In this second appeal, the High Court dismissed the challenge to the First Appellate Court's order dismissing the Devaswom's suit. The Court held there was no evidence for an oral lease and ruled that no impleadment of the former Managers' heirs was necessary.
The second appeal was dismissed and the judgment of the First Appellate Court was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.SOMARAJAN
FRIDAY,THE 23RD DAY OF NOVEMBER 2018/2ND AGRAHAYANA, 1940
RSA.No.559 of 2003
AGAINST THE JUDGMENT AND DECREE DATED 19.9.2002 IN AS NO.157/1999 OF I ADDL.DISTRICT COURT, ERNAKULAM
AGAINST THE JUDGMENT AND DECREE DATED 22.1.1999 IN OS NO.192/1982 OF THE I ADDL. SUB COURT, ERNAKULAM
APPELLANTS/RESPONDENTS 1 AND 2/DEFENDANTS 1 AND 2:
2 ELIZABATH, W/O.ANTONY, KOODARAPPILLY, (DIED) VYTTILA, POONITHURA VILLAGE, KANAYANNUR TALUK. (LRS. IMPLEADED)
ADDITIONAL APPELLANTS:
3 K.A.MELBIN, AGED 51 YEARS, S/O.LATE ANTONY, KOODARAPPILLY HOUSE, VYTTILA, POONITHURA, NOW RESIDING AT CANAL ROAD, VETTIKKAL, MULANTHURUTHY, PIN - 682 314.
4 K.A.SABU, AGED 47 YEARS, S/O.LATE ANTONY, KOORARAPPILLY HOUSE, VYTTILA, POONITHURA, NOW RESIDING AT KADAYIRUPPU, KOLENCHERRY, ERNAKULAM, PIN - 682 311.
5 K.A.SAJAN, AGED 45 YEARS, S/O.LATE ANTONY, KOODARAPPILLY HOUSE, VYTTILA, POONITHURA, NOW RESIDING AT CHEPPANAM, NEAR ST.JOSEPH CHURCH,PANANGAD P.O.,PIN 682506.
LEGAL HEIRS OF DECEASED APPELLANTS 1 AND 2 ARE IMPLEADED AS ADDL. APPELLANTS 3 TO 5 AS PER THE ORDER DATED 30.10.2015 IN IA.NO.2750/15.
BY ADV. SRI.M.P.RAMNATH SRI.RAJESH KOTTAKKAL SRI.VARGHESE VARGHESE M SMT.UMA R. KAMATH SMT.S.SANDHYA SRI.BEPIN PAUL SRI.SHABU VARGHESE
R.S.A.No.559 of 2003
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RESPONDENT/APPELLANT/PLAINTIFF:
MUKKOTTIL BHAGAVATHY DEVASWOM, REPRESENTED BY ITS MANAGER T.R.RAJAPPAN, S/O.RAGHAVA PANICKER, ADVOCATE, HOUSE NO.38/2121, WARRIAM ROAD, KOCHI - 16.
BY ADVS. SRI.K.V.JAYACHANDRAN SRI.RAJU V.MATHEW
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A.No.559 of 2003
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JUDGMENT
Against the judgment and decree dated 19.9.2002 in A.S.No.157 of 1999 of the I
Additional District Court, Ernakulam, defendant Nos.1 and 2 came up with this second appeal.
Bhagavathy Devaswom for a declaration of their title over the scheduled property and for recovery of possession. Initially, it was decreed by the trial court which was confirmed in appeal, but in second appeal it was set aside and the matter was remanded back to the trial court for considering
the issue of tenancy right claimed by the defendants and for reference under Section 125 of the Kerala Land Reforms Act. Accordingly, it was referred and a verdict was rendered by the Land Tribunal finding that defendant Nos.1 and 2 are
the cultivating tenants of the plaint schedule property. That finding was accepted by the learned Munsiff and decreed the suit, but in
R.S.A.No.559 of 2003
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appeal, it was reversed and the finding rendered by the Land Tribunal was set aside by allowing the appeal and dismissing the suit. Aggrieved by the abovesaid appellate verdict, defendant Nos.1 and 2 came up with this second appeal.
they have obtained leasehold right through their predecessor-in-interest about 60 years back and hence claimed right over the property being the cultivating tenants under the title holder. The first appellate court dismissed the suit mainly on the reason that there is no satisfactory evidence to show existence of any leasehold right or claim based on cultivating tenancy. Nobody was examined in order to show the creation of an oral lease over the property. It is not made mentioned anywhere in the plaint on what date they have obtained oral lease over the property. Now the attempt is to raise a claim based on an admission alleged to have been made by RW2 that paddy was measured in the said property. But the admission
R.S.A.No.559 of 2003
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did not refer any particular person or the persons
who had done it or whose favour it was done. So it cannot be treated as an admission. No other satisfactory evidence was adduced to show the
existence of an oral lease or any right by way of cultivating tenancy.
the learned counsel for the appellants stating
that originally in the suit there were four defendants. Defendant Nos.1 and 2 are the husband and wife and defendant Nos.3 and 4 are the persons representing the Devaswom. During the pendency of the first appeal defendant Nos.3 and 4 passed away and nobody was impleaded in the appeal. But, it has to be borne in mind that they were impleaded in the suit only in the status of persons representing the Devaswom being the then Managers. Defendant Nos.1 and 2 contested the suit. They are claiming right over the property based on the deeds executed by the then Manager of the Devaswom. Hence defendant Nos.1 and 2 now
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litigating under defendant Nos.3 and 4 who had allegedly executed Ext.A7 deed. Now the Devaswom came up with the suit challenging the authority of the then Devaswom Managers in the execution of Ext.A7 deed. No relief was claimed against defendant Nos.3 and 4 in their personal capacity. Since they were holding the office of Managers of Devaswom, on their death, it will not devolve upon their natural legal heirs and hence there is no necessity to implead their legal heirs in the party array of the appeal.
Hence, the second appeal fails, dismissed, but without costs.
SD/ P.SOMARAJAN
JUDGE
ahz/
2 issues framed by the court
Whether the appellants established existence of a leasehold right or cultivating tenancy via oral lease.
Whether the death of former Devaswom Managers necessitates impleadment of their legal heirs in an appeal challenging the executed deeds.
1 provisions across 1 enactments
K.A.MELBIN
K.A.SABU
K.A.SAJAN
MUKKOTTIL BHAGAVATHY DEVASWOM
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
