IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 SA.No. 31 of 1996(D) -------------------------- AS.11/1992 of PRL.SUB COURT,KOTTAYAM OS.159/1987 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT(S):APPELLANT/PLAINTIFF --------------------------------------------- * K.V.RAVINDRAN NAIR, NEPHEW OF VASUDEVAN PILLAI, KALOOR HOUSE, THRIKKODITHANAM. (DIED. LR'S IMPLEADED) * ADDL. A2 TO A4 IMPLEADED 2. SREEDEVI, W/O.LATE K.V.RAVINDRAN NAIR, KALOOR HOUSE, THRIKKODITHANAM P.O., CHANGANACHERRY. 3. RAJITHA, D/O.LATE K.V.RAVINDRAN NAIR, KALOOR HOUSE, THRIKKODITHANAM P.O., CHANGANACHERRY. 4. ANJANA, D/O. LATE K.V.RAVINDRAN NAIR, KALOOR HOUSE, THRIKKODITHANAM P.O., CHANGANACHERRY. * ADDL. APPELLATE 2 TO 4 IMPLEADED AS THE LEGAL HEIRS OF DECEASED SOLE APPELLANT AS PER ORDER DATED 05/06/2009 IN I.A.1012/2009 IN S.A. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): RESPONDENT/DEFENDANTS ------------------------------------------------------ KONTHI KARUNAKARAN, S/O. KONTHI, PARACKAL HOUSE, MANTHURUTHY, KARUKACHAL VILLAGE. BY ADV. SRI.A.X.VARGHESE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.67/1996 IN S.A. NO.31/1996 DISMISSED 09/03/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 31 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of March, 2011. JUDGMENT The plaintiff in O.S.159 of 1987 before the Munsiff's Court, Changanacherry, who was non-suited by the courts below on different grounds, is the appellant. 2. The plaintiff claims to have obtained the suit property on the basis of Ext.A1 dated 12.9.1985. It is not in dispute that the predecessor-in-interest of the plaintiff had instituted O.A. 508 of 1971 for resumption of the land from the defendant, who was holding the property under tenancy right. It appears that, that application was allowed and the land owner was directed to deposit the amount. The amount appears to have been deposited. Thereafter the predecessor in interest of the plaintiff passed away and nothing more was done in the matter. The plaintiff, on the basis of the title obtained by him under Ext.A1, sued to recover possession of the property. S.A.31/1996. 2 3. The tenant resisted the suit. He pointed out that since delivery has not been taken in pursuance of the order of the Land Tribunal, the landlord has lost his rights as on 1.1.1970 and the plaintiff cannot claim any right over the suit property. He cannot take advantage of the earlier order as it has worked out itself. On the basis of these contentions, he prayed for a dismissal of the suit. 4. On the above pleadings, issues were raised. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendant had D.Ws. 1 to 4 examined and Ext.B1 marked. Exts.C1 to C2(a) are the commission reports and plans. The trial court, after an evaluation of the evidence, came to the conclusion that the title of the plaintiff, if any, had been lost by adverse possession and limitation and dismissed the suit. The plaintiff carried the matter in appeal as A.S.11 of 1992. The lower appellate court took a different view regarding adverse possession and limitation and was of the opinion that the view of the trial S.A.31/1996. 3 court in that regard is erroneous. However, the lower appellate court found that since delivery in pursuance to the order of resumption has not been obtained by the predecessor-in-interest of the plaintiff, the tenancy continued and if that be so, going by Section 72 of the Kerala Land Reforms Act as on 1.1.1970 the right of the landlord has vested with the Government and the plaintiff had no title to the suit property. Holding so, the appeal was dismissed. That has brought the plaintiff before this court. 5. Notice is seen issued on the following questions of law: “i) Whether the principles of limitation and adverse possession is applicable as the Land Tribunal has passed the order on 19.6.1975 on the execution petition and as delivery was posted to 15.1.1976? ii) Has not the lower appellate court committed legal error in construing the A1 partition deed? S.A.31/1996. 4 iii) Whether the provisions of sub section (2) of S.72 is applicable to the facts of the case as the resumption was allowed by the Land Tribunal? iv) Whether the lower appellate court is correct to hold that there was vesting of the landlord's right with the Government?” 6. Learned counsel appearing for the appellant contended that the amounts have been deposited, the relationship of landlord and tenant stands snapped and thereafter the possession of the defendant is not more than that of a trespasser. The plaintiff having established his title, it was for the defendant to show that he had a right to remain in possession of the property. Having failed to do so, it is contended that the courts below ought to have decreed the suit. 7. Per contra, learned counsel appearing or the respondent pointed out that resumption application was filed by the predecessor-in-interest of the plaintiff, which indicates that it was admitted that he was a tenant in S.A.31/1996. 5 respect of the suit property. True the resumption order has been passed and the amount might have been deposited. But unless the actual resumption is obtained, the tenancy subsists and if that be so, the view of the lower appellate court is justified. 8. There seems to be considerable force in the contention raised by the learned counsel for the respondent. Section 22 of the Kerala Land Reforms Act indicates the procedure to be followed when an application for resumption is filed before the Land Tribunal. In the present context sub sections (6) and (7) of Section 22 is relevant. They read as follows: “(6) Where any land is resumed after making the payments as directed by the Land Tribunal, all the rights of the cultivating tenant and the intermediaries, if any, holding between the landlord resuming the land and the cultivating tenant in respect of the land, shall stand extinguished. (7) Where a landlord deposits the amounts in accordance with the directions of the Land S.A.31/1996. 6 Tribunal, the Land Tribunal shall put the landlord in possession of the land allowed to be resumed, if need be by removing any person who refuses to vacate the same.” 9. Kerala Land Reforms (Tenancy) Rules, 1970 provide for the procedure to be followed when an application is filed for resumption. Rules 6 to 11 have some relevance in the present context. It provides for various procedures including assessment of value of improvements to be paid to the tenant and deposit of the amount. Even if it is assumed that the amount as directed by the Land Tribunal is deposited, the question whether that is sufficient to snap the tenancy relationship between the plaintiff's family and the defendant. One may refer to sub sections (6) and (7) of Section 22, which has already been extracted. Sub section (7) says that when the landlord deposited the amount in accordance with the direction of the Land Tribunal, the Land Tribunal shall put the landlord in possession of the land about to be resumed. It is an admitted case that in pursuance to the deposit of the amount, the property that S.A.31/1996. 7 was to be delivered was infact demarcated. It is also admitted that there was no actual delivery. Before the delivery could be effected, the predecessor-in-interest, who was prosecuting the matter passed away and his legal heirs did not prosecute the matter. That means the landlord was not actually put in possession of the property. Now one may refer to sub section (6) to Section 22. That says that when the land is resumed after making payments, all the rights of the cultivating tenant and the intermediaries shall stand extinguished. The provision leaves one in no doubt that it was only on actual resumption that is on delivery of the property on actual deposit of the amount that the resumption occurs. Till then the relationship of landlord and tenant subsists. If that be so, the view of the lower appellate court that as on 1.1.1970 the rights of the landlord vests with the Government is fully justified. It cannot be said that the plaintiff has title over the suit property. There is nothing to show that the view taken by the lower appellate court is incorrect in law or on facts. The mere S.A.31/1996. 8 deposit of amount will not extinguish the landlord tenant relationship and it continues till actual delivery in pursuance of the order passed by the Land Tribunal, which is admittedly not occurred in the present case. No substantial question of law arises for consideration in this Second Appeal and it is only to be dismissed. I do so. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.