IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8556 of 2010(O)
1. HARRISONS MALAYALAM LTD., P.B.NO.502,
... Petitioner
2. MANAGING DIRECTOR, HARRISONS MALAYALAM
Vs
1. BIPIN JACOB, AGED 41 YEARS,
... Respondent
2. FEBI J.JACOB, AGED 46 YEARS,
3. SIJU THOMAS, AGED 42 YEARS,
4. THOMAS VARGHESE, AGED 46 YEARS,
5. THOMAS G.MARUTHETHU, AGED 35 YEARS,
6. SIBI THOMAS, AGED 33 YEARS,
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent :SRI.D.KISHORE
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :09/09/2010
O R D E R
THOMAS P.JOSEPH, J.
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W.P(C) No.8556 of 2010
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Dated this the 09th day of September, 2010
J U D G M E N T
This Writ Petition is in challenge of Exts.P7 and P8, orders
passed by the learned Munsiff refusing to raise additional issue
concerning tenancy and fixity of tenure pleaded by petitioner
No.1-defendant No.1 and refusing to refer that question to the
Land Tribunal under Section 125(3) of the Kerala Land Reforms Act
(for short, “the Act”) as requested by petitioners. The suit property
is 831.52 acres in extent. It is not disputed that the said property
originally belonged to Kiriyaru Kiriyaru Pandarathil as per
Chembola Thittooram and while so he granted a lease of that
property in favour of M/s. Rubber Plantation Industries Ltd., as per
Ext.P3, lease deed for a period of 99 years commencing from
08.04.1911 (which I am told, expired by 30.06.2010).
Respondents-plaintiffs claimed that the said property is now in the
possession and enjoyment of petitioners on behalf of the original
lessee. While so, respondents purchased 109 acres out of the said
831.52 acres from the successor of original lessor as per
documents of title referred to in paragraph 4 of the plaint.
Respondents sued petitioners for a decree for prohibitory
W.P(C) No.8556 of 2010
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injunction against the latter alienating, hypothecating,
encumbering or mortgaging the suit property (obviously on the
premise that period of lease has expired on 30.6.2010).
Petitioners filed written statement contending that petitioner No.1
is a cultivating tenant of the suit property entitled to fixity of
tenure under the Act and that respondents are not entitled to the
injunction prayed for. Since learned Munsiff did not frame an issue
concerning tenancy and fixity of tenure pleaded by petitioners,
they filed Ext.P5, application (I.A. No.432 of 2010) to raise
additional issue regarding tenancy and fixity of tenure and
Ext.P6, application (I.A. No.431 of 2010) to refer that question to
the Land Tribunal for a decision. Applications were opposed by the
respondents who contended that alleged tenancy being in respect
of plantation and extent of property being in excess of 30 acres it
is exempted from tenancy under Section 3(1)(viii) of the Act.
Respondents also claimed that since the suit is merely for
injunction no question of tenancy arose for decision and hence it
cannot be said that issue regarding tenancy genuinely arose for a
decision to be referred to the Land Tribunal. Learned Munsiff
accepted the objection preferred by respondents and dismissed
Exts.P5 and P6, applications as per Exts.P7 and P8, orders which
are under challenge in this Writ Petition. Learned counsel for
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petitioners contends that there is no dispute for the respondents
also that petitioners are in possession and enjoyment of the suit
property in the manner claimed by them in the written statement
and that in the nature of the injunction prayed for, question
whether petitioner No.1 is a cultivating tenant of the property
entitled to fixity of tenure very much arose for a decision. It is
also contended that exemption under Sec.3(1)(viii) of the Act is
not available to the respondents on the facts of the case since
the lease was not of plantation (at the time of transaction).
Learned counsel placed reliance on the Full Bench decision of
this Court in Rt.Rev.Dr.Jerome Fernandez v. Be-Be
Rubber Estate Ltd. (1972 KLT 613 (F.B.). In response it is
contended by learned counsel for respondents that bar of
tenancy under Sec.3(1)(viii) of the Act concerned plantation as on
the date issue regarding tenancy arose for a decision and
admittedly as on the date the issue regarding tenancy was raised
by petitioners suit property was a plantation and since
petitioners are in possession of more than 30 acres it is exempt
from the Chapter relating to tenancy under Sec.3(1)(viii) of the
Act. It is also contended that this being a suit for injunction
simpliciter no question of tenancy arose for a decision. Reliance
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is placed on the decision of the Full Bench in Kesava Bhat v.
Subraya Bhat (1979 KLT 766 (F.B.).
2. To understand the rival contentions it is necessary to
refer to Ext.P3, the original lease deed in favour of the
predecessor-in-interest of petitioners. In page 7 of Ext.P3 it is
recited,
” …..
…..”
(emphasis supplied)
Going by the said recital in Ext.P3, it is clear that it was not a
lease of plantation but a lease of land for planting rubber, etc.
Hence contention of petitioners that what is covered by Ext.P3 is
a lease of land and not a lease of plantation has prima facie to be
accepted.
3. The next question is whether lease in question is
exempted by Sec.3(1)(viii) of the Act. That provision exempts
from the Chapter dealing with tenancy of plantations exceeding
30 acres in extent. Referring to that provision the Full Bench of
this Court held in Ret.Rev. Dr.Jerome Fernandez v. Be-Be
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Rubber Estate Ltd. (supra) that “going by the clues furnished
by the statutory history preceding this legislation and also by the
express language used in Sec.3(1)(viii) of the KLR Act it is clear
that intention of legislature was to restrict the limited scope of
exemption to lease of land which were already plantations as on
the date of transaction.” I found from Ext.P3, lease deed that it
was not lease of plantation but lease of land for planting rubber,
etc. If that be so prima facie the exemption under Sec.3(1)(viii)
of the Act cannot apply. It follows that the issue regarding
tenancy and fixity of tenure genuinely arose for a decision by the
Land Tribunal.
4. Then the question is whether in a suit for injunction
of the present nature issue regarding tenancy could “arise”.
Learned counsel for respondents has placed reliance on the
decision of the Full Bench in Kesava Bhat v. Subraya Bhat
(supra). There it was held that where the suit is for injunction
simpliciter issue for decision is whether plaintiff is in possession
of the property as on date of the suit and that nature and
character of possession is irrelevant for a decision. In such a
situation a claim of tenancy or a finding on that is not relevant.
That is because in a suit for injunction simpliciter the court is only
concerned with the question whether plaintiff is in possession of
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the property as on the date of suit. But that principle or decision
is not applicable to the facts of the present case. Here, injunction
prayed for is to restrain petitioners from alienating,
hypothecating, encumbering or mortgaging the suit property. It
is not a suit for injunction against trespass as if respondents are
in possession of the property where the nature and character of
such possession is not relevant. Petitioners are admittedly in
possession of the suit property claiming under the successor of
the original lessee. Respondents wanted petitioners to be
prevented from alienating, hypothecating, encumbering or
mortgaging the property. Lease creates an interest in the
property. It is heritable and in the absence of any contractual
restriction is assignable as well. Leasehold right can be subjected
to a mortgage. The scheme of the Act is to confer fixity of
tenure on the cultivating tenant and a certificate of purchase
issued under Sec.72K of the Act is final and conclusive as to the
right of cultivating tenant. If therefore petitioner No.1 were found
to be a cultivating tenant he is entitled to fixity of tenure in
which case that right is assignable and heritable and if that be so,
it may not be possible to grant a decree against petitioner No.1
against alienating, hypothecating or mortgaging the property.
Hence on the facts of the case and in the nature of the injunction
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prayed, it leaves me in doubt that the issue of tenancy and fixity
of tenure raised by petitioners did genuinely “arise” for a
decision. Learned Munsiff was not correct in dismissing Exts.P5
and P6, applications. Exhibits P7 and P8 orders are liable to be
set aside.
Resultantly, this Writ Petition is allowed in the following
terms:
(i) Exhibits P7 and P8, orders are set aside
and Exts.P5 and P6, applications are allowed.
(ii) Learned Munsiff is directed to frame
additional issue as prayed for in Exts.P5 (I.A. No.432
of 2010) and refer the question to the Land Tribunal
for a finding on that issue.
THOMAS P. JOSEPH, JUDGE.
vsv