IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 434 of 1993()
1. PODDAR PLANTATIONS
... Petitioner
Vs
1. SUBRAMANIAN
... Respondent
For Petitioner :SMT.T.D.RAJALAKSHMI
For Respondent :SRI.M.RAMESH CHANDER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/03/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
S.A.No. 434 OF 1993
............................................
DATED THIS THE 21st DAY OF MARCH, 2007
JUDGMENT
Plaintiff in O.S.265 of 1983 on the file of Munsiff Court,
Kalpetta is the appellant. Defendant therein is the respondent.
Appellant filed the suit seeking a decree for recovery of plaint
B schedule property with mesne profits. The case of appellant
was that plaint A schedule property originally belonged to
English and Scotish Joint Co-operative Wholesale Society Ltd
which was subsequently incorporated to Co-operative
Wholesale Society Ltd and under Ext.A1 sale deed dated
11.1.1973, it was assigned to the appellant and therefore
appellant has title to the plaint A schedule property. It was
contended that plaint B schedule property forms part of plaint
A schedule property and respondent reduced the same into his
unlawful possession on 10.9.1980 and therefore appellant is
entitled to recover possession of the property on the strength
of title with mesne profits @ Rs.50/- per annum. Respondent
filed a written statement contending that plaint B schedule
property does not form part of plaint A schedule property and
plaint B schedule property was obtained as per an oral lease
from English and Scotish Company on an annual rent of Rs.3/-
SA 434/1993 2
and since then respondent has been in possession of the
property as a tenant entitled to the benefit of Kerala Land
Reforms Act and question of tenancy is to be referred to the
Land Tribunal and appellant is not entitled to the decree
sought for.
2. As the question of tenancy arises for consideration,
learned Munsiff referred the suit to Land Tribunal, Kalpetta
under Section 125(3) of Kerala Land Reforms Act. Land
Tribunal entered a finding holding that respondent is a tenant
entitled to the benefit of Kerala Land Reforms Act. After
receipt of the findings of the Land Tribunal, PW1 and DW1
were examined and Exts.A1 and A2 and C1 to C3 were marked.
3. Learned Munsiff, on the evidence found that the
appellant did not establish that plaint B schedule property
forms part of plaint A schedule property and the finding of the
Land Tribunal establish that respondent is a tenant and
therefore appellant is not entitled to the decree sought for.
The suit was dismissed. Appellant challenged the decree and
judgment before Sub Court, Sultan Bathery in A.S.12 of 1991.
The learned Sub Judge, on appreciation of evidence, set aside
the finding of the Land Tribunal holding that the oral lease set
up by respondent was not established and there is no evidence
SA 434/1993 3
for payment of rent and hence respondent is not entitled to the
protection of Kerala Land Reforms Act. But first appellate
court upheld the finding of learned Munsiff that plaint B
schedule property is not proved to be part of plaint A schedule
property and therefore held that appellant is not entitled to the
decree sought for. The Second appeal was filed challenging the
decree and judgment in the first appeal.
4. Second appeal was admitted formulating the following
substantial question of law.
5. Whether on the facts and circumstances of the case,
courts below were correct in holding that plaint B schedule
property does not form part of plaint A schedule property and
hence appellant has no title to the plaint B schedule property.
6. Learned counsel appearing for the appellant and
respondent were heard.
7. It is admitted case that plaint A and B schedule
properties originally belonged to English and Scotish Joint Co-
operative Wholesale Society Ltd, which was subsequently
incorporated to Co-operative Wholesale Society Ltd. The case
of respondent was that the plaint B schedule property was
obtained as per an oral lease from English and Scotish Joint
Co-operative Wholesale Society Ltd. Case of appellant was that
SA 434/1993 4
plaint B schedule property forms part of plaint A schedule
property and under Ext.A1 it was assigned in favour of the
appellant. Though the question of tenancy was referred to the
Land Tribunal and the Land Tribunal upheld the claim for
tenancy, first appellate court, on the evidence, found that
respondent is not a cultivating tenant entitled to the benefit of
Kerala Land Reforms Act. That finding was rendered on the
basis that no evidence was adduced to prove the oral lease from
the English and Scotish company. No evidence was also
adduced to prove that any rent as alleged was paid. On the
evidence the finding of the learned Sub Judge that respondent
did not establish the oral lease or that he has been in
possession of the property as a cultivating tenant and so not
entitled to the protection under Kerala Land Reforms Act is
perfectly correct and warrants no interference.
8. The title of appellant over plaint A schedule property
under Ext.A1 title deed was not disputed before the trial court
or first appellate court. The only contention raised was that
plaint B schedule property does not form part of plaint A
schedule property. Plaint B schedule property, as originally
stood was 35 cents. So also, plaint A and B schedule properties
are shown comprised in R.S.Nos. 760/1A, 760/1B, 760/1C and
SA 434/1993 5
760/2. As respondent raised a specific contention in the
written statement that plaint B schedule property does not
form part of plaint A schedule property and plaint A schedule
property is not identifiable, appellant filed I.A.1649/1984, an
application under Order XXVI Rule 9 of Code of Civil Procedure
to appoint a Commission to identify the property with the
assistance of a Surveyor. The application was opposed by
respondent contending that as he is a tenant, the question of
tenancy is to be referred to the Land Tribunal and
Commissioner cannot be appointed. Learned Munsiff, as per
an elaborate order, allowed the application and appointed
Advocate N. Khalidraja as Commissioner. Commissioner
inspected the property on 4.12.1985 along with Taluk Surveyor
and submitted Ext.C1 report and Ext.C2 plan along with Ext.C3
resurvey plan of B schedule property prepared by the Taluk
Surveyor. As is seen from Ext.C1 report, the Commissioner did
not identify plaint A schedule property at all. He, along with
Surveyor, only measured the plaint B schedule property and
found that the total extent is not 35 cents as shown in the
plaint and instead it is only 17 cents. Commissioner also found
that R.S.Numbers shown in the plaint are not correct and
plaint B schedule property actually form part of R.S.1054/2B of
SA 434/1993 6
Mupainad Village of Vythiri Taluk. It is thereafter appellant
filed application under Order VI Rule 17 of Code of Civil
Procedure and got the plaint amended by reducing the extent
of B schedule property to 17 cents and also challenged the
resurvey number of plaint A and B schedule properties in
accordance with Ext.C1 report. Unfortunately, appellant did
not file an objection. The trial court did not take note of the
fact that Commissioner has not complied with the direction in
the order dated 24.8.1985 whereunder Commissioner was
directed to identify plaint A schedule property and find out
whether plaint B schedule property forms part of plaint A
schedule property. There is no evidence to prove that plaint B
schedule property forms part of A schedule property. It is for
that reason, courts below held that plaint B schedule property
is not proved to be part of plaint A schedule property and
appellant did not establish his title to the plaint B schedule
property and dismissed the claim for recovery of possession on
that ground. The crucial question is whether an opportunity is
to be granted to the appellant to establish that plaint B
schedule property forms part of plaint A schedule property.
9. It is seen from the judgment of the First Appellate
Court that this aspect was taken note of by the learned Sub
SA 434/1993 7
Judge. But the suit was not remanded stating that appellant
did not seek a remand. Unfortunately first appellate court
failed to note that the suit itself was instituted for recovery of
possession on the strength of title and on the contention that
plaint B schedule property forms part of plaint A schedule
property. first appellate court also failed to note that
Commission application itself was filed to identify plaint A
schedule property and report whether plaint B schedule
property forms part of plaint A schedule property. When
appellants sought such an identification and when learned
Munsiff directed the Commissioner to report whether plaint B
schedule property forms part of plaint A schedule property and
Ext.C1 report establish that Commissioner did not comply with
this direction at all, at least first appellate Court should have
directed a proper identification of the property before deciding
the question whether appellant has title to the plaint B
schedule property as it forms part of A schedule property. As
this aspect was not considered, interest of justice warrants that
before deciding the question whether appellant is to be non-
suited on the ground that he has no title to plaint B schedule
property, question whether plaint B schedule property forms
part of plaint A schedule property is to be decided. Even
SA 434/1993 8
though Commissioner was appointed for that specific purpose,
the Commissioner did not identify plaint A schedule property
or furnish sufficient data to decide whether plaint B schedule
property forms part of plaint A schedule property. In such
circumstances, the finding of courts below on the question of
title and that too for the reason that plaint B schedule property
is not proved to be part of plaint A schedule property is not
sustainable.
10. The appeal is allowed. The decree and judgment
passed by learned Munsiff as confirmed by learned Sub Judge
are set aside. O.S.265/1983 is remanded to Munsiff Court,
Kalpetta for fresh disposal in accordance with law. Appellant is
to take out a commission to identify plaint A schedule property
as well as plaint B schedule property and report whether plaint
B schedule property forms part of plaint A schedule property.
If plaint B schedule property does not form part of plaint A
schedule property, the suit is necessarily to fail. On the other
hand, if plaint B schedule property forms part of plaint A
schedule property, court has to decide whether appellant is
entitled to recover possession of the property on the strength
of title and whether title of the plaintiff has been barred by
adverse possession as claimed by the respondent. If the
SA 434/1993 9
Commissioner, who submitted Ext.C1 report is available,
learned Munsiff may appoint the same Commissioner and if
not, appoint any other experienced Commissioner may be
appointed. Appellant has to meet expenses of the
Commissioner. Parties are entitled to adduce evidence
including on the claim for mesne profits. Parties are directed
to appear before the learned Munsiff on 24.5.2007.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-