IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 152 of 1993()
1. EDAKKADANKANI CHOTHI MAMMU
... Petitioner
Vs
1. ODYKKAN VEETTIL MADHAVI AMMA
... Respondent
For Petitioner :SRI.T.A.RAMADASAN
For Respondent :SMT.VIDHYA. A.C
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :02/03/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.152 OF 1993
===========================
Dated this the 2nd day of March,2007
JUDGMENT
Second defendant in O.S.73/85 on the file of
Munsiff Court, Taliparamba is the appellant. First
respondent is the plaintiff and second respondent
the first defendant. Suit was filed seeking
recovery of possession of plaint schedule building
with arrears of rent. First respondent contended
that property originally belonged to Kalliyad
tarwad in jenm right and she obtained possession of
property under an oral lease and he constructed the
building and later purchased jenm right as per
order in O.A.414/1976 of Irikkur Land Tribunal. It
was also contended that while so the building was
rented out to first defendant on a monthly rent of
Rs.10/- on 20.2.1973 and he has been in possession
of the building as a tenant but defaulted to pay
the rent subsequent to 1981 and therefore she sent
Ext.A4 notice terminating the tenancy and demanding
S.A..152/93 2
surrender of possession, but first defendant did
not surrender the building or pay the rent. It
was contended that when first defendant attempted
to trespass into the property, plaintiff was
compelled to file O.S.73/82 before Munsiff Court
seeking a decree for injunction and though first
defendant denied the title learned Munsiff
upholding the title of plaintiff granted a
decree for injunction. It was also contended that
first defendant thereafter filed an application
before the Land Tribunal claiming to be a
kudikidappukaran without impleading plaintiff and
knowing about it plaintiff got himself impleaded
in that O.A.and under Ext.A3 order the
application was dismissed and contention of first
defendant is in collision with appellant and
therefore plaintiff is entitled to the decree.
First defendant filed a written statement admitting
that the property originally belonged to Kalliyad
tarwad but denying the right of plaintiff under
the lease. It was contended that building was
constructed by Payyar who granted a lease of the
building to first defendant and he was continuing
S.A..152/93 3
in possession of the building as a tenant under
Payyar and while so, Payyar sold the property to
appellant and he is continuing in possession as
tenant under the appellant. Appellant was
impleaded. Appellant filed a written statement
reiterating the contentions raised by first
defendant. According to appellant, the building
though originally belonged to Kalliyad tarwad it
was outstanding of lease in favour of Payyar and
while so Payyar constructed the building and
thereafter granted the building on a monthly rent
of Rs.3/- to first defendant and later Payyar
transferred the right in favour of appellant and he
is the absolute owner of property and plaintiff
is not entitled to the decree sought for. It was
contended that decree in O.S. 73/82 is not binding
on the appellant as appellant was not a party
therein and the suit is only to be dismissed.
2. Learned Munsiff framed the necessary issues.
On the evidence, learned Munsiff found that plaint
schedule property belonged to plaintiff under
Ext.A6 purchase certificate issued by Land
Tribunal and Exts.A1 and A2 decree and judgment in
S.A..152/93 4
O.S.73/82 establish that plaintiff has title to
the property eventhough first defendant had
denied the title of plaintiff. Learned Munsiff
granted a decree holding that under Ext.A3 order
of Land Tribunal, title of plaintiff was
established. Learned Munsiff also found that there
is no evidence to prove that plaint schedule
property belonged to Payyar as claimed and even
Payyar was not examined. In such circumstance,
case of appellant was rejected upholding the case
of plaintiff and a decree for recovery of
possession of the building with arrears of rent
was granted.
3. The decree and judgment was challenged
before Sub Court, Payyannur by appellant. First
defendant did not challenge the decree, though
decree is for recovery of possession of the
building from the possession of first defendant
with arrears of rent. Learned Sub Judge on
reappreciation of evidence confirmed the decree and
judgment and dismissed the appeal. It is
challenged in this Second Appeal.
4. The following substantial questions of law
S.A..152/93 5
were formulated.
1) Whether the findings of courts below that
Ext.A1 and A2 judgment and decree in a suit
instituted by plaintiff against first defendant is
binding on appellant, who is setting up a rival
title, is sustainable?
2) Whether courts below erred in upholding
the title of plaintiff and rejecting the title set
up by second defendant?
5.Learned counsel appearing for appellant and
first respondent were heard.
6. The arguments of learned counsel appearing
for appellant was that though plaintiff set up
tenancy right under Kalliyad tarwad, apart from
producing a purchase certificate, there was no
evidence to prove the oral lease and courts below
on the evidence should have found that plaintiff
did not establish his title. It was argued that
when appellant was not a party to O.S.73/82, the
finding in Ext.A2 judgment should not have found
binding on appellant to deny the title claimed by
him. It was argued that courts below should have
found that title vests with appellant and first
S.A..152/93 6
defendant was originally a tenant under Payyar and
the right of Payyar was transferred to appellant
under Ext.B4 and plaintiff has no title to the
building and the decree and judgment is
unsustainable.
7. Learned counsel appearing for first
respondent argued that though appellant set up a
title obtained from Payyar, no evidence was adduced
to prove that there was a lease in favour of Payyar
and even Payyar was not examined and courts below
appreciated the evidence in the proper
perspective and rightly found that appellant has no
right or title to the property and the building
belongs to plaintiff and was rented out to first
defendant and therefore the appeal is only to be
dismissed.
8. The property admittedly originally belonged
to Kalliyad tarward in jenm right. It was
outstanding in the possession of tenant. When
plaintiff contended that plaint schedule property
was outstanding in her possession as per an oral
lease, appellant contended that it was outstanding
in possession of one Payyar and from Payyar he
S.A..152/93 7
obtained the title. Ext.A6 is the purchase
certificate obtained by plaintiff. Ext.B3 is the
purchase certificate issued by Land Tribunal in
favour of Payyar, the assignor of the appellant.
According to appellant, he purchased property from
Payyar under Ext.B4 sale deed dated 28.5.1982.
Ext.A2 decree in O.S.73/82, a suit filed by
plaintiff seeking a decree for injunction alleging
that first defendant is a building tenant and
attempted to trespass into plaint schedule
property shows that the said suit was filed on
3.4.82. It also shows that an emergent order was
passed in favour of plaintiff on that day.
Ext.B4 sale deed was executed immediately
thereafter. In Ext.A1 suit first defendant had
filed a written statement contending that he is
not the tenant of plaintiff but of Payyar and
thereafter rights of Payyar was transferred in
favour of appellant herein and he is a tenant of
the appellant. Ext.B4 assignment deed was executed
thereafter, evidently to show that first defendant
is a tenant of the appellant. Eventhough in the
written statement filed by both the appellant and
S.A..152/93 8
first defendant it was stated that monthly rent
payable is Rs.3/-, Ext.B4 does not show the rate
of rent. It only shows that building was
outstanding in the possession of first defendant
as a building tenant. Ext.B4 does not disclose
when the lease was granted. It is also to be born
in mind that, though appellant was not a party to
O.S. 73/82, learned Munsiff upheld the case of
plaintiff and granted a decree for permanent
prohibitory injunction against first defendant from
trespassing into the plaint schedule property. If
appellant is the landlord of first defendant as
claimed by them, he would have definitely known
about the decree. Subsequently first defendant
filed O.A.106/82 before Land Tribunal,Irikkur
claiming kudikidappu right. He did not implead
plaintiff therein. Instead he impleaded
appellant as first respondent and Payyar as
second respondent. That O.A was filed in 1982.
Evidently it was filed immediately after
institution of O.S. 73/82. It is seen from Ext.A3
order that plaintiff got herself impleaded as
third respondent and disputed the kudikidappu right
S.A..152/93 9
claimed by first respondent. It is pertinent to
note that Ext.A3 does not show that the right of
kudikidappu claimed by first defendant was denied
or disputed by appellant. Moreover, the very fact
that contention of appellant in the written
statement was that rate of rent payable is only
Rs.3/- is sufficient enough to show that appellant
was in favour of granting kudikidappu right to
first defendant. Ext.A3 order also shows that
Ext.A1 and A2 judgments in O.S.73/82 as well as
report of the Commissioner submitted in that suit
were marked as Exts.B1 to B4 and B6 apart from the
oral evidence tendered by first defendant as PW1 in
O.S.73/82. Appellant was therefore aware of the
decree granted in favour of plaintiff in
O.S.73/82. It cannot be disputed that by virtue of
Exts.A1 and A2 judgment and decree, a cloud has
been cast on the alleged title of appellant .
Inspite of that, appellant did not take any step to
remove the cloud cast on the alleged title by
filing a suit for declaration of title. Instead
after getting impleaded in the suit filed by
plaintiff a contention has been raised that he
S.A..152/93 10
has got absolute title to the property under
Ext.B4.
9. As rightly found by courts below, even
Payyar who is alleged to be the tenant of the
property was not examined. The only evidence
tendered by appellant was his own evidence as DW1.
Evidence of DW1 establish that he does not know
anything about the lease. His evidence also shows
that there are hundred acres shown in the survey
number of the plaint schedule property. Even if
Payyar was a cultivating tenant in respect of some
property in that survey number, it does not mean
that Payyar was a cultivating tenant of the
plaint schedule property.
10. Exts.A1 decree and judgment shows that a
Commission was taken out in O.S.73/1982 and plaint
schedule property was identified as the property
covered under the purchase certificate. Evidence
establish that plaint schedule property is the
property belonging to plaintiff under Ext.A6
purchase certificate and appellant has no right
over the same.
11. Appreciating the entire evidence in proper
S.A..152/93 11
perspective, I find no reason to interfere with the
factual findings of courts below. Appeal is only
to be dismissed.
Appeal is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006