IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 RSA.No. 329 of 2004(E) -------------------------------- [AS.NO.201/1999 OF I ADDITIONAL DISTRICT COURT, PALAKKAD, OS.NO.674/1988 OF ADDITIONAL MUNSIFF'S COURT, PALAKKAD] .................... APPELLANT/RESPONDENT/DEFENDANT: ----------------------------------------------------------- ARUMUGHAN, S/O. PARANGODAN, RESIDING AT MANNATHUPURA, KADUKKAMKUNNAM AMSOM, PALAKKAD TALUK. BY ADVS. SRI.V.CHITAMBARESH, SRI.T.C.SURESH MENON, SMT.M.R.VALSA, SRI.SREEKANTH.K.R, SMT.G.GEETHISHA. RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------------------------------- THANKA, D/O. MAYANKUTTY, RESIDING AT KADUKKAMKUNNAM AMSOM, PALAKKAD TALUK. BY ADV. SRI.P.CHANDRASEKHAR. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO. 329 OF 2004 ............................................ DATED THIS THE 29th DAY OF MARCH, 2011 JUDGMENT Respondent in O.S.674 of 1988 on the file of Munsiff Court, Palakkad is the appellant. Respondent is the plaintiff. Respondent instituted a suit for recovery of possession contending that plaint schedule property originally belonged to deceased Mayankutty, her father and under a will, Mayankutty bequeathed the property in favour of respondent and she has thus title to the plaint schedule property. It was contended that appellant had taken the plaint schedule property on oral lease agreeing to pay a monthly rent of Rs.15/-, on 15.6.1965, and has been continuing in possession as a tenant and the tenancy was terminated by sending Ext.A2 notice dated 11.7.1988 and appellant is not entitled to continue in possession and therefore she is entitled to recover possession, on the strength of title also. 2. Appellant resisted the suit denying the tenancy as alleged contending that the property was obtained on oral lease agreeing to pay an annual rent of Rs.5/- from deceased RSA 329/2004 2 Mayankutty Mahadevan and since then he has been in possession of the property which was a vacant land at the time of lease. He effected improvements including a hut and is residing therein and the hut was subsequently converted into a tiled house. It was contended that appellant is entitled to fixity of tenure and respondent is not entitled to the decree for recovery of possession. It was also contended that in any case, as appellant is not having any other house or property where he could erect a hut and cost of construction of the building at the time of construction was less than Rs.750/-, he is a kudikidappukaran and therefore question of tenancy and kudikidappu are to be referred to Land Tribunal. It is contended that respondent is not entitled to evict the appellant or claim any arrears of rent or damages. 3. Learned Munsiff referred the question of tenancy and kudikidappu to the Land Tribunal. Land Tribunal rendered a finding that appellant is not a kudikidappukaran or a cultivating tenant entitled to fixity of tenure. On receipt of the finding of the Land Tribunal, learned Munsiff, on the evidence of PWs 1 to 3, DW1, Exts.A1 to A4 and B1 to B3 dismissed the suit finding that RSA 329/2004 3 respondent is not entitled to get a decree for recovery of possession as he failed to establish the tenancy set up in the plaint. Learned Munsiff found that under Ext.B3 notice, the tenancy was earlier terminated by the father of the respondent, with effect from 14.8.1976 and suit was not instituted within a period of 12 years and therefore the suit is barred by time under Article 47 of Limitation Act. 4. Respondent challenged the judgment before District Court, Palakkad in A.S.201 of 1999. Appellant filed a cross objection challenging the findings of the Land Tribunal accepted by learned Munsiff. Learned District Judge, on reappreciation of the evidence, found that appellant is not entitled to either fixity of tenure or kudikidappu right. Learned District Judge also found that the suit was instituted based on title and though Ext.B3 notice was sent earlier, no suit was instituted and thereafter under Ext.A3 notice, tenancy was terminated and therefore respondent is entitled to a decree for recovery of possession of the plaint schedule property with arrears of rent @ Rs.6/- per annum. Cross objection was dismissed. Learned District Judge also provided that appellant is entitled to value of improvements RSA 329/2004 4 which shall be fixed in execution proceedings. Second appeal is filed challenging the judgment. 5. Appeal was admitted formulating the following substantial questions of law. 1) When the tenancy of the appellant was terminated by sending Ext.B3 notice dated 14.8.1976, whether the suit filed after 12 years from that date for recovery of possession is barred under Article 67 of the Limitation Act . 2) When the suit is filed for recovery of possession on the strength of title, whether Article 65 or Article 67 of the Limitation Act applies. 6. Learned counsel appearing for appellant and respondent were heard. Though learned counsel for appellant argued that the suit is barred under Order II Rule 2 of Code of Civil Procedure based on Ext.B1 decree and B2 judgment in O.S.352 of 1997 on the file of Munsiff Court, Palakkad, that suit was only for realisation of arrears of rent and not for surrender of the tenanted premises. There is no rule that a landlord is not entitled to institute a suit for arrears of rent without claiming a decree for recovery of possession. Therefore, order II Rule 2 of Code of RSA 329/2004 5 Civil Procedure has no application at all. 7. Learned counsel appearing for appellant then argued that under the findings in Ext.B2 judgment, it is already found that appellant is not a tenant as alleged in the plaint. The argument is that when learned Munsiff dismissed O.S.No.352/1977 finding that appellant is not a tenant with liability to pay monthly rent of Rs.15/-, respondent is not entitled to seek a decree for recovery of possession based on that lease. True, Ext.B2 judgment shows that the earlier suit for arrears of rent was dismissed holding that father of the respondent failed to establish the tenancy pleaded. It is also true that tenancy pleaded in this suit as well as the previous suit is the same oral lease dated 15.6.1965 with liability to pay rent of Rs.15/- per month. Learned Munsiff in Ext.B2 judgment found that father of the respondent failed to establish the said lease and dismissed the suit. That does not mean that appellant is not a tenant. Ext.B2 judgment shows that case of the appellant in that suit also was that he obtained the plaint schedule property on an oral lease from the father of respondent. The only dispute is regarding the date of lease viz 15.6.1965 and the liability to pay monthly rent of Rs.15/-. What was contended RSA 329/2004 6 by the appellant in the earlier suit was also that it was an oral lease from the father of the respondent and the agreed rent was Rs.5/- per annum. Therefore, Ext.B2 judgment establishes that even though Ext.B3 notice was sent by the plaintiff in O.S.352 of 1977 to the appellant on 12.7.1976, terminating the tenancy created on 15.6.1965 with effect from 15.8.1976, in view of the finding in Ext.B2 judgment, it could only be found that there was no termination of the lease as it was found that the lease was not on 15.6.1965. If that be so, based on Ext.B3 notice, appellant is not entitled to contend that the suit is barred under Article 67 of the Limitation Act. That plea would have been available only if there was a valid termination of the lease. When Ext.B2 judgment shows that lease was not on 15.6.1965 and the lease terminated under Ext.B3 is that lease, Article 67 of the Limitation Act has no application. 8. Though respondent pursued the claim based on the oral lease of 15.6.1965, in the suit recovery of possession is also claimed on the strength of title. The relief sought for shows that recovery of possession was sought not on the termination of tenancy alone but also on the strength of title. As rightly pointed RSA 329/2004 7 out by the learned counsel appearing for the appellant, a specific issue was raised before the trial court whether respondent has title to the plaint schedule property. In the suit, recovery of possession sought based on strength of title and it was found that respondent has title to the property. Such a suit is granted by Article 65 of the Limitation Act and not Article 67. As the suit was instituted within the period, suit is not barred by time. 9. Though learned counsel appearing for appellant vehemently argued that the question of kudikidappu and tenancy were not properly considered by the courts below, I find that questions of tenancy and kudikidappu were referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. Land Tribunal considered the questions in the proper perspective and found that appellant is neither a kudikidappukaran nor a tenant entitled to fixity of tenure. I find no reason whatsoever to interfere with the factual finding of the courts below that appellant is not entitled to fixity of tenure and he is also not a kudikidappukaran. 10. The learned counsel for appellant then submitted that court fee was paid only under Section 43 of Court Fees and Suit RSA 329/2004 8 Valuation Act ( in short, `the Act'). When suit is by a landlord for recovery of possession of the property in the possession of a tenant, and tenancy was terminated, court fee is payable under Section 43 and when suit is for recovery of possession on the strength of title court fee is to be paid under Section 30 of the Act. I find that trial court framed an issue on title and it was found that respondent has title. In the written statement filed, sufficiency of court fee was not disputed. Courts below did not consider that question also. Therefore, decree granted by courts below cannot be interfered for non payment of sufficient court fee as appellant could be directed to pay the deficit court fee before executing the decree. 11. Learned counsel appearing for appellant submitted that appellant has effected improvements and is entitled to the value of improvements. First appellate court has made it clear that appellant is entitled to value of improvements and the value is to be fixed by the executing court. 12. In such circumstances, I find no reason to interfere with the decree granted by the first appellate court. It is made clear that before executing the decree, appellant shall pay the deficit RSA 329/2004 9 court fee payable under Section 30 of the Act. No cost. M.SASIDHARAN NAMBIAR, JUDGE lgk