IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 SA.No. 25 of 1996(C) -------------------- AS.62/1992 of SUB COURT, KASARAGOD OS.44/1987 of ADDL.MUNSIFF, KASARAGOD .................... APPELLANTS IN S.A-APPELLANTS IN THE LOWER APPELLATE COURT- PLAINTIFFS IN SUIT: ------------------ -------------- 1. BEEPATHUMMA, W/o. MOHAMMED ISMAIL RESIDING NEAR GOODS-SHED CROSS ROAD, MANGALORE, DEKSHINA KARNATAKA 2. ASYAMMA, W/o. Dr. AHAMAD MOGRAL RESIDING AT MOGRAL, MOGRAL VILLAGE KASARAGOD TALUK BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR P. B KRISHNAN RESPONDENTS IN S.A-RESPONDENTS IN THE LOWER APPELLATE COURT- DEFENDANTS IN SUIT: ------------------------------------ 1. NAGESH KAMATH, S/o. BHASKARA KAMATH MERCHANT, JALSOOR ROAD KASBA VILLAGE, KASARAGOD 2. M/s. K VASUDEVA KAMATH & COMPANY REPRESENTED BY NAGESH KAMATH, JALSOOR ROAD, KASARAGOD VILLAGE P O KASARAGOD, KASARAGOD TALUK ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.T.SETHUMADHAVAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.25 of 1996C --------------------------------------- Dated this 05th day of January, 2010 JUDGMENT The substantial question of law framed for a decision is: Whether under the scheme of section 106 of the Kerala Land Reforms Act (for short, “the Act”) protection provided thereunder can be claimed by a person other than a lessee, his assignee or legal representative who has put up the building before May 20th, 1967? 2. Short facts: Plaint A schedule property, it is not disputed originally belonged to the late Kunhikalandar, father of appellants. That property was leased to one Sarvothama Kamath as per a registered lease deed dated 13-04-1951 for a period of 35 years and reserving annual rent of Rs.50/-. Kunhikalandar executed a registered settlement deed in the year 1972. Appellants claimed that after death of Kunhikalandar they are entitled to the suit property on the strength of the settlement deed. It is their further case that the lease expired by efflux of time. Respondents/defendants claiming to have acquired leasehold right attempted to construct building in the suit property in the year 1985 and thereon appellants filed O.S.No.327 of 1985 to prevent such acts of the respondents. Respondent constructed structures in the suit S.A.No.25 of 1996 2 property after 1985, according to the appellants in violation of the provisions of the Kerala Building Rules and in order to facilitate a false claim for protection under section 106 of the Act. Appellants wanted respondents to surrender possession of the suit property with mesne profits. Respondents contended that they are not aware of the settlement deed of the year, 1972 conferring right on the appellants over the suit property. Sarvothama Kamath had acquired lease of the suit property for industrial purposes for and on behalf of a partnership firm by name 'M/s.K. Vasudeva Kamath & Company' (respondent No.2) of which respondent No.1 is the managing partner. The partnership firm constructed structures in the suit property during 1952-53' for industrial purpose and at a time when the firm was about to reconstruct the structures appellants filed O.S.No.327 of 1985. Appellants claimed protection under section 106 of the Act and requested for reference of the issue to the Land Tribunal. The issue was referred to that Land Tribunal under section 125(3) of the Act. Husband of appellant No.2 was examined as PW1. The Managing Partner and a staff of the partnership firm (respondent No.2) were examined as Rws.1 and 2. CW1 is the Advocate Commissioner who had inspected the suit property in O.S.No.327 of 1985 and submitted report and supplementary report dated 15-10-1985 and 12-02-1986 respectively, the copy of which are marked as Exts.B2 and B3. Ext.B1 is the copy of a registered assignment deed dated 03-12-1960 S.A.No.25 of 1996 3 executed by the legal representatives of Sarvothama Kamath in favour of M/s. K Vasudeva Kamath & Company (respondent No.2). The Land Tribunal from the above evidence and Ext.C1, report dated 25-12-1990 of the Special Revenue Inspector concluded that structures were put up before May 20th, 1967 and hence respondents are entitled to the protection under section 106 of the Act. Accepting that finding learned Munsiff dismissed prayer for eviction of respondents but granted appellants a decree for recovery of Rs.300/- by way of rent arrears from the respondent with 6% interest. Appellants carried the matter in appeal. First appellate court concurred with the finding of the Land Tribunal as regards protection under section 106 of the Act and dismissed the appeal. Hence this second appeal. It is contended by learned counsel for appellants that there is no case or evidence that any structure was put up by Sarvothama Kamath, the lessee before 20th May, 1967. Learned counsel contends that even as per the case of respondents the structure was put up not by Sarvothama Kamath but by respondent No.2, the partnership firm with which the landlord had no privity of contract. Respondent No.2 is not an assignee or legal representative of the lessee. Hence respondents are not entitled for protection under section 106 of the Act. According to learned counsel, legal representatives of Sarvothama Kamath could not have assigned by Ext.B1 any right which they themselves did not have. Learned counsel has placed reliance on the decisions in Mamoo Vs. Asya S.A.No.25 of 1996 4 (1965 KLT 126), Parameswaran Pillai Vs. Venkiteswara Prabhu and Others (1974 KLT 210), Ramachandran Pillai Vs. Joseph John & Others (1978 KLT 528) and Sulaikha Beevi Vs. Mathew (2001(1) KLT 360). Learned counsel also contends that the Land Tribunal and the first appellate court also went wrong in placing reliance on the evidence of RWs.1 and 2, CW1 and Exts.B1 to B3 to hold that structure was put up before May 20th, 1967. Learned Senior Advocate appearing for respondents, in response contend that so far as construction of structures before May 20th, 1967 is concerned, there is reliable evidence let in by the respondents and the finding of the Land Tribunal and the first appellate court on that issue being one of fact which rested on the evidence on record, it does not involve any substantial question of law requiring interference by this court. Learned Senior Advocate has invited my attention to the oral and documentary evidence which the respondents would rely in this regard. So far as entitlement of respondents for protection under section 106 of the Act is concerned, learned Senior Advocate would contend that the plaint proceeded on the basis that respondents have put up structures in the suit property in violation of the Building Rules and hence they are not entitled to remain in possession. It is also contended by learned Senior Advocate that having regard to the scheme of section 106 of the Act and the transactions entered into in this case, there is no reason why protection should not be afforded to S.A.No.25 of 1996 5 the respondents. According to learned Senior Advocate, it was well within the power of Sarvothama Kamath (the lessee) to have obtained the lease for and on behalf of the partnership firm( respondent No.2). Learned Senior Advocate contends that there is no reason to interfere with the decision of the Land Tribunal and the first appellate court. 3. Section 106 of the Act in so far as it is relevant for consideration in this case reads, “Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years. (a) 'lessee' includes a legal representative or an assignee of the lessee, and (b) 'building' means a permanent or a temporary building and includes a shed. ................................... ” To claim protection under section 106 of the Act the lease should have been for commercial or industrial purposes and, the structure should have been put up for such commercial or industrial purpose before May S.A.No.25 of 1996 6 20th, 1967. Though a photocopy of registered lease deed dated 13-04- 1951 was produced along with the plaint that has not been admitted in evidence. But there is no dispute that as per registered lease deed dated 13-04-1951 the suit property was given on lease to Sarvothama Kamath for a period of 35 years and reserving annual rent of Rs.50/-. It is also not disputed that the lease of land was for industrial purpose. The Land Tribunal found and the first appellate court confirmed, that structures were put up before May 20th, 1967. In Ext.B2, report (dated 15-10-1985) of the Advocate Commissioner in O.S.No.327 of 1985 (CW1,examined before the Land Tribunal) there is reference to the construction of a new building in the suit property at the time of his inspection on 08-10-1985. Commissioner has stated that he found about 200 old laterite stones having remnants of cement plastering on it and a good number of old tiles kept near the new building which was under construction. According to RWs.1 and 2 (examined before the Land Tribunal) those old laterite stones and tiles were collected from the old structure in the suit property and used for reconstruction. 4. It is true that PW1, husband of appellant No.2 denied that there was any structure in the suit property till 1985 and according to him, the structure came into existence only in the year 1985. PW1 has admitted that the lease granted by Kunhikalandar in favour of Sarvothama Kamath is an industrial lease and not for any agricultural purpose. In Ext.B1, the registered assignment deed dated 30-11-1960 S.A.No.25 of 1996 7 executed by the legal representatives of Sarvothama Kamath in favour of respondents there is reference to the existence of structures in the suit property. There is no case or evidence that Ext.B1 was fraudulently created. There is also no reason to think that in Ext.B1 dated 30-11-1960 a false recital regarding the existence of a structure in the suit property was made. It is based on the reference to the existence of structures in the suit property in Ext.B1, the reports of Advocate Commissioner (Exts.B2 and B3) about the availability of old laterite stones and tiles near the building in construction and the evidence of RWs.1 and 2 that the Land Tribunal came into the conclusion that structures were put up in the suit property before May 20th, 1967. First appellate court considered the evidence and upheld the finding. That finding rest on a proper appreciation of the evidence. A finding of fact unless it is perverse or is not supported by any evidence cannot present any substantial question of law. Hence the contention that courts below went wrong in holding in favour of construction of structures in the suit property before May 20th, 1967 cannot be sustained. 5. Now the crucial question for a decision is whether respondents who claim to have put up structures in the suit property are entitled to the protection under section 106 of the Act. The word 'lessee' is not defined in the Act but, for the purpose of section 106 of the Act, it is declared by Amendment Act 35 of 1969 which came into S.A.No.25 of 1996 8 force on 01-01-1970 that 'lessee' includes a “legal representative or an assignee of the lessee”. Going by section 106 of the Act, protection is afforded to the lessee his assignee or legal representative provided building is constructed for commercial or industrial purposes before May 20th, 1967. A 'legal representative' is a person who in law represents the estate of the deceased person or who intermeddles with the estate of the deceased or a person on whom the estate devolves on the death of the party suing or sued. In Mamoo Vs. Asya (supra) this court held that a sub lessee cannot claim protection under section 106 as normally there is no privity of contract between the landlord and the sublessee. It was held that the 'lessee' must be a person who has entered into a contract of tenancy with a person who may make a claim for eviction and to whom the lessee is liable to pay rent. The same view was taken in Parameswaran Pillai Vs. Venkiteswara Prabhu and Others (supra). In Ramachandran Pillai Vs. Joseph John & Others (supra) question considered was whether for the purpose of section 106(i) of the Act a sublessee could be treated as an assignee of the lessee and he could claim protection of the provision. Negativing the contention it was held, “It is therefore clear that, while the body of the subsection confers the benefit of protection from eviction, the Explanation by an inclusive definition extends this benefit to a legal representative or an assignee of the S.A.No.25 of 1996 9 lessee. The omission of a sublessee in this inclusive definition is significant. The provisions in sub-section (1) of section 106 also clearly indicates that a sublessee is not entitled to the benefits of the section. The wordings in the sub-section make it clear that the lessee entitled to the benefit of this section must be a person who is liable to pay rent under the contract of tenancy. In other words, only a lesese, who has entered into a contract of tenancy with a person who may make a claim for eviction and to whom the lessee is liable to pay rent under the contract of tenancy is entitled to the benefits of this section....”. (emphasis supplied) In Suleikha Beevi Vs. Mathew (supra) the lessee had surrendered the lease based on which the structure was put up and a fresh lease deed was executed in respect of the land and structure. It was held that the lessee is disentitled to claim protection based on the new lease deed. 6. Coming back to the facts of the case, respondents who seek protection of section 106 have no case that Sarvothama Kamath put up any structure in the suit property. Respondents say that the lease was obtained by Sarvothama Kamath for and on behalf of respondent No.2, the partnership firm. It is also their case that respondent No.2, partnership firm put up the structure. There is no case or evidence that the lease was between the landlord and S.A.No.25 of 1996 10 respondent No.2. In other words, so far as the landlord was concerned, his lessee was Sarvothama Kamath. Case of respondents is only that the lease was taken by Sarvothama Kamath for and behalf of respondent No.2. There is no privity of contract between the landlord and respondent No.2. That, Sarvothama Kamath was either a partner of respondent No.2 at the time of lease or later became its partner makes no difference so far as the contractual relationship between the landlord and Sarvothama Kamath is concerned so far as there is no evidence to show that the landlord had acknowledged respondent No.2 as his tenant. The person liable to pay rent to the landlord and the person who may be asked by the landlord to vaccate the premises was Sarvothama Kamath. In that situation the only person who could seek protection of section 106 was Sarvothama Kamath. May be, Sarvothama Kamath could have successfully resisted an attempt for his eviction on the ground of sublease contending that he is a partner of respondent No.2 but that does not enable respondent No.2 to claim protection of section 106 of the Act. 7. Could respondents be treated as assignees of Sarvothama Kamath so that invoking the explanation to section 106 (1) they could seek protection of that provision?. To answer that question reference has to be made to Ext.B1. That is a copy of registered assignment deed dated 30-11-1960 executed by the legal representatives of Sarvothama Kamath in favour of respondent No.2, partnership firm. It S.A.No.25 of 1996 11 refers to two items. Item No.2 is the suit property. It is stated in Ext.B1 that the said item was obtained on lease by Sarvothama Kamath from Kunhikalandar as per registered lease deed dated 13-04-1951 on behalf of respondent No.2 for a term of 35 years on an annual rent of Rs.50/- and that respondent No.2 has been in possession of the said property by constructing building and by paying rent. It is also stated in Ext.B1 that for construction of the structure Sarvothama Kamath had not spent any money in his individual capacity. The legal representatives of Sarvothama Kamath stated in Ext.B1 that whatever nominal right they had in the suit property is assigned to respondent No.2 without any consideration. I stated that the contract of lease was between the landlord and Sarvothama Kamath. Therefore, whatever arrangement there was between Sarvothama Kamath and respondent No.2 in which the former is said to have been a partner is not binding on the landlord or his legal representatives. Ext.B1 is not an assignment of the leasehold right of Sarvothama Kamath which devolved on his legal representatives in favour of respondent No.2. It is only that as per Ext.B1, legal representatives of Sarvothama Kamath acknowledged the claim of respondents that Sarvothama Kamath took the suit property on lease for and on behalf of respondent No.2 and that the latter put up structure in the suit property in its own right. Ext.B1 eloquently shows that the structure was not put up by Sarvothama Kamath or on his behalf, but by respondent No.2 which is S.A.No.25 of 1996 12 a different legal entity so far as the landlord is concerned and that too, on its own behalf. The Act recognizes a partnership firm as a 'person' as seen from the definition in section 2(43) (see also V.R.Prasad & Ors. Vs. State of Kerala & Ors. (1996(2)KLJ 789). Respondent No.2 cannot by virtue of Ext.B1 claim to be an assignee or legal representative of Sarvothama Kamath. So far as the landlord and his legal representatives are concerned, respondents who constructed structures in the suit property are neither their lesees nor assignees or legal representatives of their lessee liable to pay rent to them. To the landlord and his legal representatives, respondents are a different legal entity who put up the structure in the suit property. The object of section 106 of the Act is to afford protection of the lessee, his legal representatives or assignee from eviction from the leased premises provided other requirements of the section are satisfied. The provision does not contemplate protection to a person who has no privity of contract with the landlord. A person not being a lessee, his assignee or legal representative and with whom the landlord has no privity of contract cannot claim the protection of that provision. Respondents do not fill in any of the above character and hence on the ground that the lease was obtained by Sarvothama Kamath on their behalf and they have put up structures in the suit property before 20th May, 1967 they cannot claim protection of section 106(1) of the Act. Neither the Land Tribunal nor the first appellate court has adverted to this crucial S.A.No.25 of 1996 13 question. The substantial question of law framed is answered accordingly in favour of the appellants. 8. It follows from the above finding that appellants are entitled to recover possession of the suit property from the respondents. The trial court has granted a decree in part allowing appellants to recover Rs.300/- by way of rent arrears with interest at the rate of 6% per annum from the date of suit till realisation. That part of the judgment and decree of the trial court can be retained since appellants are entitled to recover mesne profits from the respondents. Resultantly, the second appeal is allowed in the following lines. (i) Judgment and decree of the trial court and that of the first appellate court to the extent it dismissed the prayer for recovery of possession of the suit property and the finding of the Land Tribunal as confirmed by the first appellate court that respondents are entitled to the protection of section 106 of the Kerala Land Reforms Act are set aside. (ii) Appellants are granted a decree for recovery of possession of plaint A schedule property from the respondents. (iii) The judgment and decree of the courts below allowing appellants to recover the sum of Rs.300/- (Rupees S.A.No.25 of 1996 14 Three Hundred Only) with interest at the rate of 6% p.a. from date of suit till realisation with proportionate costs is retained treating it as a decree for realisation of mesne profits. (iv) Parties shall suffer their costs in this appeal. THOMAS P JOSEPH, JUDGE Sbna/