IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 RSA.No. 396 of 2008(E) ---------------------- AS.162/2002 of ADDL.DISTRICT COURT (ADHOC)-I, KASARAGOD OS.380/1987 of ADDL.MUNSIFF, KASARAGOD .................... APPELLANTS/APPELLANTS/DEFENDANTS:- 1. RAMACHANDRA BHAT S/O.PARTHAJE SUBBAYYA BHAT, HINDU CULTIVATORS VORMBUDI, ENMAKAJE VILLAGE P.O.PERLA, KASARAGOD TALUK. 2. P.SUMATHI, W/O.RAJARAMA SHARMA. 3. SHIVA PRASAD, S/O.RAJARAMA SHARMA. 4. PRASANNA, D/O.RAJARAMA SHARMA (APPELLANTS 2 TO 4 ARE THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND DEFENDANT, P. RAJARAMA SHARMA, S/O. PARTHAJE SUBBAYYA BHAT, CULTIVATORS, VORMBUDI, ENMAKAJE VILLAGE, P.O. PERLA) BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH RESPONDENT(S): RESPONDENTS/PLAIANTIFFS 1. V. SANKARANARAYANA BHAT S/O.PARTHAJE SUBBAYYA BHAT, HINDU, CULTIVATOR VORMBUDI, ENMAKAJE VILLAGE, P.O. PERLA KASARAGOD TALUK. 2. P. NARAYANA BHAT. 3. P.GOVINDA BHAT. (NOS.2 AND 3 THE SONS OF SHIVARAMA BHAT CULTIVATORS, RESIDING AT PERLA, ENMAKAJE VILLAGE KASARGOD) R.S.A No. 396/2008 : 2 : *4. SARASWATHI, W/O.NARASIMHA BHAT (DELETED) KUMARA NILAYAM HOUSE, P.O.UPPINAMGADI DAKSHINA KANNADA DISTRICT, KARNATAKA STATE. 5. PARAMESHARI, W/O.SHANKARANARAYANA BHAT HOUSE HOLD, ANUPAMA HOUSE, PERPALADY KODIKALLU, ASHOK NAGAR, MANGALORE TALUK KARNATAKA STATE. * 6. KAMALA, W/O.SHANKARA BHAT, (DELETED) RESIDING ATMUDIYOOR HOUSE, KANYANA VILLAGE AND POST BANTWAL TALUK, D.K. KARNATAKA STATE. 7. PARVATHI, W/O.NARAYANA BHAT CULTIVATOR, RESIDING AT PERLA P.O. ENMAKAJE VILLAGE, KASARAGOD TALUK. 8. JAYALAKSHMI AMMA W/O.LATE P.RAMAKRISHNA BHAT VARMUDI EMMAKAJE VILLAGE, KASARGOD TALUK. 9. KRISHNA KUMARI W/O.PROF. B.SRINIVASA RAO, RESIDING AT A-14 KAILAS QUARTERS, UPENDRA NAGAR, MANIPAL, UDIPI. 10. SHIVAPRASAD, RESIDING AT VARMUDI EMMAKAJE VILLAGE, KASARGOD TALUK. 11. SHRIHARI, ADVOCATE, RESIDING AT 1ST FLOOR, EDATHIL BUILDING NEAR ST.MARY'S GIRLS HIGH SCHOOL, MARKET ROAD ERNAKULAM, COCHIN, KERALA. 12. RAJASHEKARAN, RESIDING AT APT.NO.204 LADFOAM STREET, RALLS CHURCH, USA, 7602. 13. KUMARA SWAMY CHIEF PROJECT MANAGER, FLAT NO.112-B, POL COLONY A212 BUG, P.O.RCF, CHEMBUR, MUMBAI. 14. SMT.VANISHRI, ADVOCATE, RESIDING AT 1ST FLOOR, EDTHIL BUILDING NEAR ST.MARY'S GIRLS HIGH SCHOOL, MARKET ROAD ERNAKULAM, COCHIN, KERALA. R.S.A No. 396/2008 : 3 : 15. SMT. SHASHIKALA, RESIDING AT KUPPATTY HOUSE, UNDEMANE, KUPPATTY P.O. BETHANGADI TALUK, D.K. (NOS.9 TO 15 ARE THE CHILDREN OF LATE RAMAKRISHNA BHAT, THE ORIGINAL 1ST PLAINTIFF IN THE SUIT) (IT IS RECORDED THAT THE LR'S OF R4 & R6 NEED NOT BE IMPLEADED, AT THE RISK OF APPELLANTS AS PER ORDER DATED 25.07.2008 ON I.A. NO. 1620/2008) ADV. SRI.M.GOPIKRISHNAN NAMBIAR(CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 396 of 2008 ========================= Dated this the 14th day of January, 2009. JUDGMENT The defendants in O.S. No. 380 of 1987 on the file of the Munsiff's Court, Kasaragod are the appellants in this Second Appeal. The said suit filed by one Ramakrishna Bhat and his brother Shankaranarayana Bhat was one for recovery of possession with arrears of rent of the plaint schedule property admeasuring 48 cents of land with three buildings thereon in a remote village of Kasaragod Taluk on the ground that the buildings with appurtenant land were allotted to the predecessors-in-interest of defendants 1 to 5. Ramakrishna Bhat, the 1st plaintiff is no more and respondents 8 to 15 herein are his legal representatives. The 1st respondent is the 2nd plaintiff Shankaranarayana Bhat. Respondents 2 to 7 are the legal heirs of the 3rd defendant Narayana Bhat. 2. The suit was resisted by the appellants contending inter alia that the lease was of land and not building and that they were cultivating tenants entitled to fixity of tenure under the Kerala Land Reforms Act, 1964. 3. The question of tenancy was the subject matter of R.S.A. No. 396/2008 : 2: issue No.3 and additional issue No. 9. The said question was referred to the competent Land Tribunal under Section 125(3) of the Land Reforms Act. On the side of the plaintiffs, the 2nd plaintiff and another witness were examined before the Land Tribunal and Exts.A1 to A27 were got marked. On the side of the defendants, the 1st defendant was examined as DW1 and Exts. B1 to B3 were marked. The report filed by the Special Revenue Inspector as well as the report filed by the Advocate Commissioner were also marked as Exts.C1 and C2. The Land Tribunal, Kasaragod where the case was registered as R.C 6/1994, after trial, returned a finding dated 21.04.1995 to the Munsiff's Court to the effect that the lease was in respect of buildings with appurtenant land exempted under Section 3(i) (ii) of the Kerala Land Reforms Act and therefore the defendants are not cultivating tenants entitled to fixity of tenure under the Kerala Land Reforms Act. The trial court accepted the findings of the Land Tribunal and granted a decree for eviction as prayed for. On appeal preferred by the appellants before the District Court, Kasaragod as A.S. No. 162 of 2002, the appellants canvassed the correctness of the R.S.A. No. 396/2008 : 3: findings of the Land Tribunal. That court after a reappraisal of the oral and documentary evidence, came to the conclusion that the lease was in respect of the buildings with appurtenant land and therefore exempted under Section 3(i)(ii) of the Kerala Land Reforms Act and consequently the appellant could not claim that they are entitled to fixity of tenure under the said Act. The appeal was accordingly dismissed as per judgment and decree dated 28.02.2007. Hence this Second Appeal. 3. The following are the questions of law formulated in the memorandum of appeal:- 1. In the case of an oral lease of land and evidence for payment of rent in terms of coconuts, were the courts below justified in holding that the lease in the instant case was a building lease for the reason that there are some buildings in the property? 2. What, if any, are the tests to determine whether a piece of land is agricultural land or not? 3. In the light of the contention of the respondents that the appellants are the successors-in-interest of the original tenant late Shivarama Bhat, were not the courts below in error in holding that the suit was not bad for non-joinder of all the legal representatives of the original tenant? 4. Since the respondents have denied the title of the co- owners, was not the suit bad for non-joinder of the remaining co- owners as held in 1993(2) KLT 67? 5. The respondents having been in possession of the R.S.A. No. 396/2008 : 4: property for over 61 years, were the courts below justified in holding that they were not entitled to the value of the improvements in the property? 4. The learned counsel appearing for the appellants made the following submissions in support of this appeal:- The property is 48 cents of land in a remote village of Kasaragod Taluk. The fact that there are three buildings in the property need not induce the court to came to the conclusion that the lease was of building with appurtenant land. In Santhamma v. Prabhakaran (1986 KLT 889) lease of 23 cents of land in a Corporation area containing 33 bearing coconut trees and one thatched shed, was held to be a lease of land. Such should be the yard stick to be applied for evaluating the question as to whether the lease is one of land or building with appurtenant land. 5. I am afraid that I cannot agree with the above submissions. The findings recorded by the Land Tribunal was after a careful evaluation of the oral and documentary evidence to hold that the lease was one of building with appurtenant land. Admittedly, there are three buildings in the plaint schedule property admeasuring 48 cents. Applying the R.S.A. No. 396/2008 : 5: ratio in the decision of the Apex Court in K. Bhagirathi G. Shenoy v. K.P. Ballakuraya (1999 (2) KLT 195) which involved 1.06 acres of land in the very same Kasaragod taluk, it cannot be said that the lease in question was of land only. There cannot be any quarrel that under Section 3(1) (ii) of the Kerala Land Reforms Act lease only of building with land, if any, appurtenant thereto are exempted from chapter II of the said Act. Therefore, the benefit of Section 72(B) does not enure to a tenant in respect of a lease of building with appurtenant land. Consequently, such a tenant cannot claim the status of a cultivating tenant so as to be entitled to fixity of tenure under the Kerala Land Reforms Act. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 14th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 396/2008 : 6: R.S.A. No. 396/2008 : 7: