IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 RSA.No. 744 of 2007 ----------------------- AS.61/2006 of III ADDL. DISTRICT COURT, ERNAKULAM OS.98/1996 of MUNSIFF COURT, PARAVUR .................... APPELLANTS/APPELLANTS/DEFENDANTS --------------------------------------------- 1. BHARAT PETROLEUM CORPORATION LIMITED, 7, KODAMBAKKOM HIGH ROAD, P.B.NO.1277, MADRAS-600 034, REPRESENTED BY MANAGING DIRECTOR. 2. CHIEF DIVISIONAL MANAGER, BHARAT PETROLEUM CORPORATION LTD., COCHIN DIVISIONAL OFFICE, COCHIN. BY ADV. SRI.N.N.SUGUNAPALAN, SC, BPC SRI.S.SUJIN RESPONDENTS: RESPONDENTS/PLAINTIFFS -------------------------------------------------- 1. ST.GERMAN'S CHURCH, NORTH PARUR, REPRESENTED BY ITS VICAR. 2. FR. JOSEPH MADAKETHEKKATTU, VICAR, ST.GERMAN'S CHURCH, NORTH PARUR. 3. K.T.CHACKOCHAN, KACHAPPILLY HOUSE, PARAVURTHARA MURI, PARUR, (TREASURER OF THE CHURCH). 4. V.C.PATHROSE, PALLIKODATH, PARAVUTHARA MURI, PARUR, (TREASURER OF THE CHURCH). BY ADV. SRI.SAIBY JOSE KIDANGOOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ----------------------------------------------------- R.S.A. No 744 of 2007 ----------------------------------------------------- Dated this the 19th June 2008 JUDGMENT The defendants in O.S. No 98 of 1996 on the file of the Munsiff's Court, N. Paravur are the appellants they having lost their case both in the trial court as well as before the first appellate court. 2. The suit aforesaid was filed by the respondents for declaration and recovery of possession of the schedule property, inter alia, on the allegation that the schedule property having 7 1/6 cents comprised in survey No 286/19A of Paravur Pakuthy is owned by the first plaintiff church of which second plaintiff is the Vicar and third and fourth plaintiffs are the trustees, that the property originally belonged to Kottekkavu St. Thomas Ferona Catholic Church, that the schedule property was given under a licence agreement to the predecessor company of the first defendant Bharath Petroleum Corporation Limited, namely, Burma Shell Oil Storage and Distributing Company of India Limited by the said Kottekkavu St. RSA 744/07 2 Thomas Ferona Catholic Church on 17.08.1958 for the purpose of running a petrol pump, that the predecessor company has got amalgamated with the defendant company, that the earlier licence was for ten years and after the expiry of the initial ten years period licence was further extended by another agreement with the defendant company for a further period of ten years, that thereafter a subsequent renewal also was made for a period of ten years from 17.08.1968 and that even after the expiry of the said period of ten years the defendants have not vacated the premises, that the officials of the defendant company intimated the plaintiff that if an alternate site is provided the present premises would be vacated and accordingly the plaintiff purchased a suitable plot and informed the defendant but the officials of the defendant were not satisfied with the alternate site offered and backed out from their promise, that therefore notice was issued by the plaintiff through lawyer to the defendant company on 12.09.1995 demanding vacant possession of the premises after removing structures erected thereon but the defendant sent a reply on 17.10.1995 raising untenable contentions and hence the suit. 3. The defendant resisted the suit filing written statement RSA 744/07 3 contending that the schedule property was initially taken on lease for a period of ten years from 17.08.1958 on the basis of lease deed, that the lease was further renewed to another ten years from 17.08.1968 and it is incorrect to say that the defendant was being allowed to run the petrol bunk from 11.08.1968 onwards, that the agreement is however not a licence agreement as alleged, but the transaction is one of lease with effect from 17.08.1958 and buildings were constructed by the first defendant thereon long before 20.05.1967; that by virtue of the provisions of the Burma Shell Acquisition and Transfer of Undertakings Act 1972 defendants remained in possession for a further period of ten years from 17.08.1978 and from that date onwards defendant company continued in possession and by reason of Section 106 of the Kerala Land Reforms act the defendant company is a tenant entitled to benefits under section 106 of the Act. They further contended that the plaintiffs are not entitled to evict the defendants or recover the suit property, that there is no arrears of rent and the court has no jurisdiction to decide the question of tenancy and prayed that the case be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act for decision being rendered on the tenancy RSA 744/07 4 right claimed invoking Section 106 of the Act. 4. The trial court raised necessary issues for trial. In view of raising of issue No. 1 regarding tenancy right claimed by the defendants under Section 106 of the Kerala Land Reforms Act the proceedings in the case were stayed under section 125 (3) of the Act and the question of tenancy covered by issue No. 1 was referred to the Land Tribunal for adjudication by the trial court. Before the Land Tribunal, Ernakulam at Tripunithura the case was registered as R.C. 12 of 1998. Though notices were served on the parties and the case was posted on 24.04.1998, and adjourned several times the defendants who advanced the case of tenancy did not appear continuously for 14 sittings and consequently the Land Tribunal dismissed the reference numbered as R.C.12/96 for default. When order in R.C 12/96 was received by the trial court the trial court proceeded with the trial of the suit. It was listed for trial on 18.01.2001. On that day defendants were absent and there was no representation even on their behalf. From 18.01.2001 the case was adjourned to 24.01.2001. On that day also the defendants were absent and there was no representation. The defendants were therefore set ex parte and the trial court after examining P.W.1 and RSA 744/07 5 admitting Exts A1 to A3 in evidence decreed the suit allowing recovery of possession of the schedule property from the defendants with damages for use and occupation at the rate of Rs 2,000/- per month from the date of suit and ordering that the order of the Land Tribunal shall form part of the judgment. The defendants filed A.S. No 61 of 2006 before the District Court, N. Paravur and the said appeal was dismissed by the appellate court confirming the decree passed by the trial court. 5. It is contended before me by the learned counsel for the appellant that as per the mandate of Section 125 (3) of the Kerala Land Reforms Act the order in R.C. 12 of 1998 passed by the Special Tahsildar, Land Tribunal dismissing the reference for default could not have been accepted as a finding rendered by the Land Tribunal and the trial court should not have proceeded with the trial of the suit; that the trial conducted accepting the said order passed by the Land Tribunal as a finding is per se illegal and that therefore no order of eviction could have been passed by the trial court against the appellants-defendants without adjudicating their claim under Section 106 of the Land Reforms act and that the appellate court also did not appropriately consider the question of law thus involved and that RSA 744/07 6 therefore this R.S.A deserves to be admitted to file. 6. Consequent on the raising of the contention by the appellants-defendants before the trial court claiming benefits under Section 106 of the Kerala Land Reforms Act the trial court appropriately made a reference for a finding on that issue covered by issue No. 1 for decision by the Land Tribunal. The Land Tribunal registered it on its file as R.C. 12 of 1998 and after service of notice to the parties the Tribunal posted the case on 14 sittings and the appellants-defendants who advanced the claim under section 106 of the Act did not turn up to substantiate their claim. Hence the reference registered in 1998 was dismissed by the Land Tribunal vide order dated 09.06.2000, after two years. Inasmuch as the appellants did not establish their claim for benefit under section 106 of the Act adducing any evidence in the matter, this is a case where the appellants-defendants had not established their tenancy right claimed under Section 106 and therefore it was appropriate for the Land Tribunal to send back the records to the trial court entering a finding against the appellants-defendants answering their claim in the negative. The contention that the Land Tribunal was dismissing the case for default is advanced on the basis of the words used by the RSA 744/07 7 Land Tribunal in the order In the circumstances in which the Land Tribunal was disabled to proceed with the adjudication of the claim advanced by the appellants-defendants the order of the Land Tribunal could only be considered as an answer in the negative to the claim advanced by the appellants for benefit under Section 106 of the Kerala Land Reforms Act covered by issue No.1 framed by the trial court in the suit. In terms of Section 125 (3) of the Kerala Land Reforms Act the trial could not but accept the order of the Land Tribunal as one rendering a finding in the negative on the issue referred to it. Further though the case was listed for trial in the trial court on 18.01.2001 and the case was adjourned to 23.01.2001 and thereafter to 24.01.2001, the appellants-defendants were absent and there was no representation even on their behalf. Consequently they were set ex parte and the trial court proceeded to decree the suit. It was the said ex parte decree that was assailed by the appellants before the first appellate court. The appellate court considered the case on merits and dismissed the appeal. Hence this Regular Second Appeal. 7. It is vehemently contended before me by the learned counsel for the appellants that the trial court should not have disposed of the RSA 744/07 8 case, accepting the order passed by the Land Tribunal in R.C. No 12/98, as it is not a finding rendered as envisaged under Section 125 of the Kerala Land Reforms Act, but is an order dismissing the reference for default. The contention so advanced is devoid of any merit for two reasons. Firstly, the appellants should have submitted this matter before the trial court, which made the reference if at all they were desirous of having the issue of tenancy being got answered by the Land Tribunal. Secondly, even when the trial of the case was listed before the trial court, the appellants did not turn up to submit anything and the disposal was an ex parte one. If at all such an ex parte decree has to be re-opened and they wanted the matter to be considered on merits, such an application should have been made before the trial court. That also was not done. When the matter has been disposed of ex parte and the appellants-defendants preferred an appeal against that ex parte decree, what could be challenged is only the propriety or otherwise of the disposal of the case ex parte and the correctness of the ex parte decree so passed and not advancing any further claim on the merits of the contentions. Even the said appeal happened to be dismissed for default initially and it was got set aside only by a direction obtained from this court. RSA 744/07 9 8. The first appellate court observed, while disposing of the appeal on merits after hearing the parties, that the “B” diary in the case showed that throughout the case, the appellants-defendants did not, at all, actively participate in the trial and were pursuing their case without a clear and specific case of their own and that on reference being made, as mandated by Section 125 (3) of the Kerala Land Reforms Act, the appellants did not appear before the Land Tribunal and the Land Tribunal was constrained to dismiss the reference petition consequent on the continued absence of the appellants in the proceedings. The appellate court held that the Land Tribunal, in the circumstances, could not be found fault with for not answering the reference on merits, without any evidence whatsoever adduced before it and therefore, it was of the view that the contentions regarding the propriety of answering the reference made by the Land Tribunal does not merit consideration and that the contentions have only to be rejected. The use by the Land Tribunal of the words that the case is dismissed for default is only a defect in the manner of answering the reference and it can only be taken as an answer against the appellants' claim for the benefit under Section 106 of the Kerala Land Reforms Act, they having not established the RSA 744/07 10 benefit claimed by them under Section 106 of the Kerala Land Reforms Act. There is no infirmity on that account, in the disposal of the case by the trial court as also by the first appellate court, repelling the claims of the appellants. 9. The appellate court has further observed that even in the appeal, there was no ground taken and no request also was made for setting aside the judgment and decree passed by the trial court and making any kind of remand for affording the appellants an opportunity to have their case considered on merits. The first appellate court, therefore, came to the conclusion that disposal of the case by the trial court ex parte, in the circumstances of the case was proper and has only to be confirmed, confirming the findings of the trial court. The contention that under Section 125 (7) of the Kerala Land Reforms Act, the trial court could not have accepted the order of the Land Tribunal as a finding is devoid of merit in the circumstances in which the order happened to be passed by the Land Tribunal as discussed above. There is absolutely no merit at all in this Regular Second Appeal and no substantial question of law arises for consideration by this court in this Regular Second Appeal. 10. In the result, I dismiss this Regular Second Appeal in limini, RSA 744/07 11 refusing admission. Sd/- K.P. BALACHANDRAN Judge 19/06/2008 en [true copy]