IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 AS.No. 589 of 1998(A) --------------------- OS.298/1994 of ADDL.SUB COURT, KOCHI .................... APPELLANTS/DEFENDANTS 2, 5 TO 10: ----------- 1. OUR LADY OF LIFE CHURCH, MATTANCHERY REPRESENTED BY THE VICAR REV. FR. MARK ANTONY, AGED 45, S/O.ANTONY PUTHENPURACKAL. 2. LONAPPAN, KAIKAR, OUR LADY OF LIFE CHURCH, MATTANCHERRY, BAZAR ROAD, KOCHI-2. 3. PAILY, KAIKAR, -DO- -DO- 4. ANTONY, KAIKAR, -DO- -DO- 5. CLEETUS, S/O.JOSEPH, AGED 35, ARAKKAPARAMBIL, JEEVA MATHA NAGAR, BAZAR ROAD, KOCHI-2. 6. K.G.ANTONY, S/O.JOSEPH KUNNITHA PARAMBIL AGED 36, KOOVAPPADAM, KOCHI-2. 7. M.T.ROY, AGED 30, S/O.THOMAS MALIACKAL, KAPPALANDIMUKKU, KOCHI-5. BY ADV. SRI.P.F.THOMAS SRI.SUNIL THOMAS RESPONDENTS: ----------- 1. SMT.MAGIE, AGED 49, W/O.P.J.JACOB SILVESTOR, RESIDING AT AZHINAKKAL HOUSE, KALIYATH PARAMBA, NAZRETH, KOCHI-2. 2. MRS.PHILOMINA, AGED 47, D/O.LATE LAZAR SILVY, RESIDING AT -DO- -DO- 3. SMT.CHRISTINA, AGED 42, S/O.GEORGE CLEMENT, RESIDING AT -DO- -DO- 4. SMT.POUSTHINA, AGED 39, W/O.P.J.XAVIER, PULIYAR4ATH HOUSE, SANDO GOPALAN ROAD, CHULLICKAL, KOCHI-5. -2- A.S.NO.589/98 5. CORPORATION OF COCHIN, HAVING PRINCIPAL OFFICE AT CORPORATION BUILDING NEAR BOAT JETTY, ERNAKULAM, WITH A ZONAL OFFICE AT MATTANCHERRY, KOCHI-2. 6. JOHN GEORGE MONTERO, AGED 47, S/O.J.A.MONTERO EMPLOYED IN ANTONY FRANCIS & SONS, BROADWAY, ERNAKULAM, KOCHI-31. BY ADV. SRI.M.C.CHERIAN SMT.SIBA MARTIN SRI.K.BALAKRISHNAN SMT.ASHA CHERIAN SRI.E.D.GEORGE SMT.T.K.SUNIMOL SRI.P.M.SANEER THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 26/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.4852/1998 IN A.S.NO.589/1998 ------------ Dismissed Sd/- P.R.RAMAN, JUDGE. 25/03/2009 Sd/- V.K.MOHANAN, JUDGE. P.R.RAMAN & V.K.MOHANAN, JJ. ------------------------------- A.S.NO.589 OF 1998 -------------------------------- Dated this the 25th day of March, 2008 JUDGMENT Raman, J. This appeal is against the judgment and decree passed by the Additional Subordinate Judge, Kochi in O.S.No.298/94. The suit was one for declaration of sale deed No.4067/94 as null and void and for recovery of possession and injunction together with damages. Respondents 1 to 4 herein are the plaintiffs and respondents 5 and 6 are defendants 1 and 4 in the suit. The appellant is the Church at Mattancherry represented by its Priest and the Kaikars were impleaded during the pendency of the suit at various stages. The 3rd defendant was the Bishop of the Diocese, who was removed from the party array of defendants by an order passed in I.A.No.2229/95, an application filed by the plaintiffs. Appellant 2 to 4 were impleaded as per order in I.A.No.3049/95 filed at the instance of the plaintiffs. Appellants 5 to 7 were impleaded as defendants 8 to 10 on a similar application filed by the plaintiffs. 2. The court below by the judgment impugned in this appeal -2- A.S.No.589/98 decreed the suit. The present appeal is directed against the said judgment and decree. 3. Briefly stated facts are as follows: The plaint schedule property consisting of 7 1/2 cents in Sy.No.190/1 of Mattancherry Village originally belonged to Roman Catholic Church, Mattancherry from whom one Lazar, son of Azhinakkal Vareed, obtained a leasehold right agreeing to pay site rent at the rate of Rs.5/- per month. He constructed a shed and carried on blacksmith work in the shed. Later, the said right was transferred in favour of Chacko, the brother of Lazar by a registered sale deed dated 16/7/1951, Ext.A1 produced in this case. Chacko effected repairs to the building and renovated. Later, Chacko let out the said shed to J.A.Montero, the father of the lst defendant in the suit for conducting a trade in metals on an agreed amount of Rs.40/-. Subsequently, the leasehold right was again transferred by Chacko in favour of Silvi, son of his brother Lazar. Silvi availed a loan from the 2nd defendant on the security of the building and the site and the 2nd defendant was authorised to collect the rent towards the loan amount. Balance amount of Rs.636/- was paid to the 2nd defendant in December, 1969 by Silvi and thus the entire debt was paid off. The tenant Montero paid rent to Silvi till 1974. Thereafter, he -3- A.S.No.589/98 committed default in the matter of payment of rent which resulted in the institution of S.C.No.41/75 before the Sub Court, Kochi for arrears of rent. In that case the tenant-Montero claimed kudikidappu right. It was referred to the Land Tribunal, Vypin. In the reference O.A.4236/76 Silvi had also instituted rent control petition, R.C.P.No.59/76 before the Rent Control Court for eviction under Section 11(2) (b) and 11(3) of the Buildings (Lease and Rent Control) Act. This was also referred to the Land Tribunal and the Land Tribunal declared kudikidappu right in favour of the tenant. Based on that finding both the suit as well as the rent control petition were dismissed. The finding of the Land Tribunal was confirmed by this Court in C.R.P.No.2411/79. Later, Silvi died and the plaintiffs, who were the legal heirs of the said Silvi, filed R.C.P. No.20/89 for eviction before the Rent Control Court. But the same was filed without knowing the earlier proceedings. Hence, the said R.C.P. was also dismissed. However, the tenant in whose favour kudikidappu right was declared, did not opt to purchase the kudikidappu and no purchase certificate was issued to him. While so, the lst defendant executed a sale deed in favour of 2nd defendant in respect of the plaint schedule property and the sale deed is null and void as far as the plaintiffs are concerned. It is contended that the sale deed is vitiated by fraud and the 2nd defendant -4- A.S.No.589/98 could not obtain any valid title under the said deed, which is produced as Ext.A2. After 1/1/1970 the jenm right over the land became vested with the Government under the provisions of the Kerala Land Reforms Act. As successor-in-interest to the lessee the plaintiffs are entitled to fixity of tenure. After Ext.A2 sale deed was executed, the 2nd defendant demolished the building in the property. Hence the plaintiffs claimed an amount of Rs.50,000/- by way of damages towards the value of the demolished building. They also sought to recover future mesne profits at the rate of Rs.200/- till the date of recovery of possession of the property. Thus, the plaintiffs prayed for a declaration that the sale deed, Ext.A2 executed by the lst defendant in favour of the 2nd defendant, is null and void and not binding upon the plaintiffs and to allow recovery of possession of the plaint property on the strength of plaintiffs' title. They also prayed for permanent prohibitory injunction restraining the defendants from alienating the properties or from putting up any structures in the property and also for an amount of Rs.50,000/- towards damages together with future interest at 6% from defendants 1 and 2 and for payment of future mesne profits at the rate of Rs.200/- per month. 4. The defendants resisted the suit inter alia, contending that the suit is not maintainable. The suit is bad for mis-joinder and non-joinder -5- A.S.No.589/98 of necessary parties. The plaint schedule property belongs to the Church and forms part of the Church compound. The documents relied on by the plaintiffs do not mention the extent of the property. The documents recited charth constructed with liability to pay ground rent to the owner and which right is transferred by document No.1286/1951 (Ext.A1). Neither the father of the plaintiffs nor the plaintiffs claimed a lease-hold right. Such a leasehold right can be created only a registered document and in the absence of execution of registered lease deed the claim is liable to be negatived. It is stated that the Church allowed the plaintiffs' predecessor to construct a charth in the property on payment of ground rent. That right was confined and limited to the land occupied by the charth. The claim of leasehold right over 7 1/2 cents is not sustainable. The right conferred to construct a charth for the business stood extinguished on the finding of the Land Tribunal that the lst defendant was a kudikidappukaran. The plaintiffs' father compromised with the finding and abandoned all his rights and interest over the property, if any. The Revenue Inspector deputed by the Land Tribunal, after inspection, reported that the total perimetre of the building is 354 ft. Based on the finding of the Land Tribunal that the occupant is a kudikidappukaran, the suit for recovery of rent and the petition for eviction were dismissed. -6- A.S.No.589/98 Subsequently, mutation with respect to the building was effected in favour of the lst defendant by the Corporation. Hence, no further right subsisted with the plaintiffs after the finding of the Land Tribunal and confirmed by this Court. The lst defendant obtained an assignment of the rights of other legal heirs as per registered sale deed. The plaintiffs did not claim kudikidappu right over the property nor are they entitled to make any such claim. They also not claimed any right as a commercial lessee. The plaintiffs' father let out of the building in question to the father of the lst defendant and upon such transfer the rights of the plaintiffs' father got extinguished. The lst defendant having status of the kudikidappukaran assigned his right and interest over the property by executing a registered sale deed for valuable consideration. The building was old and was in dangerous condition and hence the 2nd defendant demolished the building. The mesne profits claimed is not sustainable. The demolished building would fetch a value of Rs.750/- only. In the result, the suit is liable to be dismissed with costs. 5. The lst defendant adopted the written statement filed by defendants 2 and 3. The 4th defendant in the written statement contended that it is upto the plaintiffs to prove the contends of the plea raised in the plaint and they should be put to strict proof of the same. The suit is liable -7- A.S.No.589/98 to be dismissed. 6. The evidence consists of oral testimony of PWs.1 and 2 and DWs. 1 and 2 and Exts. A1, A2, B1 to B10 and C1 to C1(a) were marked in this case. The trial court framed 10 issues. Issue No.4 was as to whether the plaintiffs have title to the suit property and issue No.5 was as to whether the sale deed executed by the lst defendant in favour of the 2nd defendant is null and void and whether the sale deed should be set aside. These two issues were tried together and the trial court found both the above issues in favour of the plaintiffs. It was held that the predecessor- in-interest to the lst defendant having been found to be kudikidappukaran, the tenancy right stood established and the parties are barred from raising different contention regarding the nature of the right. In the absence of any document produced by the Church to show surrender of possession of the property to the lst defendant by any means and since the lst defendant has no case that he is attorned directly to the Church in any manner and by virtue of Ext.A1 it would show that what was conveyed by Ext.A1 had been in the possession of A.J. Montero and his heirs and by Ext.A2 the Church itself having purchased 7 cents of land which was in possession of the lst defendant's father, as let out by Chacko, the predecessor-in- interest to the plaintiffs. The Church having admitted the right of the -8- A.S.No.589/98 tenant by Ext.A2 through the plaintiffs' predecessors. Hence, the dispute regarding the extent of the land was found to be without any merits. It was held that Ext.A2 sale deed will not convey any title to the Church and as such it is null and void. In view of the above finding, it was also found under issue No.6 that the plaintiffs are entitled to recover possession of the plaint schedule property from the 2nd defendant. The trial court however did not grant any decree for damages and issue No.8 was found in favour of the defendants. Issue No.7 is a prayer for injunction which was also granted. The suit is bad for non-joinder of necessary parties and in view of the subsequent impleadment of necessary parties, it was found that there is no non-joinder of necessary parties. Though the maintainability of the suit was raised earlier, no argument was advanced thereon. Hence, the suit was found to be maintainable. A decree for mesne profits of Rs.100/- per month was granted. In the result as per Issue No.10 the suit was decreed in the following terms. "In the result, the suit is decreed in the following terms:- A) That the plaintiff shall be allowed to recover possession of the plaint schedule property on the strength of title from 2nd defendant - Church together -9- A.S.No.589/98 with mesne profits at the rate of Rs.100/- per month from the date of the suit. B) That the defendants shall be restrained by a decree of perpetual injunction from alienating or encumbering the plaint property by any means. C) That the Sale Deed No.4067/94 dated 3/9/1994 of Kochi S.R.O. executed by the lst defendant in favour of the 2nd defendant shall be declared as null and void. D) That the prayer for damages is disallowed." 7. The finding of the court below that the plaintiffs are not entitled for any damages is not appealed against and it has become final. The suit is held as maintainable, as necessary parties have been impleaded later in the proceedings. These findings are not appealed against. The declaratory relief granted by the court below that Ext.A2 sale deed does not confer any title to the Church and the decree for recovery of possession and injunction and future mesne profits at the rate of Rs.100/- as granted by the court below are the main issues arising for consideration in this appeal. 8. According to the learned Senior Counsel Sri P.F.Thomas -10- A.S.No.589/98 appearing for the appellants, the oral lease set up by the plaintiffs from the Church in favour of Lazar and the extent of property are matters on which absolutely there was no acceptable evidence, oral or documentary. It is only an entrustment of the property to Lazar, who stands in the position of a licensee, for the purpose of putting up a shed for the specific purpose of conducting smithy therein and by virtue of the declaration that Montero, who was ultimately in possession of the said shed, having surrendered the same to the defendants by Ext.A2, the purpose for which a licence was granted stood extinguished and no further right remains with the plaintiffs or anybody to claim title or to seek recovery of possession. Assuming that Montero's right as kudikidappukaran is found to be not assignable, that in no way will entitle the plaintiffs to seek recovery of possession of the entire property, since the maximum extent the kudikidappukaran can purchase, when the land is situated in a city, is 3 cents. This is without prejudice to their contention that by virtue of Ext.A2, Montero has only surrendered his possession in favour of the ultimate landlord without violating any law and at any rate in the absence any proceedings against the Church by any of the parties and the Church being the ultimate owner of the property, is not liable to be dispossessed by the plaintiffs. -11- A.S.No.589/98 9. Learned counsel Sri M.C. Cherian appearing for the respondents on the other hand would contend that the Church has accepted Ext.A2 document and that Montero is estopped from raising any dispute regarding the extent of the land, since in Ext.A2 the extent of the land as per the schedule is 7 cents. Further the Church has not produced any document to say that they were receiving any rent from anybody or a licence fee. He also placed reliance on Ext.B7 complaint before the People's Counsel for Social Justice and also on Ext.A2 sale deed executed in 1994. Referring to Ext.C1 commission report and Ext.C1(a) plan he also contended that these documents proved that an extent of 7 cents of land along with a building was separated from the rest of the property of the Church and was in exclusive possession and enjoyment of the plaintiffs and ultimately by Montero and since Montero did not obtain any purchase certificate but only a got a declaration of his right as kudikidappukaran by the Land Tribunal, such right is not alienable and hence when Ext.A2 was executed in violation thereof, Montero has ceased to have any right over the property and the plaintiffs are tenants entitled to fixity of tenure, they cannot be dispossessed or extinguished of their valuable right by Ext.A2 sale deed executed by Montero, who was a lessee of the building in question and the sale deed is not binding on the plaintiffs. They supported -12- A.S.No.589/98 the finding of the court below and prayed that the decree be confirmed. 10. It is not disputed that the plaint schedule property originally belonged to the Roman Catholic Church, Mattancherry. According to the plaintiffs, an extent of 7 1/2 cents in Sy.No.190/1 of Mattancherry Village belonged to the said Church and one Lazar, son of Azhinakkal Vareed took the said land on lease from the Church agreeing to pay site rent of Rs.5/- per month. Later, he constructed with his own funds a tiled masonry shed thereon bearing Door No.2/258 of Mattancherry Municipality where he carried on his profession as a blacksmith and he was in possession and enjoyment of the land for quite sometime. While so, as per sale deed No.2101 of 1102 M.E. of the Cochin Sub Registry the leasehold rights over the land and his rights of ownership over the building were assigned by the said Lazar in favour of his brother Chacko along with the tools and accessories. Chacko was thus in enjoyment and possession of the properties in particular to the extent of the leasehold rights over the land and the ownership over the building. While the building was in possession and enjoyment of Chacko he made extensive repairs and renovated and enlarged the building. Subsequently, the building was re-numbered as 4/70 and was let out by Chacko to J.A. Montero, father of the lst defendant for conducting a trade in metals on a -13- A.S.No.589/98 monthly rent of Rs.40/-. In due course of time, Chacko assigned all his rights over the said properties in favour of Silvi by registered sale deed No.1286/1951 which is produced and marked as Ext.A1 in this case. Subsequently, the tenant attorned to Silvi and paid rent. While so, Silvi took a loan in 1965 securing the building and the site to the 2nd defendant who was authorised to collect the rent direct from the tenant. Under the terms of the loan agreement, the 2nd defendant agreed to adjust the interest from the rent and balance towards the principal and the entire loan amount was discharged after paying the balance of Rs.636/- by Silvi and obtained a receipt. Thereafter, J.A. Montero was paying rent to Silvi upto 1974 and it was when it fell in arrears that the suit S.C.No.41/75 was filed before the Sub Court, Cochin. Subsequently, R.C.P.No. 59/76 was also filed by Silvi before the Rent Control Court seeking eviction under 11(2) (b) and 11(3) of the Buildings (Lease and Rent Control) Act. A claim of kudikidappu was raised by Montero, which was referred to the Land Tribunal and ultimately a finding was rendered by the Land Tribunal holding that Montero is a kudikidappukaran. Accepting the finding both the suit S.C.No.41/75 and R.C.P. No.59/76 were dismissed. The finding of the Land Tribunal was confirmed by this Court in C.R.P.No.2411/79. Consequently, R.C.A.No.53/79 filed by Lazar Silvi was also dismissed. -14- A.S.No.589/98 The defendants themselves had produced certified copy of the judgment in S.C.No.41/75 as also the decree passed (Exts.B2 and B3). Ext.B4 is a certified copy of the order of this Court in C.R.P.No.2411/79. On a perusal of these two documents, the fact that there were rent control proceedings between Silvi and Montero and that a suit for arrears of rent was also instituted as S.C.No.41/75 which was ultimately dismissed as per the finding of the Land Tribunal, holding that Montero is a kudikidappukaran, which finding was accepted by this Court in the order passed in C.R.P.NO.2411/79, is beyond dispute. Subsequently, the rent control proceedings initiated by the plaintiffs as R.C.P.No.20/89 was also dismissed and according to the plaintiffs, that proceedings was initiated without knowing the previous proceedings. So much so, while Montero was in possession of the building, Silvi asserted his right over the same and sought eviction of the tenant; but it was not successful because of the finding by the Land Tribunal that Montero was a kudikidappukaran. It must be remembered that these documents are produced by the defendants in the case. Admittedly, the property in question is part of the Church property and now in possession of the Church. Even though the defendants disputed the extent of land, plaintiffs' predecessor-in-interest had always been asserted possession and enjoyment of an extent of 7 1/2 -15- A.S.No.589/98 cents of land and a building thereon as evidenced by Ext.A1 sale deed dated 16/7/1951 executed by Chacko in favour of Silvi. This document also contains recital that Lazar got the property as per registered sale deed No.2101/1102 M.E. Both the documents namely, document No.1286/1951 and the earlier document referred to therein namely, document No.2101/1102 relied on by the plaintiffs are documents of more than 30 years old the evidenciary value of which is unimpeachable. Ext.A1 is executed by Chacko in favour of Silvi, which recites that the building mentioned in the schedule along with the appurtenant land thereto and all rights pertaining thereto is assigned in favour of Silvi for a consideration of Rs.2,000/-. It also states that consequent to the purchase by the transferor, he had made repairs to the building which was re-numbered by the Municipality as Building No.70 in Ward No.4. It also refers to the fact that Montero was put in possession of the property by an oral arrangement. The extent of the property however is not mentioned in the schedule, though the property is described with all the four boundaries. The property is situated in Sy.No.190/1 of Mattancherry Village. Ext.A2 is the document under challenge by the plaintiffs, as per which the Church got assignment from Montero. It is a registered document No.4067/94 dated 3/9/1994 executed by John Geroge Monetero (Junior Montero) -16- A.S.No.589/98 in favour of the appellant-Church. It is described as a sale deed (തറധര) . It recites that the transferor father J.A. Montero was the owner of the building. He had taken he building in question on lease from the then owner-Lazar and was in possession and enjoyment of the same. After the death of his father, his legal heirs, the transferor and his family were residing therein, when the owner of the property sought to evict them and the transferor had contended that he is the kudikidappukaran and the Tribunal had given a verdict in his favour, which was confirmed in C.R.P.No.2411/79 and thus he was residing as kudikidappukaran and those properties and all the rights relating thereto were sold for a total consideration of Rs.50,000/-. The property described in the schedule is an extent of 7 cents of land in Sy.No.190/1 of Mattancherry Village along with the building No. CC VI/985 and the latrine and bathroom appurtenant thereto. Since this is a document executed by junior Montero in favour of the Church and the Church having accepted the said document and even raised a contention that after executing Ext.A2 the plaintiffs have no other right over the property. It is idle for the appellant- Church to dispute neither the extent of the land nor the fact that the entire land of an extent of 7 cents along with the building were outstanding in possession and enjoyment of the transferor. The plan submitted by the -17- A.S.No.589/98 Commissioner along with the report also would show that there existed a building in the property in question and there was a separate latrine and bathroom appurtenant thereto and the rare portion of