IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 AS.No. 648 of 1992(A) ---------------------------------- (AGAINST O.S.NO.175 OF 1973 OF THE PRINCIPAL SUB COURT, THIRUVANANTHAPURAM) APPELLANT(S): (PLAINTIFF): --------------------------------------------- KRISHNAN NAIR ( D I E D), GOVERNMENT SERVANT, ATTARA VEEDU, PAZHAVANGADI MURI, CHENGAZHASSERY VILLAGE, THIRUVANANTHAPURAM. *ADDL.APPLICANTS 2 TO 5 ARE IMPLEADED: A2. S.SANTHAKUMARI AMMA, T.C.42/1, “SOUPARNIKA”, SREEVARAHAM, MANACAUD P.O., THIRUVANANTHAPURAM. A3. S.LALITHAMBIKA, ....DO....DO....... A4. K.SHYAMKUMAR, .....DO....DO........ A5. S.MEENAMBIKA, .......DO.....DO......... (*THE LEGAL HEIRS OF THE DECEASED APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 5 VIDE ORDER DATED 22/06/2001 ON C.M.P.NO.6154/2000) BY MR.T.KRISHNAN UNNI, SENIOR ADVOCATE, SMT.PREETHY KARUNAKARAN, MR.ANISH S.AMBADY, SMT.BIJIMOL JOSE, SMT. SANJANA R.NAIR. Kss ..2/- ..2.... A.S.NO.648/1992 RESPONDENT(S): (DEFENDANTS 3,4,5 & 2): ---------------------------------------------------------------- *1. R.S.RAMADAS, T.C.31/356, FORT, PAZHAVANGADI, THIRUVANANTHAPURAM. ( D I E D) – LRS IMPLEADED: 2. R.S.MOHANDAS, ....DO...DO.... 3. R.S.DEVADAS, ..DO..DO.... (SONS OF LATE R.SUBBAIAH OF ..DO..DO....) 4. M/S. INDIAN BANK, REPRESENTED BY ITS MANAGER, BRANCH OFFICE, MAIN ROAD, THIRUVANANTHAPURAM. *ADDL.R5 TO R8 ARE IMPLEADED: R5. SWARNALATHA, W/O.LATE R.S.RAMADAS, LAKSHMI SADANAM, PAZHAVANGADI, FORT, THIRUVANANTHAPURAM. R6. SUJATHA SENTHIL, D/O.LATE R.S.RAMADAS, .....DO...DO...DO...DO.... R7. ANITHA VISWANATHAN, D/O.LATE.....DO......., .....DO...DO...DO...DO...... R8. R.SOORAJ, S/O.LATE .......DO......., ....DO...DO...DO...DO...... *THE LEGAL HEIRS OF THE DECEASED R1 ARE IMPLEADED AS ADDL.R5 TO R8 VIDE ORDER DTD. 16/06/2005 ON I.A.NO.2422/2004. R2 BY MR. S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, ADVS. MR.K.JAYAKUMAR, MR.P.B.KRISHNAN, . R4 BY ADV. MR.S.EASWARAN, R5 BY ADVS. MR.K.RAMACHANDRAN, SMT. S. SREEDEVI, R6 BY ADV. MR.MANOJ.R. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON 27/03/2009 DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== A.S.NO.648 1992 =========================== Dated this the 27th day of March,2009 JUDGMENT Plaintiff in O.S.175/1973 on the file of Sub Court, Thiruvananthapuram is the appellant. On his death, additional appellants 2 to 5 were impleaded as his legal heirs. Defendants are the respondents. On the death of the first respondent, respondents 5 to 8 were impleaded as his legal heirs. Suit was filed for recovery of possession of the plaint schedule property with arrears of licence fee contending that the plaint schedule property was granted on licence under Ext.B22. The case of the plaintiff was that under Ext.B22 dated 19.11.1947 plaint schedule property having an extent of 54 cents was entrusted to Chokkalingam Pillai, by his grandmother and mother while he was a minor and the mother A.S.648/1992 2 acting as his guardian, for construction of a Cinema theatre. Subsequently rights of Chokkalingam Pillai came to vest with first respondent by assignment. Though entrustment under Ext.B22 was for a period of eleven years, it was being extended from time to time and under the terms of the licence, at the time of surrender the licensee is entitled to one third value of the structures put up by him and the usufructs from the property is to be taken by the appellant. As dispute arose regarding the value of the structures put up and payable to the first respondent O.P. 7/1970 was instituted and an arbitrator was appointed by the court fix the amount payable to the first respondent and the arbitrator fixed the amount as Rs.51,309/- and under the decree dated 16.7.1972 in O.P.14/1972, plaintiff was allowed to recover possession of the property on payment of that amount and first respondent is bound to surrender possession on acceptance of that amount A.S.648/1992 3 and is also bound to pay the arrears of licence fee at the rate of 610/- per month with effect from 1.10.1962 and thus Rs.21,890/- is due and though first respondent was asked to surrender, he did not surrender and instead he claimed protection under section 106 of Kerala Land Reforms Act and therefore the suit was instituted. The second defendant was impleaded as the properties were mortgaged by the first defendant in favour of the second defendant. The first respondent resisted the suit contending that second respondent being a creditor is an unnecessary party to the suit. It was contended that Ext.B22 is not a licence but a lease and the predecessor in interest of the appellant put Chokkalingam Pillai in possession of the land for putting up a cinema house and accordingly as provided under ExtB22 a cinema house by name Central Theatre, was constructed in 1949 and as per sale deed dated 9.4.1952 the property was assigned in favour of the first respondent and A.S.648/1992 4 in the family partition of the first appellant dated 19.10.1962, plaint schedule property was allotted to the first respondent and the partition deed also shows that the property was outstanding on lease and hence first respondent is not entitled to contend that it is not a lease but a licence. It was also contended that the period of lease was extended from time to time and the lease was subsisting till 1.8.1971 and though the lease deed provides for surrender, Section 106 of Kerala Land Reforms Act superseded that provision and therefore appellant is not entitled to claim surrender of possession. Contending that appellant has fixity of tenure and is not liable to pay any rent the claim for arrears of rent is also resisted. 2. The suit was originally decreed holding that first defendant is in possession of the property as a licensee and not a lessee and he is not entitled to claim the benefit of Section 106 of Kerala Land A.S.648/1992 5 Reforms Act. It was also found that first defendant is not a land holder as provided under Sree Pandaravaka Land (Vesting and Enfranchisement) Act, 1971 and so he cannot divest the rights of the appellant. Appellant was allowed to recover possession with arrears of licence fee. 3. It was challenged before this court in A.S.5/1978. This court as per the judgment (reported in 1984 KLT 371) set aside the judgment of the trial court and remanded the suit for fresh disposal after referring the question regarding the right claimed under section 106 of Kerala Land Reforms Act to the Land Tribunal. The Division Bench found that the claim for benefit under section 106 of Kerala Land Reforms Act arises in the suit and that question could be decided only after a reference as mandated under section 125(3) of Kerala Land Reforms Act. 4. Trial court after the remand referred the claim for the benefit under section 106 of Kerala A.S.648/1992 6 Land Reforms Act raised by defendants 3 to 5, who were impleaded as legal heirs of deceased first defendant to the Land Tribunal, Thiruvananthapuram. The Land Tribunal in R.C.34/1989 ( the reference proceedings) found that defendants 3 to 6 it is a commercial lease and they are entitled to the benefit of the provisions of Section 106 of Kerala Land Reforms Act. Learned Sub Judge on receipt of the findings, as he is bound, accepted the same and held that defendants 3 to 6 are entitled to the protection of 106 of Kerala Land Reforms Act. The suit was therefore dismissed. The appeal is filed challenging the judgment. 5. After remand defendants have produced Ext.B26 proceedings of the Special Tahsildar whereunder patta was conferred on defendants 3 to 5 on 22.5.1978, under Sree Pandaravaka Land (Vesting and Enfranchisement) Act, 1971. O.P.1417/1998 is filed by the original plaintiff challenging Ext.B26 proceedings of the Tahsildar as confirmed in A.S.648/1992 7 statutory appeal and revision. As the question whether Ext.B26 is valid is also a relevant fact to be considered in the appeal, the O.P was also heard along with the appeal and is disposed. 6. Learned senior counsel appearing for the appellant submitted that though in A.S.5/1978 the Division Bench set aside the judgment of the trial court and remanded the suit back to the Sub Court for referring the claim for protection under section 106 raised by respondents to the Land Tribunal under section 125(3) of Kerala Land Reforms Act, a Full Bench of this Court overruled the said decision in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43) and held that the claim for benefit under section 106 is not to be referred to the Land Tribunal and the Civil Court has jurisdiction to decide the question without a reference under section 125(3) of Kerala Land Reforms Act. It was argued that as the decision of the Division Bench in the earlier appeal is a A.S.648/1992 8 question on jurisdiction, in view of the subsequent decision of the Full Bench that the decision is not binding and the finding of the Land Tribunal is to be ignored as without jurisdiction. Relying on the decision of the Apex Court in Mathevan Padmanabhan v. Parmeshwaran Thampi (1995 Suppl.(1) SCC 479) it was argued that the question whether civil court has the jurisdiction to decide the claim or it is to be referred to the Land Tribunal is a question on the jurisdiction of the court. Relying on the decision of the Apex Court in Mathura Prasad v. Dossibai (AIR 1971 SC 2355) learned counsel argued that a question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court and if by an erroneous interpretation of the statute the court holds that it has no jurisdiction, the question would not operate as res judicata and that principle has been followed by the Division Bench of this Court in A.S.648/1992 9 Muhammed Sahib v. Mohammed Ibrahim (2007(2) KLT 56). It is therefore argued that inspite of the decision of the Division Bench in the earlier appeal filed in the very same suit that the Civil Court has no jurisdiction and the claim for the benefit under section 106 of Kerala Land Reforms Act is to be referred to the Land Tribunal under section 125(3), in view of the Division Bench decision in Govinda Panicker's case the earlier decision is not binding on the parties or the court and as the civil court has jurisdiction the reference to the Land Tribunal and the findings of the Land Tribunal pursuant to the direction of this court is to be treated as a nullity and the case has to be decided on the evidence on record. Learned senior counsel also argued that as held by the Division Bench in Govinda Panicker's case, even if there was a wrong reference to the Land Tribunal and a consequent finding, when an appeal is filed, the first appellate court has to consider the A.S.648/1992 10 question on the evidence and no remand to the trial court is necessary for the reason that there is no independent finding by the trial court. The argument of the learned senior counsel is that the question whether respondents are entitled to the protection under section 106 of Kerala Land Reforms Act is to be decided on the materials available on record. Relying on the decision of a learned single Judge of this Court in Kunhiraman v Chemmarathi (1966 KLJ 452) the learned senior counsel submitted that the benefit conferred under section 106 of Kerala Land Reforms Act is only to the lessee who has constructed a building or an assignee of a lessee who constructed the building and not to the assignee who purchased the property after construction of the building and respondents being the assignees are not entitled to claim the benefit of section 106 of Kerala Land Reforms Act and the finding of the trial court is not sustainable. Reliance was also placed on the A.S.648/1992 11 decision of the Apex Court in Chandy Varghese v. Abdul Khader (2003(3) KLT 553.) Learned senior counsel also argued that to claim the benefit of section 106 of Kerala Land Reforms Act there should be a lease and when the right created under Ext.B22 is only a licence, the licensee is not entitled to claim protection of Section 106 of Kerala Land Reforms Act and on that ground also, the claim for benefit under section 106 of Kerala Land Reforms Act is to be rejected. Relying on the decision of the Apex Court in Delta International Ltd v. Shyam Sundar Ganeriwalla and others (1999) 4 SCC 545) the learned senior counsel argued that while considering the question whether the right created under Ext.B22 is a licence or lease the nomenclature of the document is not relevant but the real intention of the parties is to be found out. Learned senior counsel argued that under Ext.B22 no interest in the property was transferred, and what was provided under Ext.B22 is A.S.648/1992 12 only a license to construct a theatre in the property, providing that after the expiry of the period the building belongs to the licensor and he need only pay 1/3rd of the value of the building at the time of termination of the license and Ext.B22 also provides that the licensor is entitled to take usufructs from the trees in the property and is also having a right for ingress and egress to take the usufructs and therefore the relationship created is only that of a licence and not a lease and appellants are entitled to the decree sought for. Learned senior counsel further argued that the orders passed by the authorities under Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 are illegal and the Act provides for enfranchisement of Sree Pandaravaka Lands held by land owners and the property covered under Ext.B22 is not a Sree Pandaravaka Land or Sree Pandaravaka Thanathu land and therefore the property is outside the purview A.S.648/1992 13 of the Act and appellants are the owners of the property and therefore Ext.B26 order or the subsequent orders confirming that order are not valid and binding on the property or the appellants. It was argued that the evidence establish that the plaint schedule property, the subject matter of Ext.B22, is Sree Pandaravaka Kudumbaporuthy land owned by the family of the appellants while Sree Pandaravaka land and Sree Pandaravaka Thanathu land were lands belonging to Sree Padmanabhaswamy temple and the Act is applicable only to such land and not to Sree Pandaravaka Kudumbaporuthy land and therefore patta should not have been issued in favour of the respondents. Learned senior counsel also argued that in any case respondents are not the land holders to whom the benefit could be granted and for that reason also the orders are void and therefore the order passed by the Special Tahsildar is void. A.S.648/1992 14 7. Learned senior counsel appearing for the respondents relying on the decision of the Apex Court in Associated Hotels of India Ltd v. R.N. Kapoor (AIR 1959 SC 1262), C.M. Beena v. P.N. Ramachandra Rao (2004) 3 SCC 595) pointed out that though the question whether Ext.B22 is a lease or licence is to be decided based on the intention of the parties and not on the nomenclature of the document and Ext.B22 unambiguously establish that the intention of the parties was to create a lease and not license. It was pointed out that Ext.B22 shows that for the second party therein second executant Gowri Amma was representing her minor children including the appellant herein and he was then aged 3 years and husband of Gowri Amma was the first attesting witness to the document and was an Advocate and therefore it is clear that Ext.B22 was drafted and executed revealing the true intention of the parties. It was pointed out that ExtB22 establish that a lease was granted in A.S.648/1992 15 favour of Chokkalingam Pillai and the of land was for construction of a theatre and the lessee was granted even a right to transfer his right under Ext.B22 and therefore a right in the property was created and hence Ext.B22 could only be a lease and not license. It is also argued that when the suit is based only on the edifice that Ext.B22 is a license and not a lease and as the license was trminated first appellant is entitled to recover possession of the property on termination of the license, when the right flowed under Ext.B22 is a lease and not a license, the suit can only be dismissed and further questions do not arise for consideration. Learned senior counsel further argued that when Ext.B22 enables the lessee to construct a building for commercial purpose in the leasehold land respondents being the subsequent assignees, are entitled to the protection under section 106 of Kerala Land Reforms Act. It is pointed out that Explanation to Section 106 makes A.S.648/1992 16 it clear that a lessee, provided under section 106 includes a legal heir as well as the assignee of the lessee, and so the protection provided under section 106 of Kerala Land Reforms Act cannot be denied to the respondents for the reason that they are assignees of the original lessee. Learned senior counsel further argued that Section 106 of the Kerala Land Reforms Act does not make any difference between a lessee and an assignee of a lessee and therefore respondents are entitled to get the benefit of Section 106 of Kerala Land Reforms Act. It was also argued that the property covered under Ext.B22 is a property coming within the ambit of Sree Pandaravaka Lands (Vesting and Enfranchisement) Act, 1971 and in view of Ext.B26 order appellants have no further right in the property. 8. In the light of the contentions raised the following points arise for consideration. 1. In view of the decision A.S.648/1992 17 in A.S.3/1978 dated 21.2.1984, whether the reference made to the Land Tribunal under section 125(3) of Kerala Land Reforms Act is valid and whether the Land Tribunal has jurisdiction to decide the claim for the protection of Section 106 of Kerala Land Reforms Act and if not whether the finding of the Land Tribunal is a nullity and is to be eshewed. 2. Whether an assignee of a lessee is entitled to the benefit of Section 106 of Kerala Land Reforms Act and if not, whether respondents are entitled to the benefit? 3. Whether Ext.B22 creates a lease or a licence and if so A.S.648/1992 18 whether appellants are entitled to a decree for recovery of possession? Point No.1:- The trial court originally granted a decree in favour of first appellant without a reference to the Land Tribunal, finding on the evidence on record that Ext.B22 is a license and respondents are not entitled to the protection of 106 of Kerala Land Reforms Act. When respondents challenged that judgment before this court in A.S.5/1978, the Division Bench as per the reported decision in Ramadas v. Krishnan Nair (1984 K.L.T. 371) found that the trial court is bound to refer the claim for benefit under section 106 of Kerala Land Reforms Act to the Land Tribunal and Civil Court has no jurisdiction to decide that question of its own. The suit was therefore remanded to the trial court. Pursuant to the said direction, trial court referred the suit under section 125 A.S.648/1992 19 (3) of Kerala Land Reforms Act to decide the benefit claimed by respondents under section 106 of Kerala Land Reforms Act to the Land Tribunal. As per the order in R.C.34/1989 Land Tribunal rendered a finding that respondents are entitled to the benefit under section 106 of Kerala Land Reforms Act which was accepted by the trial court, as it is bound to, which is challenged in this appeal. As rightly pointed out by the learned senior counsel the question whether the Civil Court of its own could decide the claim raised by the defendants under section 106 of Kerala Land Reforms Act or it is to be referred to the Land Tribunal and whether the Tribunal has jurisdiction to decide that question, is definitely a question of jurisdiction. 9. Apex Court in Mathevan Padmanabhan v. Parmeshwaran Thampi (1995 Suppl.(1) SCC 479) analysing the bar of jurisdiction of civil court under section 125 held:- A.S.648/1992 20 “8.A reading thereof clearly indicates that if in any suit or other proceeding, any question regarding right of a tenant etc. arises, the civil court should stay the suit or other proceeding and refer such dispute to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situated together with the relevant records for the decision of that dispute in question Sub-section (1) in that behalf creates a total bar on the jurisdiction of the civil court enjoining that the civil court “shall have no jurisdiction” to settle, decide or deal with any question or to A.S.648/1992 21 determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal. On receipt of the decision of the Land Tribunal referred to by the civil court for the purpose of appeal, it must be deemed that the decision of the Land Tribunal be part of the finding of the civil court. Thereby, the civil court, is enjoined to accept the finding recorded by the Tribunal and dispose of the suit in the light of the finding recorded. In case the Tribunal records the finding positively in favour of the tenant of kudikidappukaran, A.S.648/1992 22 then the suit is required to be dismissed. But the findings recorded by the Tribunal from part of the record of the trial court. As a consequence the appellate court gets power to go into that question, the High Court itself can decide that question of or remit it for fresh decision. In that view of the scheme of the Act the High Court is clearly in grave error in divesting the jurisdiction of the Land Tribunal to determine the dispute of tenancy etc. as engrafted in sub-section (1) of Section 125 of the Act and confer jurisdiction on the civil court which it inherently A.S.648/1992 23 lacks and any decision by the civil court by itself is a nullity. The interpretation given by the High Court is in the teeth of the peremptory language used by Section 125(1) of the Act and so is clearly unsustainable. The High Court, therefore, was clearly in grave error in divesting the jurisdiction of the Tribunal and conferring the same on the civil court to settle, decide or deal with any question or determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal.” Division Bench decision of this court in the A.S.648/1992 24 earlier appeal A.S.5/1978 directing the trial court to refer the case to the Land Tribunal is therefore definitely a question of jurisdiction. 10. The effect of a decision on the question of jurisdiction and whether it operates as resjudicata is now settled by the Apex Court in Mathura Prasad's case (supra). Approving the decision of the Calcutta High Court in Tarini Charan Bhattacharjee v. Kedar Nath Haldar (AIR 1928 Cal.777)that a question of jurisdiction of the court is a pure question of law and is not res judicata in the subsequent suit and that the object of doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend, and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided A.S.648/1992 25 their Lordships held:- “A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is A.S.648/1992 26 the same or otherwise.” 11. A Division Bench of this court in Muhammed Sahib v. Mohammed Ibrahim (2007(2) KLT 56) followed this dictum and held that even when