IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 AS.No. 31 of 1999(C) -------------------- OS.58/1996 of SUB COURT, KASARAGOD --------------------- APPELLANTS/PLAINTIFFS: ------------------ 1. K.JANARDANA ALVA, S/O.PAKKEERA ALVA, RESIDING AT HOPE LODGE COMPOUND, KODIALBAIL, MANGALORE VILLAGE AND TALUK, P.O. MANGALORE, D.K. 2. DASANNA ALVA, S/O. -DO- -DO- NOW AT KULOOR HOUSE, KULOOR VILLAGE. 3. SOMAVATHI, D/O.-DO- -DO- 4. UMAVATHI, W/O.JAGANNATHA ALVA, RESIDING AT C/O. I.C.RAI, SUVARNA ROAD, KANKANADY, MANGALORE, P.O. MANGALORE, D.K. 5. MALAVIKA, D/O. -DO- -DO- 6. MINOR MAHESH, S/O. -DO- AGD 13, REPRESENTED LBY NEXT FRIEND MOTHER, 4TH RESPONDENT. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI P.B. KRISHNAN RESPONDENTS/DEFENDANTS --------------------- 1. JOHN D. SOUZA, S/O.JOSEPH D. SOUZA, JEEP DRIVER, RESIDING AT BELA IN BELA VILLAGE, KASARAGOD TLALUK, P.O. BELA, KASARAGOD DISTRICT. 2. M. ABDULLA, S/O. K.A. MOIDEENKUNHI, RESIDING IN -DO- -DO- 3. M. ASHRAF, S/O. -DO- -DO- 4. RAMACANDRA MANIYANI, S/O.KUNHIKANNA MANIYANI IN -DO- -DO- 5. ABRAHAM CRASTA, S/O.PETHRU CRASTA, COOLIE, IN -DO- -DO- ADV. SRI.P.K.MUHAMMED FOR R1, R4 & R5 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/12/2009, ALONG WITH OP NO. 13192 OF 1996 . THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.613/2002 & I.A.NO.L404/2009 IN A.S.NO.31/99 -------- Dismissed 7/12/2009 Sd/- Harun-Ul-Rashid, Judge. HARUN-UL-RASHID,J. -------------------------- A.S.NO.31 OF 1999 & O.P.NO.13192 OF 1996 -------------------------- DATED THIS THE 7TH DAY OF DECEMBER, 2009 JUDGMENT Plaintiffs in O.S.No.58/96 on the file of the Sub Court, Kasaragod are the appellants. The suit was filed for recovery of possession with future profits. By the impugned judgment and decree the court below dismissed the suitfinding that the plaintiffs are not entitled to any relief. Hence, this appeal. The parties are hereinafter referred to as the plaintiffs and defendants. 2. Plaintiffs are the owners of plaint A schedule property. According to the plaintiffs, the defendants have no right, title or interest over the plaint A schedule property. According to them, the defendants are the legal heirs of Petru Chrastha. Petru Chrastha and others filed an application before the Land Tribunal for assignment of the right, title and interest of the landlord. It is further pleaded that though the application was -2- A.S.No.31/99 & O.P.No.l3192/96 allowed by the Land Tribunal, the same was set aside by the Appellate Authority in A.A.238/88. According to the plaintiffs, since the possession is unlawful, they prayed that a decree may be passed directing defendants to surrender possession of the plaint A schedule property with future profits. 3. The defendants 1, 4 and 5 contested the suit. According to the lst defendant, late Petru Chrastha was the cultivating tenant of the plaint A schedule property and that he filed O.A.No.1638/72 for assignment of right, title and interest of the land owner. The said O.A. was allowed and purchase certificate was issued to him. After his death, his rights devolved on his children. His legal heirs sold a portion of the property to the lst defendant by sale deed dated 27/7/1988. According to the lst defendant, the appeal filed as A.A.No.238/88 is an incompetent one and was obtained by practicing fraud and collusion by the plaintiffs and the legal heirs of Petru Chrastha. The 4th defendant in his written statement averred that Petru Chrastha was the cultivating tenant of the plaint A schedule -3- A.S.No.31/99 & O.P.No.l3192/96 property. He further averred that on his death his right devolved on his children. According to him, a portion of the plaint schedule A property was sold to Abdulla and Ashraf. That portion is described as C schedule in the written statement. This defendant is a transferee of Sri Abdulla. Both defendants also contended that they have effected valuable improvements in the property. The 5th defendant filed separate written statement in which he averred that Petru Chrastha obtained the property 54 years ago and he was cultivating the property and therefore entitled to assignment of the property under the Land Reforms Act. He also averred that Petru Chrastha filed O.A.No.1638/72. He has also raised more or less same contentions as that of the written statement filed by defendants 1 and 4. 4. The oral evidence of PW1 and DW1 were recorded and marked Exts.A1 to A4, B1 o B14 and C1 ad C2. The suit was filed for recovery of possession of the plaint A schedule property with mesne profits. The definite case of the plaintiffs is that the property originally belonged to Pakkeera Alwa and that -4- A.S.No.31/99 & O.P.No.l3192/96 plaintiffs 1 to 3 are the children of Pakkeera Alwa. According to the plaintiffs, the right in the suit property is devolved on plaintiffs 1 to 6. The plaintiffs contended that the application for purchase filed as O.A.No.1638/72 before the Land Tribunal was allowed. The said order was set aside in the appeal filed as A.A.No.238/88 by the Appellate Authority. Ext.A2 is the copy of the judgment in A.A.No.238/88. Exts.A3 and A4 are the building tax assessment registers in respect of the building in the said property. The 5th defendant was examined on the side of the defendants. As DW1, he testified before the court below that his father filed O.A.No.1638/72 before the Land Tribunal. That application was dismissed. His father filed A.A.No.951/76 and he died during the pendency of the said appeal. His legal heirs were impleaded. The Appellate Authority remanded the matter. Subsequent to the remand, the Land Tribunal again considered the matter and allowed the O.A. The appeal filed by the plaintiffs/landlords against the order of the Land Tribunal after remand was dismissed by the Appellate Authority consequent on -5- A.S.No.31/99 & O.P.No.l3192/96 the dismissal of the delay petition. According to the 5th defendant, since the appeal was dismissed, the order passed by the Land Tribunal has become final and therefore the plaintiffs have no right to recover possession of the plaint schedule property. It is brought to my notice that the lst plaintiff, who is one of the appellant in the appeal (A.A.No.14/1987) filed against the order of the Land Tribunal after remand, again filed another appeal as A.A.No.238/88 without disclosing the dismissal of the earlier appeal. According to DW1, none of the legal heirs of the deceased tenant received notice in A.A.No.238/88. Ext.B9 is a copy of the tax receipt produced. Ext.B10 series of receipts are also produced evidencing payment of tax. Ext.B11 is the demand notice received from the Local Authority. He also deposed that a portion of the property was sold by defendants 1, 2 and 3 jointly. The 2nd defendant sold his property to the 4th defendant and the 4th defendant is in possession of a portion of the plaint A schedule property. The 4th defendant has constructed a house and a cow-shed and had also effected valuable -6- A.S.No.31/99 & O.P.No.l3192/96 improvements of the property. The defendants produced Ext.B12, which is a copy of the order passed by the Appellate Authority in A.A.No.14/87 dismissing the appeal. The said order has become final. Ext.B13 is the copy of the earlier appeal A.A.No.14/87. From Exts.B12 and B13 it can be seen that Jagannatha Alwa, who is also one of the appellants in A.A.No.14/87, preferred A.A.No.238/88 subsequently without disclosing the fact of dismissal of A.A.No.14/87. In Ext.A2 judgment the appellant is described as a third party. The dismissal of A.A.No.14/87 bars the appellants in that case to prefer any appeal. Therefore, the appeal filed by Jagannatha Alwa describing him as a third party is not maintainable. Moreover, he was described as a third party, which itself is a false statement. It is seen from the materials on record that subsequently A.A.No.238/88 was decided in favour of Jagannatha Alwa. Such decision was arrived at by the Appellate Authority, in the absence of the legal heirs of the original tenant. It is seen that no notice was issued to the legal heirs of the -7- A.S.No.31/99 & O.P.No.l3192/96 original tenant and they contended before the court below that they came to know about Ext.A2 judgment only from the plaint. 5. On coming to know about ExtA2 judgment, the legal heirs of Petru Chrastha including 5th defendant filed an O.P. before this Court challenging the judgment in A.A.No.238/88. Ext.B14 is the copy of O.P. O.P.No.13192/96 is pending consideration for all these years and it is taken up for hearing along with this appeal. This Court passed an interim order in the said original petition staying all further proceedings pursuant to Ext.A12 order. The proceedings of the Land Tribunal in O.A.No.1638/72 and the proceedings of the Appellate Authority in appeal are binding on the plaintiffs. Other contentions raised by the plaintiffs cannot stand, in the light of the fact that the property was assigned in favour of the deceased cultivating tenant and the judgment of the Land Tribunal has become final as stated above. 6. O.P.No.13192/96 is filed seeking to quash Ext.P4 judgment of the Appellate Authority in A.A.No.238/88. Other -8- A.S.No.31/99 & O.P.No.l3192/96 prayer in the writ petition is for a direction compelling the 7th respondent to cancel all the proceedings pursuant to the passing of Ext.P4 order relating to the disputed property. In the light of the findings arrived at on the basis of the materials on record, I find that the appeal is without any merit. The reliefs sought for in the original petition is allowable. In the result, the appeal stands dismissed. O.P.No.13192/96 is allowed. Ext.P4 order produced in the O.P. and all further proceedings pursuant thereto are quashed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv. -9- A.S.No.31/99 & O.P.No.l3192/96