IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933 RSA.No. 272 of 2011() --------------------- O.S.198/06 OF MUNSIFF COURT, ALATHUR A.S.134/08 OF II ADDL. DISTRICT COURT, PALAKKAD APPELLANT/ APPELLANT/DEFENDANT --------------------------------------- VESU, W/O.CHAMI, AGRICULTURIST, NARANGAPARAMBU, NADUVATHAPARAMBU, NADUVATHAPRA, PERINGOTTUKURUSSY AMSOM DESOM, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA RESPONDENT/ RESPONDENT/ PLAINTIFF ------------------------ VASU @ BHASKARAN, S/O.VELAN KANDAN, MELAPURA VEEDU, KUTHANOOR AMSOM, DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.272 OF 2011 --------------------------------------------- Dated 17th June, 2011 JUDGMENT Defendant in O.S.198/2006 on the file of Munsiff Court, Alathuar is the appellant. Plaintiff is the respondent. The suit was for recovery of possession of the plaint schedule property contending that plaint schedule property originally belongs to his father Velan Kandan under Ext.A1 sale deed in 1946 and Velan Kandan purchased jenm right under Ext.A2 purchase certificate, and on the death of Velan Kandan, it devolved on the respondent and appellant has no manner of right over the plaint schedule property and therefore, respondent is entitled to recovery of possession. Appellant resisted the suit RSA 272/11 2 contending that in 1959 by an oral lease plaint schedule property was obtained by the appellant on an annual pattom of Rs.150/- and since then he has been in possession of the property and cultivating the same and jenm right was later purchased from the Land Tribunal and Ext.B1 purchase certificate was granted in his favour and as the appellant has absolute title under Ext.B1 purchase certificate, respondent is not entitled to the decree sought for. 2. Learned Munsiff on the evidence found that there is no dispute with regard to the identity of plaint schedule property and also found that appellant as DW1 admitted the boundaries, survey number and the extent and did not dispute the identity of plaint schedule property. Learned Munsiff also found that even according to the appellant plaint schedule RSA 272/11 3 property originally belonged to Velan Kandan, father of the respondent and he is only contending that he obtained it on an oral lease in 1959 from Velan Kandan and he is a cultivating tenant and as per the order of the Land Tribunal jenm right was assigned in his favour, evidenced by Ext.B1 purchase certificate and therefore, respondent has no title to the property. Learned Munsiff found that appellant having admitted the title of the father of the respondent and respondent is claiming title as the legal heir of Velan Kandan, which devolved on him, question is whether the appellant was a cultivating tenant entitled to protection of Kerala Land Reforms Act. On the evidence, learned Munsiff found that to support the claim of tenancy except an allegation of an oral lease of 1959, there is no evidence to prove the lease and even though RSA 272/11 4 PW1 admitted that in 1970 appellant has been in possession of the property paying a rent of Rs.150/- and even if such lease is created in 1970 as it is created after 1964 appellant cannot claim protection under Kerala Land Reforms Act as he will not be entitled to fixity of tenure. Learned Munsiff also found that though Ext.B3 tax receipt was relied on, Ext.B2 exchange deed shows that appellant had obtained 20 ¾ cents in R.S.205B/3 covered by purchase certificate No.5643/1976 granted in favour of Kutty Raman Nair and tax receipt could be in respect of the said property and not the plaint schedule property and in the absence of any other evidence to prove oral lease the claim can only be rejected. It was also found that as the appellant cannot claim title by adverse possession, respondent is entitled to the decree sought for. The suit RSA 272/11 5 was decreed. Appellant challenged the judgment before District Court, Palakkad in A.S.134/2008. Learned Additional District Judge on reappreciation of the evidence confirmed the findings of the learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that appellant had not contended that he obtained the property on lease subsequent to 1964, much less in 1970 and his case is that plaint schedule property was obtained on oral lease in 1959 from the father of the respondent and as no other lease is proved and respondent set up a lease of 1970, it can only be found that appellant was a tenant as claimed by him under an oral lease of 1959. Learned counsel RSA 272/11 6 would also argue that Ext.A2 purchase certificate was issued in favour of the respondent, subsequent to Ext.B1 purchase certificate issued in favour of the appellant and therefore, courts below should not have granted a decree for recovery of possession. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Appellant has not disputed the title of the father of the respondent obtained under Ext.A1. Respondent is admittedly the son of Velan Kandan, under whom appellant is setting up the lease. On the death of Velan Kandan he would definitely inherit the property. That aspect was not disputed. Therefore, the only question is whether there was a lease in favour of the appellant in 1959 as claimed by the appellant. Learned Munsiff and learned District Judge considered this RSA 272/11 7 question in the proper perspective and on the evidence found that appellant did not substantiate the oral lease and instead evidence would improbablise such an oral lease. 6. On going through the judgments of the courts below, I do not find any error in that factual finding entered into by the courts below based on the evidence. If appellant had obtained an oral lease in 1959 from the father of the respondent and continued in possession of the property as tenant, he should necessarily pay pattom to the father of the respondent. If so he would have obtained receipt. If he was a tenant as claimed by the appellant at least after 1.1.1970 he should have paid basis tax in respect of the property. The report of the Village Officer establishes that even in 1976 and thereafter tax was being paid by the respondent. Though RSA 272/11 8 appellant has relied on Ext.B3 tax receipt to prove that he has been in possession of the property and paying tax, based on Ext.B2 exchange deed courts below found that the tax, so paid was in respect of the property which was obtained by the appellant under Ext.B2 exchange deed, which in turn is in respect of the property covered under purchase certificate No.5643/1976. In such circumstances, findings of the courts below that appellant is not a tenant in respect of the plaint schedule property and respondent is entitled to a decree for recovery of possession is perfectly legal and warrants no interference. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.