IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 RSA.No. 624 of 2011() --------------------- AS.178/2009 of DISTRICT COURT, KOTTAYAM OS.346/1983 of MUNSIFF COURT, VAIKOM .................... APPELLANTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. VELU SANKARAN, AGED 79 YEARS, RESIDING AT MALAKKATTU THARA, UDAYANAPURAM, THEKKEMURI, VADAKKEMURI VILLAGE, VAIKOM TALUK. 2. M.S.SASIDHARAN, S/O.VELU SANKARAN, AGED 43 YEARS, RESIDING AT MALAKKATTU THARA, UDAYANAPURAM, THEKKEMURI, VADAKKEMURI VILLAGE, VAIKOM TALUK. 3. SANKARAN MADHU, S/O.VELU SANKARAN, AGED 38 YEARS, RESIDING AT MALAKKATTU THARA, UDAYANAPURAM, THEKKEMURI, VADAKKEMURI VILLAGE, VAIKOM TALUK. BY ADV. SRI.P.S.NANDANAN SRI.P.N.ANOOP SRI.SANTHOSH PETER (MAMALAYIL) RESPONDENT(S): APPELLANT/PLAINTIFF ---------------------------------- T.M.HARI VARMA, S/O.HARIHARA IYYER, AGED 57 YEARS, RESIDING AT PANAMITTATHU, MADATHIL, UDAYANAPURAM, THEKKEMURI, VADAKKEMURI VILLAGE, VAIKOM TALUK. PIN - 686143. ADV. SRI.MATHEW JOHN (K) ADV DOMSOM J VATTAKUZHY(COUNSEL FOR CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.624 of 2011 ............................................ DATED THIS THE 22ND DAY OF AUGUST, 2011 JUDGMENT Defendants in O.S.346 of 1983 on the file of Munsiff Court, Vaikom are the appellants. Plaintiff is the respondent. Respondent instituted the suit for eviction and for permanent prohibitory injunction contending that plaint schedule property originally belonged to Sreenivasa Iyer Harihara Iyer his father who died on 8.9.1980 and properties were partitioned between the legal heirs under registered partition deed 2219/1983 and plaint schedule property was alloted to the share of the respondent under C schedule. It is contended that father of the respondent helped the first appellant to conduct a Sow Mill who was conducting the mill at Ithipuzha bridge and in 1970, he stopped the Mill at Ithipuzha bridge and with the permission of the father of the respondent, put up a shed in the plaint schedule property and started Sow Mill therein and it was only as permitted by the father of the respondent as a licensee and respondent is entitled to revoke the license and he revoked the RSA 624/2011 2 license and sought surrender of possession. Appellants with the aid of documents created, sought to protract the possession and therefore the suit is instituted. Appellants in their written statement contended that though the plaint schedule property originally belonged to the father of the respondent, he was not looking after properly and first appellant requested the father of the respondent to grant a lease of land in his favour for utilizing the land to conduct a Sow Mill after filling up the land and the father pf the respondent agreed for the same. In January, 1964 he granted a lease of the land on a liability to pay Rs.100/- per year as per a patta cheet executed by the first appellant. Under the lease, first appellant was permitted to construct a Sow Mill. He put up a shed with cadjan leaves in February 1964 and started business of selling Soda, Cool drinks, Seeds and repairing Cycles. The field portion was utilized for cultivation. Later appellants reclaimed the land and put up the Sow Mill in 1973. The Sow Mill is being run in the plaint schedule property from 1973 onwards. It is contended that as the lease was for commercial and industrial purpose, it is protected under Section RSA 624/2011 3 106 of the Kerala Land Reforms Act and respondent is not entitled to evict them. It was also contended that in any case, appellants are entitled to the benefit under Section 60 of Indian Easement Act as they have effected valuable improvements by spending huge amount and put up permanent structure and therefore respondent is not entitled to the decree sought for. 2. Learned Munsiff referred the claim for protection under Section 106 of Kerala Land Reforms Act to the Land Tribunal. Land Tribunal rendered a finding that appellants are entitled to the protection under Section 106 of Kerala Land Reforms Act. As the finding is binding on the learned Munsiff, it was accepted and the suit was dismissed. Respondent challenged the decree and judgment before District Court, Kottayam in A.S.178 of 2009. Learned Additional District Judge on re-appreciation of the evidence found that appellants did not establish that there was a lease of land for commercial or industrial purpose, granted by the father of the respondent to the first appellant before 20.5.1967 and hence appellants are not entitled to the protection under Section 106 of Kerala Land Reforms Act. The finding of the Land RSA 624/2011 4 Tribunal was set aside. Learned District Judge found that the Sow Mill was started only in 1973 and the case of the respondent that the said Sow Mill was conducted by the first appellant as permitted by the father of the respondent is correct and it was only a license and the license was revoked. It was held that respondent is entitled to a decree for eviction. The claim under Section 60(b) of the Indian Easement Act was rejected holding that appellants did not establish that they have executed a work of permanent character, acting upon the license. Therefore the appeal was allowed, decree for eviction and for realisation of arrears of license fee and damages at the rate of Rs.3000/- per month till the appellants surrender possession of the property was granted. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. The argument of the learned counsel is that first appellate court did not properly appreciate the evidence and in the light of the evidence, should have found that appellants have been in possession of the plaint schedule property prior to 1970 and if so, the case of the respondent that father of the respondent RSA 624/2011 5 permitted the appellants to put up the Sow Mill in 1970 is to be disbelieved, in which case the case pleaded by the appellants that there was a lease of land in January, 1964 for commercial or industrial purpose is to be accepted and it is to be found that as found by the Land Tribunal, appellants are entitled to the protection under Section 106 of Kerala Land Reforms Act. Learned counsel relying on the decision of this court in Ananthan Nadar V. Lakshmanan ( 1980 KLT 231) argued that in view of Section 106 which provides that notwithstanding anything to the contrary contained in any law, even an unregistered lease deed can be looked into and the claim of the appellants should not have been rejected by the first appellate court on technical grounds. Learned counsel argued that Ext.A1 to A29 receipts produced before the Land Tribunal establish that appellants have been in possession of the plaint schedule property from 1964 onwards and therefore it should have been found that the lease was obtained by the first appellant for commercial or industrial purpose and he had put up the construction before 1967 and hence appellants are entitled to the RSA 624/2011 6 protection under Section 106 of Kerala Land Reforms Act. Learned counsel also argued that in any case, when appellants are admittedly running a Sow Mill and the report of the Commissioner establishes that the machineries for running the Sow Milla are installed in a tiled shed, it should have been found that the appellants have executed work of a permanent character spending huge amounts and hence in any case they are entitled to get the benefit of Section 60(b) of Indian Easement Act. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. The case of the respondent is that first appellant was permitted to start a Sow Mill by his father in 1970 and since then, appellants are in possession of the property and running a Sow Mill and it was under the license appellants are in possession of the property and subsequent to the death of the father, under the partition deed, plaint schedule property was alloted to the share of the respondent as C schedule and respondent has revoked the license and hence appellants are bound to surrender possession of the plaint schedule property. The case of the appellants is that the RSA 624/2011 7 property was not obtained under a license but the land was obtained on lease in January, 1964 for commercial or industrial purpose. The case is that first appellant requested the father of the respondent to grant a lease of land to start a Sow Mill after reclaiming the water logged area and accepting the request the lease was granted in January 1964 and since then, appellants have been in possession of the property and is conducting the Sow Mill from 1973 and therefore they are entitled to the benefit under Section 106 of the Kerala Land Reforms Act. Though appellants contended that first appellant had executed a lease deed and obtained land from the father of the respondent, no lease deed was produced. The argument of the learned counsel is that the lease deed was in possession of the father of the respondent and appellants cannot produce the lease deed and for the non-production of the lease deed the claim cannot be disbelieved. First appellate court considered the entire evidence and entered a factual finding that appellants did not establish the lease of land for commercial or industrial purpose in January 1964 and the documents produced by them prior to 1970 do not RSA 624/2011 8 relate to the plaint schedule property but in respect of another property where first appellant's brother's son was conducting a cycle shop. Though the learned counsel argued that the factual finding is not correct, on the evidence the finding cannot be said to be not in accordance with the evidence. The factual finding hence cannot be interfered in exercise of the powers under Section 100 of Code of Civil Procedure. 5. When there is no evidence to prove that there was a lease of land prior to 20.5.1967, and that too, for commercial or industrial purpose, appellants cannot be granted the benefit under Section 106 of the Kerala Land Reforms Act. A reading of the written statement shows that what was contended was that the lease was for starting a Sow Mill and also for agricultural purpose. Therefore, it cannot be said that the plea is with regard to a commercial or industrial lease and at best it could only be a composite lease. Whatever it be, when there is no acceptable evidence to prove the plea that there was a lease of land prior to 1967, finding of the first appellate court that appellants are not entitled to the benefit under Section 106 of Kerala Land Reforms RSA 624/2011 9 Act is perfectly legal and correct. 6. Then the only question is with regard to the benefit claimed under Section 60(b) of Indian Easement Act. To claim the benefit under Section 60(b), appellants have to establish that there was a license and acting upon the license, they have executed the work of a permanent character and incurred expenses in its execution. Though the respondent in the plaint contended that first appellant was permitted to put up a Sow Mill in 1970 and it is only a license, case of the appellants is that there was no license but only a lease. There is also no plea in the written statement that acting upon the license, first appellant or appellants have executed work of a permanent character, though it was contended that land was obtained for running a Sow Mill and for that purpose, later year he put up structures of permanent character spending huge amount. When appellants have no case that they have executed a work of permanent character, acting upon the license, they are not entitled to claim protection under Section 60(b) of Indian Easement Act. In such circumstances, first appellate court rightly granted a decree for RSA 624/2011 10 recovery of possession of the plaint schedule property directing the appellants to remove the structures and installations made in the plaint schedule property and also to pay the damages. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk