IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 AS.No. 395 of 1997(E) & CROSS OBJECTION -------------------------------------------------------------- OS.58/1994 of SUB COURT, KASARAGOD .................... APPELLANT(S): PLAINTIFF --------------------- *BATYA AGASA, SON OF DEEOMA AGASA RESIDING AT KALINGANA IN BELA VILLAGE AND POST, KASARAGOD TALUK, (VIA) KUMBLA.(DIED) *ADDL. APPELLANTS 2 AND 3 IMPLEADED 2. SREEDEVI G.PAI, D/O. MYNA G. PAI, RESIDING AT ASHWINI NAGAR, KASARAGOD TALUK, P.O. KASARAGOD. 3. NARESH S/O. MYNA G. PAI, RESIDING AT ASHWINI NAGAR, KASARAGOD TALUK P.O. KASARAGOD. ADDL. APPELLANTS 2 AND 3 ARE IMPLEADED AS THE ASSIGNEES OF THE DECEASED IST APPELLANT VIDE ORDER DTD. 28.3.2007 ON IA. 61/2007. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT(S): DEFENDANTS ------------------------- 1. HARISCHANDRA BELCHAPPADA, SON OF KUNHAPPA BELCHAPPADA, RESIDING AT CHIMINADKA IN BELA VILLAGE AND POST, KASARAGOD TALUK, (VIA) KUMBLA. *2 KORAGA BELCHAPPADA, SON OF PAKKEERA BELCHAPPADA, RESIDING AT VODANGALLU IN BELA VILLAGE AND POST, KASARAGOD TALUK, (VIA) KUMBLA.(DIED) AS. 395/1997 3. C.A.ASYAMMA, DAUGHTER OF PEEDIGA ABDULLA HAJI, AND W/O. C.ABOOBACKER HAJI, RESIDING AT CHENGALA VILLAGE, KASARAGOD TALUK, P.O. CHERKALA. 4. T.A.SHAHUL HAMEED, S/O. T.ABOOBACKER HAJI, RESIDING AT MALLYA LANE, KASARAGOD TALUK, P.O. KASARAGOD. 5. C.T.ABDUL MANSOOR, S/O. C.T.ABBAS KUTTY, JASMIN COTTAGE ANEBAGILU, KASARAGOD TALUK P.O. , KASARAGOD. 6. A.K.MOHAMMAD ASHRAFF, S/O. P.A.ABDULKHADER, RESIDING AT KADAVATH IN THALANGARE VILLAGE P.O. KASARAGOD. *ADDL. RESPONDENTS 7 TO 12 IMPLEADED. 7. JANU, W/O. HARISCHANDRA BELCHAPPADA, RESIDING AT THAIVALAPPU, VENORPA BELA VILLAGE & POST. 8. BENHAMMA, W/O. BABU, RESIDING AT BHANDARA MANE IN PATLA VILLAGE P.O. MADHUR. 9. NARAYANI, W/O. NARAYANA, RESIDINGA TSS KODINGAR IN BELA VILLAGE & POST. 10. KRISHNA, S/O. KORAGA BELCHAPAD, RESIDING AT VODANGALLU IN BELA VILLAGE AND POST, KASARAGOD TALUK. 11. RAMA S/O. KORAGA BELCHAPPAD. RESIDING AT VODANGALLU IN BELA VILLAGE AND POST, KASARAGOD TALUK. A.S. NO.395/1997 12. GOPALA, S/O. KORAGA BELCHAPPAD. RESIDING AT VODANGALLU IN BELA VILLAGE AND POST, KASARAGOD TALUK. *ADDL. RESPONDENTS 7 TO 12 IMPLEADED AS THE LRS OF THE DECEASED 2ND RESPONDENT VIDE ORDER DTD. 6.8.07 ON CMP. 702/1998. R3 BY ADVS. SRI.M.V.THAMBAN R4 TO R6 BY SRI. D.KRISHNA PRASAD (CROSS OBJECTOR) SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARISHARMA R1, R7, R11 BY SRI.P.K.MUHAMMED SRI.SURESH KUMAR KODOTH SMT.M.KUSUMA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26/05/2010, ALONG WITH CRP NO. 220 OF 2008 & CRP NO. 171 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.3320/1997 IN AS. NO.395/1997 DISMISSED 26/05/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N.KRISHNAN,J. ========================= A.S.No.395 OF 1997 & Cross Objection, C.R.P. No.220 of 2008 & C.R.P. No.171 of 2010 ====================== Dated this the 26th day of May 2010. JUDGMENT The appeal is preferred against the judgment in O.S.No.58/1994. The revisions are preferred by the appellant in A.A.No.137/1996 and A.A.No.138/1996. A.A.No.138/1996 is preferred against the order in O.A.No.295/1973 and the other A.A.No.137/1996 is filed against the order in O.A.No.2990/1972. O.A.No.2990/1972 was an application filed for certificate of purchase by the plaintiff in O.S.58/1994 of the Subordinate Judges Court, Kasargod. 2. The brief facts necessary for the disposal of the appeal and revisions are stated as follows:- Against the judgment in the suit mentioned above, appeal is preferred A.S.No.395 OF 1997 & Cross Objection, C.R.P. No.220 of 2008 & C.R.P. No.171 of 2010 2 by the plaintiff and the cross objection is filed by defendant Nos.4 to 6. Now I may narrate the facts. 3. It is the case of the plaintiff that the plaint 'A' schedule property belonged to Kodingar family and as per partition it was set apart to two brothers Guddappa Rai and Gowri Shankar Rai who were minors represented by their father at that time. The plaintiff would contend that he had taken lease of the property in the year 1952 and by virtue of the partition in the family of the land lord, the said property has been allotted to Gowri Shankar Rai and thereby the plaintiff is a tenant under Gowri Shankar Rai. He moved an application for purchase of jenmum right in O.A No.2990/1972 before the Land Tribunal of Kasaragode. According to him, the property claimed by him is shown as 'A' schedule and it belonged to him exclusively and the defendant trespassed into the property and therefore, the plaintiff is seeking recovery of possession on the strength of title. On the other hand, the first defendant would contend A.S.No.395 OF 1997 & Cross Objection, C.R.P. No.220 of 2008 & C.R.P. No.171 of 2010 3 that the plaintiff has no manner of right over the property and the plaint schedule property was taken on lease in the year 1960 for a rent of Rs.15/-per year from the father of Guddappa Rai and Gowri Shankar Rai and thereby the first defendant is a tenant of the property entitled to certificate of purchase. He moved an application as O.A No. 295/1973 before the Land Tribunal for getting jenm right. It is also the contention of the first defendant that in the year 1982 he had assigned his right over the property to the third defendant who in turn in the year 1985 had assigned the property in favour of D4 to D6 and thereby D4 to D6 are in possession of the property. 4. The Land Tribunal, where these matters were pending, allowed the petition filed by the first defendant and dismissed the petition filed by the plaintiff. The appeals were preferred against that order by the plaintiff which also ended in dismissal before the appellate authority. Therefore, against the order of the appellate authority, A.S.No.395 OF 1997 & Cross Objection, C.R.P. No.220 of 2008 & C.R.P. No.171 of 2010 4 revisions were filed and this court in revision set aside the orders passed by the Land Tribunal and the appellate authority remanded the case to the Tribunal for fresh consideration. After remand, the matter was pending before the Tribunal. It was during this period there was an assignment and the first defendant did not take any steps to implead his purchasers and ultimately as no steps were taken and as the counsel for the first defendant in the case reported no instructions, the matter was proceeded with available evidence and also the evidence of the land lord Gowri Shankar Rai and thereafter the Tribunal allowed the petition filed by plaintiff and dismissed the petition filed by the first defendant. It was against the order in O.A No. 295/1973, the appeal was preferred as A.A.No.138/1996 and against the order in O.A.No.2990/1972, A.A.No. 137/1996 was filed. There was considerable delay in filing those applications. As the appellant and counsel were not present, the appellate court dismissed both the appeals. A.S.No.395 OF 1997 & Cross Objection, C.R.P. No.220 of 2008 & C.R.P. No.171 of 2010 5 C.R.P No.220/2008 is filed against O.A.No. 295/1973 and C.R.P No.171/2010 is filed against A.A.No.137/1996. The transferees also have filed appeals before the appellate forum and those appeals are even now pending before the appellate forum. So an order which is obtained by the plaintiff is in the absence of the respondent in the petitions before the Land Tribunal. It is true that, in filing the appeal there has been delay. But that has not been prosecuted as well. As far as this case is concerned, the rights with respect to 6.28 acres of land are to be determined. I feel that the important right in immovable property in the form of title is involved. It is desirable that the matter is heard and disposed of rather than on the basis of ex parte proceedings. But at the same time I am also conscious of the fact regarding delay in filing the appeal and therefore, that delay application also deserves consideration by affording an opportunity to the appellant therein to adduce evidence. Therefore, C.R.P No.220/2008 and C.R..P A.S.No.395 OF 1997 & Cross Objection, C.R.P. No.220 of 2008 & C.R.P. No.171 of 2010 6 No.171/2010 are allowed and order passed therein are set aside and appellate authority is directed to restore the restoration petition as well as the petition to condone the delay, and after giving sufficient opportunity to the parties to adduce evidence, then dispose of the delay condonation application and restoration petition and thereafter in case of restoration of the appeal the appeal itself. 5. Now turning to the suit. Since the appeals filed by the present persons in possession are also pending before the appellate authority, all these cases can be disposed of jointly. 6. Now regarding the appeal and cross objection, I feel a conclusive decision cannot be taken in this appeal for the reason that everything depends upon the right of tenancy. It is true that the plaintiff as well as the first defendant are claiming tenancy under the same family. Or in other words there are setting up of rival titles. When it is a rival title it may not be possible for the civil court to refer the matter A.S.No.395 OF 1997 & Cross Objection, C.R.P. No.220 of 2008 & C.R.P. No.171 of 2010 7 to the Land Tribunal. Especially in the backdrop that parallel proceedings are pending adjudication before the authorities constituted under the Kerala Land Reforms Act. Therefore, I feel the finding rendered by the Civil Court that a decree subject to the ultimate finding by the Tribunal has to be set aside and the parties will have to be advised to wait till a decision is taken in the certificate of purchase matter. Parties may move the civil court under Section 151 of the Civil Procedure Code for a stay of the said suit till a final decision is taken in the tenancy proceedings. The lower court was also in error when it is stated that adverse possession and limitation will not arise, for the reason that the contesting defendants are not claiming the tenancy under the plaintiff. They are claiming tenancy against the common landlord and so far as the right of parties are concerned, the adverse possession pleaded must be against the true owner. Now the person who claims independently and if it is with the knowledge of other A.S.No.395 OF 1997 & Cross Objection, C.R.P. No.220 of 2008 & C.R.P. No.171 of 2010 8 party, then the court cannot hold that a plea of adverse possession and limitation will not arise at all. Therefore, I set aside that finding also and leaving it open to be decided at an appropriate stage. 7. Lastly, regarding value of improvements. If the case is decided in favour of plaintiff and adverse possession is found against the defendant. Then their possession to the property will be that of trespassers and not under any right. In such cases, I find that the persons will not be entitled to any value of improvements. That point is also answered accordingly. In the result, the appeal, revisions and the cross objection are disposed of as follows:- (i) Orders passed by the appellate authority which are under challenge in C.R.P No. 220/2008 and C.R.P.No.171/2010 are set aside and appellate authority is directed to consider the restoration application as well as the A.S.No.395 OF 1997 & Cross Objection, C.R.P. No.220 of 2008 & C.R.P. No.171 of 2010 9 delay condonation application independently, after giving the parties necessary opportunity to adduce evidence in support of their contentions. (ii) In case of restoration, the appeals have to be disposed of, as expeditiously as possible, along with the appeal filed by the defendant Nos.4 to 6 in O.S.No.58/1994. (iii) The judgment and decree of the trial court are set aside and the matter is remitted back to the trial Court with a direction to the parties to move an application under Section 151 of Civil Procedure Code for stay of proceedings till a final decision is taken on the question of tenancy. (iv)The finding of adverse possession as well as the value of improvements are also set aside and it is left open to be decided at A.S.No.395 OF 1997 & Cross Objection, C.R.P. No.220 of 2008 & C.R.P. No.171 of 2010 10 appropriate stage. (v) Parties are directed to appear before the appellate authority on 3.7.10 and before the trial court on 12.7.2010. The cross objection also is allowed to that extent as discussed above. At any rate the appeals filed by D4 to D6 in the suit before the appellate authority also has to be disposed of. M.N.KRISHNAN,JUDGE. mns