, Kesava Kurup and from 1117 till 1121, Neelakanta Kurup and from 1112 to 1143, Narayana Kurup and till 1155 Junior Kesava Kurup were the Karanavans of the tharawad and Raghava Kurup have been conducting the affairs of the temple and there is no lease arrangement in respect of the plaint schedule RSA 1318/10 4 properties in favour of the appellant or her family and there was no payment of pattam as there was no lease at all and in such circumstances, there was no need to implead the appellant in O.S.231/1990 and appellant is not entitled to decree sought for. 3. As the appellant has raised a claim of fixity of tenure, as provided under Section 125(3) of Kerala Land Reforms Act, question of tenancy was referred to Land Tribunal. Land Tribunal as per its finding dated 28/9/1999, found that appellant has been in possession and enjoyment of 6 cents of plaint schedule property and therefore she is entitled to fixity of tenure. On receipt of said finding, as it is binding on the trial court learned Munsiff accepted the finding and upheld the claim of the appellant in respect of 6 cents RSA 1318/10 5 and dismissed the suit in respect of the remaining property. Decree was granted setting aside Ext.A3 decree in respect of the said 6 cents. It was found that in all other aspects Ext.A3 decree is binding on the plaint schedule properties except 6 cents. Appellant did not challenge the decree refusing the relief in respect of the remaining 21 cents. Deceased defendant filed A.S.42/2002 challenging the decree. On the death of the defendant, respondent his legal representative was impleaded. Learned Additional District Judge on reappreciation of evidence found that Land Tribunal found fixity of tenure without any evidence of lease. Learned District Judge also found that as the appellant is not a party to O.S.231/1990 the decree is not binding on her. Learned District Judge also found that the RSA 1318/10 6 appellant is entitled to raise the objection in the execution proceedings of the decree in O.S.231/1990 and a separate suit is not maintainable. Appeal was allowed to the extent of setting aside the decree granted by the trial court in respect of 6 cents of the property. Second appeal is filed challenging the judgment. 4. Learned counsel appearing for the appellant and learned senior counsel appearing for respondent were heard. 5. On hearing the learned counsel appearing for the appellant, I do not find any substantial question of law involved in the appeal. Appellant instituted the suit seeking a decree for declaration that Ext.A3 decree is not binding on her. Trial court did not grant the decree. Appellant did not challenge the RSA 1318/10 7 decree dismissing the said relief. she did not even file a cross objection in the appeal filed by the respondent. Learned Munsiff refused to grant decree setting aside Ext.A1 decree. Appellant did not file an appeal and also did not prefer a cross objection. In such circumstances, question whether Ext.A3 decree is binding on the appellant or it is to be set aside, does not arise in the second appeal, as the matter has already been concluded by the decision of the trial court which was not challenged on that aspect. The first appeal was only with respect to fixity of tenure granted in respect of 6 cents out of the plaint schedule properties. Learned Munsiff granted relief in favour of the appellant based on a finding rendered by the Land Tribunal under Section 125(3) of Kerala Land Reforms Act which RSA 1318/10 8 is binding on the trial court. First appellate court is competent to set aside or vary or modify that finding in an appeal against the judgment of the trial court. First appellate court considered the finding and found that the materials do not establish the lease. In such circumstances, finding of the Land Tribunal was set aside. Consequently, as the relief was granted in respect of 6 cents solely based on the finding, that decree was not set aside. In the suit appellant did not seek a relief of declaration of his status as cultivating tenant. Hence the question whether appellant is having fixity of tenure is not to be decided in this suit. Hence the finding of the learned District Judge is correct. Learned Additional District Judge granted an opportunity to the appellant to raise the claim for tenancy in the RSA 1318/10 9 execution proceedings of Ext.A1 decree. In such circumstances, I do not find it necessary to consider that question of fixity of tenure in the second appeal. As there is no substantial question of law, appeal can only be dismissed. Appeal is dismissed with the above observation. M.SASIDHARAN NAMBIAR, JUDGE. uj.