IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA WEDNESDAY, THE 6TH DAY OF JULY 2011/15TH ASHADAH 1933 SA.No. 223 of 2003 ------------------- AS.159/1996 of I ADDL.DISTRICT COURT, PALAKKAD OS.162/1989 of SUB COURT, OTTAPPALAM ........... APPELLANTS/APPELLANTS/DEFENDANTS 1,2 & 5: 1. NOTTAMKANDATH AMMINI AMMA, W/O. OZHUVIL GOVINDAN NAIR, AGED 65 YEARS, RESIDING AT VADANAMKURISSI AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT 2. CHILDREN: KRISHNANUNNI, AGED 42 YEARS, DO. DO. 3. RAJANARAYANN, AGED 36 YEARS, DO.DO. 4. PREMA, AGED 36 YEARS, DO. DO. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR RESPONDENTS/RESPONDENTS/PLAINTIFF & 4TH DEFENDANT: 1. MANJULA D/O. VETTATHIL LEKSHMI AMMA, AGED ABOUT 27 YEARS, RESIDING AT PERINGODE AMSOM AND DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT 2. CHANDRASHEKHARAN, SON OF NOTTAMKANDATH, AMMINI AMMA, AGED 35 YEARS, RESIDING AT PERINGODE AMSOM AND DESOM, OTTAPPALAM TALUK, PALAKKAD DIST. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- S.A No.223 of 2003 -------------------------- Dated this the 6th July, 2011 J U D G M E N T A suit was filed by 1st respondent before Sub Court, for recovery of possession of the plaint schedule property on the strength of title against appellants (defendant nos.1,2,3, 5) and also the 2nd respondent herein (defendant no.4). The defendants claimed right of tenancy. The case was hence referred to the Land Tribunal by the trial court under Section 125 (3) of the Land Reforms Act. The reference was answered against the defendant/ appellants. 2. The defendants had also filed O.A No.7221/1975 claiming kudikidappu and an order dated 4.7.1977 passed was set aside as per order dated 12.4.1991 in AA No.74/1991 of the appellate authority (LR). The case was also remanded to the Land Tribunal for deciding the tenancy question afresh. 3. After the remand, the reference by the Civil Court and the original application were considered by the Land Tribunal and as per order dated 31.8.1994, the application S.A No.223 of 2003 2 filed by the defendants was dismissed. The reference under Section 125(3) was answered by holding that the defendants had not proved the tenancy right over the plaint schedule property. 4. The trial court raised several issues relating to possession of plaint schedule property by the plaintiff and her mother, the tenancy right claimed by the defendants, the claim of the defendants on adverse possession and limitation etc. The trial court decreed the suit allowing the plaintiff/1st respondent to recover possession of the plaint schedule property with mesne profits at the rate of Rs.800/- per annum. Cost was also ordered in favour of the plaintiff. 5. Defendants 1 to 3 and 5 filed an appeal before the District Court and learned Additional District Judge found that the defendants failed to establish their right of tenancy. It was also found that contradictory contentions were taken in respect of tenancy right and adverse possession regarding the same property. In the light of the claim made by the defendants on the strength of tenancy right, the possession of the defendants was considered to be permissive possession. In the absence of hostile animus to hold the S.A No.223 of 2003 3 properties, it was held that there is no merit in the contentions raised by the defendants. Therefore, the appeal was dismissed. This appeal is filed challenging the decree and judgment. 6. Heard both sides. Perused the records. The findings entered into by the trial court and the appellate court on the crucial issue arising in this case are concurrent. Admittedly, there are concurrent findings regarding the right of tenancy claimed by the defendants/appellants. Both the courts concurred in the finding that appellants failed to prove that they have tenancy right over the property. They claimed oral lease, as per the pleading in the written statement. The property came to the possession of the defendants since 1963, on the strength of an oral lease by one Sankunny Menon but in evidence, DW1 stated that defendants had possession since 1962. The inconsistency in the pleading and the evidence was taken note of by the trial court and also appellate court to hold that appellants failed to establish the tenancy right over the property. 7. Learned counsel for appellants submitted that substantial questions of law are framed in the appeal S.A No.223 of 2003 4 memorandum at page 7. On a reading of those questions raised, I do not find that those can be termed as substantial questions of law. In fact, on hearing both sides, I find that no substantial question of law arises in this case and hence no interference is called for in this second appeal on this ground itself. 8. Learned counsel for respondent No.1 pointed out that title over the property by virtue of Ext.A1 by plaintiff is admitted by the defendants/appellants. According to defendants/appellants, plaint schedule property was in possession of the defendants but it was also incorrectly included in the partition deed so as to defeat their right. The defendants were in possession of the property ever since 1963 but they failed to prove their tenancy right, it is submitted. 9. It was also pointed out that according to defendants/appellants, oral lease was granted in favour of them by one Sankunny Menon in the year 1963 but in Ext.A1 partition deed, Sankunny Menon was also a party. The said Sankunny Menon was alive during the pendency of the suit, but he was not examined. Learned counsel for the 1st S.A No.223 of 2003 5 respondent also pointed out that no documents were produced by the defendants to show that they were in possession of the property since 1963 onwards. 10. It was also submitted that Exts.B5 to B12 are tax receipts which relate to the year 1977 and those were issued only after passing of the order in O.A No.7221/1975. Therefore, no value can be attached to those documents to hold that appellants were in possession of the property since 1963, it is submitted. Learned counsel for the 1st respondent also submitted that the order in I.A No.7221/1975 was obtained, including the 1st respondent's mother as a party and Sankunni Menon alone was impleaded in the petition filed before the Land Tribunal. 11. Learned counsel for appellants however argued that the courts below failed to consider that the basic tax stood in the name of defendants as per Exts.B5 to B12 . It was also argued that first respondent's mother applied for purchase certificate by virtue of Ext.B13 application and conspicuously, plaint schedule property is excluded in the application. This is a strong circumstance to point out that the plaint schedule property was not in possession of 1st S.A No.223 of 2003 6 respondent's mother, at the time when she applied for certificate, it is submitted. According to appellants, defendants were in possession of the plaint schedule property much later and that alone is the reason why the said property is not included in the application. 12. As a reply to this, learned counsel for the 1st respondent/plaintiff argued that even if the plaint schedule property is not included while applying for purchase certificate, the right of the plaintiff's predecessor in the property is not lost and it still survives. The certificate can be obtained at any time. Therefore, non-inclusion of the plaint schedule property in an application for certificate of purchase alone may not be taken as a ground to hold that the plaintiff has no right over the property or that the defendants have obtained possession over the property. 13. Learned counsel for the appellants also argued that as per the evidence, it is established that the appellants were in possession of the property for more than 12 years and hence the courts ought to have held that the right of the plaintiff over the property, if any, is lost by adverse possession and limitation. The trial court and the appellate S.A No.223 of 2003 7 court have considered all the above contentions in detail and I do not find that such findings are illegal or infirm on any ground. 14. Learned counsel for the 1st respondent at this juncture cited a decision reported in Anna Saheb Bapusaheb Patil Vs. Balwant Bapusaheb Patil [AIR 1995 SC 895] and argued that having taken up a plea that the appellant was a tenant, that itself is an admission that he was in permissive possession of the property. Therefore, the plea of adverse possession and title will not be sustainable, it is strongly contended. This aspect is also considered in detail by the courts below and I do not find any reason to interfere with the same. At any rate, I do not find that any substantial question of law is involved in this case which deserves consideration by this Court in a second appeal. This appeal is dismissed. Parties will bear the costs. Sd/- K.HEMA, JUDGE ma /True copy/ P.A to Judge