IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 RSA.No. 1 of 2011 ----------------------------- AS.215/2008 of I ADDL. DISTRICT COURT, PALAKKAD OS.8/2002 of ADDL.SUB COURT, PALAKKAD .................... APPELLANTS/RESPONDENTS 2-6/DEFENDANTS 2-6: 1. KRISHNANKUTTY, KARUPPASWAMI PILLAI, R/AT SIVAJI NAGAR, PARA ROAD,KANJIKODE PO, PALAKKAD DISTRICT. 2. RAMACHANDRAN,S/O.KARUPPASWAMI PILLAI, R/AT SIVAJI NAGAR, PARA ROAD,KANJIKODE PO, PALAKKAD DISTRICT. 3. THANKAM AMMA,W/O.LATE KARUPPASWAMY PILLAI, R/AT CHITHALI,KUZHALMANNAM AMSOM, ALATHUR TALUK, PALAKKAD DISTRICT. 4. SAROJINI @ PADMAVATHI,D/O.LATE KARUPPASWAMY PILLAI, NELLIKKALKAD, CHITHALI, ALATHUR TALUK, PALAKKAD DISTRICT. 5. PUSHPALATHA,D/O.KARUPPASWAMY PILLAI, W/O.SARAVANAN, R/AT MATTUMANTHA, NALLEPPULLY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.R.VENKETESH RESPONDENTS/SUPPLEMENTAL APPELLANTS 2-6/ LRS OF ORIGINAL PLAINTIFF: 1. NAGARATHNAM, W/O.LATE SINKARAN, R/AT PAZHAYAKALAM,CHITHALI PO,ALATHUR TALUK, PALAKKAD DISTRICT 678 682. 2. SURESH,D/O.LATE SINKARAN,DO. DO. 3. SUJATHA,D/O.LATE SINKARAN,DO. DO. 4. KRISHNAVENI,D/O.LATE SINKARAN,DO. DO. 5. VIJAYALAKSHMI,D/O.LATE SINKARAN,DO. DO. ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------------------- R.S.A.No.1 of 2011 -------------------------------------- JUDGMENT Defendants 2 to 6 in O.S.No.8/2002 on the file of Additional Sub Court, Palakkad are the appellants. Respondents are the legal heirs of deceased plaintiff. The suit was instituted for recovery of possession on the strength of title. Case of the plaintiff was that plaint schedule property was obtained on lease by Subbayya Pillai from Valiyathamburatti of Ambadi Kovilakom. Subsequently, Land Tribunal, Kuzhalmannam initiated suo motu proceedings and by Annexure-A2 order, jenm right was assigned in favour of Subbayya Pillai and issued Exhibit A1 purchase certificate. Under Exhibit A1 purchase certificate, deceased plaintiff was in absolute owner and possession of the property. It is alleged that deceased first defendant created a document in favour of second defendant, though first defendant has no right over the property. On the strength of the assignment deed, he trespassed into the plaint schedule property in 1998 and reduced it into his possession and defendants have no right over the property and therefore, plaintiff is entitled to recovery of RSA 1/11 2 possession on the strength of title. 2. On the death of the first defendant, appellants were impleaded as his legal heirs. They filed a written statement contending that father of the plaintiff has not obtained the plaint schedule property on lease and he had no tenancy right and the purchase certificate obtained is not valid. Property was originally outstanding in the possession of Muriyappan Pillai on tenancy right obtained from intermediary Krishnaswamy Iyer. Subsequently, Muriyappan Pillai surrendered the property and deceased first defendant obtained the property on lease forty years back and since then, he has been in possession of the property. Later, in 1986, he assigned 1.67 acres out of the said property in favour of second appellant and an extent of fifty six cents was subsequently assigned in favour of first appellant by deceased first defendant and plaintiff is not entitled to the recovery of possession sought for. 3. Learned Munsiff, recording that defendants did not contest the case, on the affidavit of the plaintiff and Exhibits A1 to A4 and X1 and X2, dismissed the suit finding that though Exhibit A2 order was passed in favour of deceased plaintiff on 1.4.1996, admittedly, the applicant Subbayya Pillai died on RSA 1/11 3 30.10.1995 and his legal heirs were not impleaded and the order was passed in favour of a dead person and therefore, it is a nullity and based on Exhibits A1 and A2, plaintiff is not entitled to claim recovery of possession. 4. Plaintiff filed A.S.No.215/2008 before Additional District Court, Palakkad challenging the judgment. After filing the appeal, plaintiff died and respondents 2 to 6 herein were impleaded as additional appellants. Learned Additional District Judge, on re-appreciation of evidence, confirmed the finding of the learned Munsiff that suo motu proceedings initiated was not valid, as the order passed by the Land Tribunal, without the legal heirs of the deceased appellant on the party array, in favour of the deceased applicant, is a nullity. But, learned District Judge found that before the Land Tribunal, the landlord has not disputed the tenancy right claimed, when suo motu proceedings was initiated in favour of Subbayya Pillai and the evidence adduced establish that property was outstanding in possession of Subbayya Pillai as a cultivating tenant and as per Section 50 of Kerala Land Reforms Act, tenancy right is heritable and respondents are entitled to the decree for recovery of possession. RSA 1/11 4 5. Learned counsel appearing for the appellants and respondents were heard, as notice was issued to the respondents before admission. 6. On hearing the learned counsel appearing for the appellants and respondents, the following substantial questions of law are formulated: 1. When the title set up in the plaint is based on Exhibit A1 purchase certificate and it is found that purchase certificate is a nullity, whether first appellate court was justified in granting a decree for recovery of possession based on the claim for tenancy? 2. When defendants have claimed tenancy and being a suit for recovery of possession, question of tenancy raised arises for consideration, whether trial court can decide the question without referring the question of tenancy to the Land Tribunal under Section 125(3) of Kerala Land Reforms Act? 7. Learned counsel appearing for the respondents submitted that even though a written statement was filed, defendants remained ex parte and did not contest the case and even before the first appellate court, only one of the appellants appeared and in such circumstances, there is no reason to remand the suit for referring the question of tenancy to the Land RSA 1/11 5 Tribunal. Learned counsel appearing for the appellants submitted that when Section 125(3) of Kerala Land Reforms Act provides that civil court can decide the question of tenancy only in accordance with the findings of the Land Tribunal after a reference under Section 125(3) of Kerala Land Reforms Act and when it is found that Exhibit A1 purchase certificate is a nullity, as Exhibit A2 order was passed in favour of a dead person, question of tenancy definitely arises for consideration and therefore, the decree for recovery of possession granted by the first appellate court is not sustainable. 8. Trial court and the first appellate court found that Subbayya Pillai, in whose favour suo motu proceedings 64/1992 was initiated and by Exhibit A2 order, jenm right was assigned on 1.4.1996, was not alive on that day as he died on 30.10.1995. When the order was passed in favour of a dead person and legal heirs of Subbayya Pillai were not impleaded, finding of the courts below that Exhibit A1 purchase certificate is a nullity is perfectly in order. The question is whether respondents are entitled to recovery of possession on the strength of title. 9. Learned District Judge proceeded on the basis that even if title, based on the purchase certificate is not proved, in view of RSA 1/11 6 nullity of Exhibit A1 purchase certificate, the right claimed by the plaintiff is that of his father, as a cultivating tenant and when that aspect was not challenged before the Land Tribunal or at the time of evidence, finding of the first appellate court is perfectly correct. When defendants raised a specific plea that the suit property was obtained by deceased first defendant on oral lease forty years back and he continued to be in possession of the property and subsequently he assigned portions of the property in favour of defendants 2 and 3, question of tenancy, which was raised by the defendants, arises for consideration. Being a suit for recovery of possession, it cannot be disputed that question of tenancy does not arise for consideration. If that be so, as provided under Section 125(3) of Land Reforms Act, question of tenancy shall necessarily be referred to the Land Tribunal. From the judgments of the courts below, it is not clear when exactly defendants remained ex parte. Any way, as written statement was filed raising a contention that deceased first defendant obtained the property on oral lease and defendants are cultivating tenants, on framing the issues, learned Sub Judge is bound to refer the question of tenancy under Section 125(3) of Kerala Land Reforms Act to the Land Tribunal. In such RSA 1/11 7 circumstances, judgment of the first appellate court can only be set aside and the suit remanded to the trial court with a direction to refer the question of tenancy raised by both appellants and respondents to the Land Tribunal under Section 125(3) of Kerala Land Reforms Act and decide the suit on receipt of the findings, in accordance with law. Appeal is allowed. Judgment of Additional District Judge, Palakkad in A.S.No.215/2008 is set aside. So also, judgment of Additional Sub Judge, Palakkad in O.S.No.8/2002. O.S.No.8/2002 is remanded to Additional Sub Court, Palakkad for fresh disposal in accordance with law. Sub Judge shall refer the question of tenancy, claimed by the appellants and respondents, to the Land Tribunal under Section 125(3) of Kerala Land Reforms Act with a direction to the Land Tribunal to render the finding expeditiously and dispose the case on receipt of the finding, in accordance with law. Parties are directed to appear before Additional Sub Court, Palakkad on 15.03.2011. 16th February, 2011 (M.Sasidharan Nambiar, Judge) tkv