IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 SA.No. 682 of 2000(F) --------------------- AGAINST THE ORDER DATED / / IN OS.125 IN AS.104/1988 of SUB COURT, VADAKARA .................... APPELLANT/1ST RESPONDENT/1ST DEFENDANT: --------------------------------------------------------------------- 1. CHAMAVALIYA PARAMBATH CHEKKAYI, S/O.KANNAN )(DIED & LEGAL HEIRS RESIDING AT CHAPPARICHANDIYIL )(IMPLEADED VALAYAM AMSOM,CHERUMOTH DESOM VATAKARA TALUK ADDL.APPELLANTS : 2. MANNI, W/O.CHEMAVALIYA PARAMBATH CHEKKAYI CHAPPARICHANDIYIL VALAYAM AMSOM, CHERUMOTH DESOM VATAKARA TALUK 3. KUMARAN, S/O.DO 4. NANU, S/O.-DO- 5. DEVI, D/0.-DO- 6. BABU, S/O.-DO- 7. MANOJAN, S/O.-DO- 8. SITA, D/O.-DO- (LEGAL HEIRS OF DECEASED APPELLANT IMPLEADED AS ADDL. APPELLANTS 2 TO 8 AS PER ORDER DT.15.09.2004 ON IA NO.1804/04) BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA SA 682/00 -2- RESPONDENTS/APPELLANTS/2ND RESPONDENT PLAINTIFFS/DEFENDANTS 2 AND 3: --------------- 1.NARONTAVIDA ALIAS POOLOLLATHIL KUNHAVULLA, S/O.AMMADKUTTY HAJI RESIDING AT POOLOLLATHIL, VALAYAM AMSOM DESOM, VATAKARA TALUK 2. KURUVANKANDY MAMMU S/O.AVULLA, RESIDING IN KUNIYIL, VALAYAM AMSOM, DESOM VATAKARA TALUK 3. CHEKKAN ALIAS ASSAN S/O.AVULLA )(DIED & LEGAL HEIRS IMPLEADED RESIDING IN THAYYULLATHIL VALAYAM AMSOM, DESOM VATAKARA TALUK 4. KUNHAMMAD KUTTY, S/O.AVULLA RESIDING IN THAYYULLATHIL VALAYAM AMSOM, DESOM VATAKARA TALUK 5. AYISSU, D/O.AVULLA RESIDING IN THAYYULLATHIL VALAYAM AMSOM, DESOM VATAKARA TALUK 6. KUNHAMI, D/O.AVULLA RESIDING IN PILATHOTTATHIL VALAYAM AMSOM, CHERUMOTH DESOM VATAKARA TALUK 7.MARIYAM, W/O.AVULLA RESIDING IN THAYYULLATHIL )(DIED & LEGAL HEIRS IMPLEADED VALAYAM AMSOM, CHERUMOTH DESOM VATAKARA TALUK, DIED 8. NELLIYULLATHIL GOVINDAN, S/O.KORAN RESIDING AT POYILKAVU, VELLIYODE AMSOM DESOM VATAKARA TALUK 9. KARUVANKANDY AMMAD S/O.AVULLA, RESIDING IN THAYYULLATHIL VALAYAM AMSOM, CHERUMOTH DESOM VATAKARA TALUK (R2 AND R4 TO 6 ARE RECORDED AS THE LRS OF THE DECEASED R3 & R7 VIDE ORDER DT.20.09.2004 ON IA 1825/04) ADV. SRI.B.KRISHNAN FOR R1TO2,4 SRI.PARTHASARATHY FOR R1TO2&4TO6&9 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.07.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.682 of 2000-F ------------------------------------- Dated this the 20th day of July 2011 Judgment The first defendant in OS No.125/83 before the Munsiff's Court, Nadapuram, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, the plaint D schedule property belonged to one Ammed Kutty Haji and his brother Avulla. The original acquirers are no more. The property presently belong to the plaintiffs and the third defendant as the legal heirs of the original owners. According to the plaintiffs, Ammed Kutty Haji had entrusted a thatched shed situated in plaint A schedule to the first defendant in 1972 on a monthly rent of Rs.7.50. Later, the thatched shed was pulled down and in its place, a two storeyed building was put up and two rooms in the building shown as B schedule property, were again entrusted to the SA 682/00 2 first defendant on a monthly rent of Rs.75/- each in 1981. Later, the plaintiff came to know that one of the rooms has been sublet by the first defendant to the second defendant without his consent. The first defendant also kept the rent in arrears. Notice terminating tenancy was issued to the first defendant since the plaintiff did not wish to continue the tenancy, which was refused by the first defendant and it returned. Hence the suit for recovery and also for arrears of rent. The first defendant resisted the suit pointing out that the allegations in the plaint are false and contrary to facts. According to him, the property was given on an oral lease in 1139 ME on an yearly rent of 75 ps. and he put up a small shed in the property and was conducting business in a portion of the same. He claims tenancy right over the property under the Kerala Land Reforms Act and that he is entitled to fixity of tenure. He also contended that it was he, who had put up the present building in the property and the allegation in the plaint that the plaintiffs constructed the SA 682/00 3 building is false. It was also pointed out that he had let out a room to the second defendant and later had him evicted. According to him, the plaintiffs have no manner of right over the property and the suit is only to be dismissed. On the above pleadings, issues were raised by the trial court. Since the question of tenancy arose for consideration in the suit, it had necessarily to be referred to the Land Tribunal for determination. Accordingly, the matter was referred to the Land Tribunal and the Land Tribunal returned its findings holding in favour of the defendants. Accepting that findings, suit was dismissed. The plaintiffs carried the matter in appeal as AS No.104/88 before the Sub Court, Vatakara, which was also dismissed. The plaintiffs then approached this court by filing SA No.324/91 and by judgment dated 25.11.1999, this court remanded the matter to the lower appellate court for fresh consideration in the light of the observation made by this court in its judgment. After remand, the lower appellate court held that SA 682/00 4 the tenancy pleaded by the first defendant is not established and that he is not a tenant as claimed by him. The lower appellate court then found that since the provisions of Act 2 of 1965 have been extended to the area, the eviction of the 1st respondent can be obtained only by taking recourse to the provisions of the said Act and accordingly the appeal was disposed of. Hence the second appeal. In this second appeal, notice is seen issued on the following questions of law : 1.Where the plaintiffs admit the lease of property and contend that it was later surrendered is not the burden having on the plaintiff to establish the alleged surrender ? 2.When the plaintiff contend that the building is built by them and let out to the defendant should not the lower appellate court proceed on the basis that the burden is on the plaintiff to establish that the building belongs to them ? 3.When the suit is one by the landlord for eviction of tenant SA 682/00 5 paying court fee under section 43 of the Court Fees Act, is not the burden on the plaintiff to establish the tenancy set up by them. Should not the lower appellate court dismiss the suit holding that there is no proof of tenancy on which the plaintiffs have based their suit ? 4.The assessment by the local authority on the appellant as owner of the building and the collection of tax from him are the deciding factors to decide the case ? 5.Whether the lower appellate court was right in going into the question of lease set up by the appellant and whether that it is a point to be considered in finding the case of the plaintiff and decide whether the plaintiff is entitled to eviction ? 6.Whether Exhibit B4 is admissible and relevant and whether the lower appellate court was right in deciding the case on certain stray sentences in Exhibit B4 ? 7.Was the lower appellate court right in setting aside the decision of the Land Tribunal ? The learned counsel for the appellant pointed SA 682/00 6 out that the lower appellate court has not considered the question as to who has put up the building in the property. The definite stand of the appellant was that the land was taken on lease and the building was put up by him. Even assuming that he is not entitled to fixity of tenure or the benefit under the Kerala Land Reforms Act, the question still remains to be determined as to who had put up the building in the property. Without determining that issue, it was not proper on the part of the lower appellate court to have directed the plaintiffs to approach the Rent Control Court whereby it would mean that the first defendant is only a tenant of the premises. This finding cannot be upheld. The learned counsel for the respondents, on the other hand, pointed out that the appellant has no consistent case. His case was that he had taken the land on lease and had put up a thatched shed therein and later on, a two storeyed building. All that was found to be false. In fact, reference to the Land Tribunal for determination of the issue of application of the provisions of the Land Reforms SA 682/00 7 Act was unnecessary. Whatever that be, the lower appellate court had found that the first defendant is not entitled to fixity of tenure and no grounds are made out to interfere with the judgment and decree of the lower appellate court. The claims of tenancy and fixity of tenure put forward by the appellant is without any basis and foundation. But the averment in the written statement is that the building now available in the property is put up by the first defendant and he is the owner of the building. In support of his case, he has produced Ext.A2, which is the copy of the assessment order issued by the local panchayat which shows that the building is assessed in his name. He has also produced the tax receipts for the years 1980-81 and 1987-88. It is also seen from the records that the second defendant was inducted into possession by the first defendant and later, eviction of the said person from the premises was obtained through the process of court. From the records it is also seen that the plaintiffs adduced SA 682/00 8 no evidence to show that the building was put up by them. The plaintiffs were also unable to show that Ext.A2 assessment was not made in the name of the first defendant. This is a crucial issue to be determined by the lower appellate court afresh. Without doing that, the lower appellate court has come to a conclusion that eviction can be obtained only under the provisions of Act 2 of 1965. This would normally call for a further remand. But, the rights of the parties can be left open to be decided in appropriate proceedings for eviction. With the above observations, the appeal is disposed of. P.Bhavadasan, Judge sta SA 682/00 9