IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 62 of 2002()
1. DROUPATHY,
... Petitioner
Vs
1. SRI.KESAVAN,
... Respondent
2. GOPALAKRISHNAN,
3. UNNIKRISHNAN,
4. ANANDAVALLI, D/O.GOPALAKRISHNAN,
5. GHOSHA, D/O.GOPALAKRISHNAN,
For Petitioner :SRI.N.P.SAMUEL
For Respondent :SRI.DILIP J. AKKARA
The Hon'ble MR. Justice K.M.JOSEPH
Dated :16/07/2009
O R D E R
K.M.JOSEPH, J.
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S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A
----------------------------------------------
Dated, this the 16th day of July, 2009
J U D G M E N T
Being connected these cases are disposed of by
this common judgment. The second appeal arises out of
O.S.No.583/1988 on the file of the Subordinate Judge of
Thrissur. The appellant is the 2nd defendant in the said
suit. The suit was filed for injunction and alternatively for
recovery of possession on the strength of title. The Ist
defendant in the suit is the husband of the appellant and
respondent 3 to 5 are the children of the appellant and the Ist
defendant. I shall refer to plaintiff as Sri.Kesavan and the
appellant as Draupathy.
2. The husband of Draupathy is referred to as
Gopalakrishnan. The case in the plaint in brief was as
follows:–Gopalakrishnan is the younger brother of Kesavan.
Kesavan went to Malaysia in 1935 in search of a job and he
assumed the name Kumaran. In 1969 he returned from
Malaysia and settled in India. He had purchased the plaint
schedule property as per document No.322/1954 through his
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -2-
father Krishnan. There was a tiled double storeyed building in
the property which is there even now. His father was looking
after the property for him when he was away. Father died in
1963. Kesavan’s brother Sankaran looked after the property
thereafter. Gopalakrishnan was not having any building
under the family partition. He sought permission to reside in
the building in the plaint schedule property. He was allowed
to reside on condition that he should not make any alteration.
Accordingly, Gopalakrishnan started residence there in 1964.
3. The remaining defendants including the
appellant began to reside in the house as the wife and
children. Kesavan is enjoying the plaint schedule property
except the building after his return in 1969. When Kesavan
further insisted for possession the vacant possession of the
building, his brother Gopalakrishnan filed O.A.No.145/1972
before the Land Tribunal claiming leasehold right over the
property. The application was dismissed in the year 1980.
The appeal filed was also dismissed in 1987 and the said
decision has become final. It is essentially on these
allegations that the suit came to be filed.
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -3-
4. Defendants except the 5th defendant filed a
joint written statement. Therein it was specifically alleged that
Sri.Gopalakrishnan had taken the property on leasehold
arrangement. He and the appellant together constructed a
new building there in 1956 and that defendants are enjoying
the property. CRP No.1359/1988 was filed before the High
Court against the decision of the appellate authority and it is
still pending. It is also stated that even if Kesavan is having
any right over the property that that has already been lost by
adverse possession. Additional written statement was also
filed.
5. The trial court framed the following issues:
1. Whether the plaintiff is entitled to the
mandatory injunction sued for?
2. What are the damages for which the
plaintiff is entitled?
3. Whether the plaintiff is entitled to the
prohibitory injunction sued for?
4. Whether the plaintiff is entitled to
eviction on the strength of title?
5. Whether the suit is barred by adverse
possession and limitation?
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -4-
6. The suit was instituted in the year 1988. The
trial court found that pending the suit Suo Motu proceedings
No.53/1993 were initiated in the year 1993 by the Land
Tribunal, Kodungallur proposing to assign the rights of the
landlord in favour of Draupathy on the basis that she is the
cultivating tenant. The trial court has decreed the suit by
granting a decree of recovery of possession of the plaint
schedule property including the building thereon besides
awarding damages. The trial court took note of the
proceedings initiated by the husband of Draupathy which I
have already adverted to. The fact that the High Court had
dismissed the CRP filed against the order of the appellate
authority vide Ext.A4 was also taken note of. The trial court
further took note of the plea of leasehold right set up by the
appellant. It is found that the Draupathy is estopped from
raising such a contention which is contrary to her earlier
written statement. Still further it found that there is no
bonafides or genuineness in her plea. By order dated
30.9.1996 the predecessor-in-interest of the learned trial
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -5-
Judge had already entered a finding that the question of
tenancy projected by Draupathy does not arise for
consideration under Section 125 of the Kerala Land Reforms
Act (hereinafter referred to as “the Act”). The trial court made
reference to this Court’s judgment reported in Sundaran v.
Mohammed Koya (1995 (2) KLT 115) for the proposition
that Civil Court is competent to make such finding. The trial
court also rejected the case of adverse possession finding that
the possession of Draupathy was permissive on the basis
that Kesavan’s title was proved by Ext.A1 title deed which is
admitted by Draupathy in the witness box. The trial court
pronounced the judgment on 16th March,1998. Shortly,
thereafter on 29.6.1998 the Land Tribunal, Kodungallur
proceeded to pass orders in the S.M.Proceedings by holding
that Draupathy is a cultivating tenant under S.2 (57) of the
Act. Kesavan carried the matter in appeal by way of
A.A.No.95/1998 before the appellate authority which was
unsuccessful and consequently he has filed the CRP which is
being disposed of by me in this common judgment.
7. The first appellate court has confirmed the
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -6-
finding of the trial court.
8. I heard Sri.N.P.Samuel, learned counsel for the
appellant and Smt.V.Ranju learned counsel for the
respondents.
9. A Full Bench of this Court in Venkitarama
Iyer v. Vesu Amma (1995 (2) KLT 295 (FB) has taken
the stand that the Land Tribunal is bound by the principle of
lis pendens and when suit is pending in the Civil Court, the
Suo motu proceedings initiated during the pendency of
proceedings of the Civil Court is hit by doctrine of lis pendens.
The Court, inter alia held as follows.
“6. Section 52 enacts the principle that during the
pendency of litigation nothing new should be
introduced. The section cannot be confined to
transfer of immovable property alone. It interdicts
other sorts of dealings with property affecting the
rights of the adversary in the suit or other
proceeding. In other words, creation of any right
in immovable property during pendency of a suit or
proceeding adverse to the interests of the opposite
party is also hit by the rule. As the very purpose
of the doctrine of lis pendens is to subject the
litigating parties and others who seek to acquire
rights in immovable property pending litigation to
the power and jurisdiction of the court where the
dispute is pending for decision, one of the partiesS.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -7-cannot be allowed to scuttle the final result of the
pending action before the civil court. The
extinguishment of the title of the plaintiff as a
result of the Tribunal’s order in the suo motu
proceedings would definitely be hit by the doctrine
of lis pendens. Otherwise the order of the Land
Tribunal obtained pending suit would extinguish
plaintiff’s right in the property enabling the
defendant to become the title holder. In view of
the pendency of the civil suit such situation cannot
be legally allowed.7. Contention of the defendant that he has not
done anything illegally and that he obtained the
landlord’s right from the Land Tribunal on the basis
of a legal order and so the doctrine of lis pendens
would not apply is not tenable. As the effect of the
doctrine is not to annul the order of the Land
Tribunal but only to render it subservient to the
rights of the parties to the litigation defendant
cannot lay any claim on the basis of Ext.B6. As the
entire controversy between the parties was
pending adjudication in the civil court and as
tenancy has been claimed by the defendant,
naturally the matter was referred to the Land
Tribunal under S.125 (3) of the Kerala Land
Reforms Act. Though the trial court is bound by
the finding of the Land Tribunal, the appellate
courts are not bound by it. As the entire
controversy was before the civil court with the
appellate courts not bound by the decision of the
Land Tribunal on a matter referred to it under
S.125 (3) of the Kerala Land Reforms Act it was
not open to the defendants to circumvent the
decision of the civil court by initiating suo motu
proceedings before the Land Tribunal. Even if suo
motu proceedings was not initiated at the instance
of the defendants they should have apprised the
Tribunal of the pendency of the civil suit andS.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -8-avoided parallel proceedings.”
10. In the light of this authoritative
pronouncement of this Court, the Second Appeal filed is only
to be dismissed for the simple reason that the suit is filed in
the year 1988 and it is pending the said civil suit that suo
motu proceedings are commenced in the year 1993. The suit
is decreed as already noted in March, 1998 and the suo motu
proceedings are brought to the conclusion in June, 1998. So,
it is clear that the suo motu proceedings in this case
commenced and was proceeded with during the pendency of
the suit. The trial court has taking note of the proceedings
initiated at the instance of the husband of Draupathy wherein
he claimed tenancy right upto this Court and found that there
is no merit in the case of the appellant based on the alleged
tenancy right set up by her. However, Sri.N.P.Samuel,
learned counsel for the appellant confronted with the Full
Bench decision of this Court would submit that the said
judgment is incorrect. According to him, S.52 of the Transfer
of Property Act which provides for lis pendens may not apply
at all to the facts of this case. He pointed out that the suo
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -9-motu proceedings under S.72 ( c) of the Act was initiated by
the statutory authority contemplated under the Act and the
Land Tribunal is not a party to the suit. The decision of the
Land Tribunal ultimately is binding on the party and he is
bound to accept the decision. He relied on the following
decisions in support of his case:
Samarendra v. Krishna Kumar {AIR 1967 SC 1440}, Jayaram
Mudaliar v. Ayyaswami {AIR 1973 SC 569}. He also invited
my attention to the decisions in Illachi Devi (D) by L.Rs. and
others vs. Jain Society, Protection of Orphans India and others
{AIR 2003 SC 3397} and in Karnataka State Financial
Corporation vs. N.Narasimahaiah and others { (2008) 5 SCC
176}. Last of the two decisions were canvassed before me
for establishing the point that the courts must adopt the
Golden Rule of interpretation and for the proposition that on
the application of golden rule in regard to S.52 of the Transfer
of Property Act the suo motu proceedings by the Land Tribunal
in this case would not be hit by doctrine of lis pendens. He
made a further plea that the decision of the Full Bench is to be
ignored by me and I should follow the dictum of the Supreme
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -10-Court.
11. In the decision reported in Illachi Devi (D)
by L.Rs. and others vs. Jain Society, Protection of
Orphans India and others {AIR 2003 SC 3397} the Court
was dealing with Succession Act and therein the Court
proceeded to hold as follows:
“42. This Court again in Harbhajan Singh v. Press
Council of India and Others (2002 3 SCC 722)
stated the law thus:“Clearly, the language of sub-section (7) of
Section 6 abovesaid, is plain and simple. There
are two manners of reading the provision. Read
positively, it confers a right on a retiring member
to seek renomination. Read in a negative
manner, the provision speaks of a retiring
member not being eligible for renomination for
more than one term. The spell of ineligibility is
cast on “renomination” of a member who is
“retiring”. The event determinative of eligibility or
ineligibility is “renomination” and the person, by
reference to whom it is to be read, is ” a retiring
member”. “Retiring member” is to be read in
contradistinction with a member/person retired
sometimes in the past, and so, would be called a
retired or former member. “Re” means again and
is freely used as prefix. It gives colour of “again”
to the very with which it is placed. “Renomination”
is an act or process of being nominated again.Any person who had held office of member
sometime in the past, if being nominated nowS.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -11-cannot be described as being “again nominated”.
It is only a member just retiring who can be called
“being again renominated” or “nominated”. No
other meaning can be assigned except by doing
violence to the language employed. The
legislature does not waste its words. Ordinary,
grammatical and full meaning is to be assigned to
the words used while interpreting a provision to
honour the rule–the legislature chooses
appropriate words to express what it intends and
therefore, must be attributed with such intention
as is conveyed by the words employed so long as
this does not result in absurdity or anomaly or
unless material-intrinsic or external- is available
to permit a departure from the rule.Cross in Statutory Interpretation (3rd Ed., 1995)
states:“The governing idea here is that if a statutory
provision is intelligible in the context of ordinary
language, it ought, without more to be interpreted
in accordance with the meaning an ordinary
speaker of the language would ascribe to it as its
obvious meaning unless there is sufficient reason
for a different interpretation…………….Thus, an
‘ordinary meaning’ or ‘grammatical meaning’ does
not imply that the Judge attributes a meaning to
the words of a statute independently of their
context or of the purpose of the statute but rather
that he adopts a meaning which is appropriate in
relation to the immediately obvious and
unresearched context and purpose in and for
which they are used. By enabling citizens (and
their advisers) to rely on ordinary meanings
unless notice is given to the contrary the
legislature contributes to legal certainty and
predictability for citizens and to greater
transparency in its own decisions both of whichS.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -12-are important values in a democratic society.”
44. It is equally well settled that when the
Legislature has employed a plain and
unambiguous language, the Court is not
concerned with the consequences arising
therefrom. Recourse to interpretation of statutes
may be restored only when the meaning of the
statute is obscure. The Court is not concerned
with the reason as to why the Legislature thought
it fit to lay emphasis one category of suitors than
the others. A statute must be read in its entirety
for the purpose of finding out the purport and
object thereof. The Court in the event of its
coming to the conclusion that a literal meaning is
possible to be rendered would not embark upon
the exercise of judicial interpretation thereof and
nothing is to be added or taken from a statute
unless it is held that the same would lead to an
absurdity or manifest injustice. It is well-
established that a disabling legislation must be
characterised by clarity and precision. In the
present instance the prohibitions laid down by
Sections 223 and 236 of the Act are categorical
and comprehensive and leave no scope for
creative interpretation.”12. I would think that it may not be open for me
to venture to act upon these submissions made by the learned
counsel for the appellant in the teeth of the authoritative
dictum of the Full Bench which I have already noted dealing
specifically with the question as to whether suo motu
proceedings taken pending civil suit have any value in the light
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -13-of the doctrine of lis pendens. In Samarendra v. Krishna
Kumar {AIR 1967 SC 1440} the Court was no doubt
dealing with a case under S.52 of the Transfer of Property Act.
The Court reiterated the principle that though S.52 did not
apply to involuntary alienations, the principle of lis pendens
applies to such alienations. The Court proceeded to hold as
follows:
“……………..But, under Section 52 which
incorporates the doctrine of lis pendes, during the
pendency of a suit in which any right to any
immovable property is directly and specifically in
question such a property cannot be transferred or
otherwise dealt with by any party to the suit or
proceeding so as to affect he rights of any other
party thereto under any decree or order which may
be made therein except under the authority of the
court and on such terms as it may impose. Under
the Explanation to that section the pendency of
such a suit commences from the date of its
institution and continues until it is disposed of by a
final decree or order and complete satisfaction or
discharge of such a decree or order has been
obtained. The purchaser pendente lite under this
doctrine is bound by the result of the litigation on
the principle that since the result must bind the
party to it so must it bind the person deriving his
right, title and interest from or through him. This
principle is well illustrated in Radhamadhub Holdar
v. Monohur, (1888) 15 Ind. App 97 (PC) where the
facts were almost similar to those in the instantS.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -14-case. It is true that Section 52 strictly speaking
does not apply to involuntary alienations such as
court sales but it is well established that the
principle of lis pendens applies to such alienations.
(See Nilkant v. Suresh Chandra, 1885) 12 Ind App
171 (PC) and Motilal v. Karrabuldin, (1897) 24 Ind
App 170 (PC). It follows that the respondent
having purchased from the said Hazra while the
appeal by the said Hazra against the said
preliminary decree was pending in the High court,
the doctrine of lis pendens must apply to his
purchase and as aforesaid he was bound by the
result of that suit. In the view we have taken that
the final foreclosure decree was competently
passed by the Trial Court, his right to equity of
redemption was extinguished by that decree and
he had therefore no longer any right to redeem
the said mortgage. His appeal against the said
final decree was misconceived and the High Court
was in error in allowing it and in passing the said
order of remand directing the Trial Court to re-
open the question of redemption and to allow the
respondent to participate in proceedings to amend
the said preliminary decree.”13. In Jayaram Mudaliar v. Ayyaswami {AIR
1973 SC 569} the Apex Court was considering the scope of
S.52 of the Transfer of Property Act. The Court, inter alia held
as follows:
“50. It is evident that the doctrine as stated in
Section 52, applies not merely to actual transfers
of right which are subject-matter of litigation butS.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -15-to other dealings with it “by any party to the suit
or proceeding so as to affect the right of any other
party thereto.” Hence, it could be urged that
where it is not a party to the litigation but an
outside agency, such as the tax Collecting
authorities of the Government, which proceeds
against the subject matter of litigation, without
anything done by a litigating party, the resulting
transaction will not be hit by Section 52. Again,
where all the parties which could be affected by a
pending litigation are themselves parties to a
transfer or dealings with property in such a way
that they cannot resile from or disown the
transaction impugned before the Court dealing
with the litigation, the Court may bind them to
their own acts. All these are matters which the
Court could have properly considered. The
purpose of Section 52 of the Transfer of Property
Act is not to defeat any just and equitable claim
but only to subject them to the authority of the
Court which is dealing with the property to which
claims are put forward.”
14. The learned counsel for the appellant also
relied on the decision of the Calcutta High Court in Chotalal
Shaw v. Ram Golam Shaw and others {AIR 1975
Cal.436} to contend that, even if there is any mandatory
provision it can be waived by the party in whose favour the
provision of law stands. In that case the Court held as
follows:
“Even if there is any mandatory provision which
confers any right or privilege or advantage to anyS.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -16-of the parties to the litigation, such right, privilege
or advantage may be waived by the party in
whose favour the provision of law stands.”
15. The learned counsel relied on the decision of
the Calcutta High Court to contend that in this case while it is
true that suo motu proceedings was taken pending civil suit, it
is noteworthy that Kesavan was made a party, he appeared in
the proceedings and by his participation in the proceedings it
must be treated that he has waived his right to contend that
the proceedings under S.72 ( c) of the Act are to be ignored
and that the doctrine of lis pendens therefore will not apply.
He pointed out that Kesavan did not point out before the Land
Tribunal or before the appellate authority that there is no
jurisdiction and that the matter should not be proceeded
further. Having courted the decision before the authorities
which turned out to be against him it is not open to Kesavan
to contend that the decision of the Land Tribunal as confirmed
by the appellate authority is to be ignored, he contends. He,
of course, pointed out that the decision of the Land Tribunal as
confirmed by the appellate authority cannot be interfered with
lightly in proceedings under Section 102. In that regard he
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -17-
relied on the decision in Chandy Varghese v. Abdul
Khader {2003 (3) KLT 553 (SC}. He would submit that
actually on merits also the appellant is entitled to claim
tenancy rights as there was evidence before the Tribunal.
16. Per contra, the learned counsel for the
respondent would contend that certainly this is a case where
the appeal is to be rejected. The appellant had filed joint
written statement in the civil suit wherein it is contended that
the husband Gopalakrishnan was the tenant. The matter
attained the attention of the Land Tribunal. The Land Tribunal
found his claim to be untenable. The tribunal found that the
claim could not be proved. Gopalakrishnan pursued the
matter before the appellate authority wherein he was
unsuccessful. He was before the High Court where also he
was unsuccessful. After having pleaded in the civil suit that
her husband was the tenant, the appellant turns around and
contends for the position that there was an oral lease in the
year 1956. She submitted that the decision of the Full
Bench is to be applied. The counsel further points out that in
the Tribunal Kesavan was made a party. Kesavan appeared
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -18-
and contested the matter and that he pointed out before the
Tribunal the history of the proceedings and also pointed out
that civil suit from which the second appeal arises is pending.
He produced copy of the plaint also in support of the
contention that suit is pending. When he lost before the
Tribunal, he did not leave the matter there. He has contested
the matter before the appellate authority by filing appeal and
finally he filed CRP which is being disposed of. The learned
counsel for the respondent contended that the suo motu
proceedings were initiated at the instigation of the appellant.
17. The Full Bench of this Court categorically held
that in suo motu proceedings of the nature involved in this
case doctrine of lis pendens will be attracted. The decision is
rendered by the Full Bench in the year 1995. It is true that
there is no specific reference either to the decisions in
Samarendra v. Krishna Kumar {AIR 1967 SC 1440} or
Jayaram Mudaliar v. Ayyaswami {AIR 1973 SC 569}. This
Court took the view that the effect of the doctrine is not to
annul the order of the Land Tribunal but render it subservient
to rights of the parties. The Full Bench held that S.52
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -19-
interdicts other sorts of dealings of the property affecting the
rights of litigating parties or other persons. The doctrine of lis
pendens is to protect the litigating parties from the dealing of
the property pendente lite. The effect of doctrine of lis
pendens is not that the proceedings of the Land Tribunal or
the appellate authority are invalidated. But, it results in the
civil court being enabled to totally ignore the said proceedings.
No doubt, the learned counsel for the appellant would
contend that the dealing of the property must be by the party
to the proceedings. It is a case where statutory authority has
taken the decision.
18. Having regard to the judgment of the Full
Bench dealing specifically with the issue at hand I do not think
that it is appropriate for me to accept the plea of the learned
counsel for the appellant that the decision of the Apex Court in
Samarendra v. Krishna Kumar {AIR 1967 SC 1440} or
Jayaram Mudaliar v. Ayyaswami {AIR 1973 SC 569}
respectively is to be applied and that I should ignore the Full
Bench decision. As regards plea of waiver and also the
conduct of Kesavan as already noted Kesavan was made a
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -20-
party. He pointed out to the Land Tribunal the fact that there
is a civil suit pending and also the entire history of
Gopalakrishnan filing claim before the Land Tribunal and his
being unsuccessful. The plaint was also produced. When the
doctrine of lis pendens is applied it is important to notice that
it is not a matter of lack of jurisdiction as contended by the
learned counsel for the appellant. Even with jurisdiction the
result of the proceedings is to ignore the final decision taken
and to make it subservient to the supremacy of the civil court
which is dealing with the issue. A Division Bench of this Court
had occasion in Sundaran v. Mohammed Koya (1995 (2)
KLT 115) (supra) to deal with the problem of reference
being made under S.125 of the Act, to the Land Tribunal and
has elaborately dealt with the issues arising therefrom. There
the Court held as follows:
“The question whether the tenant is
entitled to the right under S.106 of the KLR Act is
also one which should be determined by the Land
Tribunal and hence the said question would fall
within the ambit of S.125 (3) of the KLR Act.
Under S.125 (3) of the KLR Act if in any suit or
other proceedings any question regarding the
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -21-
rights of the tenant, including a question as to
whether a persons is a tenant “arises” then the
civil court does not have jurisdiction to determine
that question. It is now well high settled that
unless the question legally arises, there is no
obligation for the civil court to make a reference
of it. But merely because a person raised a claim
without any bonafides, can it be said that the said
question would arise in the case. If the motive of
the party who raised the plea is only to
procrastinate the proceedings it is the duty of the
civil court to decide first whether the question
genuinely arises in the case. The amplitude of
the expression “arises” must be constricted to
what genuinely arises in a case in view of the
very unsatisfactory function of the present Land
Tribunal system in kerala. The courts have to
give a useful and practical interpretation to lessen
the abuse of the legal requirement envisaged in
S.125 (3) of the KLR Act. The civil court can
consider whether the plea raised by the
defendant or the respondent in the case is bona
fide or genuine. If there is no reasonable
prospect of the plea being upheld by a Land
Tribunal, the civil court can justifiably take the
view that the question does not reasonably arise
in the case. If the question does not reasonably
arise in the case, the civil court need not make
the reference under S.125 (3) of the KLR Act.
We may again request the Government to
consider whether suitable amendment can be
made on S.125 of the KLR Act in the light of the
present position resulting from the
implementation of such a system.”
19. Therefore, even if I consider the conduct of
Kesavan it is not a case where he did not alert the Land
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -22-
Tribunal about the pendency of civil suit. He pointed out that
the suit is pending and has also produced evidence to prove
the same. The Land Tribunal still proceeded to consider the
matter. I do not think that this is a case where the conduct of
Kesavan is such that he should be refused the fruits of the
doctrine of lis pendens. Therefore, I hold that the
proceedings before the Land Tribunal are liable to be ignored
applying the doctrine of lis pendens as held in Venkitarama
Iyer v. Vesu Amma (1995 (2) KLT 295 (FB). The learned
counsel for the appellant then contends that this is a case
where the appellant was in possession and she has perfected
title by adverse possession . It is to be noted that right
throughout the appellant was setting up title of her husband
as a tenant of the landlord. The appellant was a party to the
joint written statement in which she took up the contention
that her husband is a tenant. Still the conduct of the
appellant would also show that the appellant claimed as a
tenant of Kesavan. In such circumstances, there is no merit
in the plea of adverse possession. According to the appellant
Kesavan had a case that he demanded possession but that
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -23-
was refused. The question is one of animus possidendi of the
person setting up adverse possession. As already noted right
through out the case of the appellant was that the appellant
is the tenant. The appellant is the respondent in the CRP
where the challenge is against the order of the Tribunal
where she set up a claim of tenancy. There is absolutely no
merit or bonafides of the case of adverse possession. Learned
counsel for the respondent points out that this is a matter
which is barred by res judicata. According to her S.2 (43)
persons includes family. According to her, when the husband
of the appellant filed application claiming tenancy right and it
is rejected that is binding on the family and she is the wife.
There is no merit in the second appeal and it is dismissed.
20. As far as the CRP is concerned I have already
found that the decision of the Land Tribunal as confirmed by
the Appellate Authority is hit by doctrine of lis pendens. This
means that it is not necessary for me to consider the
challenge to the proceedings culminating the order of the Land
Tribunal as the said proceedings are liable to be ignored and
made subservient to the decree for recovery of possession and
S.A.No.62 of 2002-G &
C.R.P.No.893 of 2001-A -24-
other reliefs granted in the civil suit. Accordingly, I close the
CRP.
In view of the relationship between the parties,
parties are directed to bear their respective costs.
(K.M.JOSEPH)
JUDGE.
MS