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1989 DIGILAW 302 (KER)

Mohammed v. Pathumma

1989-07-26

PADMANABHAN

body1989
Judgment :- 1. The cultivating tenant of a holding, the right, title and interest in respect of which have vested in the Government, is entitled to have assignment of those rights under S.72-B of the Kerala Land Reforms Act. Such assignment could be made by the Land Tribunal either in a suo mote proceeding or on application. The question for consideration in the second appeal filed by the defendant is whether the inclusion of the name as land owner in a suo mote proceedings for assignment coupled with an alleged admission by the so called tenant that she is the land owner will entitle the plaintiff without anything else to claim title and whether the order rejecting the tenancy right in such proceedings will operate as res judicata in denying the title of the plaintiff in a suit for eviction on the strength of title. 2. Appellant did not claim directly under the respondent plaintiff. He claimed under Ext.Bl verumpattam assignment deed of 1978 tracing right under previous tenants holding under Exts.B3 to B6 and B2 ranging from 1927 upto 1973. The name of respondent happened to find a place in the suo mote proceedings as land owner only as a member of the family to which the property is said to have belonged originally. The interest of the appellant in the suo mote proceedings was only to get assignment, whoever is the owner. Anyhow, it is a proceeding initiated suo mote as it is a holding vested in the Government and held by a tenant. The appellant is admittedly in possession. He was not able to establish his tenancy. Therefore, he did not succeed before the Land Tribunal, Appellate Authority or this court in revision. Taking advantage of this position, respondent filed the suit alleging that she was laid up for 8 or 9 years and now it is found that the appellant trespassed upon the property in 1979. Except the order of the Land Tribunal and the revisional order of this court produced as Exts. Al and A2 and a certified copy of resurvey register extract produced as Ext. A3 before the appellate court, she has no records. She claims to have obtained the property under family partition and subsequent documents ranging from 1911, none of which was produced. Still she claims title and wants recovery alleging trespass. Not even a single tax receipt was produced by her. A3 before the appellate court, she has no records. She claims to have obtained the property under family partition and subsequent documents ranging from 1911, none of which was produced. Still she claims title and wants recovery alleging trespass. Not even a single tax receipt was produced by her. 3. Appellant specifically contended, in spite of what he said before the Land Tribunal, that respondent never had title or possession. Trial court found that title was not established and the admission before the Land Tribunal will not help her. Exts.A1 and 2 were found not to operate as resjudicata. But the appellate court found that Ext. Al and 2 will operate as res judicata and the admission before the Land Tribunal will operate as estoppel. Taking Ext.A3 also into consideration, the suit was decreed. 4. In fact, there is no admission that respondent is having title. What is admitted is only that the respondent was the land owner or intermediary of a Land vested in the Government. That was for the purpose of getting assignment. Landlord and tenant relationship was denied by the respondent before the Land Tribunal and the relationship was found against also. That admission itself is now withdrawn and title is denied. I fail to understand how it could operate as estoppel as found by the appellate court. Estoppel involves the intentional causing or permitting another person to believe a thing to be true by a declaration, act or omission and causing him to act upon such belief to his disadvantage. Nothing of that sort happened here. An admission, even in cases where it amounts an estoppel, can operate to confer title only in limited cases like feeding the grant by estoppel and the present one cannot come under it. Title, when denied, has to be established by the plaintiff who claims recovery on title. The admission even if taken into account has to be taken as a whole. It is only admission of a jural relationship of landlord and tenant without any direct relationship. That indirect relationship itself was found against and now denied by both. Even before the Land Tribunal, the respondent did not admit that relationship. She has no definite case how or when the appellant came into possession. She has no answer regarding possession of the previous tenants under Exts.B2 to 6. There is nothing to show her possession. 5. Ext. That indirect relationship itself was found against and now denied by both. Even before the Land Tribunal, the respondent did not admit that relationship. She has no definite case how or when the appellant came into possession. She has no answer regarding possession of the previous tenants under Exts.B2 to 6. There is nothing to show her possession. 5. Ext. A3 is only a revenue record prepared for collection of revenue. It cannot confer title and it is not even evidence of title. As to how respondent's name came in Ext.A3 is also not in evidence. Title has to be proved by the best evidence possible. Property is registered holding and title is traced from registered documents, none of which were produced. The husband of the respondent, who alone was examined, admitted that he never saw any of the documents and his information about his wife's title and possession and the alleged trespass are only hearsay. Title cannot be taken as established. There is nothing to show that respondent and her predecessors were ever in possession or when and how the appellant came into possession. Possessory title is good title against the whole world except the true owner or a person having better title. Proof of a better title than the appellant is necessary to evict him. 6. Then the only question is whether Exts.Al and A2 could operate as res judicata in denying the title of the respondent. In order to operate as res judicata, the title of the respondent must have been a matter directly and substantially in issue before the Land Tribunal and it must have been heard and finally decided in her favour. So also, a finding on that issue must have been necessary to grant the relief in favour of the applicant. As to who is the title-holder was not an issue before the Land Tribunal. The only issue was whether the appellant was a cultivating tenant entitled to purchase the right, title and interest in the holding vested in the Government. The finding was only that the appellant is not the tenant since he did not establish the tenancy. As to who is the owner was not decided there and it was also not necessary to decide it. Then I fail to understand how the Appellate Judge came to the finding that Exts. Al and A2 operate as res judicata. The finding was only that the appellant is not the tenant since he did not establish the tenancy. As to who is the owner was not decided there and it was also not necessary to decide it. Then I fail to understand how the Appellate Judge came to the finding that Exts. Al and A2 operate as res judicata. Except saying that the property is ancient genmom to her family, the respondent has not shown how her family or herself got it. Being registered land, title could only be on the basis of registered documents. The appellate court thoroughly erred in granting a decree on title. Even in cases where it becomes necessary for the Land Tribunal to consider the question of title, it is only incidentally for the purpose of deciding the question of tenancy or kudikidappu which includes whether a person is a tenant or kudikidappukaran. Such consideration or finding cannot operate as res judicata except perhaps in the matter of landlord and tenant relationship when it is found. That itself is only for the limited purpose of the jural relationship to find the tenancy or kudikidappu right. That question itself will arise only when the jural relationship is found. When the purchase application is allowed and the purchase certificate issued it may have the conclusiveness allowed by law so far as the rights of the tenant to whom they were given. But the rejection of a purchase application cannot operate to establish the title of the person shown as land owner therein either by the conclusiveness afforded by S.11 of the Code of Civil Procedure read with S.108A of the Kerala Land Reforms Act or otherwise. In that field it can operate only against the tenancy and not even against the possession or origin and nature of the possession of the person who claimed to be the tenant. In spite of the newly added Explanation VIII to S.11 of the Code of Civil Procedure and S.108A of the Kerala Land Reforms Act, an order of the Land Tribunal, which is not directly and substantially concerned with the question of title, cannot operate as res judicata on a question of title. Such a finding on title, which is capable of operating as res judicata, is not necessary by a Land Tribunal. Second appeal is, therefore, allowed and the decree and judgment of the appellate court are set aside. Such a finding on title, which is capable of operating as res judicata, is not necessary by a Land Tribunal. Second appeal is, therefore, allowed and the decree and judgment of the appellate court are set aside. The suit is dismissed. No costs.