DAMODARAN ACHARI v. MATHAI JOHN — 1988 DIGILAW 276 (KER)

Judgment :- 1. Plaint item 1 is a larger area belonging to plaintiffs. Item 2 is 5 cents out of item 1. In 1123 item 2 was leased out to one Sreedharan Achari for conducting a motor workshop after constructing a shed. He did so. There is no dispute that if he continued in possession he would have been entitled to protection under S.166 of the Kerala Land Reforms Act (for short 'the Act'). 2. Against Sreedharan Achari first plaintiff filed O.S. 311 of 1124 for eviction and other reliefs. That suit was compromised. Ext. A5 is the compromise decree. The main question for consideration is whether the compromise which resulted in Ext. AS decree operates as express or implied surrender under S.111(e) or (f) of the Transfer of Property Act and if so whether the defendant is in possession under a new lease arrangement of the land and building which is not covered by S.106 of the Act. Claim is under that provision. 3. In Ext. A5 the 5 cents of land was scheduled as item 1 and the shed as item 2. There is no provision in Ext. A5 for surrender of the land or shed to the plaintiffs. Admittedly there was no express surrender and the plaintiff did not get possession also. Portion of the arrears of rent was paid by Sreedharan Achari. It was agreed that he should surrender the land to his two brothers Govindan and Madhavan and they should execute a lease deed to the first plaintiff for an enhanced rent of Rs. 10 per month. Sreedharan Achari surrendered the land and building to his brothers. Though it is alleged by the plaintiffs that Govindan and Madhavan executed lease deed it was not produced. Any bow it is not disputed that they paid rent to the plaintiffs and continued in possession. 4. Appellant (defendant) is the son of one of the brothers of the original lessee Sredharan Achari. From Ext. A4 produced by the plaintiffs it is seen that the leasehold right devolved on the appellant and be executed a lease deed in favour of the first plaintiff on 1-5-1961. That lease deed was also not produced. Ext. A4 is only a letter issued by Damodaran to the first plaintiff on behalf of the appellant undertaking to clear off the arrears of rent in case of default by the appellant. 5. That lease deed was also not produced. Ext. A4 is only a letter issued by Damodaran to the first plaintiff on behalf of the appellant undertaking to clear off the arrears of rent in case of default by the appellant. 5. The right under S.106 claimed by the appellant was referred to the Land Tribunal. Land Tribunal found the claim in favour of the appellant. Parties adduced evidence also. The suit is one for declaration of title, recovery of possession, realisation of damages and other reliefs. Accepting the finding of the Land Tribunal the trial court refused relief in respect of the shed and the land specified in the order of the Land Tribunal and decreed the suit only in respect of the remainder. On appeal the District Judge reversed the finding of the Land Tribunal accepted by the trial court and held that the defendant is not entitled to protection under S.106. In arriving at that finding it was held that Ext AS amounts to surrender of Ext. A9 and what transpired thereafter was only a fresh lease of the land and the building which is not covered by S.106. According to the District Judge the Land Tribunal had the jurisdiction only to decide whether it is a tenancy coming under S.106 or not and not anything more including the extent of the land covered by the tenancy and its amplitude which are matters for decision by the civil court alone. On the ground that in entering other findings the trial court was carried away by the finding of the Land Tribunal, the entire decree was set aside and the case remanded for fresh decision subject to the finding that defendant is not entitled to the benefit of S.106 Defendant challenges the remand order. 6. I cannot subscribe to the views of the District Judge which are against the letter and spirit of S.125 and other provisions of the Act. In a suit instituted on or after 1-1-1970 the bar of jurisdiction of the civil court under S.12S (1) is there and the matters referred to and prohibited therein could be decided only by a reference to the Land Tribunal under S.125 (3). In a suit instituted on or after 1-1-1970 the bar of jurisdiction of the civil court under S.12S (1) is there and the matters referred to and prohibited therein could be decided only by a reference to the Land Tribunal under S.125 (3). The question to be exclusively decided by the Land Tribunal on reference in such cases is the rights of a tenant or of a kudikidappukaran including a question as to whether a person is a tenant or a kudikidappukaran. The trial court could only accept that finding and decide the suit. Right of interference is only by the appellate or revisional court under the fiction of law that it is a finding of the trial court. The District Judge wrongly thought that the Land Tribunal could have only decided whether the defendant is a tenant entitled to the protection of S.106 and all other matters including the extent of the land covered by the lease and other rights under the lease were matters to be decided by the trial court alone. That is why the District Judge said that the Land Tribunal exceeded its jurisdiction and the trial court ought to have decided the question independently of the decision of the Land Tribunal. That direction is against S.125 (5) and beyond the competence of the trial court and hence illegal. Jurisdiction of the Land Tribunal (which is exclusive) is not only to decide whether a person is a tenant or a kudikidappukaran but also to decide the rights which include everything covered by the tenancy or kudikidappu. Allied matters necessary for such determination are also within the exclusive competence of the Land Tribunal to decide without recourse to the trial court. Extent of the property covered the lease and all rights and liabilities under and arising out of the lease are matters within the competence of the Land Tribunal to decide. 7. The District Judge also went wrong in finding that Ext. A5 will amount to surrender of Ext. A9 and that the defendant did not prove a lease of the land alone and benefits of S.106. Determination of the lease by surrender could be either express under S.111(e) or implied under S.111 (f) of the Transfer of Property Act. In express surrender there must be yielding up the interest to the lessor. A9 and that the defendant did not prove a lease of the land alone and benefits of S.106. Determination of the lease by surrender could be either express under S.111(e) or implied under S.111 (f) of the Transfer of Property Act. In express surrender there must be yielding up the interest to the lessor. Implied surrender is by operation of law and it occurs or could be inferred from creation of new relationships or by relinquishment of possession or from other conduct. In this case there was no surrender of the leasehold expressly or by implication to the lessor. Either factually or legally the lessor has not come into possession of the leasehold premises. What happened is that by mutual consent the lessee assigned bis right and possession to two of his brothers who were not parties to Ext. AS. Though they were directed to attorn to the lessor by execution of fresh lease deed and it is admitted that they continued in possession as lessees, the lease deed was not produced by the plaintiffs to enable the court to understand whether it is a continuation of the rights under Ext. A9 as assignees of the lease or whether it was a new tenancy implying surrender by the earlier lessee. If Damodaran and Madhavan were assignees of Ext. A9 lease, the mere fact that they subsequently paid rent or executed fresh lease deeds will not deprive them of the rights under Ext. A9. Admittedly the defendant is now in possession as lessee. Ext. A4 shows that he executed a lease deed in 1961 and the plaint allegation is that the property was leased out to him for a monthly rent of Rs. 100/-. If there was surrender and fresh lease of the land and building evidenced by lease deeds as contended by the plaintiffs, they ought to have produced the lease deeds instead of playing bide and seek. 8. Plaintiffs have no case that they have pome into possession of the land or constructed any building or shed in item 2. There is no evidence to show that there was a lease of the land and building. It is true that the defendant bad a case that after Ext. A5 there was a lease of the land in 1952 in favour of himself and others on the basis of which a shed was put up for commercial purpose. There is no evidence to show that there was a lease of the land and building. It is true that the defendant bad a case that after Ext. A5 there was a lease of the land in 1952 in favour of himself and others on the basis of which a shed was put up for commercial purpose. Plaintiffs alone are the person in possession of the lease deeds alleged to be executed after Ext. A5. If those lease deeds are of the land and building plaintiffs could have definitely produced them and disproved the claim of the defendant. I am not putting the burden on the plaintiffs to disprove the claim under S.106. Here on admitted facts and evidence a tenancy of the land alone for commercial purpose started in 1123 and a shed was put up by the lessee for that purpose. That workshop is even now continuing and the lessor has never got back the land or building. The building and workshop were all along there even prior to 1967 and admittedly the building was put by the lessees for commercial purpose. Benefit of S.106 is there unless it is established that there was a surrender of the original lease and creation of a new lease of the land and building. Suppression of documents admitted or proved to be with plaintiffs and capable of throwing light on the controversy must meet with adverse inferences. From Ext. A5 what we could infer is only that with the consent of the lessor the lessee assigned his rights to his two brothers who were put in possession. These brothers were not parties to Ext. A5 even though it is stated that they agreed to become lessees by executing a fresh lease deed. The terms and conditions of the fresh transaction could be decided only on production of that document which is evidently suppressed. Even for the purpose of considering whether Ext. A5 coupled with the subsequent conduct of parties amounted to an implied surrender of Ext. A9 and creation of a new lease of the land and building, it was necessary for the plaintiffs to produce those lease deeds to prove their terms. The necessary inference of non-production is that these documents will not help plaintiffs. 9. As already stated there is no case that plaintiffs constructed any building in the tenanted premises. A9 and creation of a new lease of the land and building, it was necessary for the plaintiffs to produce those lease deeds to prove their terms. The necessary inference of non-production is that these documents will not help plaintiffs. 9. As already stated there is no case that plaintiffs constructed any building in the tenanted premises. Lease of the land with building is not proved. It is admitted that building was there even before 1967 and it was used by the lessees for commercial purposes. The fact that building was constructed by the lessees before 1967 is also not disputed. Prayer in the plaint is for getting vacant possession of the land after removal of the building. The allegation of encroaching and unauthorised construction is not established. Though the original building is alleged to be dismantled no damage is claimed in that respect. In these circumstances the only possible inference is that the lease of the land for commercial purpose in which the lessee or assignees constructed the building for that purpose before 1967 still continues. If so protection under S.106 is there. 10. Mamoo v. Asya (1965 KLT 126) relied on by the respondents is of no avail because it only said that a sublessee will not get protection under S.106. We are not concerned with that aspect. Moideen Haji v. Moosa Haji (1965 KLT 784) laid down that benefit of S.106 is conferred only on the lessee and not anybody else, not even on a tenant under the Act who is not a lessee and that in order to apply S.106 a subsisting lease has to be predicated. This decision was rendered prior to Act 35 of 1969 which amended S. !06. Further the decision was disapproved in Ayisabi v. Choyi (1966 KLT 757) holding that a subsisting lease is not necessary for the application of S.106 and even a quandom tenant will be entitled to protection under S.106. Moideen Haji's case (1965 KLT 784) was subsequently overruled by a Full Bench in Govinda Pillai v. Govinda Pillai (1971 KLT 87) which specifically said that for for application of S.106 as amended by Act 35 of 1969 the tenancy need not subsist and 'lessee' includes a quandom lessee still in possession. Moideen Haji's case (1965 KLT 784) was subsequently overruled by a Full Bench in Govinda Pillai v. Govinda Pillai (1971 KLT 87) which specifically said that for for application of S.106 as amended by Act 35 of 1969 the tenancy need not subsist and 'lessee' includes a quandom lessee still in possession. In order to remove doubts created by the earlier decisions S.106 was amended and it was made clear by the explanation to the amended section that'lessee' includes legal representative or assignee of the lessee and building was held to include a temporary building or even a shed. The amendment indicates the intention of the legislature to extend the benefits to persons who get the leasehold from the lessee also. 11. The provision is intended to confer benefits on certain categories of tenants. While interpreting the provision the statutory intent has to be borne in mind. A technical interpretation of Ext. A5 as constituting termination of the tenancy in the above circumstances will go against the statutory intent. The tenancy started in 1123 has not so far come to an end. The requirements of S.106 that it must be a lease of the land alone for commercial or industrial purpose in which the lessee has constructed a building for that purpose before the crucial date is satisfied. In spite of Ext. A5 the tenancy was not terminated and the landlord did not get possession even by implication of law. No lease arrangement of the land and building is proved. The persons who continued in possession are only assignees of the lease. Even if they subsequently executed fresh lease deeds for enhanced rent the benefits of S.106 will not be lost. 12. The District Judge went wrong in its finding regarding benefits under S.106. Defendant is entitled to the benefits of S. i06. Since the other questions have not considered the matter has to go back to the District Judge. C.M. Appeal is allowed and the judgment under appeal is set aside. In reversal of the finding of the District Judge I find that defendant is entitled to protection under S.106 and the finding of the Land Tribunal incorporated in the judgment of the trial court must stand. The appeal is remanded to the appellate court for fresh disposal on the merits after entering findings on all other aspects. No costs. In reversal of the finding of the District Judge I find that defendant is entitled to protection under S.106 and the finding of the Land Tribunal incorporated in the judgment of the trial court must stand. The appeal is remanded to the appellate court for fresh disposal on the merits after entering findings on all other aspects. No costs. Office will transmit records forthwith and parties will appear before the appellate court on 10-8-1988.