Allowed

T.Ramakrishna Bhat v. K.Krishna Bhat

Kerala HC9 Nov 2016AS/390/1997

Case brief

AI extract

What is this about?

The High Court set aside judgments refusing recovery of possession of land. The Court remanded the suits to the Subordinate Court for a fresh reference to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act to adjudicate the question of tenancy, which was intertwined with a pending purchase certificate application.

What did the court decide?

Impugned judgments set aside and suits remanded to the Subordinate Court for a fresh reference to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act.

T.Ramakrishna Bhat Vs K.Krishna Bhat — Land Acquisition | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH &

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 9TH DAY OF NOVEMBER 2016/18TH KARTHIKA, 1938

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AS.No. 390 of 1997 ( )

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AGAINST THE JUDGMENT IN OS 121/1993 of SUB COURT, KASARAGOD DATED 18-12-1996

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APPELLANT(S)/PLAINTIFF:

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H.GANAPATHY BHAT, S/O.KRISHNA BHAT, RESIDING AT HIRANYA, BAYAR VILLAGE, P.O.CHIPPAR, KASARGOD TALUK KASARGOD DISTRICT. (Died)

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ADDL. 2. T.RAMAKRISHNA BHAT, S/O.KRISHNA BHAT TALENGALA HOUSE, BAYAR VILLAGE, POST BAYAR, KASARGOD TALUK & DISTRICT.

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(ADDL. APPELLANT NO.2 IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF THE DECEASED APPELLANT NO.1 VIDE ORDER ON CMP.NO.4193/98 DATED 19.7.2006)

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ADDL. 3. ANANTHAKRISHNAN.T.

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S/O.LATE T.RAMAKRISHNA BHAT, TALENGALA HOUSE P.O.BAYAR, VIA PAIVALIKE, KASARGOD DISTRICT.

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ADDL. 4. THIRUMALESHWARI BHAT, W/O.LATE T.RAMAKRISHNA BHAT .DO. .DO

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(ADDL. APPELLANTS NO.3 AND 4 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED ADDL. APPELLANTS 3 AND 4 VIDE ORDER ON I.A.NO.1894/2006 DATED 19.7.2006)

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BY ADV.SRI.S.V. BALAKRISHNA IYER(SR) BY ADV. SRI.S.ANANTHAKRISHNAN BY ADV. SRI.N.K.SUBRAMANIAN

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RESPONDENT(S): DEFENDANTS

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1. K.KRISHNA BHAT, S/O.LATE MAHABALA BHAT THALATHAJE, BAYAR VILLAGE P.O. CHIPPAR KASARGOD TALUK & DISTRICT. (Died)

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PARAMESHWARI AMMA, W/O.KRISHNA BHAT, DO. DO.

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MAHABALA BHAT, S/O.KRISHNA BHAT, DO. DO.

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A.S.No.390/1997

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: 2 :

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4.	MAHALINGA BHAT, S/O. KRISHNA BHAT, DO. DO.
ADDL. 5.	SHARADA BHAT, D/O.KRISHNA BHAT THALATHAJE, BAYAR VILLAGE, POST CHIPPAR, KASARGOD.
ADDL.6.	KAMALA BHAT, D/O.LATE KRISHNA BHAT, THALATHAJE, BAYAR VILLAGE, POST CHIPPAR, KASARGOD.
ADDL.7.	SANKARI BHAT, D/O.LATE KRISHNA BHAT, THALATHAJE, BAYAR VILLAGE, POST CHIPPAR, KASARGOD.
ADDL.8.	LEELA BHAT, D/O.LATE KRISHNA BHAT, THALATHAJE, BAYAR VILLAGE, POST CHIPPAR, KASARGOD.
ADDL.9.	SAROJINI BHAT, D/O.LATE KRISHNA BHAT THALATHAJE, BAYAR VILLAGE, POST CHIPPAR, KASARGOD.
ADDL.10.	BHARATHI BHAT, D/O.LATE KRISHNA BHAT, THALATHAJE, BAYAR VILLAGE, POST CHIPPAR, KASARGOD.
*	(LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT ARE IMPLEADED AS ADDL. R5 TO R10 AS PER ORDER DATED 16.11.2016 IN I.A.NO.1577/2012)
ADDL.11.	JAYA BHAT, D/O.LATE KRISHNA BHAT THALATHAJE, BAYAR VILLAGE, POST CHIPPAR, KASARGOD - 671 322.
*	(IMPLEADED AS THE LEGAL HEIR OF THE DECEASED FIRST RESPONDENT AS ADDL.RESPONDENT 11 AS PER ORDER DATED 9.11.2016 AS PER ORDER IN I.A.No.2672/2016)
	R1 TO 4 & 11 BY ADV. SRI.K.G.GOURI SANKAR RAI

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THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 07-11-2016, ALONG WITH AS. 341/1997, THE COURT ON 09.11.2016 DELIVERED THE FOLLOWING:

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V.CHITAMBARESH & ANIL K.NARENDRAN, JJ. --------------------A.S.Nos.390/1997 & 341/1997 --------------------Dated this the 9^th day of November, 2016

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J U D G M E N T

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Chitambaresh, J.

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A.S.No.390/1997 arises out of O.S.No.121/1993 which is a suit for recovery of possession on title with mesne profits in respect of 43 cents of land in R.S.No.87/5. A.S.No.341/1997 arises out of

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O.S.No.120/1993 which is a suit for recovery of possession on title with mesne profits in respect of 61 cents and 8 cents in R.S.Nos.87/8 and 87/9. All the three items are in Bayar Village of Kasargod Taluk and the plaintiff in O.S.No.120/1993 is the son-in-law of the plaintiff in O.S.No.121/1993. The defendants in the suits are one and the same who contend that their predecessor-in-interest was a cultivating tenant in respect of all the items of property. The plaintiff in both the suits however concede tenancy in favour of the predecessor-in-interest of the defendants in respect of 29 cents in R.S.No.87/3 of the same village.

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The predecessor-in-interest of the defendants by name Mahabala Bhat had filed O.A.No.677/74 (Re-numbered as 1970/76) for issue of a

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A.S.No.390 & 341 of 1997

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certificate of purchase. The original application had been dismissed by the Land Tribunal and the order therein was set aside in A.A.No.192/1984 by the Appellate Authority. The Appellate Authority by judgment dated 3.5.1986 remanded the case and it is reported that the matter is still under consideration by the Land Tribunal, Kasargod. It should be noted that O.A.No.677/1974 was filed much before O.S.Nos.121/1993 and 120/1993 wherein also a question of tenancy arose for consideration. This was precisely why the question of tenancy in O.S.Nos.121/1993 and 120/1993 was also referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act.

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The proper course would have been to answer the reference in O.S.Nos.121/1993 and 120/1993 along with O.A.No.677/1974 (Re-numbered as 1970/76) by the Land Tribunal. We also notice that the plaintiff in the suits along with others had earlier filed O.S.No.83/1975 for injunction and other ancillary reliefs against the defendants herein. The judgment of the trial court decreeing O.S.No.83/1975 was reversed in A.S.No.119/1979 dismissing the suit and later

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A.S.No.390 & 341 of 1997

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affirmed in S.A.No.887/1981. This Court by the judgment therein dated 2.3.1987 clarified that only the question of possession was adjudicated being a suit for injunction leaving open title. It was also stated that a fresh suit on title will not be barred and the resultant conclusion is that the defendants in O.S.Nos.121/1993 and 120/1993 are in possession.

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The court below in dismissing O.S.Nos.120/1993 and 121/1993 has also relied on the finding on tenancy made in A.S.No.119/1979 overlooking that the same was a suit for injunction. The Reference to the Land Tribunal made in O.S.No.83/1975 from which A.S.No.119/1979 arose was answered relying on the finding in O.A.No.1970/1976. O.A.No.1970/1976 is still pending consideration before the Land Tribunal pursuant to a remand made in A.A.No.192/1984 on the file of the Appellate Authority. Thus the question of tenancy in O.S.Nos.121/1993 and 120/1993 is intertwined with the question of tenancy in O.A.No.1970/1976 pending compelling us to remand the suits. The plaintiff relies on the discrepancy as regards extent in the various receipts whereas the defendants rely on the diary

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A.S.No.390 & 341 of 1997

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maintained by Mahabala Bhat. The acceptability or otherwise of the documents is a matter to be considered by the Land Tribunal where in the question of tenancy shall be adjudicated on evidence.

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Whether the tenancy of the defendants is confined to 29 cents in R.S.No.87/3 or takes in the plaint schedule property in O.S.Nos.121/1993 and 120/1993 is a matter to be considered. The Land Tribunal shall consider the same while answering the Reference in O.S.Nos.121/1993 and 120/1993 along with O.A.No.1970/1976 pending. We set aside the impugned judgments and remand the suits in order to facilitate a fresh Reference to the Land Tribunal under Section 125 (3) of the Kerala Land Reforms Act. The Land Tribunal shall afford sufficient opportunity to all parties to lead such further oral and documentary evidence as are necessary to establish their case. We refrain from making any observation as regards tenancy lest it prejudices the parties in the Reference to be made and also O.A.No.1970/1976 pending. The parties shall appear in the court of the Subordinate Judge of Kasargod on 5.12.2016 and the court fee paid on the memorandum of

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A.S.No.390 & 341 of 1997

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Appeal Suits shall be refunded. The court below shall endeavour to dispose of the suits as early as possible dependent on the order passed by the Land Tribunal which finding will form part of the judgment.

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The Appeal Suits are allowed. No costs.

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Sd/V.CHITAMBARESH, Judge.

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Sd/ANIL.K.NARENDRAN, Judge.

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nj/07.11.2016

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//TRUE COPY//

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P.S. TO JUDGE.

T.Ramakrishna Bhat v. K.Krishna Bhat

Case brief

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T.Ramakrishna Bhat v. K.Krishna Bhat

Case brief

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