IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 RSA.No. 62 of 2009() -------------------- A.S.NO.67/2008 ON THE FILE OF THE ADDL.DISTRICT COURT, N.PARAVUR O.S.NO.188 OF 2006 ON THE FILES OF THE MUNSIFF'S COURT, ALUVA APPELLANTS: -------------------------- 1. E.A.ABDUL KAREEM, S/O.LATE K.A.AHAMMED PILLAI, FRUIT MERCHANT, BUILDING NO.745 IN WARD NO.VII ALUVA MUNICIPALITY, ALUVA KARA. 2. NABEESA, W/O.LATE K.A.AHMMED PILLAI, EDAKKULATH HOUSE CHERANELLOOR, EDAPPALLY WEST, KUNNUMPURAM PO., ERNAKULAM. 3. FIRSOZ ASHAR, S/O.LATE K.A.AHMMED PILLAI EDAKKULATH HOUSE, CHERANELLOOR EDAPPALLY WEST, KUNNUMPURAM.PO., ERNAKULAM. BY ADV. S.P.CHALY RESPONDENT(S): --------------------------- ST.ANTONY'S MONASTERY ALUVA REP. BY ITS PRIOR FR.JOHN BECHAMANS KEITHARA, CMI, AGED 67, PRIOR ST.ANTONY'S MONASTERY, ALUVA. ADV.SRI.PIUS C MUNDADAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.62 of 2009 = = = = = = = = = = = = = = Dated this the 15 th day of January 2009 JUDGMENT Heard both sides. The defendants in O.S.No.188 of 2006 on the file of the Munsiff's Court, Aluva are the appellants in this second appeal. The said suit was one for eviction with arrears of rent and for damages for use and occupation. 2. The case of the plaintiff can be summarised as follows:- The plaintiff which is the St.Antony's Monastery, Aluva is the owner of the plaint schedule building bearing No.745 of Ward No.VII of Aluva municipality. The building is exempted from the provision of the Kerala Buildings (Lease and Rent Control) Act, 1965 by virtue of Government Notification dated 30.10.1996 issued and under Section 25 of the said Act. The plaint schedule building was leased out to one Ahemmad Pillai the predecessor-in-interest of the defendants in the year 1970. The said Ahemmad Pillai, who was a fruit merchant had executed a lease agreement on 5.1.70. The rent payable was Rs.130/- per month. The building was taken on rent for R.S.A.No.62 of 2008 2 conducting fruit business by the said Ahemmed Pillai. After the original period stipulated in the lease deed the said tenant was holding over, the rent was enhanced to Rs.400/- per month. Rent has been paid only up to and inclusive of July 2005 and has been kept in arrears for the subsequent period. Hence the suit. 3. The suit was resisted by the appellants/ defendants contending, inter alia, as follows:- The suit is not maintainable and lacks bona fides. The lease has not been validly terminated. Ahemmad Pillai who was the predecessor-in-interest of these defendants took on lease only the land occupied by the building and that was in the year 1967. After clearing the trees and plants thereon, he constructed the present building expending his own money and commenced business in the building. The rent was paid only for the land. Late Ahemmed Pillai had signed some blank papers and handed over the same to the Monastery. These defendants are not liable if the plaintiff Monastery has fabricated the documents. The business was being carried on by a partnership firm. The other partners of the firm are not joined as parties. The suit is, therefore, bad for non-joinder of necessary parties. These R.S.A.No.62 of 2008 3 defendants are entitled to the benefit under Section 106 of the Kerala Land Reforms Act, 1964 and the question regarding the rights under Section 106 of the Kerala Land Reforms Act has to be referred to the competent Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The cause of action pleaded in the plaint is not correct. The documents relied on by the plaintiffs are fabricated documents. The suit is, therefore, liable to be dismissed. 4. On the side of the plaintiff a Priest was examined as PW1 and Exts.A1 to A28 were marked. On the side of the appellants no oral evidence was adduced. Ext.B1 receipt was got marked. 5. The learned Munsiff, after trial, as per judgment and decree dated 27.2.08, decreed the suit as prayed for. On appeal preferred by the appellants before the Additional District Judge, N.Paravur as A.S.No.67/2008, the learned Judge has dismissed the appeal confirming the judgment and decree passed by the trial court. Hence this second appeal. 6. The following are the questions of law formulated in the memorandum of second appeal:- R.S.A.No.62 of 2008 4 1) Have not the learned courts below failed legally to appreciate section 106 of the Kerala Land Reforms Act with reference to the facts and circumstances of the case? 2) Are learned courts below legally correct in not staying the proceedings referring the subject matter to the Land Tribunal as is provided under Section 125(3) of the Kerala Land Reforms Act, 3) Are the learned courts below legally correct in adjudicating a claim under Section 106 of the Kerala Land Reforms ACt, when the same is the exclusive domain of the Land Tribunal? 4) Did the learned courts below, had jurisdiction to decide the issued raised by the defendants that they are entitled to get protection of Section 106 of the Kerala Land Reforms Act? 5) Have not the learned courts below went wrong in not considering at all the material alteration caused to Exhibit B1 by striking off the word “construction” in the same? 6) Have not the courts below went wrong in not dismissing the suit for non-joinder of necessary parties? 7) Were the courts below legally correct in adjudicating the issued in the suit without all the legal heirs of late Ahammed Pillai in the party array? 8) Are not, all the legal heirs entitled to succeed to the estate of late Ahammed Pillai, to contest the suit proceeding and raise issues of their choice? R.S.A.No.62 of 2008 5 9) Have not the courts below legally failed to not holding that the defendants are entitled to get protection of Section 100 of the Kerala Land Reforms Act? 10) Has not the appellate court went wrong legally in not correctly deciding the issues raised by the defendants? 11) Was the trial court legally correct in striking off the issue raised regarding the reference of the issue relating to Section 106 of the Kerala Land Reforms Act, to the Land Tribunal? 7. The learned counsel appearing for the appellants made the following submissions before me in support of the appeal:- The trial court erred in striking off the issue regarding the question as to whether the claim made by the appellants under Section 106 of the Kerala Land Reforms Act was to be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. Going by the contentions of the appellants, this case would squarely fall under Section 106 of the Kerala Land Reforms Act requiring a reference to the Land Tribunal. That apart, the other heirs of Ahemmed Pillai who are the other partners of the partnership firm,which is carrying on the business in the plaint schedule property, have not been impleaded by the plaintiff . Going by the decisions of the Apex R.S.A.No.62 of 2008 6 court in Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar (AIR 1963 SC 786) and Daya Ram and others v. Shvam Sunhari and others (1965 SC 1049), the courts below were not justified in holding that the suit is not bad for non-joinder of necessary parties. 8. I am afraid that I cannot agree with the above submissions . The courts below have concurrently held that the appellants are not entitled to the benefit of Section 106 of the Kerala Land Reforms Act. Even assuming that the case would fall under Section 106 of the Kerala Land Reforms Act, the argument that the decision rendered by the civil court without reference of the question to the Land Tribunal is null and void, cannot be sustained. The lower appellate court has noted that the claim made by the appellants was not a claim of “tenancy” within the meaning of Section 125(3) of the Kerala Land Reforms Act and that it was only a claim of “lease” under Section 106 of the Kerala Land Reforms Act. The question which is required to be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act is a question regarding the rights of a “tenant” or kudikidappukaran and not regarding the rights of a R.S.A.No.62 of 2008 7 “lessee” within the meaning of Section 106 of the Kerala Land Reforms Act (vide Govindapanicker v. Sreedhara Warrier (2000(2) KLT 43). Hence, the refusal on the part of the courts below to refer the question to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act does not call for any interference. 9. Equally misconceived is the contention that the suit was bad for non-joinder of the other partners who are the other legal heirs of deceased Ahemmad Pillai. The decisions reported in AIR 1963 SC 786 and AIR 65 SC 1049 have been considered elaborately in the verdict by this Court in Mohanambal v. Veeramani (1999(2) KLT 206). In the light of the said verdict, the contention of non- joinder of the other partners /legal heirs cannot be entertained. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. 10. The learned counsel appearing for the appellants prayed for six months' time to vacate the plaint schedule R.S.A.No.62 of 2008 8 building. Eventhough the said request is vehemently opposed by the learned counsel for the Caveator /Plaintiff, having regard to the facts and circumstances of the case, I am inclined to grant six months' time from today to the appellant, but only subject to the following :- The appellants shall hand over vacant possession of the plaint schedule building within six months from today on condition that they file an affidavit before the executing court within three weeks from today undertaking to surrender the vacant possession of the plaint schedule building within six months from today and also undertaking to pay the rent every month at the rate fixed by the courts below without fail and that they shall not induct strangers in the property and shall not commit any acts of waste thereon until handing over vacant possession. Dated this the 15 th day of January, 2009. V. RAMKUMAR, JUDGE sj