IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 744 of 2007()
1. BHARAT PETROLEUM CORPORATION LIMITED,
... Petitioner
2. CHIEF DIVISIONAL MANAGER,
Vs
1. ST.GERMAN'S CHURCH,
... Respondent
2. FR. JOSEPH MADAKETHEKKATTU,
3. K.T.CHACKOCHAN,
4. V.C.PATHROSE,
For Petitioner :SRI.N.N.SUGUNAPALAN, SC, BPC
For Respondent :SRI.SAIBY JOSE KIDANGOOR
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :19/06/2008
O R D E R
K.P. BALACHANDRAN, J.
-----------------------------------------------------
R.S.A. No 744 of 2007
-----------------------------------------------------
Dated this the 19th June 2008
JUDGMENT
The defendants in O.S. No 98 of 1996 on the file of the
Munsiff’s Court, N. Paravur are the appellants they having lost their
case both in the trial court as well as before the first appellate court.
2. The suit aforesaid was filed by the respondents for
declaration and recovery of possession of the schedule property,
inter alia, on the allegation that the schedule property having 7 1/6
cents comprised in survey No 286/19A of Paravur Pakuthy is owned
by the first plaintiff church of which second plaintiff is the Vicar and
third and fourth plaintiffs are the trustees, that the property originally
belonged to Kottekkavu St. Thomas Ferona Catholic Church, that the
schedule property was given under a licence agreement to the
predecessor company of the first defendant Bharath Petroleum
Corporation Limited, namely, Burma Shell Oil Storage and
Distributing Company of India Limited by the said Kottekkavu St.
RSA 744/07 2
Thomas Ferona Catholic Church on 17.08.1958 for the purpose of
running a petrol pump, that the predecessor company has got
amalgamated with the defendant company, that the earlier licence
was for ten years and after the expiry of the initial ten years period
licence was further extended by another agreement with the
defendant company for a further period of ten years, that thereafter a
subsequent renewal also was made for a period of ten years from
17.08.1968 and that even after the expiry of the said period of ten
years the defendants have not vacated the premises, that the
officials of the defendant company intimated the plaintiff that if an
alternate site is provided the present premises would be vacated and
accordingly the plaintiff purchased a suitable plot and informed the
defendant but the officials of the defendant were not satisfied with
the alternate site offered and backed out from their promise, that
therefore notice was issued by the plaintiff through lawyer to the
defendant company on 12.09.1995 demanding vacant possession of
the premises after removing structures erected thereon but the
defendant sent a reply on 17.10.1995 raising untenable contentions
and hence the suit.
3. The defendant resisted the suit filing written statement
RSA 744/07 3
contending that the schedule property was initially taken on lease for
a period of ten years from 17.08.1958 on the basis of lease deed,
that the lease was further renewed to another ten years from
17.08.1968 and it is incorrect to say that the defendant was being
allowed to run the petrol bunk from 11.08.1968 onwards, that the
agreement is however not a licence agreement as alleged, but the
transaction is one of lease with effect from 17.08.1958 and buildings
were constructed by the first defendant thereon long before
20.05.1967; that by virtue of the provisions of the Burma Shell
Acquisition and Transfer of Undertakings Act 1972 defendants
remained in possession for a further period of ten years from
17.08.1978 and from that date onwards defendant company
continued in possession and by reason of Section 106 of the Kerala
Land Reforms act the defendant company is a tenant entitled to
benefits under section 106 of the Act. They further contended that
the plaintiffs are not entitled to evict the defendants or recover the
suit property, that there is no arrears of rent and the court has no
jurisdiction to decide the question of tenancy and prayed that the
case be referred to the Land Tribunal under Section 125(3) of the
Kerala Land Reforms Act for decision being rendered on the tenancy
RSA 744/07 4
right claimed invoking Section 106 of the Act.
4. The trial court raised necessary issues for trial. In view of
raising of issue No. 1 regarding tenancy right claimed by the
defendants under Section 106 of the Kerala Land Reforms Act the
proceedings in the case were stayed under section 125 (3) of the Act
and the question of tenancy covered by issue No. 1 was referred to
the Land Tribunal for adjudication by the trial court. Before the Land
Tribunal, Ernakulam at Tripunithura the case was registered as R.C.
12 of 1998. Though notices were served on the parties and the case
was posted on 24.04.1998, and adjourned several times the
defendants who advanced the case of tenancy did not appear
continuously for 14 sittings and consequently the Land Tribunal
dismissed the reference numbered as R.C.12/96 for default. When
order in R.C 12/96 was received by the trial court the trial court
proceeded with the trial of the suit. It was listed for trial on
18.01.2001. On that day defendants were absent and there was no
representation even on their behalf. From 18.01.2001 the case was
adjourned to 24.01.2001. On that day also the defendants were
absent and there was no representation. The defendants were
therefore set ex parte and the trial court after examining P.W.1 and
RSA 744/07 5
admitting Exts A1 to A3 in evidence decreed the suit allowing
recovery of possession of the schedule property from the defendants
with damages for use and occupation at the rate of Rs 2,000/- per
month from the date of suit and ordering that the order of the Land
Tribunal shall form part of the judgment. The defendants filed A.S.
No 61 of 2006 before the District Court, N. Paravur and the said
appeal was dismissed by the appellate court confirming the decree
passed by the trial court.
5. It is contended before me by the learned counsel for the
appellant that as per the mandate of Section 125 (3) of the Kerala
Land Reforms Act the order in R.C. 12 of 1998 passed by the Special
Tahsildar, Land Tribunal dismissing the reference for default could
not have been accepted as a finding rendered by the Land Tribunal
and the trial court should not have proceeded with the trial of the suit;
that the trial conducted accepting the said order passed by the Land
Tribunal as a finding is per se illegal and that therefore no order of
eviction could have been passed by the trial court against the
appellants-defendants without adjudicating their claim under Section
106 of the Land Reforms act and that the appellate court also did not
appropriately consider the question of law thus involved and that
RSA 744/07 6
therefore this R.S.A deserves to be admitted to file.
6. Consequent on the raising of the contention by the
appellants-defendants before the trial court claiming benefits under
Section 106 of the Kerala Land Reforms Act the trial court
appropriately made a reference for a finding on that issue covered by
issue No. 1 for decision by the Land Tribunal. The Land Tribunal
registered it on its file as R.C. 12 of 1998 and after service of notice
to the parties the Tribunal posted the case on 14 sittings and the
appellants-defendants who advanced the claim under section 106 of
the Act did not turn up to substantiate their claim. Hence the
reference registered in 1998 was dismissed by the Land Tribunal
vide order dated 09.06.2000, after two years. Inasmuch as the
appellants did not establish their claim for benefit under section 106
of the Act adducing any evidence in the matter, this is a case where
the appellants-defendants had not established their tenancy right
claimed under Section 106 and therefore it was appropriate for the
Land Tribunal to send back the records to the trial court entering a
finding against the appellants-defendants answering their claim in the
negative. The contention that the Land Tribunal was dismissing the
case for default is advanced on the basis of the words used by the
RSA 744/07 7
Land Tribunal in the order In the circumstances in which the Land
Tribunal was disabled to proceed with the adjudication of the claim
advanced by the appellants-defendants the order of the Land
Tribunal could only be considered as an answer in the negative to
the claim advanced by the appellants for benefit under Section 106 of
the Kerala Land Reforms Act covered by issue No.1 framed by the
trial court in the suit. In terms of Section 125 (3) of the Kerala Land
Reforms Act the trial could not but accept the order of the Land
Tribunal as one rendering a finding in the negative on the issue
referred to it. Further though the case was listed for trial in the trial
court on 18.01.2001 and the case was adjourned to 23.01.2001 and
thereafter to 24.01.2001, the appellants-defendants were absent and
there was no representation even on their behalf. Consequently they
were set ex parte and the trial court proceeded to decree the suit. It
was the said ex parte decree that was assailed by the appellants
before the first appellate court. The appellate court considered the
case on merits and dismissed the appeal. Hence this Regular
Second Appeal.
7. It is vehemently contended before me by the learned counsel
for the appellants that the trial court should not have disposed of the
RSA 744/07 8
case, accepting the order passed by the Land Tribunal in R.C. No
12/98, as it is not a finding rendered as envisaged under Section
125 of the Kerala Land Reforms Act, but is an order dismissing the
reference for default. The contention so advanced is devoid of any
merit for two reasons. Firstly, the appellants should have submitted
this matter before the trial court, which made the reference if at all
they were desirous of having the issue of tenancy being got
answered by the Land Tribunal. Secondly, even when the trial of the
case was listed before the trial court, the appellants did not turn up to
submit anything and the disposal was an ex parte one. If at all such
an ex parte decree has to be re-opened and they wanted the matter
to be considered on merits, such an application should have been
made before the trial court. That also was not done. When the
matter has been disposed of ex parte and the appellants-defendants
preferred an appeal against that ex parte decree, what could be
challenged is only the propriety or otherwise of the disposal of the
case ex parte and the correctness of the ex parte decree so passed
and not advancing any further claim on the merits of the contentions.
Even the said appeal happened to be dismissed for default initially
and it was got set aside only by a direction obtained from this court.
RSA 744/07 9
8. The first appellate court observed, while disposing of the
appeal on merits after hearing the parties, that the “B” diary in the
case showed that throughout the case, the appellants-defendants did
not, at all, actively participate in the trial and were pursuing their
case without a clear and specific case of their own and that on
reference being made, as mandated by Section 125 (3) of the Kerala
Land Reforms Act, the appellants did not appear before the Land
Tribunal and the Land Tribunal was constrained to dismiss the
reference petition consequent on the continued absence of the
appellants in the proceedings. The appellate court held that the
Land Tribunal, in the circumstances, could not be found fault with for
not answering the reference on merits, without any evidence
whatsoever adduced before it and therefore, it was of the view that
the contentions regarding the propriety of answering the reference
made by the Land Tribunal does not merit consideration and that the
contentions have only to be rejected. The use by the Land Tribunal
of the words that the case is dismissed for default is only a defect in
the manner of answering the reference and it can only be taken as
an answer against the appellants’ claim for the benefit under Section
106 of the Kerala Land Reforms Act, they having not established the
RSA 744/07 10
benefit claimed by them under Section 106 of the Kerala Land
Reforms Act. There is no infirmity on that account, in the disposal
of the case by the trial court as also by the first appellate court,
repelling the claims of the appellants.
9. The appellate court has further observed that even in the
appeal, there was no ground taken and no request also was made
for setting aside the judgment and decree passed by the trial court
and making any kind of remand for affording the appellants an
opportunity to have their case considered on merits. The first
appellate court, therefore, came to the conclusion that disposal of the
case by the trial court ex parte, in the circumstances of the case was
proper and has only to be confirmed, confirming the findings of the
trial court. The contention that under Section 125 (7) of the Kerala
Land Reforms Act, the trial court could not have accepted the order
of the Land Tribunal as a finding is devoid of merit in the
circumstances in which the order happened to be passed by the
Land Tribunal as discussed above. There is absolutely no merit at all
in this Regular Second Appeal and no substantial question of law
arises for consideration by this court in this Regular Second Appeal.
10. In the result, I dismiss this Regular Second Appeal in limini,
RSA 744/07 11
refusing admission.
Sd/-
K.P. BALACHANDRAN
Judge
19/06/2008
en
[true copy]