IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA TUESDAY, THE 22ND DAY OF NOVEMBER 2011/1ST AGRAHAYANA 1933 SA.No. 450 of 2002 (F) ------------------------------- AGAINST THE JUDGMENT IN AS.229/1998 & CROSS APPEAL OF DISTRICT COURT,THRISSUR DATED 18.3.2002 AGAINST THE JUDGMENT IN OS.588/1992 of MUNSIFF COURT,CHAVAKKAD DATED 19.1.1998 APPELLANT(S)/RESPONDENT IN A.S. NO.229/98 AND APPELLA: ------------------------------------------------------------------------------------------- GURUVAYUR DEVASWOM MANAGING COMMITTEE, REPRESENTED BY THE ADMINISTRATOR CUM SECRETARY, GURUVAYUR AMSOM AND DESOM CHAVAKKAD TALUK. BY ADVS.SRI.U.K.RAMAKRISHNAN (SR.) SRI.V.KRISHNA MENON SRI.P.J.ANILKUMAR SMT.P.VIJAYAMMA SRI.PRINSUN PHILIP RESPONDENT(S)/APPELLANTS IN AS.NO.229/98 & RESPONDENTS: ---------------------------------------------------------------------------------------------- 1. DR.P.S. ANANDARAMAN, S/O. SAHASRANAMA IYER, PUTHUKODE GRAMAM, PALAKKAD TALUK NOW RESIDING AT 87, TRICHY ROAD, THURAIYUR TRICHI - 621 O1O.* (DIED LRs IMPLEADED) 2. P.S. RAMACHANDRAN, C/O. DR.P.S. ANANDARAMAN, S/O. SAHASRANAMA IYER PUTHUKODE GRAMAM, PALAKKAD TALUK, NOW RESIDING AT 87 TRICHY ROAD, THURAIYUR, TRICHI-621 010. 3. P.S. SARASWATHI, C/O. DR.P.S. ANANDARAMAN, S/O. SAHASRANAMA IYER PUTHIKODE GRAMAM, PALAKKAD TALUK, NOW RESIDING AT 87 TRICHY ROAD, THURAIYUR, TRICHY - 621 010. ADDL. 4. SMT. LAKSHMI AMMAL W/O. LATE DR. P.S. ANANDARAMAN, AGE NOT KNOWN, MAHALAKSHMI, VAIDYANATHAPURAM, PALAKKAD. SA.No. 450 of 2002 (F) -2- ADDl.. 5. MR. SAHASRANAMAN, S/O. LATE DR. P.S. ANANDARAMAN, AGE NOT KNOWN, MAHALAKSHMI, VAIDYANATHAPURAM, PALAKKAD. * (ADDL. RESPONDENTS 4 AND 5 ARE IMPLEADED AS LRs OF THE DECEASED R1 AS PER ORDER DATED 15.3.2007 IN I.A.47/2007.) ADDL. R6. P. SANTHA, D/O. LATE DR. P.S. ANANDARAMAN, MAHALAKSHMI, VAIDYANATHAPURAM, AMBIKAPURAM POST, PALAKKAD-11. * (ADDL. R6 IMPLEADED AS LR OF R1AS PER ORDER DATED 3.8.2007 IN I.A.47/2010 IN I.A.1016/2007.) R1 TO 3 BY ADV. SRI.N.L.KRISHNAMOORTHY BY ADV. SRI.K.LAKSHMINARAYANAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J --------------------------- S.A.No.450 OF 2002 And Cross Objection ----------------------------------------- Dated 22nd November, 2011 J U D G M E N T Appellant is Guruvayur Devaswom. A suit was filed by appellant against respondent 1 to 3 for permanent injunction to restrain them from transferring the plaint schedule property or effecting any change or alteration to the building in the property or constructing any building therein or allow any strangers to reside in the property. After trial, Munsiff Court granted a decree restraining the respondents 1 to 3 by a permanent prohibitory injunction from putting up any construction in the plaint schedule property and from effecting changes to the existing building in the plaint schedule property. 2. Respondents 1 to 3 filed appeal before the District court and cross appeal was also filed by Guruvayur Devaswom. Appeal was allowed in part and the decree for permanent injunction was modified and limited only to construction of permanent structures being made in plaint schedule property without consent of Guruvayur Devaswom until it established that respondents 1 to 3 has fixity of tenure, in appropriate proceedings. Cross appeal was S.A. No.450/02 2 dismissed. 3. According to appellant-Devaswom, plaint schedule property along with building therein was given on rent by Devaswom to defendant's (R1 to R3) father Sri Sahasranama Iyer and he was in possession of the same. In the proceedings before the Munsiff Land Tribunal, Chavakkad, the defendant's father had given a statement that he did not want the property that it may be allotted to Devaswom itself and an order was also passed. As per said proceedings, Sri. Sahasranama Iyer lost all his right over plaint schedule property and he only had right to be in possession of the property until it is recovered and respondents are thus having only such right. Devaswom is taking steps for recovery of possession of property. But in the meantime, the respondents are attempting to make alteration to the building and also construct new structures and induct strangers in possession of the building and therefore, an injunction suit is filed in the interest of appellant. 4. The respondents 1 to 3 ( defendants) filed a detailed written statement and contended that it is not correct to say that plaint schedule property was given on rent to Sri. Sahasranama Iyer on rent. The property was taken on lease (“verum pattam”) S.A. No.450/02 3 for cultivation and hence Sri. Sahasranama Iyer had tenancy right falling under Kerala Land Reforms Act and hence, respondents are entitled for fixity of tenure. Statement, if any, given by Sri. Sahasranama Iyer before the Land Tribunal will not be sufficient to destroy the right of tenancy over the property, it is contended. Such a statement was given under certain peculiar circumstances. 5. This will be clear from the very fact that in the petition filed by Devaswom Board under provisions of the Land Land Reforms Act of 1964, plaint schedule property was also included. It is not correct to say that property is covered by Chapter II of Kerala Land Reforms Act. After death of Sri. Sahasranama Iyer, respondents are entitled to get fixity of tenure and suit is to be dismissed. They have no intention to make any construction but they only intend to maintain the property. 6. PW1 was examined and DW1 was examined on the side of plaintiff and defendants respectively. They also marked Ext.A1 series to Ext.A7, Ext.B1 to B4 respectively on their side. Ext.X1 series and Ext.C1 were also marked. Plaintiff-Devaswom Board paid court fee under section 27(a) of Court Fees Act and plaintiff required the court to decide title, but the courts below were of view that question of title in respect of plaint schedule property S.A. No.450/02 4 does not arise for consideration in a suit for injunction, since plaintiff is not seeking relief of eviction or any other reliefs based on title of property. 7. Learned District Judge held that defendants have tenancy right over plaint schedule property, but question whether they have right to assign or not is left open to adjudication, as and when necessary. Though injunction was granted to a certain extent, appellant is aggrieved by the refusal to grant the whole relief and hence, this second appeal is filed. Respondents filed cross objection also. 8. Heard both sides. Perused records. The substantial question of law involved in this appeal is formulated as follows : 1. Can a court grant an injunction in favour of plaintiff, without considering whether he has established his legal right to get injunction ? 9. Learned counsel for appellant vehemently argued that in the nature of contentions raised by the parties in the suit it was necessary for the courts below to consider title of appellant over the plaint schedule property, especially since court fee under section 27(a) of Court Fees Act was paid. It was also argued that though respondent raised contentions that they are entitled to fixity of tenure under Kerala Land Reforms Act, the question of S.A. No.450/02 5 tenancy did not actually arise in this case. In an earlier proceedings before Munsiff and Land Tribunal, Chavakkad, the predecessor of respondent, Sri. Sahasranama Iyer made statement that he did not want that property and the proceedings were closed. 10. Therefore, respondents are estopped from contending that they are tenants under Kerala Land Reforms Act. It is also argued that question of res-judicata also arises in taking up the plea of tenancy. In such circumstances, court below committed a serious error and illegality in holding that defendants-respondents are having tenancy right, it is strongly argued. 11. Learned counsel for appellant also contended that tenancy right is involved in this case but it does not come under Chapter II of Kerala Land Reforms Act since it is exempted under section 3(ii) of Kerala Land Reforms Act. Therefore, Civil Court has jurisdiction to consider the issue involved in the suit. This is not a case which requires reference to Land Tribunal under section 125(3) of Kerala Land Reforms Act. Though certain pleadings are made in the written statement relating to tenancy, fixity of tenure did not arise consideration and Civil court's jurisdiction is not barred in the peculiar facts and circumstances, it S.A. No.450/02 6 is argued. However, the matter was not considered in the proper perspective by the courts below and hence refusal to grant relief as prayed for was wrong, it is argued. 12. It is also pointed out that there is every chance for the respondent to alienate the property and transfer same, without consent of the Devaswom. The property is situated on the Kizhakkenada of Guruvayur temple in an important locality and in case the property is transferred, it will adversely affect the interest of Devaswom, it is submitted. 13. Learned counsel for respondents argued that this case involves a dispute whether the respondents are tenants or not under the Kerala Land Reforms Act. Though appellant would contend that tenancy is in respect of building alone and it is not covered under the Kerala land Reforms Act, even the description in the plaint schedule will make it abundantly clear that tenancy was in respect of land lying in different survey numbers, having different extent. Receipts issued by Devaswom will indicate that tenancy is one falling under Kerala Land Reforms Act, in respect o which respondents are entitled for fixity of tenure, it is pointed out. What is exempted under KLR Act is only the lease in respect of a building and land pertinent there to and not the lease of the S.A. No.450/02 7 land, it is argued. 14. In this case, Ext.B1 itself shows that there was a lease and receipt is issued as “verumpattam chit” and it cannot be said that it is a lease in respect of building, it is strongly contended by appellant. In the light of section 125(3) of the Land Reforms Act, Civil Court's jurisdiction is barred to settle or decide the question of tenancy, it is submitted. The appellant is disputing respondent's tenancy right under KLR Act and respondent have a definite case that they are tenants under section 13, it is submitted. 15. There is a dispute whether respondents are tenants falling under section 13 or not, and hence such question has to be decided in Land Tribunal, it is argued. Court below has not understood nature of the contentions raised by respondents, and held that defendants are the tenants, as contended by appellants, it is submitted. The question whether respondents are entitled for fixity of tenure under section 13, is to be decided by Land Tribunal and not by Civil Court, it is vehemently argued. 16. The question of res-judicata or estoppel does not arise in this case especially since the question of tenancy was not adjudicated or decided by Land Tribunal, it is submitted. S.A. No.450/02 8 Exemption can be claimed only in respect of the lease of building and land appurtenant thereto. The expression “only” in section 3 (ii) of KLR Act is important and lease in this case does not fall under exempted category under section 3, it is argued. Both the courts below failed to consider the issue in the right perspective, it is further submitted. 17. It is also submitted that respondents having entitlement to have fixity of tenure and also the right to make construction and effect any repairs in the building, appellant has no right to prevent them from doing so, by getting any injunction. It is also argued that Devaswom had no right over the property after commencement of Kerala Land Reforms Act, since the right of appellant as landlord is vested in the Government and Devaswom lost all its right as landlord an hence, no injunction can be granted in favour of Devaswom as prayed for. 18. It is also submitted that a part of the building has already fallen down during the pendancy of proceedings and it is essential that the property be maintained, especially since it is very old building, which is taken on lease in 1920, as revealed from Ext.B1. But in the light of injunction granted, respondents are not even able to maintain the property. A petition is filed S.A. No.450/02 9 before this court allowing the respondent to effect repairs, it is submitted. 19. On hearing both sides in the appeal and Cross Objection, and on going through records in this case, it is clear from the pleadings and evidence that while appellant-Devaswom contends that they have right over plaint schedule property as landlord, respondent's contention is that right of the appellant as landlord was lost by virtue of Kerala Land Reforms Act and their right is vested in Government. The question is whether the Devaswom has established their right to get the relief sought for. 20. It is needless to say that in any suit, the party who seeks the relief is bound to establish that he has a legal right to get such relief. Whoever desires any court to give judgment as to any legal right dependent on existence of facts, he must assert such facts and prove that such facts exist. The dispute in this case is whether appellant has right over the property in question as the landlord and whether such right is lost or not by virtue of Kerala Land Reforms Act and it is to be resolved for taking a right decision in this case. 21. But both the courts below did not look into the question whether respondent is the landlord or not as asserted by the S.A. No.450/02 10 appellant and whether the landlord's right is vested in the Government and whether it is lost. Appellants would be entitled to get an injunction as prayed for against respondent only if the court finds that appellant as the landlord has the legal right as a land lord to get such injunction. In the pleadings, appellant would assert its right as landlord to get injunction whereas respondent would contend that appellant has no such right and that such right of appellant is vested in the Government. Without resolving this dispute, it is not proper to grant injunction. There is no rule or law which lays down that in a suit for injunction, such question cannot be considered. 22. Learned counsel for appellant pointed out that question of tenancy does not arise in this case and such question need not be referred to Land Tribunal under section 125(3) of Kerala Land Reforms Act, as required by respondents. On hearing both sides, I am satisfied that in the nature of contentions raised, in the light of pleadings made, documents produced etc., the trial court ought to have looked into whether question of tenancy “arises” in this case, and whether any reference is required or not. This question must be decided, by assigning reasons. 23. It is needless to say in this context that mere raising of S.A. No.450/02 11 a contention is not sufficient to refer the matter to Land Tribunal. If the court is satisfied from the pleadings and evidence that a dispute “arises”, which requires consideration by Land Tribunal, the Civil courts' jurisdiction will be barred in deciding the question falling under section 125(3) to Land Reforms Act. But this question is also not looked into by the courts below. Since a serious contention is raised in this case even with respect to the question whether question of tenancy “arises” in this case and it requires reference to Land Tribunal, it ought to have been considered. 24. Various other contentions are also raised by both sides relating to nature of tenancy, relinquishment of right of respondent's predecessor Sri. Sahasranama Iyer, the previous proceedings before the Land Tribunal, whether such proceedings stand in the way of respondent claiming tenancy etc. etc. But those questions are not resolved by the fact-finding courts. In the absence of it, this court cannot for the first time resolve such disputes in this second appeal. 25. Trial court failed to frame even appropriate issues. It ought to have identified the actual issue involved in this case at least while considering what exactly is the legal right of the S.A. No.450/02 12 appellant to get injunction as prayed for. The trial court has also to decide whether civil court has jurisdiction to resolve the dispute between the parties and whether any question of tenancy arises in this case to be referred to Land Tribunal. In the absence of doing so, none of the findings entered into by courts below especially the one on defendants' tenancy right cannot be upheld. 26. Though an issue is framed generally whether plaintiff has got right and interest over plaint schedule property, the crucial question involved in this case is not considered in the right perspective. The basic question is whether appellant continued as a landlord, even after commencement of Kerala Land Reforms Act, or whether his right is lost or vested in the Government. Learned counsel for appellant raised various arguments to substantiate that appellant continues to be landlord and that its rights are not lost by virtue of Kerala Land Reforms Act and hence appellant is entitled to get injunction as prayed for. 27. The rival contentions on the crucial question are to be looked into and resolved by trial court, on hearing both sides. Since questions of facts are involved, this court cannot resolve such disputes in this Second Appeal. Both sides have strong points to moot and those are necessarily to be considered by the S.A. No.450/02 13 trial court. The matter requires a reconsideration and disposal in accordance with law and hence, decree and judgment have to be set aside and the suit be remanded. Since an injunction is already granted not to effect changes to existing building in petition scheduled property, some order touching that aspect will have to be passed. 28. Learned counsel for appellant submitted that there was an interim injunction during the pendency of this appeal restraining respondents from effecting any structural changes to the building, putting up new constructions in the plaint schedule property etc. Therefore, same order may be kept in force, until disposal of the suit, it is submitted. Learned counsel for respondents submitted that order may be passed allowing respondents to effect repairs, which are necessary for maintaining the building. 29. It is also submitted by him that a petition was filed for the above purpose and no objection is filed. Learned counsel for appellant submitted that they have no objection for allowing respondents to effect repairs, but it is pointed out that in the petition filed by respondents, the prayer is to record that there is complete collapse of the roof of kitchen portion of the building S.A. No.450/02 14 situated in the plaint schedule property as on 8th April 2004. 30. However, on hearing both sides, I am satisfied that instead of allowing the whole building to collapse, an order has to be passed allowing respondents to maintain the building by effecting appropriate repairs. He may file a proper petition, if so advised, before the Munsiff court, for allowing him to effect repairs and in such event, Munsiff court shall, after hearing both sides, pass appropriate orders. In the result the following order is passed:- 1. The decree and judgment are set aside. 2. The suit is remanded to trial court for fresh consideration and disposal, in accordance with law, in the light of observations made in this judgment. 3. Till disposal of the suit, in the interest of justice, respondents shall maintain status-quo, in respect of the nature of property without making new construction or additional structures to the building and they shall also not alienate the property. 4. However, it is made clear that respondents are at liberty to apply before the trial court, if they intent to effect any repair in property, for the maintenance of the building and if any such petition is filed, it shall be considered by trial S.A. No.450/02 15 court, after hearing both sides and disposed of in accordance with law. 5. The parties shall appear before the trial court on receipt of notice to counsel appearing on both sides. The appeal and Cross objection are partly allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy //