IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 SA.No. 445 of 1996C ------------------------------------- AS.180/1991 of ADDL.DISTRICT COURT, KOZHIKODE OS.170/1990 of SUB COURT, QUILANDY .................... APPELLANT(S)/APPELLANTS/DEFENDANTS: -------------------------------------------------------------- 1. KOMULLIL JANU, D/O. KANNNAN, AGED 33 YEARS, RESIDING AT THIRUVALLOOR AMSOM DESOM, VADAKARA TALUK. 2. KOMATH PARAMBATH MEENAKSHI AMMA, W/O. SANKARA KURUP, AGED 48 YEARS, THIRUVALLUR AMSOM, DESOM, VADAKARA TALUK. 3. SON KOMATH PARAMBATH RAMAKRISHNAN, S/O. SANKARA KURUP, AGED 23 YEARS, THIRUVALLUR AMSOM, DESOM, VADAKARA TALUK. 4. BROTHER KOMATH PARAMBATH RAMESAN,A S/O. SANKARA KURUP, AGED 20 YEARS, THIRUVALLUR AMSOM, DESOM, BADAKARA TALUK. 5. BROTHER KOMATH PARAMBATH VISWAN (MINOR), S/O. SANKARA KURUP, AGED 15 YEARS. 6. SISTER VINEETH (MINOR) 10 YEARS, D/O.SANKARA KURUP. 7. KOYILOTH CHINNA KURUP, S/O. CHAPPA KURUP, AGED 55 YEARS, THIRUVALLUR AMSOM, DESOM, VADAKARA TALUK. (MINOR APPELLANTS REPRESENTED BY GUARDIAN 2ND APPELLANT). BY ADV. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR S.A. NO.445 OF 1996 RESPONDENT(S)/RESPONDENTS/PLAINTIFFS: ----------------------------------------------------------------- 1. KANHAROLI METHAL KAMALAKSHI AMMA, D/O. AMMALU AMMA, AGED 52 YEARS, RESIDING AT KOLANGARA HOUSE, MANTHARATHU AMSOM, KURUNTHODI DESOM, BADAGARA TALUK. 2. SON RAMA KRISHNA KURUP, S/O. GOPALA KURUP, 32 YEARS, MANTHARATHU AMSOM, KURUVANTHODI DESOM, BADAGARA TALUK. 3. BROTHER NARAYANA PRAKASH, S/O. GOPALA KURUP, 24 YEARS, KOLANGARA (H), MANTHARATHU AMSOM, KURUVANTHODI DESOM, BADAGARA TALUK. ADV. SRI.R.PARTHASARATHY FOR R1 TO R3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.7.2009, THE COURT ON 09.9.2009, DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- S.A. NO. 445 OF 1996 C -------------------------------------- Dated this the 9th September, 2009 JUDGMENT Appellants are the defendants. The Suit was filed by the respondents seeking recovery of possession of B schedule property and for mandatory injunction. The Suit was decreed concurrently by the courts below. Plaint B schedule is stated to be part of Plaint A schedule. Plaint A schedule property belonged to the tharavad of respondents, by name “Kanhorollimeethal tharavad”. Plaint A schedule property along with other properties were set apart to the share of the respondents. OS No.83 of 1972, a partition suit, was filed and a preliminary decree was passed and it is the case of the respondents that they obtained actual possession of the property by taking delivery of the same in the final decree. It is also stated that they had obtained purchase certificate in respect of plaint A schedule property from the Land Tribunal, Vadakara. S.A.NO.445 OF 1996C 2 When there was attempted trespass, OS No.43 of 1983 was filed against the 7th defendant. In the written statement in OS No.43 of 1983, the 7th defendant and other defendants took up the contention that there was a lease in favour of the 7th defendant and one Sankara Kurup and the 7th defendant had assigned his right in favour of the first defendant. The Suit was dismissed. In Appeal, the matter was remanded for identification of the property. Thereafter, in further proceedings culminating in the order of this Court in CRP. No.410 of 1987, the Court took the view that the respondents could file a fresh Suit for recovery of possession. It is during the pendency, it is stated that defendants 1 to 7 constructed a basement with stones and put up a shop room and a thatched shed and hence the Suit for recovery of possession and mandatory injunction came to be filed. Appellants 1 to 7 filed joint written statement, inter alia, denying the allegation that plaint B schedule was part of A schedule, and that it was taken possession of by the respondents in OS No.83 S.A.NO.445 OF 1996C 3 of 1972. It is stated that neither the respondents obtained possession of B schedule property, nor paid revenue thereon. Plaint B schedule property, according to the appellants, was taken on lease by the 7th defendant and Kunnath Sankara Kurup as per an oral lease of 1139 (ME). The lease was granted by certain members of the tharavad including the first respondent. It is stated that the 7th defendant assigned his right in favour of the first defendant by assignment deed dated 6.6.1983 and when Kunnath Sankara Kurup died, his legal heirs are defendants 2 to 6 and thus the defendants are in possession of B schedule property. The appellants claimed tenancy rights and they also prayed that the matter may be referred to the Land Tribunal for deciding the question of tenancy claimed by defendants 1 to 6. It is further claimed by the appellants that they were in continuous possession and enjoyment of plaint A schedule property for more than twelve years and title was lost by adverse possession and limitation. It is stated that the respondents are S.A.NO.445 OF 1996C 4 estopped from questioning the tenancy right as claimed by the appellants. After framing issues and on a consideration of the evidence of Pws. 1 and 2 and Exts.A1 to A14, B1 to B23 and X1, X1(a) to X1(c) the trial court found, inter alia, as follows: The oral lease claimed by the appellants was found to be true. As regards Issue No.4, namely whether the appellants are tenants entitled to fixity of tenure in respect of B schedule property, it was found that by Order dated 4.3.1991 the appellants are not entitled to fixity of tenure. Further, the trial court found that the plaintiffs have valid and subsisting title over B schedule property, and that the said right over plaint B schedule property is not lost by adverse possession and limitation. It is found that the tenancy set up by the appellants will not come under the purview of the land reforms legislation, and apparently in view of Section 74 of the Land Reforms Act (hereinafter referred to as the Act), it was found that the appellants will not come under the purview of the Act. S.A.NO.445 OF 1996C 5 2. The appellate court has confirmed the findings. Heard Shri B.G. Bhaskar, learned counsel for the appellants and Shri R. Partha Sarathi, learned counsel appearing on behalf of the respondents. Learned counsel for the appellants would contend that accepting the position that the lease was after 1.1.1964, it would still not be hit by Section 74 of the Act. According to him, Section 74 as it was originally enacted, contained a proviso. Later on, an Amending Act 35 of 1969 was passed by which the proviso came to be deleted. According to him, therefore, by virtue of the Amending Act, Section 74 containing the prohibition against creation of tenancy came into effect only on 1.1.1970 and, therefore, the oral tenancy created in 1964 is not hit by Section 74 of the Act. Secondly, he would contend that this is a case where having regard to the facts, the respondents are estopped having acted on the basis of the tenancy being in existence and having accepted full compensation for their rights through the machinery of the Land S.A.NO.445 OF 1996C 6 Tribunal from claiming that they had subsisting title to the property. This is one of the substantial questions of law on which this Court had issued notice. Thirdly, the learned counsel for the appellants would contend that assuming that Section 74 was in force from 1.1.1964, then the oral lease in favour of the 7th defendant and the predecessor in interest of appellants 2 to 6 would be a nullity. If that is so, the possession of the persons who took such a lease must be treated as adverse from the date of the transaction and, therefore, he would contend that the courts below were not justified in finding that the respondents had subsisting title over the property, and that it was not extinguished by adverse possession and limitation. 3. Per contra, learned counsel for the respondents would contend that there is no merit in the Appeal. It is submitted that a perusal of Section 74 as it originally stood and as it stood after the amendment by Amending Act 35 of 1969, would only show that the proviso to Section 74 alone was deleted and as far as Section 74 is concerned, it came into force from 1.1.1964 and, S.A.NO.445 OF 1996C 7 therefore, the lease set up by the appellants was invalid. He would further submit that the appellants could not contend that by virtue of receipt of money on the basis of the suo motu proceedings, that the respondents were estopped from asserting their title. It is contended that the lease itself is totally illegal and it cannot be recognised and, therefore, the title to the property is not lost. He would contend that actually the first defendant in the partition suit filed in the year 1972 is a member of the tharavad and he succeeded in creating certain documents and it is on the basis of the same that the transaction is set up. In this regard, he referred me to the deposition of DW2. DW2 is the first defendant in the earlier partition suit. He would further contend that having regard to the facts of this case, it could not be contended that there was any adverse possession. 4. The first substantial question of law which is raised appears to me to be without any merit at all. Section 74 of the Act as it was originally enacted, reads as follows: “74. Prohibition of future tenancies.- (1) After the commencement of this Act, no tenancy S.A.NO.445 OF 1996C 8 shall be created in respect of any land: Provided that any landowner who is - (i) a minor; (ii) a widow; (iii) an unmarried woman; (iv) a divorced woman; (v) a person incapable of cultivating land by reason of any physical or mental disability; or (vi) a serving member of the Armed Forces or a seaman, may create a tenancy, but the tenant shall not be entitled to any right conferred on a tenant under this Chapter. (2) Any tenancy created in contravention of the provisions of sub-section (1) shall be invalid.” 5. Admittedly, the appellants do not claim the benefit of the provisions in the proviso. What they would contend is that because of the Amending Act, 1969, it may be taken that Section 74 came into force only from 1.1.1970. Section 74 of the Act came into force with effect from 1.4.1964. It is another matter that the portion of Section 74 which has no relevance in S.A.NO.445 OF 1996C 9 the facts of this case, came to be omitted by a later Amending Act and the said Amending Act was brought into force with effect from 1.1.1970. The fact that it was brought into force cannot detract from the provisions of sub-sections (1) and (2) of Section 74 being in force from 1.4.1964. Sub-section (3) of Section 1 reads as follows: “1. Short title, extent and commencement - (3) The provisions of this Act, except this Section which shall come into force at once, shall come into force on such date as the Government may, by notification in the Gazette, appoint: Provided that different dates may be appointed for different provisions of this Act, and any reference in any such provision to the commencement of this Act, shall be construed as a reference to the coming into force of that provision.” Sections 2 to 71, 73 to 82, 84, 99 to 108 and 110 to 132 came into force on 1.4.1964 and the remaining provisions came into force on 1.1.1970. Thus, Section 74 in its original form had come into force on 1.4.1964. All that happened was the proviso S.A.NO.445 OF 1996C 10 to sub-section (1) of Section 74 came to be deleted by virtue of the Amending Act 35 of 1969 which was brought into force with effect from 1.1.1970. Thus, there is absolutely no merit in the contentions of the appellants. 6. The further question relates to estoppel. The plea of estoppel was raised by the appellants, as already noted, in the trial court. The plea of the appellants was that the respondents are estopped from questioning the tenancy rights claimed by the defendants. Accordingly, Issue No.5 was raised and it reads as follows: “Whether the plaintiffs are estopped from disputing the tenancy of the defendants over the plaint B schedule property ? The trial court considered the same and held as follows: “17. It is true that the plaintiffs are estopped from disputing the oral lease set up by the defendants. Exhibit B1 rent receipt would clearly show that the 1st plaintiff, on her on behalf and on behalf of her minor children executed the said rent receipt. The 1st plaintiff has also S.A.NO.445 OF 1996C 11 received the amount due to the intermediary. Exhibit X1-C money order coupon would reveal the fact. The 1st plaintiff has not come to the witness box to deny her signature in Exhibit X1-C money order receipts. (19th page begins). Thus in all respects the plaintiffs cannot be permitted to dispute the possession of the defendants on the strength of the oral lease of Edavam 1139 (ME). But, there will be no estoppal in disputing the alleged title of the defendants. The principle of estoppel will not confer title to a property. The principle of estoppel is incapable of making an invalid tenancy into a valid tenancy. The tenancy set up by the defendants over the plaint B schedule property is invalid as far as the Kerala Land Reforms Act is concerned. Hence I hold that the conduct of the 1st plaintiff is not sufficient to confer a title upon the defendants in respect of the plaint B schedule property. But, the said conduct is sufficient to hold that the defendants are not trespassers of the plaint B schedule property. But, it can only be held and the defendants are in possession of the plaint B schedule property with the permission of the S.A.NO.445 OF 1996C 12 plaintiffs, especially the 1st plaintiff. But, that will not in any way affect the right of the plaintiffs to get a decree for ejectment of the defendants from the plaint4 B schedule properties. Hence I hold that the plaintiffs have a valid and subsisting title to the plaint B schedule property. These issues are answered accordingly.” 7. It may be true that there was a suo motu proceeding under Section 72C of the Act. It is also true that pursuant to the same, on the basis of the proceedings, amount was deposited by the appellants representing the amount payable to the landlord for purchase of landlord's right. It would appear to be also correct that the respondents have accepted the money. But, the question is whether is it sufficient to extinguish the title of the respondents over the property. 8. It is to be noted in this context that the appellants themselves requested the trial court to refer the matter relating to tenancy to the Land Tribunal. As already noted, the tribunal answered Issue No.4 which read as whether the defendants are tenants entitled to fixity of tenure in respect of B schedule S.A.NO.445 OF 1996C 13 property, by holding that the issue was heard as a preliminary issue and found against the appellants by order dated 4.3.1991. I have already found that Section 74 was in force from 1.4.1964. This means that the alleged lease was wholly invalid and no reliance could placed on the same. Going by the conduct of the appellants, they themselves did not choose to rely on the proceedings of the Land Tribunal in the suo motu proceedings, at the culmination of which, it is contended that the respondents accepted the compensation for purchase of landlord's rights. Thus, both the appellants and respondents have chosen to wholly ignore the proceedings, apparently for the reason of the lease being totally invalid, the Tribunal would not have authority in respect of the matter. Admission of title cannot create title. Likewise, I would think that the title of the respondents, if it otherwise exists, cannot be said to be lost by virtue of the act of the respondents accepting the compensation in a proceeding relating to a wholly invalid lease which proceeding is not set up even as res judicata by the appellants as S.A.NO.445 OF 1996C 14 they wanted the matter to be referred to the Land Tribunal. 9. The third contention is that in view of the lease being found invalid, it must be taken that possession of the lessee is adverse from the date of the transaction. In this regard, the appellants placed reliance on certain decisions. The said case law, as noted, has been referred to and considered by the first appellate court. The first appellate court found that the claim of the appellants was under an oral lease. It is also, inter alia, found that even in Ext.A12 assignment deed issued by the 7th appellant in favour of the first appellant, the right of the landlord is admitted. It is also to be noted that even in the Suit, the appellants set up a case of lease. 10. Of course, learned counsel for the appellants would contend that what the law provides is that when a transaction is found to be void, the possession must be treated as adverse and the court need not enquire as to whether the person setting up adverse possession had the necessary animus possidindi. He would also submit that actually a perusal of Ext.A12 would only S.A.NO.445 OF 1996C 15 show that in the prefatory portion, the transaction of lease is referred to by way of tracing the title and it should not have been considered the basis for finding that the appellants had acknowledged title. 11. The first appellate court found that the interest attempted to be created in favour of the 7th appellant and Shri Sankara Kurup was only a limited right of the lessee. It is further held, inter alia, that even assuming that possession having been acquired under a void transaction, was adverse to the granter at the inception, the subsequent conduct would show that he accepted the title of the granters. The court also found that even assuming that the purchase of landlord's rights in 1979 resulted in total divestiture of the right of the landlord in favour of the appellants that purchase being in 1979, the Suit having been filed in 1990, the appellants have not been in adverse possession for the statutory period. 12. In the decision in Lala Hem Chand v. Lala Pearey Lal and Others (AIR (29) 1942 PC 64), the Court was dealing with S.A.NO.445 OF 1996C 16 the case of an executor holding the property adversely to the heir in excess of 12 years on behalf of the charity for which it was dedicated. The Court held as follows: “If the owner whose property is encroached upon suffers his right to be barred by the law of limitation, the practical effect is the extinction of his title in favour of the party in possession. Consequently, where the executor holds the property adversely to the heir for upwards of 12 years on behalf of the charity for which it was dedicated, the title to it, acquired by prescription, becomes vested in the charity and that of the heir if he had any, becomes extinguished by operation of S.28.” In Periyanan Chetty and Others v. R.B.M.R. Govinda Rao and Others (AIR 1932 Madras 328). the Suit was brought alleging that the property belonging to the temple had been alienated by a permanent cowle. It was, inter alia, contended that even if that cowle was invalid, the cowledar and the defendants who were assignees had acquired valid title to a permanent tenancy by way of adverse possession. The court held, inter alia, as S.A.NO.445 OF 1996C 17 follows: “We cannot also agree with the respondent's contention that it is impossible so long as any rent is paid or received for a title to a permanent lease to be acquired by adverse possession in India. The contrary has been held in many cases and must be held now to be beyond possibility of dispute: Sankaran v. Periaswami (4)ameswaran v. Krishnan (5), Icharam Singh v. Nimony (6), Ram Rachhya v. Kamakhya (7), Subbayya v. Maddaloya (8), and Narasayya v. Venkatarama (9). But, it was urged that no tenant of lands in India can obtain any right to a permanent tenancy by prescription and the decision of the Privy Council in Naina Pillai v. Ramanatha Chettiar (10) at 355 (of 47 Mad.) was cited. What that decision means is that a tenant who has entered into possession under a valid lease which is not permanent cannot by his own assertion or act during the tenancy enlarge his rights into a permanent tenancy. This is not applicable when possession is held without valid tenancy or after a tenancy has terminated. If, therefore, the cowledars in this case and their transferees who S.A.NO.445 OF 1996C 18 admittedly got no valid right to any permanent tenancy from the Dharmakarha have been in possession in open assertion of that right from 1865 and if it appears that from 1902 at the latest the Dharmakarthas knowing of the asserted right have allowed the defendants to be in possession under such right till 1918, we fail to see how the defendant's possession could be anything but adverse so far as the permanent tenancy is concerned or how they can be evicted after 12 years of such adverse possession.” In Chintamani Sahoo (deceased by L.R.) and others v. Commissioner of Orissa Hindu Religious Endowments, Orissa and Others (AIR 1983 Orissa 205) also, the Court was considering the case of a permanent lease deed without sanction of the Commissioner of Endowments. It was in this context that the permanent lease was void in nature, it was held that Article 65 of the Limitation Act, 1963 would apply. The Court held as follows: “But, if the transfer is void ab initio, then S.A.NO.445 OF 1996C 19 Art. 65 of the new Limitation Act would apply. The transferee's possession since the date of transfer becomes adverse from the date of the transfer in as much as the transferee had no right in respect of the property at all and he was a mere trespasser.” In State of West Bengal v. The Dalhousie Institute Society (AIR 1970 SC 1778), the dispute related to the title to the compensation amount awarded in the land acquisition proceedings to the site of Dalhousie Institute building. The Court, inter alia, held as follows: “16. There is no material placed before us to show that the grant has been made in the manner required by law though as a fact a grant of the site has been made in favour of the Institute. The evidence relied on by the Special Land Acquisition Judge and the High Court also clearly establishes that the respondent has been in open continuous and uninterrupted possession and enjoyment of the site for over 69 years. In this respect, the material documentary evidence referred to by the High Court clearly establishes that the respondent has S.A.NO.445 OF 1996C 20 been treated as owner of the site not only by the Corporation, but also by the Government. The possession of the respondent must have been on the basis of the grant made by the Government, which, no doubt, is invalid in law. As to what exactly is the legal effect of such possession has been considered by this Court in Collector of Bombay v. Municipal Corpn. of the City of Bombay, 1952 SCR 43 (AIR 1951 SC 469) as follows: “the position of the respondent Corporation and its predecessor in title was that of a person having no legal title, but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent Corporation took possession of the land under