IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT;- THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH MARCH,2007/7TH CHAITHRA 1929 S.A.NO.311 OF 1988 ------------------ (A.S.NO.111/1986 ON THE FILE OF DISTRICT COURT, PARUR. O.S.NO.129/1980 ON THE FILE OF PRL.SUB COURT, PARUR.) APPELLANT;- 9TH DEFENDANT (APPELLANT IN AS) ------------------------------------------- THE STATE BANK OF TRAVANCORE, ALWAYE BRANCH REPRESENTED BY ITS BRANCH MANAGER. BY ADV.SATHISH NINAN RESOPONDENTS (RESPONDENTS -PLAINTIFFS 1 TO 5 AND DEFENDANTS 1 TO 8 AND 10) ----------------------------------------------------------- 1. THACHIL, WIFE OF KUNJALI, CHERAIKATTU HOUSE, NORTH EZHIPRAM. 2. C.A.SULAIMAN, SON OF KUNJALI, DO. DO. 3. AISHA, D/O.KUNJALI, OF -DO- -DO- AND W/O.KOCHAMMAD, RESIDING AT KALADI, ALWAYE TALUK. 4. PATHU, D/O.KUNJALI, OF -DO- AND W/O.KADIRKUTTY RESIDING AT NEDUVANNOOT, NEDUMBASSERI, ALWAYE TALUK. 5. HOWA, D/O.KUNJALI, -DO- -DO- AND WIFE OF MOHAMMED RESIDING AT EDATHALA, ALWAYE TALUK. 6. MARIYUMMA, WIFE OF MAKKAR SAHIB, PARILONATHODATHU HOUSE RESIDING AT HAYATHU VILLA, ALWAYE VILLAGE -DO- KARA. 7. KOCHU PATHU, D/O. MAKKAR SAHIB, -DO- -DO- 8. ABDUL KADIR, SON OF MAKKAR SAHIB OF -DO- 9. FATHIMA BEEVI, W/O.MAYANKUTTY METHAR, KAKKANATTU PARAMBIL, CHOWARA VILLAGE. 10. AMINA BEEVI, D/O.ABDULLA METHAR, KAKKATTU PARAMBIL OF -DO- -DO- 11. AISU, WIFE OF MOHAMMAD PILLAI, MANADATHUPARAMBIL THAYIKATTUKARA, ALWAYE VILLAGE. 12. V.K. KESAVAN, SON OF KUNHARAKKAN, VELLIKATTIL VENGOLA KARA, SOUTH VAZHAKULAM. 13. JANAKI, WIFE OF KESAVAN OF -DO- -DO- 14. M.A.KARIM, BLOCK NO.6, HUSSAIN D' SILVA, MARKOZ FLAT NO.24, ARAMBHA, KARACHI, PAKISTAN. (STRUCK OFF) (THE NAME OF THE 14TH RESPONDENT HAS BEEN STRUCK OFF FROM THE PARTY ARRAY AT THE APPELLANTS RISK AS PER ORDER DATED 6.1.92 ON C.M.P.NO.1868/91.) BY ADVS.SRI.V.GIRI FOR R3 “P.N.KRISHNANKUTTY ACHAN, “SIRAJ KAROLI & SREEKUMAR FOR R2 “ K.A.JALEEL FOR R8 SMT. N.N. GIRIJA FOR R12 & R13 THIS S.A. HAVING BEEN FINALLY HEARD ON 12/3/07 ALONG WITH S.A.NOS.517/88 & 885/88, THE COURT ON 28/3/07 DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A.NO.311/88,517/88&885/88 =========================== Dated this the 28th day of March 2007 JUDGMENT These appeals are filed challenging concurrent decree and judgment in O.S.129/1980 on the file of Sub Court, Parur. 9th defendant who is the appellant in A.S.111/1986 is the appellant in S.A.311/1988. 5th defendant the appellant in A.S.117/1986 is the appellant in S.A.517/1988. Defendants 7 and 8 the appellants in A.S.121/1986 are the appellants in S.A.885/1988. Respondents 1 to 5 in the appeals are the plaintiffs and other respondents, the other defendants in the suit. Plaint schedule properties consist of 3.30 acres in survey No.260/4C2, 2.20 acres in survey No.309/2B and 4.34 acres in survey No.309/2C of Vazhakulam village. The total extent is 9.84 acres. Suit was filed seeking a decree for declaration of lease hold right of respondents 1 to 5 and 14th respondent (10th defendant in the suit) over plaint schedule S.A.NOS.311/88,517/88 & 885/88 2 properties and for recovery of possession from defendants 4 to 6 and 9, which is approximately shown as six acres of land forming western portion of the plaint schedule property, with future mesne profits. Admittedly plaint schedule properties originally belonged to late Makkar Sahib. Makkar Sahib died in 1967. Fifth respondent is the widow and respondents 6 and 7 are the children of Makkar Sahib. First respondent/first respondent is the widow and respondents 2 to 5 and respondent No.14, plaintiffs 2 to 5 and 10th defendant are the children of Kochunni Kunjali. Kunjali died on 24- 12-1978. According to plaintiffs, 14th respondent secured Pakistan citizenship and is permanently settled in Pakisthan. Plaintiffs contended that plaint schedule properties are portions of a larger plot measuring approximately 13.95 acres which originally belonged to Makkar Sahib and the entire property was taken on lease by Kunjali on an annual rent of Rs.150/- from Makkar Sahib in 1120 M.E. Pursuant to the oral lease when Kunjali took S.A.NOS.311/88,517/88 & 885/88 3 possession of the plaint schedule properties it was found out that taking advantage of absence of Makkar Sahib, who was residing away at Alwaye, Moosan Hydrose and Kochunni Kunju reduced possession of about four acres of the lease hold property. Therefore Kochunni could take possession of only the plaint schedule properties excluding the properties in the possession of Hydrose and kunjali and Kunjali has been in exclusive possession and enjoyment of the plaint schedule properties as a lessee paying rent. It was contended that defendants 1 to 3 as legal heirs of Makkar Sahib sold the jenm right in respect of three acres to defendants 4 and 5 and another three acres to 6th defendant under Ext.A1 and A2 assignment deeds dated 24.7.1968. But defendants 4 to 6 could not get possession of the properties purchased as the property was in the possession of Kunjali as a tenant. It was contended that when the assignees tried to take possession, Kunjali resisted and third defendant thereafter approached S.A.NOS.311/88,517/88 & 885/88 4 Kunjali and because of the good relationship Kunjali had with late Makkar Sahib and due to the moral pressurisation Kunjali was persuaded to surrender the leasehold right Ext.A3 in respect of 4.92 acres of the plaint schedule properties styled as assignment of leasehold right in consideration for the jenm right of 75 cents of the remaining property assigned by defendants 1 to 3 to Kunjali under Ext.A4 assignment deed. Plaintiffs also contended that though Ext.A3 is styled as assignment of the lease hold right, it was in fact surrender of the lease hold right in respect of 4.92 acres which is in violation of Section 51 of Kerala Land Reforms Act (hereinafter referred to as the Act) and therefore it is invalid and no right under Ext.A2 could be claimed by the assignees. It was further contended that under the cover of Exts.A3 and A4, defendants 4 and 5 assumed possession of three acres of land and 6th respondent assumed possession of 3 acres of land and the assumption of possession of land is illegal and S.A.NOS.311/88,517/88 & 885/88 5 unauthorised. It was also contended by plaintiffs that being successors in interest of Kunjali, they are entitled to recover possession of portion of the plaint schedule properties, which is in the possession of defendants 4 to 6 and 9 on the strength of their leasehold right and fixity of tenure. It was contended that third defendant on 27.9.1974 executed Ext.A5 assignment deed in favour of 7th defendant assigning of 5.22 acres out of 7.20 acres allegedly obtained pursuant to Ext.A3 (document No.2648/68) and Ext.A5 is a fraudulent, collusive and invalid transaction. It was contended that even if the third defendant obtained right as per Ext.A3 assignment deed, it is only 4.92 acres and as per Exts.A1 and A2, they have already alienated six acres and therefore third defendant had no property left to be assigned to 7th defendant and it is an outright fraudulent document and no title was passed. It was also contended that as per Ext.A6 assignment deed dated 27.9.1974 defendants 1 to 3 assigned 7.20 acres of property S.A.NOS.311/88,517/88 & 885/88 6 to 8th defendant, the wife of 7th defendant, and Ext.A6 is also ipso facto invalid and the document did not confer any right, title or interest. It was further contended that the assignors who had only jenm right over plaint schedule property executed conveyance for 11 acres 97 cents and no right was obtained therein and defendants did not derive any right or title thereunder. It was also contended that 7th defendant and second respondent/second plaintiff were working in the same school and maintaining very cordial relationship and second respondent had absolute faith in 7th defendant and betraying the confidence and implicit faith reposed by second respondent, 7th defendant made second respondent to join in execution of some bonds in favour of N.E.S. Block, Vazhakulam along with 8th defendant and second respondent without knowing the contents or implication of the document and without receiving any consideration executed the same. Second respondent came to know about the fraud practised S.A.NOS.311/88,517/88 & 885/88 7 only later. Contending that some documents were executed by defendants 4 to 6 whereunder 9th defendant is in occupation of portion of plaint schedule properties and contending that the transaction in favour of 9th defendant without the junction and intervention of legal heirs of Kunjali are invalid, the suit was filed seeking a decree for declaration of leasehold right and recovery possession of western six acres of plaint schedule property from the possession of defendants 4 to 6 and 9. 2. 5th defendant/appellant in S.A.517/1988 filed a written statement denying the plaint allegations and contending that after the death of Makkar Sahib , his legal heirs were in possession of the property and there was no lease arrangement between Makkar Sahib and Kunjali and one acre of plaint schedule property was sold by respondents 1 and 3 as per Ext.A2 assignment deed and under same documents, 2 acres of plaint schedule property was sold to 4th defendant and from the date of Ext.A2 S.A.NOS.311/88,517/88 & 885/88 8 the said properties are in their possession and while so, they created an equitable mortgage in favour of 9th defendant in respect of the property for the loan obtained by defendants 4 to 6 and husband of the 4th defendant and when the amount was not repaid, 9th defendant instituted O.S.131/1974 and the suit was decreed ex parte and 5th defendant was not aware of the suit and coming to know about the decree, she filed O.S.140/1979 before Munsiff Court, perumbavoor and that suit is pending and respondents 1 to 5 are not entitled to get any relief in the suit. 3.Defendants 7 and 8 appellants in S.A.885/1988 filed a written statement contending that 7th defendant purchased 5.22 acres as per Ext.A5 assignment deed and he has been in exclusive possession of the property and defendants 1 to 3 also executed Ext.A6 assignment deed in favour of 8th defendant his wife in respect of 11.88 acres and thus they are in possession of the said properties as absolute owners. It was contended S.A.NOS.311/88,517/88 & 885/88 9 that 75 cents lying on the eastern side of that property was purchased by 8th defendant from Kunjali as per an agreement dated 27.1.1975 and 8th defendant was put in possession of that property, but on account of his death, no sale deed could be executed and an attempt was made by second defendant and others to trespass into the property and thereafter proceedings under section 145 of the Code of Criminal Procedure was initiated by Police and neither Hydrose nor Kochunni was in possession of 4 acres as stated in the plaint and the documents executed by defendants 1 to 5 being the legal heirs of Makkar Sahib are valid and binding and the case of the plaintiffs that they are in possession of four acres is not correct and they are not entitled to the decree sought for. 4. 9th defendant the appellant in S.A.311/1988 filed a written statement contending that 9th defendant got delivery of possession of six acres of the property mentioned in the plaint as per delivery report, in court auction sale in S.A.NOS.311/88,517/88 & 885/88 10 O.S.131/1974 and that an equitable mortgage in favour of the bank over that property was created by defendants 4 to 6 its owners who purchased the said property from defendants 1 to 3 the legal heirs of original owner Makkar Sahib and plaintiffs and 10th defendant have no right over the property and they are not entitled to the decree sought for. They also contended that Kunjali was not in possession of six acres and even if Kunjali had any lease hold right, it was confined and limited to the extent of the property described under the deed and nothing more and therefore plaintiffs are not entitled to the decree sought for. 5. The trial court framed necessary issues. As is bound to, issue regarding the lease claimed by plaintiffs was referred to Land Tribunal, Perumbavoor under section 125(3) of the Act. Before the Land Tribunal, six witnesses were examined on the side of plaintiffs,and four witnesses were examined on the side of defendants. Exts.A1 to A12 and R1 to R24 and C1 were also S.A.NOS.311/88,517/88 & 885/88 11 marked. Land Tribunal as per finding dated 30.11.1984 upheld the lease hold right claimed by plaintiffs. After receipt of the findings, trial court examined PW1 and marked Ext.A1 to A6 and C1 to C1(b). As is bound to, the findings of the Land Tribunal was upheld and it was found that plaintiffs have the lease hold right claimed. The suit was decreed. 5th defendant, defendants 7 and 8 together and 9th defendant respectively filed A.S.117/1986, 121/1986, and A.S.111/1986 challenging the decree and judgment passed by learned Sub Judge before District Court, Parur. Learned Additional District Judge on reappreciation of evidence confirmed the findings of the Land Tribunal and upheld the tenancy claimed by plaintiffs. Confirming the judgment and decree passed by learned Sub Judge all the appeals were dismissed. It is challenging the dismissal of the appeal and concurrent judgment these appeals are filed. 6. The appeals were originally allowed and the S.A.NOS.311/88,517/88 & 885/88 12 decree and judgment passed by courts below were set aside. It was challenged before the Supreme Court.As this court did not formulate substantial questions of law, as per judgment in Civil Appeals 4241-4243 of 2000 dated 25.7.06, the judgment of this court was set aside and Second Appeals were remitted, with a direction to dispose them after formulating substantial questions of law. 7. On hearing learned counsel appearing for appellants and learned senior counsel appearing for respondents, the following substantial questions of law are formulated. 1) Whether Ext.A3 surrender deed is invalid in view of Section 51 of Kerala Land Reforms Act and if so, whether the suit for recovery of possession is barred by virtue of Section 51, Section 13A(2) read with section 125(1)of Kerala Land Reforms Act? 2) Whether defendants 4 to 6 and 9 are bona fide purchasers for valuable consideration and if so whether they are entitled to the protection provided under proviso to Section 13A(1)of the Act. S.A.NOS.311/88,517/88 & 885/88 13 3) Whether courts below erred in construing Ext.A3 as a surrender deed when the document shows that it was an assignment of tenancy right. 4) Whether the courts below failed to consider material evidence while considering the claim for tenancy raised by the plaintiffs. 5) Whether plaintiffs are entitled to the recovery of possession of the plaint schedule properties without challenging the redelivery ordered in favour of fifth defendant. 6) Whether courts below were correct in granting a decree for recovery of possession as against defendants 7 and 8 when no such relief was claimed in the plaint. 8. The jenm right of deceased Makkar Sahib over the plaint schedule properties is admitted by all the parties. When the plaintiffs contend that there was an oral lease in favour of Kunjali in respect of the entire properties including the plaint schedule properties but 4 and odd acres were in the possession of Hydrose and Kunju and S.A.NOS.311/88,517/88 & 885/88 14 only the balance of 9 and odd acres could be obtained possession under the lease by Kunjali and he continued to be a lessee under Makkar Sahib, defendants contended that Kunjali was not a lessee at all, though at the time of evidence it was contended that he was a lessee of 4.92 acres which was subsequently surrendered by Kunjali under Ext.A3 dated 29.7.1968. On the death of Makkar Sahib, his rights admittedly devolved on his legal heirs the widow and children defendants 1 to 3. Under Ext.A1 sale deed dated 24.7.1968 defendants 1 to 3 assigned 3 acres of plaint schedule property in favour of 6th defendant. On the same day defendants 1 to 3 also assigned 3 acres under Ext.A2 sale deed in favour of defendants 4 and 5. It was thereafter on 29.7.1968 Kunjali surrendered his lease hold right under Ext.A3 in favour of defendants 1 to 3 in respect of 4.92 acres and defendants 1 to 3 in turn conveyed jenm right over 75 cents of the property in favour of Kunjali under Ext.A4 sale deed on the same day. In the plaint S.A.NOS.311/88,517/88 & 885/88 15 itself it was admitted that pursuant to Ext.A3, 4.92 acres of land was taken possession by defendants 1 to 3, though it was contended that the surrender under Ext.A3 was invalid in view of the provisions of Section 51 of the Act and thereby defendants 1 to 3 did not derive any right over the property surrendered under Ext.A3. Subsequent to Exts.A1 and A2, defendants 4 to 6 obtained a loan, after creating an equitable mortgage, from 9th defendant bank. 9th defendant bank, for realisation of the amount due under the equitable mortgage instituted O.S.131/1974 before Sub Court, Perumbavoor and obtained a decree against defendants 4 to 6 and thereafter the mortgaged properties were sold in court auction sale and purchased and taken delivery by 9th defendant. 9.The suit was infact filed for declaration of the lease hold right of plaintiffs over the plaint schedule properties and for recovery possession of six acres of land forming the western portion of the plaint schedule properties. The Commissioner S.A.NOS.311/88,517/88 & 885/88 16 identified the properties and submitted Ext.C1 report and C1(a) and C1(b) plans. In Ext.C1(a) plan, Commissioner has demarcated the properties covered under Ext.A1 to A4. The 75 cents covered under Ext.A4, the jenm right over which was assigned by defendants 1 to 3 in favour of Kunjali was demarcated by the Commissioner in green colour as the north eastern plot shown as the property covered under document No.2649/1968. The 3 acres covered under Ext.A1 is the brown coloured plot comprised in 309/2B and 309/1C which is the southern plot shown by the Commissioner, as the property covered by document No.2621/1968. To its north is the 3 acres shown in blue coloured plot as the property covered under Ext.A2 sale deed. It was shown by the Commissioner as the property covered by document No.2620/1968. The 4.92 acres covered under Ext.A3 was shown by the Commissioner in red colour, to the south of the plot covered under Ext.A4 and to the east of the properties covered under Exts.A1 and A2. S.A.NOS.311/88,517/88 & 885/88 17 10. Case of plaintiffs was that Kunjali had lease hold right over the entire plaint schedule properties inspite of Ext.A3 surrender as Ext.A3 was invalid being in violation of Section 51 of the Act. The Senior Counsel appearing for plaintiffs vehemently argued that under section 51 of the Act, there is an absolute prohibition against any surrender of a tenancy except, to the Government and that too as provided in the section and therefore Ext.A3 is invalid and the right of the tenant is not lost by execution of Ext.A3 and Kunjali continued to be the tenant and courts below rightly found that Ext.A3 is invalid. Learned counsel appearing for the defendants contended that Ext.A3 is not in fact surrender of the lease hold right and instead only assignment of the tenancy right in favour of one of the landlords and that too after the jenm right was assigned by defendants 1 to 3 under Ext.A1 and A2 in favour of defendants 4 to 6 and therefore Ext.A3 is not a surrender at all and the bar under section 51 of S.A.NOS.311/88,517/88 & 885/88 18 the Act does not apply. It was further argued that even if Section 51 applies, the remedy of the tenant is only as provided under section 13A of the Act to seek restoration of possession of the dispossessed property and in view of Section 125 of the Act, a suit for declaration and recovery of possession is not sustainable. Learned counsel appearing for the appellant bank (9th defendant) argued that the property covered under Ext.A3 and property covered under Exts.A1 and A2 are entirely different properties and therefore on the ground of invalidity of Ext.A3, plaintiffs are not entitled to seek recovery possession of the property covered under Exts.A1 and A2. It was also argued that when the properties covered under Exts.A3 and A4 are the eastern portion of the whole properties, the properties covered under Exts.A1 and A2 are the western plots and therefore the invalidity of Ext.A3 is not at all relevant in considering the lease hold right claimed in respect of the properties covered under Exts.A1 and A2. Learned S.A.NOS.311/88,517/88 & 885/88 19 counsel also argued that a reading of Ext.A3 and A4 make it absolutely clear that Kunjali was only a tenant of eastern portion of plaint schedule property and he had no tenancy right over the western plots covered under Exts.A1 and A2 and therefore plaintiffs cannot claim lease hold right over Exts.A1 and A2 properties. Learned Senior counsel argued that defendants had not raised such a case either before the trial court or the first Appellate Court and therefore they are not entitled to raise a new case in the Second Appeal on the identity of the properties covered under Exts.A1 and A2. It was argued that defendants have no case that Kunjali was a tenant of only the eastern portion of the plaint schedule properties. Instead when in the plaint plaintiffs set up an oral lease in respect of the entire properties, the case of defendants was not that Kunjali had lease hold right over a portion of the plaint schedule properties but denial of the very lease in favour of Kunjali. It was argued that learned Sub Judge S.A.NOS.311/88,517/88 & 885/88 20 and learned District Judge rightly found that when the very lease was disputed and evidence establish that Kunjali was a lessee, the lease could only be for the entire properties and therefore the case advanced by appellants at the second appellate stage is to be rejected. The question whether Kunjali had lease hold right over only the eastern portion of the plaint schedule properties and whether Kunjali was a lessee of the properties covered under Exts.A1 and A2 could be decided a little later. As the very maintainability of the suit was disputed relying on Section 51, 13A and Section 125 of the Act, that question has to be decided first. 11. Section 51 of the Act prohibits surrender of tenancy right in respect of any land held by the tenant in favour of the landlord after coming into force of Amendment Act 12 of 1966 published in the Gazette on 11/11/1966. Under section 51, a tenant could surrender his tenancy right only in favour of the Government and that too as provided S.A.NOS.311/88,517/88 & 885/88 21 under section 51. Section 51A provides that no landlord shall enter on any land which has been abandoned by a tenant and if a tenant abandons his holding and ceases to cultivate the holding, after notice to the tenant and landlord and after hearing objections Government may take possession of the land so abandoned by the tenant. It further provides that in that event Government shall pay to the landlord fair rent for the land taken possession of by them from the date on which they take possession of the land. Section 51B mandates that even if tenant surrenders land in violation of the provisions of Section 51 and, if any landlord enters into the possession of any abandoned land, or any land which has not been surrendered in accordance with the provisions of Section 51, he shall be deemed to have contravened the provisions of Section 6 of the Kerala Prevention of Eviction Act, 1966 and shall be punished accordingly. A combined reading of Section 51A and 51B establish that a tenant is not S.A.NOS.311/88,517/88 & 885/88 22 entitled to surrender his tenancy right in respect of any land to the landlord and even if he surrenders the land in contravention of the provisions of Section 51, a landlord is not entitled to enter possession of the land so surrendered. 12. Section 51 reads:- “(1) Notwithstanding anything contained in this Act, a tenant may terminate the tenancy in respect of any land held by him at any time by surrender of his interest therein: Provided that no such