IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 SA.No. 38 of 1997() ------------------- AS.21/1993 of PRINCIPAL SUB COURT,KOCHI OS 476/1991 of ADDL.MUNSIFF COURT,KOCHI .................... APPELLANT(S)/RESPONDENT/DEFENDANT: -------------- CHANDRIKA,D/O.POTTANCHIRAYIL CHEERAN, FISHER WOMAN, CHELLANUM MURI, -DO- VILLAGE, KOCHI TALUK. BY ADV. SRI.R.SIVASANKAR RAO SRI.T.A.NARAYANAN NAIR RESPONDENT(S)/APPELLANT/PLAINTIFF: --------------- THE COCHIN THIRUMALA DEVASWOM, MATTANCHERRY, KOCHI-682 002. ADV. SRI.S.K.BRAHMANANDAN S.B.PREMACHANDRA PRABHU SRI.G.S.PRABHU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.38 OF 1997 ----------------------------------- Dated this the 13th day of September, 2010 J U D G M E N T The defendant in a suit for recovery of possession and damages has filed this appeal. Suit filed by the respondent/plaintiff, a devaswom, alleging trespass over the plaint property having an extent of twenty five cents of land situate in Survey No.425/1 in Chellanam Village in Kochi, after trial, was dismissed by the learned Additional Munsiff, Kochi. The contentions raised by the appellant/defendant to resist the suit claim for recovery of the property that delivery of the property claimed by the plaintiff under Ext.A3 delivery kaicheet was against the statutory interdictions covered by the Kerala Land Reforms Act, and that the defendant has prescribed title over the property by adverse possession, as canvassed in the written statement, were upheld by the learned Munsiff to non-suit the plaintiff. Challenge against the decision of the SA.NO.38/1997 2 learned Munsiff by an appeal, A.S.No.21 of 1993, at the instance of the defeated plaintiff, after re-appreciation of the materials on record, led to the reversing of the dismissal of the suit and allowing of the claim as canvassed for. The decision so rendered by the first appellate court is challenged in the appeal. 2. The case of the plaintiff Devaswom in brief is that it is the owner of the plaint schedule property, which was previously under the enjoyment of a kanamdar, subject to liability to pay the rent. Since default was committed in payment of rent, the plaintiff filed a suit for realisation of arrears of rent against that kanamdar and that suit was decreed. Ext.A2 is the copy of the decree so passed in O.S.No.291 of 1968 of Munsiff Court, Kochi. In execution of that decree, the property of the kanamdar was brought to sale and purchased by the plaintiff as the successful bidder in auction. The plaintiff later obtained delivery of that property. Ext.A3 is the copy of the delivery kaicheet. Long thereafter, the defendant trespassed upon the property and reduced it into her possession was the case pleaded to seek SA.NO.38/1997 3 recovery of possession with mesne profits. The defendant in her written statement pleaded ignorance of Ext.A3 and also the delivery of the property obtained by the plaintiff. Defendant contended that she purchased the property from the occupant, who was in possession of the property under a valid sale deed and, ever since, she continued as the title holder of the property. Defendant produced Ext.B1 sale deed and also Ext.B2 receipts evidencing payment of revenue charges over the property. Trespass alleged by the plaintiff was refuted claiming lawful title and possession over the property. Alternatively, it was pleaded that in case the plaintiff is found to be having title over the property, then, by virtue of her possession, tacked on with that of his predecessor, the executant of Ext.B1 sale deed, which was open, notorious and hostile to the plaintiff, she has prescribed title by adverse possession. 3. Though the suit was dismissed by the trial curt, the first appellate court found in favour of the plaintiff Devaswom and decreed the suit allowing recovery of possession with mesne SA.NO.38/1997 4 profits, negativing the contentions raised by the appellant/defendant. 4. Challenge against the findings of the lower appellate court by the appellant is based over the jurisdiction of the civil court in effecting delivery of a property covered by the provisions of the Kanam Tenancy Act, 1955. Delivery of the plaint property claimed under Ext.A3 delivery kaicheet in execution of Ext.A2 decree as against the predecessor of the defendant is impeached contending that it was violative of the provisions of Section 73 (8) of the KLR Act, 1963. Since the predecessor of the appellant was admittedly a kanamdar in possession and enjoyment of the property as governed by Kanam Tenancy Act, Act XXIV of 1955, in a decree passed in a suit filed against that kanamdar before the civil court for realisation of arrears of rent, execution can be resorted only as provided under sub section (8) of Section 73 of the KLR Act, and so much so, the delivery of the property purported to have been effected under Ext.A3 kaicheet in execution of Ext.A2 decree was without SA.NO.38/1997 5 jurisdiction and, hence, void and inoperative and no legal effect thereof can be given to sustain the claim of recovery of the property by the plaintiff alleging trespass over the same by the defendant, is the argument of the learned counsel for the appellant/defendant. 5. Per contra, the learned counsel for the respondent/plaintiff referred to the provisions to Section 2 (22) of the KLR Act, 1963, as it stood prior to amendment under Act 16 of 1976, to contend that 'kanam' defined under the above sub section of that Act did not cover any demise governed by the Kanam Tenancy Act, 1955. The unamended provision was in force when the suit was instituted against the kanamdar by the Dewaswom, and so much so, the challenge canvassed by the defendant built upon sub section (8) of Section 73 of the KLR Act to impeach the jurisdiction of the civil court in effecting delivery in execution of Ext.A2 decree without jurisdiction and void, was rightly and correctly repelled by both the courts, according to the learned counsel. There is no merit in the appeal impeaching SA.NO.38/1997 6 the decision rendered by the lower appellate court allowing recovery of possession, is the submission of the learned counsel for the respondent/plaintiff. 6. Sub section 22 of Section 2 of the KLR Act, 1963 defines 'kanam'. Proviso, which formed part of that sub section before the amendment effected under Act 16 of 1976 had carved out an exemption to the kanam or any other demise governed by the Kanam Tenancy Act, 1955. The above proviso to sub section (22) of Section 2 of the KLR Act read thus: “Provided that kanam or any other demise governed by the Kanam Tenancy Act, 1955, shall not be deemed to be a kanam for the purposes of this clause” The above proviso was omitted by Act 16 of 1976 with effect from 1.1.1970. Delivery of the suit property in execution of Ext.A2 decree through the civil court is challenged by the appellant/defendant as without jurisdiciton as the decree passed against a kanamdar for arrears of rent over the kanam holding, SA.NO.38/1997 7 on default of the tenant to deposit the amount due, can be recovered only under the provisions of the Kerala Revenue Recovery Act under sub section (8) of Section 73 of the KLR Act, 1963. Section 73 of the KLR Act captioned as discharge of arrears of rent statutorily fixed the quantum and also the period for which rent in arrears prior to the commencement of the Act could be realised from the tenants by the landlord. Irrespective of any decree or order obtained by the landlord in respect of arrears of rent it has to be limited and modified as statutorily fixed under the section, and in the event of default of the tenant to deposit the modified amount as determined by the court or the Tribunal. Sub section (8) provided for recovery of such sum from the tenant on a written requisition from the court or the Land Tribunal by resort to the recovery proceedings under the Kerala Revenue Recovery Act, 1968. Delivery of the property effected in execution of Ext.A2 decree flouting the above statutory provision which provided for realisation of the arrears of rent through recovery recovery proceedings, and that too, to the extent limited under the table of sub section (1) of Section 72 of SA.NO.38/1997 8 the KLR Act is challenged as without jurisdiction and, nonest. The claim for recovery of possession on the basis of title by the respondent/plaintiff, and the decree granted thereof in its favour relying on Ext.A3 delivery kaicheet is impeached as totally unsustainable. 7. After going through the judgment rendered by the court below with reference to the submissions made by the learned counsel on the respective side, I find the challenge against the delivery of the plaint property under Ext.A3 kaicheet in execution of Ext.A2 decree as one without jurisdiction must necessarily fail but for reasons other than raised by the parties and dealt with by the courts below. Non-applicability of the Kerala Land Reforms Act over a demise governed by the Kanam Tenancy Act, 1955 canvassed by the learned counsel for the plaintiff contending that the proviso to Section 2 (22) of the Act removed by amendment, was not in operation when Ext.A2 decree was passed and delivery effected under Ext.A3 kaicheet is not of much value as it is seen that the amendment to the above SA.NO.38/1997 9 sub section under Act 16 of 1976 was made with retrospective effect from 1.1.1970. However, whether the proviso was applicable when the suit was instituted and decree passed thereof, even where recovery was ordered under that decree whether the tenant could have moved under sub section (8) of Section 73 of the KLR Act atleast after the deletion of the proviso from Section 2 (22) of the Act under Act 16 of 1976, at the most, has only academic value at this stage in examining the challenge raised by the defendant/appellant against the decision rendered by the lower appellate court allowing recovery of possession of the suit property from her. A suit for arrears of rent in the event of default can be instituted against the land covered by the Kanam Tenancy Act, 1955, Act XXIV of 1955 is not disputed. The decree passed in such a suit can be executed only in the manner provided under sub section (8) of Section 73 of the Kerala Land Reforms Act, which contemplate of recovery by resort to the provisions of the Kerala Revenue Recovery Act, 1966 is the sole basis for impeaching the jurisdiction of the civil court in effecting delivery of the property in execution of Ext.A2 SA.NO.38/1997 10 decree. Even assuming that the provisions covered under sub section (8) of Section 73 of the KLR Act is applicable in the execution of Ext.A2 decree can a delivery effected pursuant to that decree by the civil court be impeached as one without jurisdiction by an assignee of the judgment debtor who claims to have obtained an assignment more than ten years after such delivery effected through court is the question to be considered. The bar of jurisdiction of civil court to effect delivery of property in execution of Ext.A2 decree set up as a challenge by the appellant/defendant has to be examined with reference to Section 125 of the Kerala Land Reforms Act. Jurisdiction of the civil court is barred with respect to any matter which is by or under the Kerala Land Reforms Act required to be settled, decided or dealt with or be determined by the Tribunal or authorities constituted under the Act or the Government or officer of the Government. A different mode of execution by addressing the revenue recovery authority is provided by sub section (8) of Section 73 of the KLR Act in respect of a decree passed for realisation of arrears of rent by itself does not SA.NO.38/1997 11 contemplate that the execution court cannot execute that decree by way of sale to realise the decree debt. As the court executing the decree, it cannot go behind the decree but has to give effect to such decree. Even assuming that the decree was a nullity for any reason whatsoever if it had been executed and given effect to the party who suffered thereby has to challenge such order before the superior forum or approach the court, which executed the decree to re-examine and, if necessary, to order restitution. After the decree had been executed and delivery effected impeaching such delivery canvassing a case that a different mode of execution is provided but that was not followed by the execution court, is not at all sufficient nor does it have any merit, to question the jurisdiction of the execution court in effecting the delivery or the value of the kaicheet evidencing delivery effected through court. Such being the position, the challenge set up against Ext.A3 delivery kaicheet by the defendant based on sub section (8) of Section 73 of the KLR Act has no merit at all. Further more, it has to be noticed that the kanamdar against whom Ext.A2 decree was passed and who later suffered SA.NO.38/1997 12 dispossession of the property as evidenced by Ext.A3 kaicheet, has not raised any challenge over such delivery. On the basis of a sale deed taken from the kanamdar years after the delivery effected under Ext.A3 kaicheet, the defendant is not competent to impeach Ext.A2 decree or the delivery of the property in execution of that decree, and the challenge raised by the defendant impeaching Ext.A3 delivery kaicheet, must fail. The lower appellate court has correctly found that the defendant is a trespasser of the property, and the alternate plea canvassed by him as having prescribed title by adverse possession also stand negatived. Findings so entered on those aspects by the court below are found fully supported by the materials tendered in the case. The appeal is devoid of any merit, and it is dismissed. Both sides are directed to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.38 OF 1997 ----------------------------------- J U D G M E N T 13th day of September, 2010 SA.NO.38/1997 14