Dismissed

Sarojini Amma v. Krishnan Nair

Kerala HC3 Jan 2024RSA/179/2021

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court of Kerala dismissed the challenge to the trial court and appellate court decrees. The Court held that the Civil Court must accept the Land Tribunal's decision on tenancy and clarified that the appellate court can review the legality of the Tribunal's order under Section 125(6) of the Kerala Land Reforms Act, 1963.

What did the court decide?

The regular second appeal is dismissed; interlocutory orders are vacated; execution of the decree is directed to be expedited.

Sarojini Amma Vs Krishnan Nair — Partition | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

¶4

WEDNESDAY, THE 3RD DAY OF JANUARY 2024 / 13TH POUSHA, 1945

¶5

RSA NO. 179 OF 2021

¶6

AGAINST THE DECREE AND JUDGMENT DATED 31.1.2006 IN O.S.NO.111/1989 OF
MUNSIFF MAGISTRATE COURT,PONNANI

¶7

AGAINST THE DECREE AND JUDGMENT DATED 6.11.2020 IN A.S.NO.27/2006 OF

¶8

SUB COURT, TIRUR

¶9

APPELLANTS/APPELLANTS 3, 4 & 6/DEFENDANTS 5,6 & 11:

¶10

1 SAROJINI AMMA

¶11

AGED 76 YEARS

¶12

D/O THACHAKATH MADHAVI AMMA, PERUMBADAPPA AMSOM DESOM,
PONNANI TALUK,MALAPPURAM DISTRICT.

¶13

2 MADHAVI AMMA,

¶14

AGED 79 YEARS

¶15

D/O KALLIANI AMMA,PERUMBADAPPA AMSOM DESOM, PONNANI
TALUK,MALAPPURAM DISTRICT.

¶16

3GIREESAN NAIR,
AGED 52 YEARS
S/O SAROJINI AMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK,MALAPPURAM DISTRICT.

¶17

BY ADVS.

¶18

SRI.KRISHNANUNNI (SR.)
JAMSHEED HAFIZ
K.K.NESNA

¶19

RESPONDENTS/RESPONDENTS AND 5TH APPELLANT/PLAINTIFFS 3 & 4 &

¶20

DEFENDANTS 7 TO 10 & 12:

¶21

1 KRISHNAN NAIR, AGED 89 YEARS

¶22

S/O THACHAKATH UNNIYAMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK, MALAPPURAM DISTRICT,PIN-679580.

¶23

2 GOPALAN NAIR, [DIED] LEGAL HEIRS IMPLEADED AGED 87 YEARS

¶24

S/O THACHAKATH UNNIYAMMA,PERUMPADAPPA AMSOM DESOM,PONNANI
TALUK, MALAPPURAM DISTRICT,PIN-679580.

¶25

3 SARASWATHY @ KUTTI AMMA,

¶26

RSA NO. 179 OF 2021 2

¶27

AGED 69 YEARS

¶28

D/O KALLIANI AMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK,MALAPPURAM DISTRICT -679580.

¶29

4 PRABHAKARAN NAIR, AGED 61 YEARS

¶30

S/O KALLIANI AMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK,MALAPPURAM DISTRICT-679580.

¶31

5MURALEEDHARAN NAIR,
AGED 61 YEARS
S/O KALLIANI AMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK,MALAPPURAM DISTRICT-679580.

¶32

6 RAJAN,

¶33

AGED 43 YEARS
S/O SAROJANI AMMA,PERUMBADAPPA AMSOM DESOM,PONNANI
TALUK,MALAPPURAM DISTRICT-679580.

¶34

7PATTATH SAROJINI AMMA,
AGED 79 YEARS
W/O LATE NARAYANAN NAIR,PALLIKKARA AMSOM DESOM,
PONNANI TALUK,MALAPPURAM DISTRICT-679575.

¶35

8 DINESSAN,

¶36

AGED 59 YEARS
S/O LATE NARAYANAN NAIR,PALLIKKARA AMSOM DESOM,PONNANI
TALUK, MALAPPURAM DISTRICT-679575.

¶37

9BINDU,
AGED 57 YEARS
D/O LATE NARAYANAN NAIR,PALLIKKARA AMSOM DESOM,PONNANI
TALUK, MALAPPURAM DISTRICT,PIN-679575.

¶38

10 KAMALAM,

¶39

AGED 89 YEARS
W/O THACHAKATH RAMAN NAIR, PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.

¶40

11 NALINI,

¶41

AGED 72 YEARS
D/O THACHAKATH RAMAN NAIR, PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.

¶42

12 PRABHAKARAN,

¶43

AGED 67 YEARS
S/O THACHAKATH RAMAN NAIR,PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.

¶44

13 CHANDRAN,

¶45

RSA NO. 179 OF 2021 3

¶46

AGED 64 YEARS
S/O THACHAKATH RAMAN NAIR,PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.

¶47

14LATHA,
AGED 61 YEARS
D/O THACHAKATH RAMAN NAIR,PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.

¶48

15USHA,
AGED 66 YEARS
D/O THACHAKATH RAMAN NAIR,PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.

¶49

16RAMESH,
AGED 49 YEARS
S/O THACHAKATH RAMAN NAIR, PERUMBADAPPA AMSOM-
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.

¶50

17SURESH,
AGED 64 YEARS
S/O THACHAKATHGOVINDAN NAIR,PERUMBADAPPA AMSOM
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT, PIN-679580.

¶51

18VASANTHI,
AGED 69 YEARS
D/O THACHAKATH GOVINDAN NAIR,PERUMBADAPPA AMSOM
DESOM,PONNANI TALUK,MALAPPURAM DISTRICT-679580.

¶52

19VILASINI AMMA,
AGED 71 YEARS
D/O KALLIANI AMMA,PERUMBADAPPA AMSOM DESOM, PONNANI
TALUK,MALAPPURAM DISTRICT—679580.

¶53

*ADDL.R20 TO R24 IMPLEADED

¶54

ADDL.R20SAROJINI G NAIR
AGED 68 YEARS
W/O.LATE GOPALAN NAIR,GIRIJA NIVAS,DURGA
NAGAR,KODALLUR AMSOM DESOM,MELEPATTAMBI P.O.,PALAKKAD
DISTRICT-679 306.
ADDL.R21GIRIJA DEVI
AGED 48 YEARS
D/O.LATE GOPALAN NAIR,GIRIJA NIVAS,DURGA
NAGAR,KODALLUR AMSOM DESOM,MELEPATTAMBI P.O.,PALAKKAD
DISTRICT-679 306.

¶55

ADDL.R22MAYADEVI

¶56

RSA NO. 179 OF 2021 4

¶57

AGED 44 YEARS
D/O.LATE GOPALAN NAIR,GIRIJA NIVAS,DURGA
NAGAR,KODALLUR AMSOM DESOM,MELEPATTAMBI P.O.,PATTAMBI
TALUK,PALAKKAD DISTRICT-679 306.
ADDL.R23SANGEETHA
AGED 40 YEARS
D/O.LATE GOPALAN NAIR,GIRIJA NIVAS,DURGA
NAGAR,KODALLUR AMSOM DESOM,MELEPATTAMBI P.O.,PATTAMBI
TALUK,PALAKKAD DISTRICT-679 306.

¶58

ADDL.R24SANTHOSH KUMAR
AGED 35 YEARS
D/O.LATE GOPALAN NAIR,GIRIJA NIVAS,DURGA
NAGAR,KODALLUR AMSOM DESOM,MELEPATTAMBI P.O.,PATTAMBI
TALUK,PALAKKAD DISTRICT-679 306.

¶59

*(THE LEGAL HEIRS OF DECEASED SECOND RESPONDENT ARE
IMPLEADED AS ADDL.RESPONDENTS 20 TO 24 AS PER ORDER
DATED 06.09.2021 IN IA.3/2021.)

¶60

ADDL.R20 TO R24 BY ADVS.
C.V.MANUVILSAN
P.CHANDRASEKHAR

¶61

THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶62

RSA NO. 179 OF 2021 5

¶63

¶64

JUDGMENT

¶65

Dated this the 3^rd day of January, 2024

¶66

Defendants 5, 6 and 11 in O.S.No.111/1989 on the files of the Munsiff Court, Ponnani, are the appellants in this appeal, filed under Section 100 and Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter). They assail the decree and judgment in the above suit, dated 31.1.2006 and the decree and judgment of the appellate court in A.S.No.27/2006, dated 6.11.2020, arose therefrom.

¶67

Respondents herein are the plaintiffs and the other defendants.

¶68

Heard Sri.Krishnanunni, learned Senior Counsel for the appellants and Sri.P.Chandrasekar, learned counsel appearing for the respondents.

¶69

As per order, dated 23.3.2021, my learned predecessor

¶70

admitted this appeal formulating the following substantial question of law:

¶71

Whether the two courts below are justified

¶72

RSA NO. 179 OF 2021 6

¶73

in appreciating the findings of the Land Tribunal with regard to the effects, nature and transaction in obtaining the lease from Bhattathiripad?

¶74

Originally, suit was filed seeking recovery of possession

¶75

of the plaint schedule property, based on title and also for permanent prohibitory injunction. The case put up by the plaintiffs before the trial court was that, the plaint schedule property originally belonged to late Sankara Narayanan Bhattathiripad of Mullapalli Mana and Smt.Unnimayamma, the mother of the plaintiffs, obtained mortgage right over the same. Later, Smt.Unnimayamma purchased tenancy rights over the same property, as per assignment deed, dated 21.5.1964. According to the plaintiffs, the plaintiffs who are the children of Smt.Unnimayamma, were residing at different places and Smt.Unnimayamma alone was residing at the house constructed in the plaint schedule property. When Smt.Unnimayamma was affected with certain diseases in the year 1965, she was in need of assistance of someone to manage her routine life. Thereafter, the 1^st plaintiff reached the place from Bangalore and Smt.Lakshmi Amma and Smt.Kunhi Amma were permitted to

¶76

RSA NO. 179 OF 2021 7

¶77

reside along with Smt.Unnimayamma in the plaint schedule building. Smt.Lakshmi Amma is none other than the daughter of late Madhavi Amma who was the elder sister of Smt.Unnimayamma, whereas, Smt.Kunhi Amma was the younger sister of Smt.Unnimayamma. Since the defendants refused the demand to get vacant possession of the plaint schedule property, the present suit was filed.

¶78

Defendants filed written statement as well as additional written statement and inter alia raised contention that ‘the plaint schedule property originally belong to Sankara Narayana Bhattathiripad of Mullapalli Mana.’ Further contention was that Smt.Unnimayamma obtained tenancy right from Sankara Narayanan Bhattathiripad and later, the said tenancy was purchased by 3^rd defendant from Smt.Unnimayamma, orally.

¶79

During the pendency of the suit, I.A.No.908/1995 was filed before the Munsiff Court, Ponnani to refer the question of tenancy before the Land Tribunal, at the instance of defendants. When the Munsiff Court dismissed the application, the defendants filed C.R.P.No.1986/1995(E) before this Court. As per order in the above C.R.P., dated 17.9.1998, this Court directed

¶80

RSA NO. 179 OF 2021 8

¶81

the trial court to re-consider the prayer in I.A.No.908/1995 without taking into consideration of the statements in the caveat. Thereafter, the order in I.A.No.908/1995 was re-considered and the matter referred to Land Tribunal and the Land Tribunal, as per order, dated 12.10.2004, negatived claim of tenancy at the instance of the defendants.

¶82

Thereafter, the trial court recorded evidence confined to that of PW1 and Exts.A1 to A10 on the side of plaintiffs. DW1 and Exts.B1 to B21 on the side of the defendants. Ext.C1 and Ext.X1 were also marked. Finally, the trial court found tenancy in favour of Smt.Unnimayamma and in turn, in favour of the plaintiffs. Accordingly, the defendants were directed to vacate the house situated in the plaint schedule property within a period of 3 months and also granted permanent prohibitory injunction, thereafter. A.S.No.27/2006 was filed before the Sub Court, Tirur, challenging the verdict of the trial court and as per decree and judgment, dated 6.11.2020, the appellate court also confirmed the finding of the trial court and dismissed the appeal.

¶83

The learned Senior Counsel appearing for the contesting defendants submitted that the trial court and the

¶84

RSA NO. 179 OF 2021 9

¶85

appellate court failed to consider the case put up by the defendants in its right perspective. According to the learned counsel for the defendants, going by the averments in the written statement, the defendants raised contention that Smt.Unnimayamma obtained tenancy right from Sankara Narayanan Bhattathiripad, Mullapalli Mana, being the senior member of the Tharavadu. He also conceded that, another contention also was raised to the effect that the 3^rd defendant obtained tenancy right over the plaint schedule property from Smt.Unnimayamma thereafter, orally. According to the learned counsel, the tenancy right claimed by the defendants from the original title holder i.e., Koypally Devaswam, should have been decided to address the matter in controversy and for which, a remand is absolutely necessary.

¶86

Dispelling this argument, the learned counsel for the plaintiffs submitted that, reading the contentions raised in the written statement, same are contrary to each other. It is submitted that, at the first instance, the contention was by admitting tenancy in favour of Smt.Unnimayamma from Sankara Narayanan Bhattathiripad and secondly, the contention was that

¶87

RSA NO. 179 OF 2021 10

¶88

the 3^rd defendant obtained an oral tenancy from Smt.Unnimayamma. It is also pointed out that, when the petition filed by the defendants to refer the matter before the Land Tribunal was dismissed by the trial court, the defendants took the matter before this Court and in turn, reference was made to decide the question of tenancy. It is submitted further that, as per Ext.X1 order passed by the Land Tribunal, tenancy claimed by the defendants was found against them. Therefore, in tune with the mandate of Section 125(4) of Kerala Land Reforms Act, 1963 (for short, ‘the Act’ hereinafter), the trial court is bound to accept the finding, though the appellate court has the power to decide on the legality of the order passed by the Land Tribunal in view of Section 125(6) of the Act.

¶89

To be on the crux of this matter, Ext.A1 is the document relied on by the plaintiffs to assert tenancy right obtained by Smt.Unnimayamma from Sankara Narayanan Bhattathiripad. Ext.A1, executed in the year 1964, would go to show that Sankara Narayanan Bhattathiripad transferred all his tenancy rights in respect of the plaint schedule property in favour of Smt.Unnimayamma after accepting sale consideration of

¶90

RSA NO. 179 OF 2021 11

¶91

Rs.100/-. Thus, it appears that, as per Ext.A1, Smt.Unnimayamma obtained tenancy right from Sankara Narayanan Bhattathiripad for valid consideration.

¶92

On reading of written statement filed by the defendants 1 to 6, it has been contended that the plaint schedule property is the janmam property of Koypally Devaswam and Sankara Narayanan Bhattathiripad obtained tenancy over the same and in turn, in the year 1950, later, Smt.Unnimayamma, being the senior member of the family, obtained tenancy right from Sankara Narayanan Bhattathiripad. The second contention raised is that when Smt.Unnimayamma left the house to accompany her son, who was employed in Bangalore, she had given an oral lease in favour of the 3^rd defendant and accordingly, the 3^rd defendant obtained tenancy over the same. According to the learned counsel for the contesting defendants, the second contention need not be considered as admission and the original tenancy right claimed from Koypally Devaswam, should have been decided.

¶93

While addressing this contention, at the outset, it is to be noted that the defendants never claimed tenancy right from

¶94

RSA NO. 179 OF 2021 12

¶95

Koypally Devaswam, in any manner and the defendants claimed tenancy right in favour of the 3^rd defendant, on the allegation that the 3^rd defendant obtained oral tenancy from Smt.Unnimayamma. Therefore, the tenancy now claimed by the learned Senior counsel for the defendants is a case not pleaded in the written statement and the tenancy pleaded was referred to the Land Tribunal at the instance of the defendants and as per Ext.X1, the Land Tribunal negatived the said claim of tenancy.

¶96

On perusal of Ext.X1, whereby the Land Tribunal addressed the issue of tenancy, it is discernible that the Land Tribunal found, after recording exhaustive evidence confined to that of PW1 and Exts.A1 to A10 on the side of the plaintiffs and DW1 to DW4 and Exts.B1 to B20 on the side of the defendants that, tenancy right claimed by the defendants not at all established and accordingly, the said contention was found as negative.

¶97

Now, the questions arise for consideration are;

¶98

1) Whether the trial court/the referral court has the power to deviate from the decision of the Land Tribunal after discussing its legality?

¶99

RSA NO. 179 OF 2021 13

¶100

2) Whether the appellate court has the power to address on the legality of an order passed by the Land Tribunal under Section 125(4) of the Act, in a reference under Section 125(3) of the Act, while considering an appeal challenging the verdict of the referral/trial court?

¶101

While answering these querries, it is relevant to refer Section 125 of the Kerala Land Reforms Act, 1963, as such. The same is extracted as under:

¶102

125. Bar of jurisdiction of Civil Courts.- (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the Appellate Authority or the Land Board [or the Taluk Land Board] or the Government or an officer of the Government:

¶103

Provided that nothing contained in this sub-section shall apply to proceedings pending in any Court at the commencement of the Kerala Land Reforms Amendment Act, 1969.

¶104

(2) No order of the Land Tribunal or the Appellate Authority or the Land Board [or the Taluk Land Board] or the Government or an officer of the Government made under this Act shall be questioned in any Civil Court, except as provided in this Act.

¶105

RSA NO. 179 OF 2021 14

¶106

(3) If in any suit or other proceedings any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the Civil Court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only.

¶107

(4) The Land Tribunal shall decide the question referred to it under sub-section (3) and return the records together with its decision to the Civil Court.

¶108

(5) The Civil Court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it.

¶109

(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Civil Court.

¶110

(7) No Civil Court have power to grant injunction in any suit or other proceeding referred to in subsection (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal, and any such injunction granted or appointment made before the commencement of the

¶111

RSA NO. 179 OF 2021 15

¶112

Kerala Land Reforms (Amendment) Act, 1969, or before such question has arisen, shall stand cancelled.

¶113

(8) In this section, "Civil Court" shall include a Rent Control Court as defined in the Kerala Buildings (Lease and Rent Control) Act, 1965.

¶114

As per Section 125(3) of the Act, if in any suit or other proceedings any question regarding rights of a tenant or of a kudikidappukaran arises, the same has to be referred to the Land Tribunal having jurisdiction over the area for a decision over the same. Section 125(4) of the Act empowers the Land Tribunal to decide the question referred to it under sub-section (3) and return the records together with its decision to the Civil Court. Section 125(5) of the Act provides that the Civil Court shall then proceed to decide a suit or other proceedings, accepting the decision of the Land Tribunal on the question referred to it. Thus, it is clear that the trial court has no descretion to revisit the finding of tenancy or kudikidapu entered into by the Land Tribunal when a decision was taken by the Land Tribunal as per Section 125(4) of the Act and the same shall be accepted by the Civil Court as provided under Section 125(5) of the Act. Coming

¶115

RSA NO. 179 OF 2021 16

¶116

to the appellate court, where appeal is filed challenging the decree and judgment of the trial court rendered in consideration of the finding entered into by the Land Tribunal under Section 125(4) of the Act, the appellate court has the power empowered under Section 125(6) of the Act. It has been provided that the decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Civil Court. Thus, the legal position is emphatically clear on the point that the appellate court while deciding an appeal of the nature discussed hereinabove, has the power to decide upon the legality of the finding of the Land Tribunal along with the finding of the trial court. In the decision in Poddar Plantations Ltd. v. Thekkemariveettil Madhavi Amma and Others reported in [2013 KHC 736] : [2013 (4) KLJ 781] : [2014 (1) KLT 439] : [ILR 2014 (1) Ker. 813] , this Court held so, as early in 2013.

¶117

Therefore, the trial court rightly acted upon Ext.X1 and negatived the claim of tenancy and found tenancy in favour of Smt.Unnimayamma as per Ext.A1 and in turn, the title of the plaintiffs over the plaint schedule property. First appeal was filed challenging the said verdict and the appellate court though

¶118

RSA NO. 179 OF 2021 17

¶119

initially observed that no challenge made against the finding of the Land Tribunal in the appeal memorandum and also the appellants therein did not contend before the Land Tribunal that the Land Tribunal went wrong in decision as per Ext.X1, in paragraph No.8 onwards, the appellate court considered the legality of Ext.X1 with reference to the evidence relied on by the Land Tribunal while passing Ext.X1. Paragraph No.8 of the appellate judgment appears to be relevant and therefore, the same is extracted as under:

¶120

“8. Before the Land Tribunal, both sides examined and produced documents. Though the pleaded case in the written statement is that in 1950, Unnimayamma obtained lease for the benefit Thavzahi and in 1954, defendant No.3 obtained an oral sublease from Unnimayamma, DW1/D3 before the Land Tribunal deposed that the lease for the benefit of thavazhi was in the year 1954 and that they have not claimed that Unnimayamma obtained lease for the benefit of Thavzahi in 1950. This evidence itself demolishes the case set up by the defendants. Likewise, the original entrustment was by Sankara Narayanan Bhattathirippad is an admitted fact. If the case of the defendants that they obtained sublease from Unnimayamma agreeing to pay rent to Sankara

¶121

RSA NO. 179 OF 2021 18

¶122

Narayanan Bhattathirippad directly is accepted as true, Sankara Narayanan Bhattathirippad is the best witness especially considering the fact that no rent receipt issued by Sankara Narayanan Bhattathirippad since 1954, June is brought by the defendants to prove that rent was paid by D3 as a subtenant. Admittedly, such person was alive at the time of examination and he was in good relationship with them. No witness is better than Sankara Narayanan Bhattathirippad to prove the alleged case of sublease. By his examination, they could prove two facts if their case was true. One that, there was sublease in favour of D3 and secondly that he was having no saleable right over the property in 1964 while executing Ext.Al since D3 obtained fixity of tenure when the Act came into force. Non-examination of him as a witness to prove at least that there was sublease since D3 was paying rent from 1954 June onwards, adverse inference has to be drawn against the defendants that their case is unworthy of acceptance. The examination of DW3, the brother of Sanakaran Bhattathirippad is not a substitute for the examination of Sanakaran Bhattathirirppad; whose evidence established also that he has no knowledge about the real nature of the transaction in question. It is pertinent to note that the case of DW1 is that the defendants were paying land revenue tax since 1960. Suffice it to say, no tax receipt is produced to prove any payment of tax till 11-4-1967. So, such case should

¶123

RSA NO. 179 OF 2021 19

¶124

be treated as utter falsehood. Their documents for proving payment of tax are from 1979-80 onwards only. Needless to say, it does not establish any tenancy right on the defendants. No rent receipt is also produced by defendants though DW1 claimed that she has rent receipts. Adverse inference has to be drawn that such case is false. Needless to say, the building tax receipts produced by defendants also will not improve their case since admittedly they are residing in the house in the plaint schedule property. Another material produced by the defendants before the Land Tribunal is Ext.B20, a letter sent by T.R Nair to Kunhi Amma. In the appeal, the learned counsel for the appellants vehemently argued that Ext.B20 destroys the case of the plaintiffs. It is a letter alleged to be written by the 1^st plaintiff to Kunhi Amma, the sister of the mother of the 1^st plaintiff in the year 1955. According to the counsel for the appellants, Ext.B20 would prove that before Ext.A1 itself Kunhi Amma, the recipient of Ext.B20 letter was residing in the house in the plaint schedule property at Perumpadappu. Kunhi Amma is no more. According to the counsel for the appellants, the relevance of Ext.B20 is that it establishes that even in the year 1955, Thachakath family had residence at Perumpadappu. We have already found that the case of the defendants that there was oral entrustment with respect to the plaint schedule property in the year 1950 and there was

¶125

RSA NO. 179 OF 2021 20

¶126

sublease in favour of D3 in the year 1954 is unworthy of acceptance. There is no other material also brought to the Court or the Land Tribunal to show that actually the plaint schedule property was in the possession of the Thachakath family from 1950 onwards. That be the case, it cannot be accepted that Ext.B20 was served at the house in the plaint schedule property. Most importantly, Ext.B20 is not addressed in the name of the plaint schedule property but is addressed in the tharavad name located at Marancheri. There is no convincing evidence to show that Ext.B20 was served at the house in the plaint schedule property. It is also pertinent to note that there is no evidence at all to prove that Kunhi Amma was residing with Unnimayamma at any point of time before 1964. Kunhi Amma was the sister of Unnimayamma. It is not clear whether she had any other residence at Perumpadappu. Unless and until, clinching evidence is brought to prove that the plaint schedule property was in the possession of Thachakath family in the year 1955, the case of the defendants that Ext.B20 was served on Kunhi Amma at the house in the plaint schedule property cannot be swallowed. So, Ext.B20 cannot be a ground to hold that the plaint schedule property was in the possession of Unnimayamma in the year 1950 and D3 obtained the same from Unnimayamma in the year 1954. That apart, if the property was obtained by Unnimayamma in the year

¶127

RSA NO. 179 OF 2021 21

¶128

1950 as a Karanavar sthree of the tharavad, there was no necessity for a sublease from Unnimayamma in favour of D3 because she also the member of the tharavad even otherwise. The oral evidence of DWs 2 and 3 before the Land Tribunal also does not improve the case of the defendants as to the tenancy. In the absence of any material to establish the tenancy right claimed by the defendants, Ext.A1, the registered assignment deed has to be given effect. Most importantly, defendants have not taken any steps to set aside Ext.A1. So, it is binding on all. So, the Land Tribunal was right in rejecting the claim of tenancy put forth by the defendants. So, the argument of the counsel for the appellants that Ext.B20 demolishes the case of the plaintiffs can only be rejected.”

¶129

On reading the appellate judgment, the observation of the appellate court as regards to no challenge made against the finding of the Land Tribunal in the appeal memorandum etc., found to be unwarranted. But, the same has no consequence when the appellate court rightly decided the legality of the order. As I have already pointed out, the contention of the defendants at one hand that, Smt.Unnimayamma obtained tenancy right, being the senior member of the family and at the same time, the other

¶130

RSA NO. 179 OF 2021 22

¶131

contention is that, tenancy right was obtained by the 3^rd defendant in her favour from Smt.Unnimayamma, orally. Ext.B20, letter addressed to ‘ T.Kuchu Amma , Thachakathe House, P.O.Perubatape’ , was given much emphasis by the learned counsel for the defendants to contend that Kunhi Amma was residing in the plaint schedule building, even before Ext.A1 and thereby the 1^st plaintiff sent a letter as on 20.6.1955 in the said address.

¶132

Even though the learned counsel for the defendants given emphasis to Ext.B20 to show the residence of Kunhi Amma or her legal representatives, who are not parties to the litigation, independent tenancy right was claimed by the defendants through Madhavi Amma. In paragraph No.8 of Ext.X1 also, Ext.B20 was considered and the contention was found against the defendants mainly holding that Kunhi Amma or her legal representatives are not parties to the litigation. On perusal of Ext.B20, what could be gathered is that, a letter was sent in the name of Kunhi Amma by the 1^st plaintiff in the address shown therein and according to the defendants, the said address is the address of the plaint schedule building. In fact, the said aspect

¶133

RSA NO. 179 OF 2021 23

¶134

not properly proved and even otherwise, Ext.B20 letter by itself cannot confer tenancy right to a resident, who is a relative to the original tenant, in any manner. Therefore, Ext.B20 is of no consequence in the case at hand.

¶135

In this matter, tenancy right, as extracted hereinabove, was claimed by the defendants. Whereas, plaintiffs also claimed tenancy right on the basis of Ext.A1, executed by Sankara Narayanan Bhattathiripad. The occupation of the property by Sankara Narayanan Bhattathiripad is not disputed by both sides. The land Tribunal considered non-examination of Sankara Narayanan Bhattathiripad as vital, while negativing the contention of tenancy at the instance of the defendants. Similarly, the appellate court also considered the said fact as fatal, while deciding the legality of Ext.X1.

¶136

In this matter, as I have already pointed out, when reference to decide the question of tenancy was negatived by the trial court, the defendants approached this Court and as directed by this Court in C.R.P.No.1986/1995(E), the right of tenancy was re-considered by the trial court and referred to the Land Tribunal. On reading of Ext.X1, tenancy right claimed by the

¶137

RSA NO. 179 OF 2021 24

¶138

defendants through Madhavi Amma, had been discussed by the Land Tribunal and found in the negative.

¶139

It is well settled law that the defendants have the right to take inconsistent pleas in the written statement. But, when a specific right is claimed, the pleadings should be specific and clear to assert the said title. Here, the defendants raised two fold contentions, as I have already pointed out. If the second contention to the effect that the 3^rd defendant obtained oral tenancy from Smt.Unnimayamma is accepted, the tenancy claimed by Smt.Unnimayamma on the strength of Ext.A1 is also accepted. In fact, the entire proceedings before the trial court, Land Tribunal and before the appellate court, have been progressed on the basis of the second contention. Even otherwise, there is no challenge against Ext.A1, whereby Smt.Unnimayamma perfected tenancy right through Sankara Narayanan Bhattathiripad. Thus, it appears that the appellate court rightly considered the legality of Ext.X1 and found in the affirmative and accordingly, the appellate court concurred the decree and judgment of the trial court. In this matter, it is relevant to note that, though inconsistent pleadings with regard

¶140

RSA NO. 179 OF 2021 25

¶141

to tenancy right have been taken by the defendants, the defendants miserably failed to prove the tenancy, in any manner, eschewing the legal effect of Ext.A1.

¶142

In view of the matter, the substantial question of law answered holding that the appellate court fully justified in appreciating the findings of the Land Tribunal with regard to the effects, nature and transaction in obtaining the lease by Smt.Unnimayamma from Sankara Narayanan Bhattathiripad. Accordingly, the trial court granted decree and judgment in favour of the plaintiffs and the said decree and judgment were upheld by the appellate court. Thus, the concurrent verdicts under challenge do not require any interference. Accordingly, this regular second appeal stands dismissed.

¶143

All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed.

¶144

Registry shall inform this matter to the trial court as well as the appellate court, forthwith, to expedite the execution of the decree forthwith, at any rate within seven days from the date of receipt of a copy of this judgment.

¶145

Sd/- A. BADHARUDEEN JUDGE

¶146

Sarojini Amma v. Krishnan Nair

Case brief

What is this about?

What did the court decide?

Sarojini Amma v. Krishnan Nair

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Amina Vs Yamuna Devi

Sukumari B.S. Vs Jayarajan

Meethale Puthalath Najma Vs Puthalath Ahammad Haji

Sobha Limited Vs Sanjay Gangadharan Nambiar

Saifudheen Vs Bhargavi Amma

Rani Saji Sam Vs State of Kerala