{"id":61673,"date":"2009-07-16T00:00:00","date_gmt":"2009-07-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/droupathy-vs-sri-kesavan-on-16-july-2009"},"modified":"2015-09-29T00:47:28","modified_gmt":"2015-09-28T19:17:28","slug":"droupathy-vs-sri-kesavan-on-16-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/droupathy-vs-sri-kesavan-on-16-july-2009","title":{"rendered":"Droupathy vs Sri.Kesavan on 16 July, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Droupathy vs Sri.Kesavan on 16 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 62 of 2002()\n\n\n1. DROUPATHY,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SRI.KESAVAN,\n                       ...       Respondent\n\n2. GOPALAKRISHNAN,\n\n3. UNNIKRISHNAN,\n\n4. ANANDAVALLI, D\/O.GOPALAKRISHNAN,\n\n5. GHOSHA, D\/O.GOPALAKRISHNAN,\n\n                For Petitioner  :SRI.N.P.SAMUEL\n\n                For Respondent  :SRI.DILIP J. AKKARA\n\nThe Hon'ble MR. Justice K.M.JOSEPH\n\n Dated :16\/07\/2009\n\n O R D E R\n                         K.M.JOSEPH, J.\n        ------------------------------------------------------\n                    S.A.No.62 of 2002-G &\n                   C.R.P.No.893 of 2001-A\n           ----------------------------------------------\n            Dated, this the 16th day of July, 2009\n\n                         J U D G M E N T\n<\/pre>\n
            Being connected these cases are disposed of by<\/p>\n
this common judgment.        The second appeal         arises out of<\/p>\n
O.S.No.583\/1988 on the file of the Subordinate Judge of<\/p>\n
Thrissur.    The appellant is the 2nd defendant in the said<\/p>\n
suit. The suit was filed for injunction and alternatively for<\/p>\n
recovery of possession on the strength of           title.   The Ist<\/p>\n
defendant in the suit is the husband of the appellant           and<\/p>\n
respondent 3 to 5 are the children of the appellant and the Ist<\/p>\n
defendant.     I shall refer to plaintiff as Sri.Kesavan and the<\/p>\n
appellant as Draupathy.\n<\/p>\n
            2.   The husband of Draupathy is referred to as<\/p>\n
Gopalakrishnan. The case in the plaint in brief was as<\/p>\n
follows:–Gopalakrishnan is the younger brother of Kesavan.<\/p>\n
Kesavan went to Malaysia in 1935 in search of a job and he<\/p>\n
assumed the name Kumaran.            In 1969 he returned from<\/p>\n
Malaysia and settled in India. He had purchased the plaint<\/p>\n
schedule property as per document No.322\/1954 through his<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -2-<\/span><\/p>\n
father Krishnan. There was a tiled double storeyed building in<\/p>\n
the property which is there even now. His father was looking<\/p>\n
after the property for him when he was away. Father died in<\/p>\n
1963. Kesavan’s brother Sankaran looked after the property<\/p>\n
thereafter.    Gopalakrishnan was not having any building<\/p>\n
under the family partition. He sought permission to reside in<\/p>\n
the building in the plaint schedule property. He was allowed<\/p>\n
to reside on condition that he should not make any alteration.<\/p>\n
Accordingly, Gopalakrishnan started residence there in 1964.<\/p>\n
            3.    The remaining defendants including the<\/p>\n
appellant began to reside in the house as the wife and<\/p>\n
children.  Kesavan is enjoying the plaint schedule property<\/p>\n
except the building after his return in 1969. When Kesavan<\/p>\n
further insisted for possession the vacant possession of the<\/p>\n
building, his brother Gopalakrishnan filed O.A.No.145\/1972<\/p>\n
before the Land Tribunal claiming leasehold right over the<\/p>\n
property. The application was dismissed in the year 1980.<\/p>\n
The appeal filed was also dismissed in 1987 and the said<\/p>\n
decision has become final.         It is essentially on these<\/p>\n
allegations that the suit came to be filed.<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A             -3-<\/span><\/p>\n
              4.   Defendants except the 5th defendant filed a<\/p>\n
joint written statement. Therein it was specifically alleged that<\/p>\n
Sri.Gopalakrishnan had taken the property on leasehold<\/p>\n
arrangement. He and the appellant together constructed a<\/p>\n
new building there in 1956 and that defendants are enjoying<\/p>\n
the property. CRP No.1359\/1988 was filed before the High<\/p>\n
Court against the decision of the appellate authority and it is<\/p>\n
still pending. It is also stated that even if Kesavan is having<\/p>\n
any right over the property that that has already been lost by<\/p>\n
adverse possession.        Additional written statement was also<\/p>\n
filed.\n<\/p>\n
              5. The trial court framed the following issues:<\/p>\n
                    1. Whether the plaintiff is entitled to the
\n      mandatory injunction sued for?\n<\/p>\n
                    2. What are the damages for which the
\n      plaintiff is entitled?\n<\/p>\n
                    3. Whether the plaintiff is entitled to the
\n      prohibitory injunction sued for?\n<\/p>\n
                    4.   Whether the plaintiff is entitled to
\n      eviction on the strength of title?\n<\/p>\n
                    5. Whether the suit is barred by adverse
\n      possession and limitation?\n<\/p>\n
 S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -4-<\/span><\/p>\n
             6. The suit was instituted in the year 1988. The<\/p>\n
trial court found that pending the suit Suo Motu proceedings<\/p>\n
No.53\/1993 were initiated in the year 1993        by the Land<\/p>\n
Tribunal, Kodungallur proposing to assign the rights of the<\/p>\n
landlord in favour of Draupathy on the basis that she is the<\/p>\n
cultivating tenant.  The trial court has decreed the suit by<\/p>\n
granting a decree of recovery of possession of the plaint<\/p>\n
schedule property including the building thereon besides<\/p>\n
awarding damages.         The trial court took note of the<\/p>\n
proceedings initiated by the husband of Draupathy which I<\/p>\n
have already adverted to. The fact that the High Court had<\/p>\n
dismissed the CRP filed against the order of the appellate<\/p>\n
authority vide Ext.A4 was also taken note of. The trial court<\/p>\n
further took note of the plea of leasehold right set up by the<\/p>\n
appellant. It is found that the Draupathy is estopped from<\/p>\n
raising such a contention which is contrary to her earlier<\/p>\n
written statement.     Still further it found that there is no<\/p>\n
bonafides or genuineness in her plea.          By order dated<\/p>\n
30.9.1996 the predecessor-in-interest of the learned trial<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -5-<\/span><\/p>\n
Judge had already entered a finding that the question of<\/p>\n
tenancy    projected   by  Draupathy     does   not    arise for<\/p>\n
consideration under Section 125 of the Kerala Land Reforms<\/p>\n
Act (hereinafter referred to as “the Act”). The trial court made<\/p>\n
reference to this Court’s judgment reported in Sundaran v.<\/p>\n
Mohammed Koya (1995 (2) KLT 115) for the proposition<\/p>\n
that Civil Court is competent to make such finding.     The trial<\/p>\n
court also rejected the case of adverse possession finding that<\/p>\n
the possession of Draupathy       was permissive on the basis<\/p>\n
that Kesavan’s title was proved by Ext.A1 title deed which is<\/p>\n
admitted by Draupathy in the witness box. The trial court<\/p>\n
pronounced the judgment on 16th March,1998.              Shortly,<\/p>\n
thereafter on 29.6.1998 the Land Tribunal, Kodungallur<\/p>\n
proceeded to pass orders in the S.M.Proceedings by holding<\/p>\n
that Draupathy is a cultivating tenant under S.2 (57) of the<\/p>\n
Act.   Kesavan carried the matter in appeal by way of<\/p>\n
A.A.No.95\/1998 before      the appellate authority which was<\/p>\n
unsuccessful and consequently he has filed the CRP which is<\/p>\n
being disposed of by me in this common judgment.<\/p>\n
            7.   The first appellate court has confirmed the<\/p>\n
 S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A           -6-<\/span><\/p>\n
finding of the trial court.\n<\/p>\n
             8. I heard Sri.N.P.Samuel, learned counsel for the<\/p>\n
appellant    and    Smt.V.Ranju     learned  counsel     for  the<\/p>\n
respondents.\n<\/p>\n
             9. A Full Bench of this Court in Venkitarama<\/p>\n
Iyer v. Vesu Amma<\/a> (1995 (2) KLT 295 (FB) has taken<\/p>\n
the stand that the Land Tribunal is bound by the principle of<\/p>\n
lis pendens and when suit is pending in the Civil Court, the<\/p>\n
Suo motu proceedings initiated during the pendency of<\/p>\n
proceedings of the Civil Court is hit by doctrine of lis pendens.<\/p>\n
The Court, inter alia held as follows.\n<\/p>\n<\/p>\n
      “6. Section 52 enacts the principle that during the
\n      pendency of litigation nothing new should be
\n      introduced.     The section cannot be confined to
\n      transfer of immovable property alone. It interdicts
\n      other sorts of dealings with property affecting the
\n      rights of the adversary in the suit or other
\n      proceeding. In other words, creation of any right
\n      in immovable property during pendency of a suit or
\n      proceeding adverse to the interests of the opposite
\n      party is also hit by the rule. As the very purpose
\n      of the doctrine of lis pendens is to subject the
\n      litigating parties and others who seek to acquire
\n      rights in immovable property pending litigation to
\n      the power and jurisdiction of the court where the
\n      dispute is pending for decision, one of the parties<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A        -7-<\/span><\/p>\n
    cannot be allowed to scuttle the final result of the
\n    pending action before the civil court.           The
\n    extinguishment of the title of the     plaintiff as a
\n    result of the Tribunal’s order in the suo motu
\n    proceedings would definitely be hit by the doctrine
\n    of lis pendens. Otherwise the order of the Land
\n    Tribunal obtained pending suit would extinguish
\n    plaintiff’s right in the property enabling the
\n    defendant to become the title holder. In view of
\n    the pendency of the civil suit such situation cannot
\n    be legally allowed.<\/p>\n
    7.   Contention of the defendant that he has not
\n    done anything illegally and that he obtained the
\n    landlord’s right from the Land Tribunal on the basis
\n    of a legal order and so the doctrine of lis pendens
\n    would not apply is not tenable. As the effect of the
\n    doctrine is not to annul the order of the Land
\n    Tribunal but only to render it subservient to the
\n    rights of the parties to the litigation defendant
\n    cannot lay any claim on the basis of Ext.B6. As the
\n    entire    controversy  between   the parties     was
\n    pending adjudication in the civil court and as
\n    tenancy has been claimed by the defendant,
\n    naturally the matter was referred to the Land
\n    Tribunal under S.125 (3) of the Kerala Land
\n    Reforms Act. Though the trial court is bound by
\n    the finding of the Land Tribunal, the appellate
\n    courts are not bound by it.         As the entire
\n    controversy was before the civil court with the
\n    appellate courts not bound by the decision of the
\n    Land Tribunal on a matter referred to it under
\n    S.125 (3) of the Kerala Land Reforms Act it was
\n    not open to the defendants to circumvent the
\n    decision of the civil court by initiating suo motu
\n    proceedings before the Land Tribunal. Even if suo
\n    motu proceedings was not initiated at the instance
\n    of the defendants they should have apprised the
\n    Tribunal of the pendency of the civil suit and<\/p>\n
 S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -8-<\/span><\/p>\n
       avoided parallel proceedings.”\n<\/p>\n
               10.    In   the   light of   this authoritative<\/p>\n
pronouncement of this Court, the Second Appeal filed is only<\/p>\n
to be dismissed for the simple reason that the suit is filed in<\/p>\n
the year 1988 and it is pending the said civil suit that suo<\/p>\n
motu proceedings are commenced in the year 1993. The suit<\/p>\n
is decreed as already noted in March, 1998 and the suo motu<\/p>\n
proceedings are brought to the conclusion in June, 1998. So,<\/p>\n
it is clear that the suo motu proceedings in this case<\/p>\n
commenced and was proceeded with during the pendency of<\/p>\n
the suit. The trial court has taking note of the proceedings<\/p>\n
initiated at the instance of the husband of Draupathy wherein<\/p>\n
he claimed tenancy right upto this Court and found that there<\/p>\n
is no merit in the case of the appellant based on the alleged<\/p>\n
tenancy right set up by her.         However, Sri.N.P.Samuel,<\/p>\n
learned counsel for the appellant confronted with the Full<\/p>\n
Bench decision of this Court would submit that the said<\/p>\n
judgment is incorrect. According to him, S.52 of the Transfer<\/p>\n
of Property Act which provides for lis pendens may not apply<\/p>\n
at all to the facts of this case. He pointed out that the suo<\/p>\n
 S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -9-<\/span><\/p>\n
motu proceedings under S.72 ( c) of the Act was initiated by<\/p>\n
the statutory authority contemplated under the Act and the<\/p>\n
Land Tribunal is not a party to the suit. The decision of the<\/p>\n
Land Tribunal ultimately is binding on the party and he is<\/p>\n
bound to accept the decision.       He relied on the following<\/p>\n
decisions in support of his case:\n<\/p>\n
Samarendra v. Krishna Kumar {AIR 1967 SC 1440}, Jayaram<\/p>\n
Mudaliar v. Ayyaswami<\/a> {AIR 1973 SC 569}. He also invited<\/p>\n
my attention to the decisions in Illachi Devi (D) by L.Rs. and<\/p>\n
others vs. Jain Society, Protection of Orphans India and others<\/p>\n
{AIR 2003 SC 3397} and in Karnataka State Financial<\/p>\n
Corporation vs. N.Narasimahaiah and others<\/a> { (2008) 5 SCC<\/p>\n
176}.    Last of the two decisions were canvassed before me<\/p>\n
for   establishing the point that the courts must adopt the<\/p>\n
Golden Rule of interpretation and for the proposition that on<\/p>\n
the application of golden rule in regard to S.52 of the Transfer<\/p>\n
of Property Act the suo motu proceedings by the Land Tribunal<\/p>\n
in this case would not be hit by doctrine of lis pendens.    He<\/p>\n
made a further plea that the decision of the Full Bench is to be<\/p>\n
ignored by me and I should follow the dictum of the Supreme<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A           -10-<\/span><\/p>\n
Court.\n<\/p>\n
            11. In the decision reported in Illachi Devi (D)<\/p>\n
by L.Rs. and others vs. Jain Society, Protection of<\/p>\n
Orphans India and others {AIR 2003 SC 3397} the Court<\/p>\n
was dealing with Succession Act and therein the Court<\/p>\n
proceeded to hold as follows:\n<\/p>\n<\/p>\n
      “42. This Court again in Harbhajan Singh v. Press
\n      Council of India and Others<\/a> (2002 3 SCC 722)
\n      stated the law thus:\n<\/p><\/blockquote>\n
      “Clearly, the language of sub-section (7) of
\n      Section 6 abovesaid, is plain and simple. There
\n      are two manners of reading the provision. Read
\n      positively, it confers a right on a retiring member
\n      to seek renomination.         Read in a negative
\n      manner, the provision speaks of a retiring
\n      member not being eligible for renomination for
\n      more than one term. The spell of ineligibility is
\n      cast on “renomination” of a member who is
\n      “retiring”. The event determinative of eligibility or
\n      ineligibility is “renomination” and the person, by
\n      reference to whom it is to be read, is ” a retiring
\n      member”.       “Retiring member”   is to be read in
\n      contradistinction with a member\/person retired
\n      sometimes in the past, and so, would be called a
\n      retired or former member. “Re” means again and
\n      is freely used as prefix. It gives colour of “again”
\n      to the very with which it is placed. “Renomination”
\n      is an act or process of being nominated again.<\/p><\/blockquote>\n
      Any person who had held office of member
\n      sometime in the past, if being nominated now<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -11-<\/span><\/p>\n
     cannot be described as being “again nominated”.
\n     It is only a member just retiring who can be called
\n     “being again renominated” or “nominated”.          No
\n     other meaning can be assigned except by doing
\n     violence   to  the    language   employed.         The
\n     legislature does not waste its words.        Ordinary,
\n     grammatical and full meaning is to be assigned to
\n     the words used while interpreting a provision to
\n     honour     the   rule–the     legislature     chooses
\n     appropriate words to express what it intends and
\n     therefore, must be attributed with such intention
\n     as is conveyed by the words employed so long as
\n     this does not result in absurdity or anomaly or
\n     unless material-intrinsic or external- is available
\n     to permit a departure from the rule.\n<\/p>\n
     Cross in Statutory Interpretation (3rd Ed., 1995)
\n     states:\n<\/p>\n
     “The governing idea here is that if a statutory
\n     provision is intelligible in the context of ordinary
\n     language, it ought, without more to be interpreted
\n     in accordance with the meaning an ordinary
\n     speaker of the language would ascribe to it as its
\n     obvious meaning unless there is sufficient reason
\n     for a different interpretation…………….Thus, an
\n     ‘ordinary meaning’ or ‘grammatical meaning’ does
\n     not imply that the Judge attributes a meaning to
\n     the words of a statute independently of their
\n     context or of the purpose of the statute but rather
\n     that he adopts a meaning which is appropriate in
\n     relation   to   the    immediately     obvious     and
\n     unresearched context and purpose in and for
\n     which they are used. By enabling citizens (and
\n     their advisers) to rely on ordinary meanings
\n     unless notice is given to the contrary the
\n     legislature contributes to legal certainty and
\n     predictability  for    citizens  and     to    greater
\n     transparency in its own decisions both of which<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A           -12-<\/span><\/p>\n
       are important values in a democratic society.”<\/p>\n
       44.     It is equally well settled that when the
\n       Legislature    has    employed     a   plain    and
\n       unambiguous      language,    the  Court    is  not
\n       concerned      with  the    consequences     arising
\n       therefrom. Recourse to interpretation of statutes
\n       may be restored only when the meaning of the
\n       statute is obscure.   The Court is not concerned
\n       with the reason as to why the Legislature thought
\n       it fit to lay emphasis one category of suitors than
\n       the others. A statute must be read in its entirety
\n       for the purpose of finding out the purport and
\n       object thereof.    The Court in the event of its
\n       coming to the conclusion that a literal meaning is
\n       possible to be rendered would not embark upon
\n       the exercise of judicial interpretation thereof and
\n       nothing is to be added or taken from a statute
\n       unless it is held that the same would lead to an
\n       absurdity or manifest injustice.       It is well-
\n       established that a disabling legislation must be
\n       characterised by clarity and precision.      In the
\n       present instance the prohibitions laid down by
\n       Sections 223 and 236 of the Act are categorical
\n       and comprehensive and leave no scope for
\n       creative interpretation.”\n<\/p>\n
              12. I would think that it may not be open for me<\/p>\n
to venture to act upon these submissions made by the learned<\/p>\n
counsel for the appellant in the teeth of the authoritative<\/p>\n
dictum of the Full Bench which I have already noted dealing<\/p>\n
specifically with the question as to whether suo motu<\/p>\n
proceedings taken pending civil suit have any value in the light<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A            -13-<\/span><\/p>\n
of the doctrine of lis pendens. In Samarendra v. Krishna<\/p>\n
Kumar      {AIR 1967 SC 1440} the Court was no doubt<\/p>\n
dealing with a case under S.52 of the Transfer of Property Act.<\/p>\n
The Court reiterated the principle that though S.52 did not<\/p>\n
apply to involuntary alienations, the principle of lis pendens<\/p>\n
applies to such alienations. The Court proceeded to hold as<\/p>\n
follows:\n<\/p>\n<\/p>\n
      “……………..But, under    Section   52    which
\n      incorporates the doctrine of lis pendes, during the
\n      pendency of a suit in which any right to any
\n      immovable property is directly and specifically in
\n      question such a property cannot be transferred or
\n      otherwise dealt with by any party to the suit or
\n      proceeding so as to affect he rights of any other
\n      party thereto under any decree or order which may
\n      be made therein except under the authority of the
\n      court and on such terms as it may impose. Under
\n      the Explanation to that section the pendency of
\n      such a suit commences from the date of its
\n      institution and continues until it is disposed of by a
\n      final decree or order and complete satisfaction or
\n      discharge of such a decree or order has been
\n      obtained. The purchaser pendente lite under this
\n      doctrine is bound by the result of the litigation on
\n      the principle that since the result must bind the
\n      party to it so must it bind the person deriving his
\n      right, title and interest from or through him. This
\n      principle is well illustrated in Radhamadhub Holdar
\n      v. Monohur, (1888) 15 Ind. App 97 (PC) where the
\n      facts were almost similar to those in the instant<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A           -14-<\/span><\/p>\n
      case. It is true that Section 52 strictly speaking
\n      does not apply to involuntary alienations such as
\n      court sales but it is well established that the
\n      principle of lis pendens applies to such alienations.
\n      (See Nilkant v. Suresh Chandra, 1885) 12 Ind App
\n      171 (PC) and Motilal v. Karrabuldin, (1897) 24 Ind
\n      App 170 (PC).       It follows that the respondent
\n      having purchased from the said Hazra while the
\n      appeal by the said Hazra against the said
\n      preliminary decree was pending in the High court,
\n      the doctrine of lis pendens must apply to his
\n      purchase and as aforesaid he was bound by the
\n      result of that suit. In the view we have taken that
\n      the final foreclosure decree was competently
\n      passed by the Trial Court, his right to equity of
\n      redemption was extinguished by that decree and
\n      he had therefore no longer any right to redeem
\n      the said mortgage.      His appeal against the said
\n      final decree was misconceived and the High Court
\n      was in error in allowing it and in passing the said
\n      order of remand directing the Trial Court to re-
\n      open the question of redemption and to allow the
\n      respondent to participate in proceedings to amend
\n      the said preliminary decree.”\n<\/p><\/blockquote>\n
            13. In Jayaram Mudaliar v. Ayyaswami<\/a> {AIR<\/p>\n
1973 SC 569} the Apex Court was considering the scope of<\/p>\n
S.52 of the Transfer of Property Act. The Court, inter alia held<\/p>\n
as follows:\n<\/p><\/blockquote>\n
      “50. It is evident that the doctrine as stated in
\n      Section 52, applies not merely to actual transfers
\n      of right which are subject-matter of litigation but<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A         -15-<\/span><\/p>\n
     to other dealings with it “by any party to the suit
\n     or proceeding so as to affect the right of any other
\n     party thereto.”   Hence, it could be urged that
\n     where it is not a party to the litigation but an
\n     outside agency, such as the tax Collecting
\n     authorities of the Government, which proceeds
\n     against the subject matter of litigation, without
\n     anything done by a litigating party, the resulting
\n     transaction will not be hit by Section 52. Again,
\n     where all the parties which could be affected by a
\n     pending litigation are themselves parties to a
\n     transfer or dealings with property in such a way
\n     that they cannot resile from or disown the
\n     transaction impugned before the Court dealing
\n     with the litigation, the Court may bind them to
\n     their own acts. All these are matters which the
\n     Court could have properly considered.           The
\n     purpose of Section 52 of the Transfer of Property
\n     Act is not to defeat any just and equitable claim
\n     but only to subject them to the authority of the
\n     Court which is dealing with the property to which
\n     claims are put forward.”<\/p><\/blockquote>\n<\/blockquote>\n
            14.  The learned counsel for the appellant also<\/p>\n
relied on the decision of the Calcutta High Court in Chotalal<\/p>\n
Shaw v. Ram Golam Shaw and others                 {AIR 1975<\/p>\n
Cal.436} to contend that, even if there is any mandatory<\/p>\n
provision it can be waived by the party in whose favour the<\/p>\n
provision of law stands.      In that case the Court held as<\/p>\n
follows:\n<\/p><\/blockquote>\n
       “Even if there is any mandatory provision which
\n       confers any right or privilege or advantage to any<\/p>\n
 S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A            -16-<\/span><\/p>\n
       of the parties to the litigation, such right, privilege
\n       or advantage may be waived by the party in
\n       whose favour the provision of law stands.”\n<\/p><\/blockquote>\n
            15. The learned counsel relied on the decision of<\/p>\n
the Calcutta High Court to contend that in this case while it is<\/p>\n
true that suo motu proceedings was taken pending civil suit, it<\/p>\n
is noteworthy that Kesavan was made a party, he appeared in<\/p>\n
the proceedings and by his participation in the proceedings it<\/p>\n
must be treated that he has waived his right to contend that<\/p>\n
the proceedings under S.72 ( c) of the Act are to be ignored<\/p>\n
and that the doctrine of lis pendens therefore will not apply.\n<\/p><\/blockquote>\n
He pointed out that Kesavan did not point out before the Land<\/p>\n
Tribunal or before the appellate authority that there is no<\/p>\n
jurisdiction and that the matter should not be proceeded<\/p>\n
further.   Having courted the decision before the authorities<\/p>\n
which turned out to be against him it is not open to Kesavan<\/p>\n
to contend that the decision of the Land Tribunal as confirmed<\/p>\n
by the appellate authority is to be ignored, he contends. He,<\/p>\n
of course, pointed out that the decision of the Land Tribunal as<\/p>\n
confirmed by the appellate authority cannot be interfered with<\/p>\n
lightly in proceedings under Section 102. In that regard he<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -17-<\/span><\/p>\n
relied on    the decision in Chandy Varghese v. Abdul<\/p>\n
Khader<\/a> {2003 (3) KLT 553 (SC}. He would submit that<\/p>\n
actually on merits also the appellant is entitled to claim<\/p>\n
tenancy rights as there was evidence before the Tribunal.<\/p>\n
            16.   Per contra, the learned counsel for the<\/p>\n
respondent would contend that certainly this is a case where<\/p>\n
the appeal is to be rejected.     The appellant had filed joint<\/p>\n
written statement in the civil suit wherein it is contended that<\/p>\n
the husband Gopalakrishnan was the tenant.          The matter<\/p>\n
attained the attention of the Land Tribunal. The Land Tribunal<\/p>\n
found his claim to be untenable. The tribunal found that the<\/p>\n
claim could not be proved.        Gopalakrishnan pursued the<\/p>\n
matter before the appellate authority wherein he was<\/p>\n
unsuccessful. He was before the High Court where also he<\/p>\n
was unsuccessful. After having pleaded in the civil suit that<\/p>\n
her husband was the tenant, the appellant turns around and<\/p>\n
contends for the position that there was an oral lease in the<\/p>\n
year 1956.       She submitted that the decision of the Full<\/p>\n
Bench is to be applied.   The counsel further points out that in<\/p>\n
the Tribunal Kesavan was made a party. Kesavan appeared<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -18-<\/span><\/p>\n
and contested the matter and that he pointed out before the<\/p>\n
Tribunal the history of the proceedings and also pointed out<\/p>\n
that civil suit from which the second appeal arises is pending.<\/p>\n
He produced copy of the plaint also in support of the<\/p>\n
contention that suit is pending.     When he lost before the<\/p>\n
Tribunal, he did not leave the matter there. He has contested<\/p>\n
the matter before the appellate authority by filing appeal and<\/p>\n
finally he filed CRP which is being disposed of. The learned<\/p>\n
counsel for the respondent contended that the suo motu<\/p>\n
proceedings were initiated at the instigation of the appellant.<\/p>\n
             17. The Full Bench of this Court categorically held<\/p>\n
that in suo motu proceedings of the nature involved in this<\/p>\n
case doctrine of lis pendens will be attracted. The decision is<\/p>\n
rendered by the Full Bench in the year 1995. It is true that<\/p>\n
there is no specific reference either to the decisions in<\/p>\n
Samarendra v. Krishna Kumar         {AIR 1967 SC 1440} or<\/p>\n
Jayaram Mudaliar v. Ayyaswami<\/a> {AIR 1973 SC 569}. This<\/p>\n
Court took the view that the effect of the doctrine is not to<\/p>\n
annul the order of the Land Tribunal but render it subservient<\/p>\n
to rights of the parties.     The Full Bench held that S.52<\/p>\n
 S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A            -19-<\/span><\/p>\n
interdicts other sorts of dealings of the property affecting the<\/p>\n
rights of litigating parties or other persons. The doctrine of lis<\/p>\n
pendens is to protect the litigating parties from the dealing of<\/p>\n
the property pendente lite.        The effect of doctrine of lis<\/p>\n
pendens is not that the proceedings of the Land Tribunal or<\/p>\n
the appellate authority are invalidated. But, it results in the<\/p>\n
civil court being enabled to totally ignore the said proceedings.<\/p>\n
No doubt, the learned counsel         for the appellant    would<\/p>\n
contend that the dealing of the property must be by the party<\/p>\n
to the proceedings. It is a case where statutory authority has<\/p>\n
taken the decision.\n<\/p>\n
              18.  Having regard to the judgment of the Full<\/p>\n
Bench dealing specifically with the issue at hand I do not think<\/p>\n
that it is appropriate for me to accept the plea of the learned<\/p>\n
counsel for the appellant that the decision of the Apex Court in<\/p>\n
Samarendra v. Krishna Kumar           {AIR 1967 SC 1440} or<\/p>\n
Jayaram Mudaliar v. Ayyaswami<\/a>             {AIR 1973 SC 569}<\/p>\n
respectively is to be applied and that I should ignore the Full<\/p>\n
Bench decision.       As regards plea of waiver and also the<\/p>\n
conduct of Kesavan as already noted Kesavan was made a<\/p>\n
 S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -20-<\/span><\/p>\n
party. He pointed out to the Land Tribunal the fact that there<\/p>\n
is a civil suit pending and also the entire history of<\/p>\n
Gopalakrishnan filing claim before the Land Tribunal and his<\/p>\n
being unsuccessful.     The plaint was also produced. When the<\/p>\n
doctrine of lis pendens is applied it is important to notice that<\/p>\n
it is not a matter of lack of jurisdiction as contended by the<\/p>\n
learned counsel for the appellant.    Even with jurisdiction the<\/p>\n
result of the proceedings is to ignore the final decision taken<\/p>\n
and to make it subservient to the supremacy of the civil court<\/p>\n
which is dealing with the issue. A Division Bench of this Court<\/p>\n
had occasion in Sundaran v. Mohammed Koya (1995 (2)<\/p>\n
KLT 115) (supra) to deal with the problem of reference<\/p>\n
being made under S.125 of the Act, to the Land Tribunal and<\/p>\n
has elaborately dealt with the issues arising therefrom. There<\/p>\n
the Court held as follows:\n<\/p>\n<\/p>\n
                  “The question whether the tenant is
\n      entitled to the right under S.106 of the KLR Act is
\n      also one which should be determined by the Land
\n      Tribunal and hence the said question would fall
\n      within the ambit of S.125 (3) of the KLR Act.<\/p><\/blockquote>\n
      Under S.125 (3) of the KLR Act if in any suit or
\n      other proceedings any question regarding the<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -21-<\/span><\/p>\n
     rights of the tenant, including a question as to
\n     whether a persons is a tenant “arises” then the
\n     civil court does not have jurisdiction to determine
\n     that question.   It is now well high settled that
\n     unless the question legally arises, there is no
\n     obligation for the civil court to make a reference
\n     of it. But merely because a person raised a claim
\n     without any bonafides, can it be said that the said
\n     question would arise in the case. If the motive of
\n     the party who raised the plea is only to
\n     procrastinate the proceedings it is the duty of the
\n     civil court to decide first whether the question
\n     genuinely arises in the case. The amplitude of
\n     the expression “arises” must be constricted to
\n     what genuinely arises in a case in view of the
\n     very unsatisfactory function of the present Land
\n     Tribunal system in kerala.     The courts have to
\n     give a useful and practical interpretation to lessen
\n     the abuse of the legal requirement envisaged in
\n     S.125 (3) of the KLR Act. The civil court can
\n     consider    whether   the    plea  raised   by   the
\n     defendant or the respondent in the case is bona
\n     fide or genuine.      If there is no reasonable
\n     prospect of the plea being upheld by a Land
\n     Tribunal, the civil court can justifiably take the
\n     view that the question does not reasonably arise
\n     in the case. If the question does not reasonably
\n     arise in the case, the civil court need not make
\n     the reference under S.125 (3) of the KLR Act.
\n     We may again request the Government to
\n     consider whether suitable amendment can be
\n     made on S.125 of the KLR Act in the light of the
\n     present      position     resulting    from      the
\n     implementation of such a system.”\n<\/p>\n<\/p>\n
            19. Therefore, even if I consider the conduct of<\/p>\n
Kesavan it is not a case where he did not alert the Land<\/p>\n
 S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -22-<\/span><\/p>\n
Tribunal about the pendency of civil suit. He pointed out that<\/p>\n
the suit is pending and has also produced evidence to prove<\/p>\n
the same. The Land Tribunal still proceeded to consider the<\/p>\n
matter. I do not think that this is a case where the conduct of<\/p>\n
Kesavan is such that he should be refused the fruits of the<\/p>\n
doctrine of lis pendens.          Therefore, I hold that   the<\/p>\n
proceedings before the Land Tribunal are liable to be ignored<\/p>\n
applying the doctrine of lis pendens as held in Venkitarama<\/p>\n
Iyer v. Vesu Amma<\/a> (1995 (2) KLT 295 (FB). The learned<\/p>\n
counsel for the appellant then contends that this is a case<\/p>\n
where the appellant was in possession and she has perfected<\/p>\n
title by adverse possession .     It is to be noted that right<\/p>\n
throughout the appellant was setting up title of her husband<\/p>\n
as a tenant of the landlord. The appellant was a party to the<\/p>\n
joint written statement in which she took up the contention<\/p>\n
that her husband is a tenant.         Still the conduct of the<\/p>\n
appellant would also show that the appellant claimed as a<\/p>\n
tenant of Kesavan. In such circumstances, there is no merit<\/p>\n
in the plea of adverse possession. According to the appellant<\/p>\n
Kesavan had a case that he demanded possession but that<\/p>\n
 S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -23-<\/span><\/p>\n
was refused. The question is one of animus possidendi of the<\/p>\n
person setting up adverse possession. As already noted right<\/p>\n
through out the case of the appellant was that the appellant<\/p>\n
is the tenant.    The appellant is the respondent in the CRP<\/p>\n
where the challenge is against      the order    of the Tribunal<\/p>\n
where she set up a claim of tenancy. There is absolutely no<\/p>\n
merit or bonafides of the case of adverse possession. Learned<\/p>\n
counsel for the respondent points out that this is a matter<\/p>\n
which is barred by res judicata. According to her S.2 (43)<\/p>\n
persons includes family. According to her, when the husband<\/p>\n
of the appellant filed application claiming tenancy right and it<\/p>\n
is rejected that is binding on the family and she is the wife.<\/p>\n
There is no merit in the second appeal and it is dismissed.<\/p>\n
            20. As far as the CRP is concerned I have already<\/p>\n
found that the decision of the Land Tribunal as confirmed by<\/p>\n
the Appellate Authority is hit by doctrine of lis pendens. This<\/p>\n
means that it is not necessary for me to consider the<\/p>\n
challenge to the proceedings culminating the order of the Land<\/p>\n
Tribunal as the said proceedings are liable to be ignored and<\/p>\n
made subservient to the decree for recovery of possession and<\/p>\n
S.A.No.62 of 2002-G &
\nC.R.P.No.893 of 2001-A          -24-<\/span><\/p>\n
other reliefs granted in the civil suit. Accordingly, I close the<\/p>\n
CRP.\n<\/p>\n
            In view of the relationship between the parties,<\/p>\n
parties are directed to bear their respective costs.<\/p>\n
                                          (K.M.JOSEPH)
\n                                              JUDGE.\n<\/p>\n
\nMS<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Droupathy vs Sri.Kesavan on 16 July, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-61673","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nDroupathy vs Sri.Kesavan on 16 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/droupathy-vs-sri-kesavan-on-16-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Droupathy vs Sri.Kesavan on 16 July, 2009 - 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