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2003 DIGILAW 757 (KER)

Poosari Gouri v. Poosari Govindan

2003-12-10

R.BHASKARAN

body2003
Judgment :- This appeal is filed by the legal representatives of the 2nd defendant in a suit for partition. The plaintiffs claimed partition alleging that the tenancy right in respect of the plaint schedule property was obtained by the 1st defendant and his mother Chinnathai from padinjari Pockiarath Tharavad which was a tenant under Chirakkal Kovilakam. Chinnathai’s children are defendants 1 and 2, Lakshmanan and Savithri. The plaintiffs and defendants 6 to 8 are the legal heirs of Lakshmanan. Defendants 3 to 5 are the legal heirs of Savithri. After the death of Chinnathai, her rights also devolved on other children. The plaintiffs thus claimed 1/8 share to the plaintiffs and defendants 6 to 8 in a group. 2. First defendant filed a written statement contending that during the lifetime or Chinnathai, there was an oral partition of the property and northern section was taken by Chinnathai and the southern section was taken by the 1st defendant. The 1st defendant had constructed a building in the property allotted to him. He also contended that the 2nd defendant is in possession of the northern half of the property for and on behalf of other co-owners. He claimed that the sourthern half of the property is not partible and that he is entitled to 1/4th share in the northern half. In the additional written statement filed by the 1st defendant the contentions of the 2nd defendant were refuted. 3. The 2nd defendant filed a written statement contending that though there was a lease in favour of the 1st defendant and mother Chinnathai for a period of four years as per the registered marupat dated 6-2-1941 and they kept possession of the property, they could not pay the yearly rent promptly. Chrikkal Kovilakan had filed a suit for arrears of rent against Pockiyarath Tharavad, 1st defendant and Chinnathai. Since 1st defendant and Chinnathai could not pay the rent, the property was surrendered in the year 1128 M.E. While the Pockiyarath Tharavad was in Possession of the property, 2nd defendant took an oral lease on 1st Dhanu, 1128 M.E. Thereafter, the 2nd defendant has been in exclusive possession of the property. He filed O.A. No. 477 of 1970 for purchases of landlord’s right and obtained certificate of purchase. The 1st defendant was given a portion of the property for conducting a shop building. He filed O.A. No. 477 of 1970 for purchases of landlord’s right and obtained certificate of purchase. The 1st defendant was given a portion of the property for conducting a shop building. Second defendant also assigned 5 cents to defendants 9 to 13 in 1982. Chinnathai had no right or possession over the suit property at the time of her death. The 2nd defendant also filed additional written statement contending that defendants 14 to 21 who were the legal representatives of deceased Krishnan have no right in the property. Pending suit, the second defendant died and his legal representatives, the appellants herein, have come on record and they adopted the contentions in the written statement filed by the deceased 2nd defendant. 4. The trial court referred the question of tenancy raised by the 2nd defendant to the Land Tribunal. The Land Tribunal found that the 2nd defendant is entitled to fixity of tenure. Accepting the findings of the Land Tribunal, the trial court dismissed the suit. 5. In appeal, the appellate court found that the reference to the Land Tribunal was not called for and the findings of the Land Tribunal was only to be ignored. Thereafter, the appellate court discussed the evidence on merits with regard to the claim of tenancy by the 2nd defendant and found that the 2nd defendant has not succeeded in claiming tenancy right and decreed and suit. 6. In this second appeal, the questions of law framed on which notice was issued read as follows: i) Can the civil court set aside a purchase certificate obtained from the Land Tribunal or ignore it even without a finding that it was obtained by fraud or collusion. ii) Can the civil court go against a purchase certificate without setting aside it or declaring it as not valid. iii) Is it proper for the court to regret the plea of adverse possession, limitation and ouster when there is sufficient evidence to show that 2nd defendant was in possession and in the circumstance that where there is no rebuttable evidence adduced by the other side. Subsequently, the appellant has filed I.A.No.642 of 2003 for permission to raise additional substantial questions of law and the questions of law sought to be raised read as follows: 1. Subsequently, the appellant has filed I.A.No.642 of 2003 for permission to raise additional substantial questions of law and the questions of law sought to be raised read as follows: 1. Whether the Lower Appellate Court can eschew the finding of the competent Land Tribunal rendered on a reference made by Trial Court which is not challenged in the grounds of Appeal before the Lower Appellate Court in the appeal filed by the first respondent. 2. Whether the reference under S.125 of the K.L.R. Act was not justified when there was inter-se dispute regarding tenancy right between defendants 1 and 2 under the same landlord and is the Civil Court competent to resolve the tenancy dispute without a reference to the Land Tribunal. At the time of final hearing, the learned counsel on both sides were heard on the additional substantial questions of law raised. 7. The learned counsel for the appellants relied on a Division Bench decision of this Court reported in Balakrihsnan Nair v. Radha Amma (1987 (1) KLT 195). The Division Bench had held that even rival claims of tenancy in the suit have to be referred to the Land Tribunal under S. 125(3) of the Kerala Land Reforms Act. It is therefore contended that though the 2nd defendant claimed exclusive tenancy right in respect of plaint schedule property, the procedure adopted by the trial court in referring the question to the Land Tribunal was correct and the appellate court was wrong in stating that the trial court should not have referred the question of tenancy to the Land Tribunal. In the case before the Division Bench also, the dispute was whether the oral lease was in favour of the 2nd defendant in his individual capacity or to the thavazhi tharavad of plaintiffs and defendants 1 to 14. In this case, the claim of the 2nd defendant is that Chinnathai and 1st defendant who were tenants, could not cultivate and pay the rent to the landlord ant therefore they surrendered the property and 2nd defendant took an oral lease from the tharavad. Therefore, he has got a rival claim of tenancy as against the claim of tenancy set up in the plaint which was the tenancy set up in the plaint which was the tenancy in favour of Chinnathai and 1st defendant. Therefore, he has got a rival claim of tenancy as against the claim of tenancy set up in the plaint which was the tenancy set up in the plaint which was the tenancy in favour of Chinnathai and 1st defendant. In view of the decision of the Division Bench, the observation of the appellate court that the trial court abdicated its powers and it passed “the buck to the Land Tribunal” and the finding of the Land Tribunal is to be ignored are incorrect and is unsustainable. The additional question of law No.2 is thus answered in favour of the appellants. 8. The learned counsel for the appellants also relied on the decision of the Supreme Court in Cheeramthoodika Ahmmed Kutty V. Parambur Mariakutty Umma (AIR 2000 SC 1853) to contend for the position that 2nd defendant had also obtained certificate of purchase and it is conclusive evidence with regard to the tenancy right in favour of the 2nd defendant. The counsel for the respondents on the other hand submitted that since they were not parties to the proceedings and the certificate of purchase was issued without notice to them, it is not binding on them. He also contended that the 2nd defendant was only in the position of a Co-owner and the certificate of purchase obtained by him will enure to the benefit of other Co-owners as held by this Court in Saidali v. Amina Umma (1984 KLT SN page 58). He also relied on the decisions in George V. State of Kerala (1987 (1) KLT SN Case No.67 page 50) and Shahul Hameed V. Lakshmi (1987 (1) SN Case No. 31 Page 17) and contended that a certificate of purchase is not conclusive as against a person to whom individual notice has not been issued. Therefore, the reference to the Land Tribunal enabling the 2nd defendant in obtaining certificate of purchase could not be said to be wrong. 9. It is contended that if the trial court had no jurisdiction to consider the question of tenancy and it was exclusively bestowed on the Land Tribunal under the Kerala Land Reforms Act and what was expected of the appellate court was to decide the correctness of the findings of the Land Tribunal, the procedure adopted by the appellate court in appreciating the evidence as if it is an original court would go against the scheme of the Act. It is also contended that when the Act says that it shall decide the correctness of the findings of the Land Tribunal as adopted by the trial court, the appellate court can do only that and the appellate court was not justified in ignoring the finding of the Land Tribunal. The learned counsel for the respondents submitted that since the appellate court has discussed the entire evidence, no prejudice is caused to the appellants and no purpose will be served by merely directing the appellate court to consider the question afresh. 10. In Gnanamoni Rosamma V. Thankappan Nair (1989 (2) KLJ 212), Padmanabhan, J., has held that if the trial court does not refer the question to the Land Tribunal, the appellate court can direct the trial court to call for a finding or even dispose of the appeal after entering a finding of its own if it feels that materials on record are sufficient for that purpose. In Kunjan V. Janaki (1980 KLT 796), it was held that the power of the appellate court as provided for in the Code of Civil Procedure is not taken away by the provisions of S.125 of the Land Reforms Act. If on a material question there is no finding by the trial court, if there is sufficient evidence the appellate court itself could enter a finding or call for a finding from the trial court. Even if the trial court does not refer question of tenancy to the Land Tribunal and enters a finding by itself which is no finding in the eye of law, the appellate court can go into the question of tenancy and if it enters a finding it cannot be said to be a finding without jurisdiction. This decision was followed by P.Krishnamoorthy, J., in Ponnammal V. Gomez (1991 (1) KLT 901). 11. According to the learned counsel for the respondents, though the appellate court has stated that he was ignoring the finding of the Land Tribunal, he has taken into consideration the evidence available and has come to a conclusion and for that appellate court has always the jurisdiction. In fact most of the documents marked before the Land Tribunal are marked in the suit also 12. The Land Tribunal relied on the affidavit Ext.B26, filed in O.A.No.477 of 1970 admitting 2nd defendant as the tenant. In fact most of the documents marked before the Land Tribunal are marked in the suit also 12. The Land Tribunal relied on the affidavit Ext.B26, filed in O.A.No.477 of 1970 admitting 2nd defendant as the tenant. Ext.B25 report of the Revenue Inspector also stated that 2nd defendant was in possession and cultivating land. Ext.B5 notice from the Land Acquisition Officer and Ext.B6 certificate of the Village Officer were also referred to by the Land Tribunal. Besides, the oral evidence was also appreciated by the Land Tribunal. The revenue payments by the 2nd defendant as evidenced by Ext.B13 to B22 were also taken note of by the Land Tribunal. Similarly, rent receipts proved by 2nd defendant were also taken note of by the Land Tribunal. 13. In appeal, the appellate court adverted to the non-production of rent and revenue receipts prior to 1960 by the 2nd defendant. It was held that if the 2nd defendant could not produce satisfactory evidence of surrender of the earlier lease, it was difficult to accept the plea of fresh tenancy in his favour. In Mathevan Padmanahan V. Parameshwaran Thampi (1995 (1) Suppl.SCC 479), it was contended before the Supreme Court that the appellate court is entitled to consider whether the Tribunal was right in its finding or had committed any error in determining that question. No doubt, that was a case where the High Court in appeal had directed the trial court to reconsider the question of tenancy without again referring it to the Land Tribunal. The Supreme Court held that such a direction was against the provisions in S.,125(3) of the Act. But the Supreme Court also observed as follows. “As a consequence, the appellate court gets power to go into that question, the High Court itself can decide that question or remit it for fresh consideration.” 14. It is true that the appellate court has got the power to decide the question itself. This is not a case where the appellate court is deciding it for the first time. It is an fact sitting in judgment over the finding of the Land Tribunal. Therefore, it was only proper for the appellate court to advert to the findings and evidence before the Land Tribunal and to come to its own conclusion. This is not a case where the appellate court is deciding it for the first time. It is an fact sitting in judgment over the finding of the Land Tribunal. Therefore, it was only proper for the appellate court to advert to the findings and evidence before the Land Tribunal and to come to its own conclusion. Of course, the appellate court can take into account any other additional evidence if it is satisfied that the same was necessary for the proper disposal of the case. Inasmuch as the appellate court has not adverted to the discussion by the Land Tribunal and even some of the evidence before, it I am of opinion that the first appellate court should rehear the appeal and pass fresh orders. The additional question of law No.1 on which the parties were heard is answered in favour of the appellants and for that reason also the judgment of that appellants and for that reason also the judgment of the appellate court is set aside and the case is remitted to the appellate court for fresh decision according to law. The parties will appear before the lower appellate court on 20-1-2004.