IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 SA.No. 89 of 1995(B) -------------------- AS.138/1990 of SUB COURT, PAYYANNUR OS.315/1986 of MUNSIFF COURT, PAYYANNUR .................... APPELLANTAPPELLANT/DEFENDANT: --------------------------------------- KIZHAKKILOT VEETTIL MADHAVA MARAR, S/O.KRISHNA MARAR, PERALAM AMSOM, PUTHOOR DESOM, P.O.ETTUKUDUKKA, DIST.KANNUR. L.RS. OF THE DECEASED APPELLANT 2. K.V.KARTHIYAYANI, W/O.LATE KIZHAKKE VEETTIL, MADHAVA MARAR, PERALAM AMSOM, PUTHUR DESOM, P.O.ETTUKKUDUKKA, DIST.KANNUR 3. K.V.NARAYANAN, S/O.MADHAVA MARAR, DO. DO. 4. K.V.REMANI, D/O.MADHAVA MARAR, DO. DO. 5. K.V.MADHUSOODHAN, S/O.MADHAVA MARAR, DO. DO. 6. K.V.RAJANI, D/O.MADHAVA MARAR, DO. DO. It is recorded that the sole appellant is dead and the L.Rs. Are impleaded as addl. Appellants 2 to 6 as per order dated 24/8/98 on CMP 1079/98 BY ADV. SRI.KALEESWARAM RAJ RESPONDENT/RESPONDENT/PLAINTIFF: -------------------------------------------- THE EXECUTIVE OFFICER, PUTHOOR SIVAKSHETHRAM, BELONGING TO CHIRAKKAL KOVILAKAM T.NARAYANAN NAIR, S/O.KANNAN NAIR, CHIRAKKAL AMSOM AND DESOM P.O.CHIRAKKAL, DIST.KANNUR BY ADV. SRI.T.A.RAMADASAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO. 238/95 IN SA 89/95 DISMISSED 2/4/2008 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO.89 OF 1995 ------------------------------------------ Dated 2nd April 2008 J U D G M E N T Plaintiff in O.S.315/1986 on the file of Munsiff court, Payyannur is the appellant. Respondent is the defendant. On the death of appellant his legal heirs were impleaded as additional appellants 2 to 6. Respondent instituted the suit originally for injunction. Subsequently it was amended claiming recovery of possession on the strength of title. Plaint schedule property was originally shown as 3 acres 50 cents in R.S.No.33/2A of Paralam village. After the Commissioner identified the property and submitted Ext.C2 report and C1 plan, plaint was amended incorporating plea for recovery of possession. So also the description of the plaint schedule property as identified by the Commissioner in Exts.C1 and C2 and showing the extent as 3 acre 70 cents in R.S.No.6/1B of Paralam village was amended. Plaint schedule property admittedly originally belonged to the respondent devaswom, a temple governed SA 89/95 2 under the Hindu Religious and Charitable Endowment Act. Respondent contended that the temple is in possession of the plaint schedule property and has title and possession of the property O.A.12122/1976 was filed by the appellant before the Deputy Collector, Land Tribunal, Taliparamba claiming that he is a tenant entitled to fixity of tenure and as per Ext.A1 order dated 16/6/1977 the O.A was dismissed. Alleging that appellant attempted to trespass into the property and is to be restrained by a permanent prohibitory injunction suit was instituted. The respondent filed a written statement claiming that the O.A was dismissed as appellant was not aware of the posting date and later official of Land Tribunal impleaded the party and initiated suo motu proceedings and granted purchase certificate as per order in S.M.681/1978 and respondent is not entitled to the decree. The plaint was amended contending that purchase certificate was fraudulently obtained from Land Tribunal, Payyannur, which has no jurisdiction and on that basis appellant is not entitled to claim any right. It was also contended that, order from Land Tribunal was precluded by the appellant without serving notice on the respondent and it is not valid and binding on the respondent. Contending that SA 89/95 3 appellant is not entitled to claim any right or title and he is not entitled to claim adverse possession because of the provision of the Hindu Religious and Charitable and Endowment Act, respondent claimed decree for recovery of possession. Appellant resisted the suit contending that though he had filed O.A for purchase of jenm right before the Land Tribunal, as he was not aware of the posting date, that petition happened to be dismissed and subsequently an official of the Land Tribunal inspected the property and granted a purchase certificate in his favour as per order in S.M.681/1978 and because of that said order purchase certificate No.1010/1978 was issued to the appellant and he has been in possession of the property for more than 25 years and respondent has no right or title to the property and so he is not entitled to the decree sought for. In the additional written statement appellant contended that respondent is in possession of 3.70 acres in R.S.6/1B and he purchased jenm right from the Land Tribunal as per order in S.M.681/1978 and appellant is in possession of the plots C, D, E, F as marked in Ext.C1 plan openly and uninterruptedly, respondent is not entitled to the decree sought for. SA 89/95 4 2. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A3, B1 to B7 and C1 and C2 found that respondent has title to the plaint schedule property and plaint schedule property is the property as identified by the Commissioner in Ext.C2 report and C1 plan. Learned Munsiff also found that though appellant claimed that he is tenant of the plaint schedule property, under Ext.A1 order of Deputy Collector, Land Tribunal, Taliparamba O.A.12122/1976 filed by appellant was dismissed rejecting the claim for tenancy and hence appellant cannot claim to be a tenant of plaint schedule property. It was also found that though appellant claimed that he obtained purchase certificate by a subsequent suo motu proceedings, that order was not produced and there is no evidence to prove that he was a tenant under the respondent devaswom. Learned Munsiff also found that plea of adverse possession is not available to the appellant in view of Section 94 of Madras Hindu Religious and Charitable Endowment Act. Decree for recovery of possession was granted. Appellant challenged the judgment before Sub court, Payyannur in A.S.138/1990. Learned Sub Judge on re-appreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. SA 89/95 5 It is challenged in the second appeal. 3. Appeal was admitted formulating following substantial questions of law. 1) In the light of the decision reported in 1984 KLT 763 would not the later decision in S.M.681/1978 of Land Tribunal, operate as resjudicata. 2) In view of conflicting decisions in O.A.12122/1976 and S.M.681/1978, whether the courts below were right in accepting the earlier decision in O.A.12122/1976 instead of later decision in S.M.681/1978. 3) Is not a person claiming to be in possession as a tenant entitled to prescribe the limited right of tenancy by adverse possession and limitation. 4) In as much as by the Kerala Land Reforms amendment Act there is no longer any landlord tenant relationship after 1/1/1970 cannot the possession by a person claiming to be a tenant be adverse to the landlord at least on and after 1/1/1970. 4. Learned counsel appearing for appellant and respondents were heard. SA 89/95 6 5. Plaint as originally stood was only for permanent prohibitory injunction. The resurvey number of the plaint schedule property was shown as R.S.33/2A. In view of the said resurvey number, appellant raised a contention in the written statement that plaint schedule property takes in a portion of the property which was obtained by his mother as per registered marupat No.1705/1944 of SRO, Payyannur. Case was that Nangeli Marasiar the mother was in possession of the property in R.S.No.33/2A, out of which 50 cents was given to the wife of the appellant. It was also contended that respondent is bound to take out a commission to identify the property. Ext.C1 report and C2 plan show that plaint schedule property is having an extent of 3 acres and 70 cents in R.S.No.6/1B which is marked as plot C,D,E, F in Ext.C1. Plaint was got amended showing the description of plot C,D, E, F as the plaint schedule property. Appellant then filed a written statement reiterating the contentions raised in the original written statement that it is the property which was obtained by him as per oral lease from the respondent devaswom. Though in the written statement appellant contended that he obtained the said property on oral lease, details of the lease was not specifically SA 89/95 7 pleaded. It is admitted by the appellant that he had originally filed O.A.12122/1976 before the Deputy Collector, Land Tribunal, Taliparamba and that petition was dismissed, Ext.A1 is that order. Ext.A1 order establish that application filed by the appellant for purchase of jenm right of the plaint schedule property was dismissed on the ground that appellant failed to establish the tenancy. It does not show that O.A was dismissed for default on the failure of the appellant to appear as canvassed before the trial court. Though appellant contended that subsequently suo motu proceeding was initiated in his favour by the Land Tribunal as S.M.681/1978 and he obtained purchase certificate No.1010/978 as per order in S.M.681/1978, neither the order nor the purchase certificate was produced. Substantial question of law were raised on the basis that, even though under Ext.A1 order original O.A was dismissed, it was not a dismissal on merit and subsequently as per order in S.M.681/1978 his tenancy was upheld and purchase certificate was issued and being a later order it shall prevail over Ext.A1 order and courts below should not have followed Ext.A1 order. Contention was that even if Ext.A1 order would operate as res judicata, that plea SA 89/95 8 should have been raised in S.M.681/1978 and not in the subsequent suit and when the plea of resjudicata was not raised and Land Tribunal granted a purchase certificate, subsequent order is the final order which is binding on the parties. When the appellant was examined as PW1, it was unambiguously admitted by him that the order obtained by him in S.M.681/1978 was subsequently set aside and the purchase certificate granted in his favour is not subsisting. Therefore, plea of appellant that later order should be followed will not stand when it is admitted by the appellant that subsequent order was set aside. More over, evidence of DW1 establish that he was the village officer and appellant as the village officer initiated suo motu proceeding after Ext.A1 order which culminated in granting a purchase certificate in his favour. Evidence of DW1 establish that even though jurisdiction to decide the claim for tenancy in respect of devaswom properties vests with the Deputy Collector, Land Tribunal, Taliparamba and Ext.A1 order was passed by the said Tribunal, suo motu proceeding 681/1978 was initiated before the Land Tribunal, Payyannur which has no jurisdiction to grant the purchase certificate for the property Evidence of DW1 establish that after O.A filed by him was dismissed, under SA 89/95 9 Ext.A1, appellant in his capacity as village officer clandestinely initiated suo motu proceeding before another Land Tribunal, which had no jurisdiction and procured a purchase certificate. Whatever it be, when it is admitted by the appellant that, said order was subsequently set aside, it cannot be said that, courts below committed error in not following the order in S.M.681/1978 and following Ext.A1 order. Evidence of DW1 also establish that in the subsequent S.M proceeding, devaswom was not impleaded and only Chirakkal Raja was shown as respondent when even according to the appellant, respondent devaswom was not a party to the subsequent proceedings. Hence that order is not binding on the respondent. When Ext.A1 order shows that claim for tenancy raised by the appellant was rejected on his failure to establish the tenancy and as there is no material to establish the tenancy claimed, appellant cannot be heard to contend that he is a tenant of the plaint schedule property. More over, Ext.A1 order would operate as resjudicate against the appellant from claiming tenancy subsequently. When the Land Tribunal which has the jurisdiction to decide whether appellant is tenant or not has decided under Ext.A1 that appellant is SA 89/95 10 not a tenant entitled to fixity of tenure another order cannot be passed subsequently. 6. Then the only question is whether appellant has perfected his title by adverse possession. Plea for adverse possession was rejected by the courts below based on Section 94 of Madras Hindu Religious and Charitable Endowment Act. 7. Section 94 of the Madras Hindu Religious and Charitable Endowment Act reads, 94. Property of religious institutions not to vest under the Law of Limitation after commencement of this Act. Nothing contained in any law of limitation for the time being in force shall be deemed to vest in any person the property or funds of any religious institution which had not vested in such person or his predecessor-in-title before the commencement of this Act. In view of Section 94, a plea based on limitation is not maintainable as against the temple coming within the ambit of Hindu Religious and Charitable Endowment Act. It is not disputed that appellant is devaswom governed by Madras Hindu Religious and Charitable Endowment Act. Therefore, in view of Section 94, plea of adverse SA 89/95 11 possession raised by the appellant was rightly rejected by the courts below. More over, when the appellant is claiming that he is a tenant under the respondent he cannot claim that he has been in possession of the property with the necessity animus to possess against his own landlord and has perfected title. At the time of evidence as DW1, he has not claimed that he has perfected title by adverse possession. In such circumstances, courts below rightly granted a decree for recovery of possession in favour of the respondent. 7. Learned counsel appearing for appellant relying on the decisions of Apex court in Pranab Kumar Mitra v. State of West Bengal and another (AIR 1959 SC 144), A.R.Antulay v. R.S.Nayak and another (AIR 1988 (2) SC 1531), Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (AIR 1999 (2) SC 2213) and M/s.M.Ramnarain Private Limited and another v. State Trading Corporation of India Limited (1983 (3) SCC 75) argued that appellant did not file an appeal against Ext.A1 order on a wrong legal advice and in such circumstances, appellant may be granted an opportunity to file an appeal. Ext.A1 order was passed on 16/6/1977. Appellant is not an illiterate layman. He is a village officer. It is the appellant who SA 89/95 12 subsequent to the dismissal under Ext.A1 order, initiated suo motu proceeding in his own favour and procured a purchase certificate from Land Tribunal which has no jurisdiction to grant it. Therefore appellant cannot be claimed that he was misguided by a wrong advice. Whatever it be, it is not for this court to decide whether delay in filing an appeal which is yet to be filed, is to be condoned or not. It is for the appropriate authority at the appropriate time when such an application is filed to consider the question. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 89/95 13 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.89 OF 1995 2nd April 2008 ============================ SA 89/95 14