IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 FAO.No. 196 of 2004() ------------------------------ AS.80/1999 of ADL.SUB COURT, THALASSERY OS.10/1987 of MUNSIFF COURT, THALASSERY .................... APPELLANTS/RESPONDENTS 3, 12, 26 TO 32 AND 35 TO 41/ DEFENDANTS 6, 15, 29 TO 35 AND L.R'S OF DECEASED D.7. -------------------------------------------------------------------------------------- 1. MAYOTH VEETTIL JANU, D/O. GOVINDAN ASARI, AGED 68 YEARS, KOTUVALLY, THALASSERY. 2. MATHAYOTH VEETTIL VASUMATHI, D/O. DEVOOTTY, AGED 42 YEARS, PANNIYANNORE AMSOM DESOM, P.O.PANNIYANNORE. 3. MATHAYOTH VEETTIL JANU, W/O. MADHAVAN, AGED 56 YEARS, DO. DO. 4. THILARAJAN, MATHAYOTH VEETTIL, AGED 38 YEARS, PANNIANNOORE AMSOM DESOM, PANNIANNORE DO. DO. 5. VINODAN, MATHAYOTH VEETTIL AGED 36 YEARS, DO. DO. 6. PAVITHRAN, AGED 34 YEARS, MATHAYOTH VEETTIL, DO. DO. 7. MANOJ, AGED 32 YEARS, DO. DO. 8. RAJESH, AGED 30 YEARS, DO. DO. 9. SHAMITHA, AGED 28 YEARS, DO. DO. 10. PAIKKAT PUTHIYAPURAYIL BABU, S/O. KALLIANI, AGED 42 YEARS, PAIKKAT PUTHIYAPURAYIL, NEAR PANKAJ TALKIES NANGARATHUPEEDIKA, KOLIYERI AMSOM, VAYALALAM DESOM, P.O.TEMPLE GATE, THALASSERY. 11. SREEJITH, AGED 28 YEARS, DO. DO. 12. GEETHA, AGED 38 YEARS, D/O. KALLIANI, DO. DO. 13. AJITHA, AGED 45 YEARS, D/O. KALLIANI, DO. DO. 14. SHAYINI, AGED 30 YEARS, D/O. KALLIANI DO. DO. FAO.No. 196 of 2004 15. PREETHA, AGED 36 YEARS, DO. DO. 16. VASANTHI, AGED 34 YEARS, DO. DO. BY ADV. SRI.KKM.SHERIF, SRI.LAL K.JOSEPH, SRI.A.A.ZIYAD RAHMAN, SRI.V.R.REKESH, SRI.P.MURALEEDHARAN (THURAVOOR). RESPONDENTS/APPELLANTS 2 TO 5 RESPONENT NOS.1, 2, 5 TO 11, 13 TO 25, 33 AND 34/L.R'S OF DECEASED PLAINTIFF, D3 TO D14, D16 TO D28 AND L.R'S OF D2.: ------------------------------------------------------------------------------------------------ 1. PARVATHI, W/O. LATE KESAVAN, AGED 65 YEARS, KOROL HOUSE, PANNIANNORE AMSOM, (VIA) THALASSERY. 2. SON PANKAJAKSH, AGED 29 YEARS, CARPENTER, DO. DO. 3. SISTER PANKAJAKSHAN, AGED 26 YEARS, DO. DO. 4. SISTER PADMAKSHI, AGED 24 YEARS, DO. DO. 5. MATHIYOTH KALLIANI, W/O. KUNHAPPA, AGED 55 YEARS, KUNHIPARAMBATH, MAVAPRAM, THALASSERY. 6. MATHIYOTH DEVOOTTY, W/O. SANKARAN, AGED 50 YEARS, AMBILATT, KUTHUPARAMBA. 7. P.V. NANU, S/O. KUMBA, KURUNGOT HOUSE, P.O. MANNIYAD, THALASSERY. 8. P.V. CHANDRAN, DO. DO. 9. P.V. KARTHIYAYANI, PILAKKAVIL HOUSE, P.O.CHEMBITODE (VIA) CHALA. 10. P.V. SAROJINI, KAPPARACHAL HOUSE, P.O.UMMANCHIRA (VIA), THOTTUMMAL. 11. P.V. RADHA, VALIYAPARAMBATH, P.O. KADIRUR (VIA), THALASSERY. 12. P.V. SREEMATHI, PARAMMAL HOUSE, P.O. KEEZHUNNA, THOSSADA, KANNUR. 13. PUSHPA P.V., VARINIKKAN VEETTIL THATTAMAKANDY P.O., UMMANCHIRA, (VIA) THORRUMMAL. 14. GOVINDAN, S/O. DEVANI, AGED 50 YEARS, CARPENTER, AALAYAT THAZHE KUNNIYIL, P.O.KURARA, (VIA) CHAMBAT. FAO.No. 196 of 2004 15. BROTHER BALAN, AGED 43 YEARS, DO. DO. 16. BROTHER VELAYUDHAN, AGED 48 YEARS, DO. DO. 17. BROTHER RAMACHANDRAN, AGED 38 YEARS, TRADER, DO. DO 18. SISTER NARAYANI, AGED 37 YEARS, DO. DO. 19. SISTER KALLU, AGED 35 YEARS, DO. DO. 20. PADMANABHAN, S/O. NARAYANAN, DO. DO. 21. BROTHER SREENIVASAN, DO. DO. 22. BORTHER VIJAYAN, DO. DO. 23. BROTHER UTHAMAN, DO. DO. 24. BROTHER PUNDARIKASHAN, DO. DO. 25. SISTER REMA, DO. DO. 26. MADHAVI, W/O. NARAYANAN, AGED 56 YEARS, DO. DO. 27. BALAN, S/O. MATHAVI, AGED 60 YEARS, KUDAKKAYINTAVIDA, NEAR SREE NARAYAN MADOM, PUNNOL (VIA), THALASSERY. 28. SISTER JANU, AGED 55 YEARS, PUTHANPURAYIL VEEDU, CHENDAYAD AMSOM, PUTHUR DESOM, THALASSERY. BY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs HARUN-UL-RASHID, J. ------------------------ F.A.O.No.196 Of 2004 ---------------------- Dated this the 16th day of November, 2010. J U D G M E N T Defendants 6, 15, 29 to 35 in O.S.No.10/1987 on the file of the Munsiff Court, Thalssery are the appellants. The appeal is directed against the order of remand passed by the Sub Court, Thalassery in A.S.No.80/1999. Suit was filed for partition by the original plaintiff. The legal heirs are the additional plaintiffs. The trial court referred the question of tenancy to the Land Tribunal. The land Tribunal held that the defendants are entitled to tenancy right. The court adopted the findings of the Land Tribunal and dismissed the suit. The appellate court after finding that the reference was unnecessary remanded the case for fresh consideration on merits. Aggrieved by the order of remand the aforesaid defendants have preferred this appeal. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. The short facts necessary for disposal of the appeal are as follows: The plaint schedule property originally belonged to Manayil Tharavad. Originally the property was outstanding on lease with F.A.O.No.196 Of 2004 ::2:: Kesavan Asari. Subsequently, the leasehold right devolved on Sankaran Asari and Govindan Asari who are brothers. Plaintiff is the son of Sankaran Asari. The original defendant is the son of Govindan Asari. Plaintiff filed the suit claiming one half share over the plaint schedule property stating that Sankaran Asari and Govindan Asari enjoyed the property jointly and they have acquired one half right each, therefore the plaintiff is entitled to separation and partition of one half share of the plaint schedule property. 3. The sole defendant died and subsequently his legal representatives were impleaded. The defendant admitted the enjoyment of leasehold right by Kesavan Asari, who is the father of Sankaran Asari and Govindan Asari. The defendant also admitted that the leasehold right devolved on Sankaran Asari and Govindan Asari who were the father of plaintiff and defendant respectively. The defendant pleaded that Sankaran Asari and Govindan Asari had executed a marupat in favour of tharavad karanavar on 3.11.1891, that the then karanavar of the Mayanil Tharavad had executed kuzhikkanam in favour of Sankaran Asari on 10.12.1909, that in the suit between the members alleging F.A.O.No.196 Of 2004 ::3:: that the karanavar has acted against the interest of the tharavad prayed to remove him from karanavarship on the ground of mismanagement of the tharavad properties and to set aside the leases executed by him in favour of three persons including the lease in favour of Sankaran Asari. Recovery of possession of leasehold items on behalf of the tharavad was also sought for. Suit is numbered as O.S.No.482/1908. The members of the tharavad entered into an agreement on 28.3.1910. As per the karaar the karanavar agreed to step down and also agreed to cancel all the leases executed by him in respect of the tharavad properties including the plaint schedule item which were found to be improvident leases and the members of the tharavad agreed to take steps to recover these properties for the benefit of the tharavad. Subsequent to the karaar when the tharavad was about to take legal action to recover the said items, Sankaran Asari surrendered the property to the Manayil Tharavad and for some time Manayil tharavad was in the possession of the property. It is further pleaded by the defendant that by the surrender of the lease by Sankaran Asari to the tharavad the leasehold right enjoyed by Sankaran Asari and Govindan Asari F.A.O.No.196 Of 2004 ::4:: came to an end. 4. It is contended by the defendant that subsequently in the year 1911 the tharavad orally leased the plaint schedule item in favour of Govindan Asari, brother of Sankaran Asari and father of the defendant. On the basis of the said lease Govindan Asari was in exclusive possession as a tenant under Manayil Tharavad. It is also stated that Sankaran Asari, after surrender of the lease in favour of the Manayil Tharavad, left the place and he was residing at another place. It is contended that ever since the oral lease in favour of Govindan Asari, he was in exclusive possession and enjoyment of the property, paying tax and enjoying the same as his own property, that considering the possession and enjoyment of the property as a lessee the Land Tribunal initiated S.M proceedings as S.M.213/77 and the Land Tribunal issued purchase certificate in the names of the defendant and his sisters, who were subsequently impleaded as defendants 2 to 7. 5. Suit for partition was resisted by the defendant and the defendant claimed tenancy right over the property. The civil court after framing issues referred the question of tenancy to the Land Tribunal. F.A.O.No.196 Of 2004 ::5:: 6. The point to be considered and answered in the suit mainly centered on the question of tenancy. According to the plaintiff the predecessor-in-interest Kesavan Asari got leasehold right. On his death, the right devolved on Sankaran Asari and Govindan Asari. Plaintiff is the legal heir of Sankaran Asari and therefore he is entitled to one half right over the property. On the other hand the defendant contended that Sankaran Asari surrendered the leasehold right, that subsequently, his father Govindan Asari took lease from the tharavad, continued as a lessee and after his death, the defendant is enjoying the property as a lessee. In the light of the said contentions it has become necessary to decide as to whether the tenancy right exclusively belonging to the defendant or jointly belonging to the plaintiff and defendant. The Land Tribunal considered the question as to whether oral tenancy set up by the contesting defendant is true. If the original lease in favour of Kesavan Asari continued by succession both the plaintiff and defendant are entitled to share the property. If the case set up by the defendant that there was a release of the lease in the year 1910 and subsequently the defendant's father Govindan Asari got fresh lease, then the F.A.O.No.196 Of 2004 ::6:: property is not partible and the plaintiff is not entitled to any share in the property. The Land Tribunal considered the dispute and hold a detailed enquiry regarding the rights of the parties. The Land Tribunal referred to the pleadings of the parties, discussed evidence and held that Govindan Asari was in exclusive possession and enjoyment of the property asserting his own exclusive title to the plaint item as a kuzhikanam tenant even during the lifetime of Sankaran Asari. Ext.B1 is the family karaar. Schedule 1 there of is the plaint schedule property. The Land Tribunal after considering Ext.B1 family karaar, Exts.B2 to B23 tax receipts and B24, B25, B27 purapad receipts evidencing payment of purapad to the landlord, Ext.B28 notice dated 31.3.1952, Ext.B31 original certificate of purchase issued in favour of the first defendant and his sisters in the S.M proceedings, Exts.B32 & B33 receipts, other evidence, facts and circumstances of the case, held that there was surrender of plaint schedule property by Sankaran Asari and the fact of surrender was true. The Land Tribunal upheld the claim of oral tenancy of 1911 in favour of Govindan Asari and held that the defendants are lessees in respect of the property. F.A.O.No.196 Of 2004 ::7:: 7. Following the finding of the Land Tribunal the civil court entered the finding that the defendants are tenants entitled to fixity of tenure and that the plaintiff has no right whatsoever in the property and therefore the suit is dismissed. The civil court also noted that in the light of the order of the Land Tribunal the parties to the suit conceded the right of the defendants. Thus, the suit was dismissed as conceded by both sides. 8. The lower appellate court took a reverse stand and observed that it is unfortunate that trial court framed issue No.7 as if the tenancy right of defendant arose for consideration. The lower appellate court is of the view that since the Land Tribunal in the S.M proceedings passed an order finding tenancy right in favour of the defendant, there is no necessity to refer the matter again. The question raised in the suit by the plaintiff is that he is entitled to one half of the tenancy right and therefore the property shall be divided into two shares. The defendant contended on the basis of the purchase certificate and other facts and circumstances that the tenancy right exclusively belongs to him and therefore the suit is liable to be dismissed. It is true that in S.M proceedings there is an order granting fixity of tenure F.A.O.No.196 Of 2004 ::8:: in favour of the defendant. The question to be decided in the suit is as to whether one half of the tenancy right belongs to the plaintiff or not. It is nobody's case that this question was decided in the S.M proceedings. In the S.M proceedings neither the original plaintiff or additional plaintiffs are parties nor their predecessor-in-interest were parties. The Land Tribunal decided the question of tenancy in the year 1977 and issued purchase certificate in favour of the defendant. The Land Tribunal did not go into any of the question in the S.M proceedings. Now, on the basis of the question raised by the plaintiff that one half belongs to him, it has become necessary for the Land Tribunal to decide as to whether the tenancy right belongs to plaintiff and defendants jointly or as to whether the defendant has got exclusive tenancy right over the property. In the circumstances, referring the matter to the Tribunal is a justified action by the trial court. The only question to be decided for the purpose of deciding the suit itself is whether the plaintiff has fractional tenancy right in the property. The Tribunal alone has the jurisdiction to decide the said question. In that situation the course open to the civil court is to refer the matter to the Land F.A.O.No.196 Of 2004 ::9:: Tribunal . The matter was referred and the Land Tribunal after considering the matter elaborately decided the question. 9. In this case after receiving the reference the matter was considered by the trial court. Both sides accepted the findings of the Land Tribunal and conceded before the court that the defendant has got tenancy right. Therefore the trial court dismissed the suit. The last sentence of the judgment of the trial court is as follows: “In the light of this finding, the suit is dismissed as conceded by both sides”. 10. In the light of the discussion as made above, this Court is of the view that the remand order passed by the court below is not sustainable in law. In view of the adoption of the findings of the Land Tribunal the trial court has no other option but, to dismiss the suit. Re-trial ordered by the lower appellate court after entering the finding that there is no necessity to refer the case to the Land Tribunal for a finding regarding tenancy is wrong and unsustainable. In the result, the appeal is allowed. The order of remand is set aside. Consequently, the appellate court has to decide the F.A.O.No.196 Of 2004 ::10:: appeal on merits. The lower appellate court shall consider and dispose of the appeal on merits in accordance with law and in the light of the observations and findings made in this judgment. The appeal is disposed of as above. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-