SA/311/1998 of K.NEELAKANDAN Vs K.SURENDRAN on 13 October 1999

JUDGMENT

These appeals are filed challenging concurrentdecree and judgment in O.S.129/1980 on the file of Sub Court, Parur. 9[th] defendant who is the appellant in A.S.111/1986 is the appellant inS.A.311/1988. 5[th] defendant the appellant inA.S.117/1986 is the appellant in S.A.517/1988.Defendants 7 and 8 the appellants in A.S.121/1986are the appellants in S.A.885/1988. Respondents 1to 5 in the appeals are the plaintiffs and otherrespondents, the other defendants in the suit.Plaint schedule properties consist of 3.30 acres insurvey No.260/4C2, 2.20 acres in survey No.309/2Band 4.34 acres in survey No.309/2C of Vazhakulamvillage. The total extent is 9.84 acres. Suit wasfiled seeking a decree for declaration of leasehold right of respondents 1 to 5 and 14[th] respondent(10[th] defendant in the suit) over plaint schedule

properties and for recovery of possession fromdefendants 4 to 6 and 9, which is approximatelyshown as six acres of land forming western portionof the plaint schedule property, with future mesneprofits. Admittedly plaint schedule propertiesoriginally belonged to late Makkar Sahib.Makkar Sahib died in 1967. Fifth respondent isthe widow and respondents 6 and 7 are the childrenof Makkar Sahib. First respondent/first respondentis the widow and respondents 2 to 5 and respondentNo.14, plaintiffs 2 to 5 and 10[th] defendant are thechildren of Kochunni Kunjali. Kunjali died on 24-12-1978. According to plaintiffs, 14[th] respondentsecured Pakistan citizenship and is permanentlysettled in Pakisthan. Plaintiffs contended thatplaint schedule properties are portions of alarger plot measuring approximately 13.95 acreswhich originally belonged to Makkar Sahib and theentire property was taken on lease by Kunjali on anannual rent of Rs.150/- from Makkar Sahib in 1120M.E. Pursuant to the oral lease when Kunjali took possession of the plaint schedule properties it wasfound out that taking advantage of absence ofMakkar Sahib, who was residing away at Alwaye,Moosan Hydrose and Kochunni Kunju reducedpossession of about four acres of the lease holdproperty. Therefore Kochunni could take possessionof only the plaint schedule properties excludingthe properties in the possession of Hydrose andkunjali and Kunjali has been in exclusivepossession and enjoyment of the plaint scheduleproperties as a lessee paying rent. It wascontended that defendants 1 to 3 as legal heirs ofMakkar Sahib sold the jenm right in respect ofthree acres to defendants 4 and 5 and another threeacres to 6[th]defendant under Ext.A1 and A2assignment deeds dated 24.7.1968. But defendants 4to 6 could not get possession of the propertiespurchased as the property was in the possession ofKunjali as a tenant. It was contended that whenthe assignees tried to take possession, Kunjaliresisted and third defendant thereafter approached S.A.NOS.311/88,517/88 & 885/884

Kunjali and because of the good relationshipKunjali had with late Makkar Sahib and due to themoral pressurisation Kunjali was persuaded tosurrender the leasehold right Ext.A3 in respect of4.92 acres of the plaint schedule properties styledas assignment of leasehold right in consideration for the jenm right of 75 cents of the remainingproperty assigned by defendants 1 to 3 to Kunjaliunder Ext.A4 assignment deed. Plaintiffs also contended that though Ext.A3 is styled asassignment of the lease hold right, it was in factsurrender of the lease hold right in respect of4.92 acres which is in violation of Section 51 ofKerala Land Reforms Act (hereinafter referred to asthe Act) and therefore it is invalid and no rightunder Ext.A2 could be claimed by the assignees. Itwas further contended that under the cover ofExts.A3 and A4, defendants 4 and 5 assumedpossession of three acres of land and 6[th] respondentassumed possession of 3 acres of land and theassumption of possession of land is illegal and

unauthorised. It was also contended by plaintiffsthat being successors in interest of Kunjali, theyare entitled to recover possession of portion ofthe plaint schedule properties, which is in thepossession of defendants 4 to 6 and 9 on thestrength of their leasehold right and fixity oftenure. It was contended that third defendant on27.9.1974 executed Ext.A5 assignment deed in favourof 7[th] defendant assigning of 5.22 acres out of7.20 acres allegedly obtained pursuant to Ext.A3(document No.2648/68) and Ext.A5 is a fraudulent,collusive and invalid transaction. It wascontended that even if the third defendant obtainedright as per Ext.A3 assignment deed, it is only4.92 acres and as per Exts.A1 and A2, they havealready alienated six acres and therefore thirddefendant had no property left to be assigned to 7[th]defendant and it is an outright fraudulent documentand no title was passed. It was also contendedthat as per Ext.A6 assignment deed dated 27.9.1974defendants 1 to 3 assigned 7.20 acres of property S.A.NOS.311/88,517/88 & 885/886

to 8[th] defendant, the wife of 7[th] defendant, andExt.A6 is also ipso facto invalid and the documentdid not confer any right, title or interest. Itwas further contended that the assignors who hadonly jenm right over plaint schedule propertyexecuted conveyance for 11 acres 97 cents and noright was obtained therein and defendants did notderive any right or title thereunder. It was alsocontended that 7[th]defendant and secondrespondent/second plaintiff were working in thesame school and maintaining very cordialrelationship and second respondent had absolutefaith in 7[th] defendant and betraying the confidenceand implicit faith reposed by second respondent, 7[th]defendant made second respondent to join inexecution of some bonds in favour of N.E.S. Block,Vazhakulam along with 8[th] defendant and secondrespondent without knowing the contents orimplication of the document and without receivingany consideration executed the same. Secondrespondent came to know about the fraud practised S.A.NOS.311/88,517/88 & 885/887

only later. Contending that some documents wereexecuted by defendants 4 to 6 whereunder 9[th]defendant is in occupation of portion of plaintschedule properties and contending that thetransaction in favour of 9[th] defendant without thejunction and intervention of legal heirs ofKunjali are invalid, the suit was filed seeking adecree for declaration of leasehold right andrecovery possession of western six acres of plaintschedule property from the possession of defendants4 to 6 and 9.

2. 5[th] defendant/appellant in S.A.517/1988filed a written statement denying the plaintallegations and contending that after the death ofMakkar Sahib , his legal heirs were in possessionof the property and there was no lease arrangementbetween Makkar Sahib and Kunjali and one acre ofplaint schedule property was sold by respondents 1and 3 as per Ext.A2 assignment deed and under samedocuments, 2 acres of plaint schedule property wassold to 4[th] defendant and from the date of Ext.A2

the said properties are in their possession andwhile so, they created an equitable mortgage infavour of 9[th] defendant in respect of the propertyfor the loan obtained by defendants 4 to 6 andhusband of the 4[th] defendant and when the amount wasnot repaid, 9[th] defendant instituted O.S.131/1974and the suit was decreed ex parte and 5[th] defendantwas not aware of the suit and coming to know aboutthe decree, she filed O.S.140/1979 before MunsiffCourt, perumbavoor and that suit is pending andrespondents 1 to 5 are not entitled to get anyrelief in the suit.

3. Defendants 7 and 8 appellants in S.A.885/1988filed a written statement contending that 7[th]defendant purchased 5.22 acres as per Ext.A5assignment deed and he has been in exclusivepossession of the property and defendants 1 to 3also executed Ext.A6 assignment deed in favour of8[th] defendant his wife in respect of 11.88 acresand thus they are in possession of the said properties as absolute owners. It was contended S.A.NOS.311/88,517/88 & 885/889

that 75 cents lying on the eastern side of thatproperty was purchased by 8[th] defendant from Kunjalias per an agreement dated 27.1.1975 and 8[th]defendant was put in possession of that property,but on account of his death, no sale deed could beexecuted and an attempt was made by seconddefendant and others to trespass into the propertyand thereafter proceedings under section 145 of theCode of Criminal Procedure was initiated by Policeand neither Hydrose nor Kochunni was in possessionof 4 acres as stated in the plaint and thedocuments executed by defendants 1 to 5 being thelegal heirs of Makkar Sahib are valid and bindingand the case of the plaintiffs that they are inpossession of four acres is not correct and theyare not entitled to the decree sought for. 4. 9[th] defendant the appellant in S.A.311/1988filed a written statement contending that 9[th]defendant got delivery of possession of six acresof the property mentioned in the plaint as per delivery report, in court auction sale in S.A.NOS.311/88,517/88 & 885/8810

O.S.131/1974 and that an equitable mortgage infavour of the bank over that property was createdby defendants 4 to 6 its owners who purchased thesaid property from defendants 1 to 3 the legalheirs of original owner Makkar Sahib and plaintiffsand 10[th] defendant have no right over the propertyand they are not entitled to the decree sought for.They also contended that Kunjali was not inpossession of six acres and even if Kunjali had anylease hold right, it was confined and limited tothe extent of the property described under thedeed and nothing more and therefore plaintiffs arenot entitled to the decree sought for.

5. The trial court framed necessary issues.As is bound to, issue regarding the lease claimedby plaintiffs was referred to Land Tribunal,Perumbavoor under section 125(3) of the Act.Before the Land Tribunal, six witnesses wereexamined on the side of plaintiffs,and fourwitnesses were examined on the side of defendants.Exts.A1 to A12 and R1 to R24 and C1 were also

marked. Land Tribunal as per finding dated30.11.1984 upheld the lease hold right claimed byplaintiffs. After receipt of the findings, trialcourt examined PW1 and marked Ext.A1 to A6 andC1 to C1(b). As is bound to, the findings of theLand Tribunal was upheld and it was found thatplaintiffs have the lease hold right claimed.The suit was decreed. 5[th] defendant, defendants 7and 8 together and 9[th] defendant respectively filedA.S.117/1986,121/1986,andA.S.111/1986

challenging the decree and judgment passed bylearned Sub Judge before District Court, Parur.Learned Additional District Judge on reappreciationof evidence confirmed the findings of the LandTribunal and upheld the tenancy claimed byplaintiffs. Confirming the judgment and decreepassed by learned Sub Judge all the appeals weredismissed. It is challenging the dismissal of theappeal and concurrent judgment these appeals arefiled.

6. The appeals were originally allowed and the decree and judgment passed by courts below were setaside. It was challenged before the SupremeCourt.As this court did not formulate substantialquestions of law, as per judgment in Civil Appeals4241-4243 of 2000 dated 25.7.06, the judgment ofthis court was set aside and Second Appeals wereremitted, with a direction to dispose them afterformulating substantial questions of law.

7. On hearing learned counsel appearing forappellants and learned senior counsel appearing forrespondents, the following substantial questions oflaw are formulated.

1) Whether Ext.A3 surrender deed is invalid inview of Section 51 of Kerala Land Reforms Act andif so, whether the suit for recovery of possessionis barred by virtue of Section 51, Section 13A(2)read with section 125(1)of Kerala Land Reforms Act?

2) Whether defendants 4 to 6 and 9 are bonafide purchasers for valuable consideration and ifso whether they are entitled to the protectionprovided under proviso to Section 13A(1)of the Act.

S.A.NOS.311/88,517/88 & 885/8813

3) Whether courts below erred in construingExt.A3 as a surrender deed when the document showsthat it was an assignment of tenancy right.

4) Whether the courts below failed to considermaterial evidence while considering the claim fortenancy raised by the plaintiffs.

5) Whether plaintiffs are entitled to therecovery of possession of the plaint scheduleproperties without challenging the redeliveryordered in favour of fifth defendant.

6) Whether courts below were correct ingranting a decree for recovery of possession asagainst defendants 7 and 8 when no such relief wasclaimed in the plaint.

8. The jenm right of deceased Makkar Sahib overthe plaint schedule properties is admitted by allthe parties. When the plaintiffs contend thatthere was an oral lease in favour of Kunjali inrespect of the entire properties including theplaint schedule properties but 4 and odd acreswere in the possession of Hydrose and Kunju and only the balance of 9 and odd acres could beobtained possession under the lease by Kunjali andhe continued to be a lessee under Makkar Sahib, defendants contended that Kunjali was not a lessee at all, though at the time of evidence itwas contended that he was a lessee of 4.92 acres

which was subsequently surrendered by Kunjali underExt.A3 dated 29.7.1968. On the death of MakkarSahib, his rights admittedly devolved on his legalheirs the widow and children defendants 1 to 3.Under Ext.A1 sale deed dated 24.7.1968 defendants 1to 3 assigned 3 acres of plaint schedule propertyin favour of 6[th] defendant. On the same daydefendants 1 to 3 also assigned 3 acres underExt.A2 sale deed in favour of defendants 4 and 5.It was thereafter on 29.7.1968 Kunjali surrenderedhis lease hold right under Ext.A3 in favour ofdefendants 1 to 3 in respect of 4.92 acres and defendants 1 to 3 in turn conveyed jenm right over75 cents of the property in favour of Kunjali underExt.A4 sale deed on the same day. In the plaint itself it was admitted that pursuant to Ext.A3,4.92 acres of land was taken possession bydefendants 1 to 3, though it was contended that thesurrender under Ext.A3 was invalid in view of theprovisions of Section 51 of the Act and therebydefendants 1 to 3 did not derive any right over theproperty surrendered under Ext.A3. Subsequent toExts.A1 and A2, defendants 4 to 6 obtained a loan,after creating an equitable mortgage, from 9[th]defendant bank. 9[th] defendant bank, for realisationof the amount due under the equitable mortgageinstituted O.S.131/1974 before Sub Court,Perumbavoor and obtained a decree againstdefendants 4 to 6 and thereafter the mortgagedproperties were sold in court auction sale andpurchased and taken delivery by 9[th] defendant.

9. The suit was infact filed for declaration ofthe lease hold right of plaintiffs over the plaintschedule properties and for recovery possession ofsix acres of land forming the western portion ofthe plaint schedule properties. The Commissioner identified the properties and submitted Ext.C1report and C1(a) and C1(b) plans. In Ext.C1(a)plan, Commissioner has demarcated the propertiescovered under Ext.A1 to A4. The 75 cents coveredunder Ext.A4, the jenm right over which wasassigned by defendants 1 to 3 in favour of Kunjaliwas demarcated by the Commissioner in green colouras the north eastern plot shown as the propertycovered under document No.2649/1968. The 3 acrescovered under Ext.A1 is the brown coloured plotcomprised in 309/2B and 309/1C which is thesouthern plot shown by the Commissioner, as theproperty covered by document No.2621/1968. To itsnorth is the 3 acres shown in blue coloured plot asthe property covered under Ext.A2 sale deed. Itwas shown by the Commissioner as the propertycovered by document No.2620/1968. The 4.92 acrescovered under Ext.A3 was shown by the Commissionerin red colour, to the south of the plot coveredunder Ext.A4 and to the east of the propertiescovered under Exts.A1 and A2.

10. Case of plaintiffs was that Kunjali hadlease hold right over the entire plaint scheduleproperties inspite of Ext.A3 surrender as Ext.A3was invalid being in violation of Section 51 ofthe Act. The Senior Counsel appearing forplaintiffs vehemently argued that under section 51of the Act, there is an absolute prohibitionagainst any surrender of a tenancy except, to theGovernment and that too as provided in the sectionand therefore Ext.A3 is invalid and the right ofthe tenant is not lost by execution of Ext.A3 andKunjali continued to be the tenant and courts below rightly found that Ext.A3 is invalid. Learnedcounsel appearing for the defendants contendedthat Ext.A3 is not in fact surrender of the leasehold right and instead only assignment of thetenancy right in favour of one of the landlordsand that too after the jenm right was assigned bydefendants 1 to 3 under Ext.A1 and A2 in favour ofdefendants 4 to 6 and therefore Ext.A3 is not asurrender at all and the bar under section 51 of S.A.NOS.311/88,517/88 & 885/8818

the Act does not apply. It was further argued thateven if Section 51 applies, the remedy of thetenant is only as provided under section 13A of theAct to seek restoration of possession of thedispossessed property and in view of Section 125 ofthe Act, a suit for declaration and recovery ofpossession is not sustainable. Learned counselappearing for the appellant bank (9[th] defendant)argued that the property covered under Ext.A3 andproperty covered under Exts.A1 and A2 are entirelydifferent properties and therefore on the ground ofinvalidity of Ext.A3, plaintiffs are not entitledto seek recovery possession of the propertycovered under Exts.A1 and A2. It was also arguedthat when the properties covered under Exts.A3 andA4 are the eastern portion of the whole properties,the properties covered under Exts.A1 and A2 arethe western plots and therefore the invalidity ofExt.A3 is not at all relevant in considering thelease hold right claimed in respect of theproperties covered under Exts.A1 and A2. Learned counsel also argued that a reading of Ext.A3 and A4make it absolutely clear that Kunjali was only atenant of eastern portion of plaint scheduleproperty and he had no tenancy right over thewestern plots covered under Exts.A1 and A2 andtherefore plaintiffs cannot claim lease hold rightover Exts.A1 and A2 properties. Learned Seniorcounsel argued that defendants had not raised sucha case either before the trial court or the firstAppellate Court and therefore they are not entitledto raise a new case in the Second Appeal on theidentity of the properties covered under Exts.A1and A2. It was argued that defendants have nocase that Kunjali was a tenant of only the easternportion of the plaint schedule properties. Insteadwhen in the plaint plaintiffs set up an oral leasein respect of the entire properties, the case ofdefendants was not that Kunjali had lease holdright over a portion of the plaint scheduleproperties but denial of the very lease in favourof Kunjali. It was argued that learned Sub Judge and learned District Judge rightly found that whenthe very lease was disputed and evidence establishthat Kunjali was a lessee, the lease could only befor the entire properties and therefore the case advanced by appellants at the second appellate stage is to be rejected. The question whether Kunjali had lease hold right over only the eastern portion of the plaint schedule properties and whether Kunjali was a lessee of the propertiescovered under Exts.A1 and A2 could be decided a little later. As the very maintainability of the suit was disputed relying on Section 51, 13A and Section 125 of the Act, that question has to be decided first.

11. Section 51 of the Act prohibits surrender of tenancy right in respect of any land held by

the tenant in favour of the landlord after cominginto force of Amendment Act 12 of 1966 published inthe Gazette on 11/11/1966. Under section 51, a tenant could surrender his tenancy right only infavour of the Government and that too as provided under section 51. Section 51A provides that nolandlord shall enter on any land which has beenabandoned by a tenant and if a tenant abandons hisholding and ceases to cultivate the holding, afternotice to the tenant and landlord and after hearingobjections Government may take possession of theland so abandoned by the tenant. It furtherprovides that in that event Government shall pay tothe landlord fair rent for the land takenpossession of by them from the date on which theytake possession of the land. Section 51B mandatesthat even if tenant surrenders land in violationof the provisions of Section 51 and, if anylandlord enters into the possession of anyabandoned land, or any land which has not beensurrendered in accordance with the provisions ofSection 51, he shall be deemed to have contravenedthe provisions of Section 6 of the KeralaPrevention of Eviction Act, 1966 and shall bepunished accordingly. A combined reading ofSection 51A and 51B establish that a tenant is not entitled to surrender his tenancy right in respect of any land to the landlord and even if hesurrenders the land in contravention of the provisions of Section 51, a landlord is not entitled to enter possession of the land so surrendered.

12. Section 51 reads:-

“(1)Notwithstanding

anything contained in this

Act, a tenant may terminate

the tenancy in respect of

any land held by him at any

time by surrender of his

interest therein:

Provided that no such

surrender shall be made in

favour of any person other

than the Government.

Provided further that such

surrender shall not be

effective unless it is made

in writing and is admitted

by the tenant before the

Land Tribunal and is

registered in the office of

the Land Tribunal in the

prescribed manner:

(2) The Government shall

pay to the landlord fairrentofthetenancyrentofthetenancy surrendered to it under sub -section (1).

(3) The Government may let

any land surrendered to it

under sub section (1) to

any person, as far as may

be, in accordance with such

rules as may be made under

this Act.

(4) The tenant to whom any

land is let under sub-

section (3) shall pay the

S.A.NOS.311/88,517/88 & 885/8824

fair rent thereof directlyto the landlord and the Government'sliability under sub section (2) with regard to the payment ofthe rent of that land shall, on and from the dateof induction of the tenanton such land, cease.”

13. Section 13A provides for restoration of

possession of persons dispossessed on or after1.4.1964. Section 13 provides the right of fixityof tenure to a tenant. Sub section (1) of Section13 provides that notwithstanding anything to thecontrary contained in any law, custom, usage, orcontract, or in any decree or order of Court, everytenant shall have fixity of tenure in respect ofhis holding and no land from the holding shall beresumed except as provided under sections 14 to 22.Therefore as on 1.4.1964 a tenant has a right offixity of tenure over the leasehold property. Sub S.A.NOS.311/88,517/88 & 885/8825

section (1) of Section 13A mandates thatnotwithstanding anything to the contrary containedin any law, or in any contract, custom or usage, orin any judgment, decree or order of court, whereany person has been dispossessed of the land in hisoccupation on or after 1.4.1964, such person shall,if he would have been a tenant under the Act asamended by the Kerala Land Reforms (Amendment) Act,1969, at the time of such dispossession, beentitled subject to the provisions of the saidsection to restoration of possession of the land.Sub section (2)of Section 13A provides that anyperson entitled to restoration of possession undersub section (1) may, within a period of six monthsfrom commencement of Kerala Land Reforms(Amendment) Act, 1969 apply to the Land Tribunalfor the restoration of possession of the land. Subsection (3) provides that after such inquiry as itdeems fit, Land Tribunal may pass an order allowingapplication for restoration and directing theapplicant to deposit the compensation, if any, received by the applicant under any decree or orderof Court towards value of improvements or otherwiseand the value of improvements, if any, effected onthe land after dispossession as may be determinedby the Land Tribunal, within such period as may bespecified in the order.

appearing for appellants were that therefore atenant who is dispossessed by a surrender undersection 51 in contravention of the provisions ofSection 51, has the remedy to apply under section13A and no separate suit will lie in view of thebar provided under section 125(1) of the Act.

jurisdiction to settle,

decide or deal with any

question or to determine

any matter which is by or

under this Act required to

civil court shall have jurisdiction to settle,decide or deal with any question or to determineany matter which is by or under the Act required to determined by the Land Tribunal.

provisions of Section 51 or not and if it is incontravention of Section 51 whether the Act provides for a remedy to the tenant to recoverpossession of the property so surrendered and ifnot, whether the suit is maintainable.

16. No doubt sub section (1) of Section 13A

S.A.NOS.311/88,517/88 & 885/8828

enables a tenant to apply for restoration ofpossession within a period of six months from1.1.1970, the date of commencement of Kerala LandReforms (Amendment) Act, 1969, for restoration ofpossession of the land if he has been dispossessedof the land in his occupation on or after 1.4.1964.Relying on the decision of a Division Bench of this

Court in Assain v. Ahammedkutty (1986 KLT 1223) itwas argued that a voluntary surrender in violationof Section 51 would also amount to dispossession ascontemplated under section 13A of the Act andtherefore a tenant who is dispossessed by asurrender in violation of Section 51 is entitled toapply for restoration of possession under subsection (2) of Section 13A and hence tenant isprovided with a remedy for restoration of possession, and so he is only entitled to seek theremedy as provided under section 13A and noindependent suit will lie.

17. A Division Bench in Assain's case (supra)

S.A.NOS.311/88,517/88 & 885/8829

over -ruled the decision of a learned single Judgein Vaisyan Sebastian v. Augusteenju Marsal (1973K.L.T. 475) and held that voluntary surrender alsowould amount to dispossession. Their Lordshipsheld that dispossession contemplated under section13A means discontinuance or loss of possession aswell and the provision under section 51 thatsurrender of lands should only be to the Governmentand it should be in writing admitted by the tenantand registered in the Land Tribunal and thatGovernment shall pay fair rent of the tenancy tothe landlord and prohibition in Section 51B thatlandlord should not enter on surrendered orabandoned land except on pain of prosecution forcontravention of Section 6 of Kerala Prevention ofEviction Act, 1966 are definite pointers indicatingthat even in the case of voluntary surrender of anyinterest in tenancy by the tenant, in any othermanner or to any person other than the Governmentis expressly prohibited and therefore the surrender amounts to dispossession. Their Lordships held:- “Surrender of any interest intenancy by the tenant in anyother manner or to any person other than the Government is expressly prohibited. In the context of the provisions referred to above viz,S.51,S.51A and S.51B of the Act,we are of the opinion that dispossession in S.13A of theAct and surrender under S.51

of the Act are put on the

same footing; both result inthe same consequences effect as far as the landlord is concerned. The land is liable to be restored to the tenant in the former and the landlord is precluded from entering into possession of the land even on surrender by the tenant in the latter.

The consent given by the

tenant is immaterial in

either case. We, are,

therefore, of the opinion

thatthesurrenderin

contravention of S.51 of the

Act is liable to be treated as the same as dispossession

under S.13A of the Act. We

are, therefore, of the

opinionthatVaisyan

Sebastianv.Augusteenju

Marsal, 1973 KLT 475, to the

effectthatvoluntary

surrender would not be

dispossession under S.13A of

the Act was not correctly

decided.”

18. Learned Senior counsel appearing for the

plaintiffs pointed out that another Division Benchof this Court has considered this question earlier in Sankaran Sarngadharan v. J.Sarada Pillai (ILR

1980(1) Kerala 512)and held that a voluntary surrender is not dispossession attracting Section13A and this was not considered by the laterDivision Bench. It is seen that the earlier

Division Bench decision in Sarada's casewas alsoreferred to in Assain's case, though only theShort Note Case. Considering the earlier DivisionBench decision their Lordships in Assain's caseheld:

Bench reported in Sankaran

S.A.NOS.311/88,517/88 & 885/8833

Evidently the full text of the judgment inSankaran v. Sarada (1980 KLT SN 6) was not placedbefore the later Division Bench. In SankaranSarngadharan v. Sarada Pillai the Division Benchwas considering an order dismissing an applicationfiled by a tenant under section 13A of the Actpraying for restoration of possession of theproperties. The said property was outstanding withthe revision petitioner under ottikuzhikanamtransaction. Respondent in whom the equity ofredemption vested filed a suit for redemption ofthe mortgage and recovery of possession of theproperty. After passing of the preliminary decreefor redemption, there was a compromise between theparties out of court and revision petitionersurrendered possession of the property to therespondent on 19.3.1969 and a memorandum ofstatement setting out the terms of the compromiseand the factum of surrender was jointly filed incourt. After coming into force of Kerala Act 35 of 1969, a petition was filed before the Land Tribunalunder section 13A contending that the surrender isto be treated as dispossession of the land asprovided under section 13A. The Division Benchrelying on the Full Bench decision of this court in Pappy Amma v. Prabhakaran Nair (1971 KLT 431) held:

“A Full Bench of this Court hadoccasion to consider the meaning oftheexpression “dispossession” occurring inArticle 142 of the LimitationAct (1908). It was held that 'dispossession' implies takingpossession without the consentof the person in possession andthat it imports the driving outthe person in possession againsthis will. This construction ofthe expression 'dispossession'was applied by Gopalan Nambiyar,

J. as he then was, in

S.A.NOS.311/88,517/88 & 885/8835interpretingthewordsinterpretingthewords 'dispossessed of the lands'

occurring in Section 13A of the

Act in Vaisyan Sebastian v.

Augusteenju Marsal and others

and it was held that a voluntary

surrender of the land by the

person in possession will not

constitute 'dispossession' for

the purpose of the section; in

other words the person who has

voluntarilysurrendered

possession of the property in

favour of another cannot be

heard to say that he was

dispossessed of the land by such

other person and section 13A

cannot be attracted to such a

case.

In the case before us

the compromise was entered

into between the partiesat a time when only a preliminary decree for redemption was passed. Itcannot be said that the surrender of the propertyby the revision petitionerto the respondent waseffected otherwise than in a purely voluntary fashionbased on the mutual agreement reached between the parties.”

19. But in view of the decision of the laterDivision Bench which had occasion to consider thedecision of the former Division Bench, the decisionof the later Division Bench in Assain's case(supra)shall prevail and it can only be held thateven a voluntary surrender in contravention ofprovision of Section 51, would also come within S.A.NOS.311/88,517/88 & 885/8837

the ambit of Section 51 provided under section 13A

of the Act. Therefore a tenant has a remedy under sub section (2) of Section 13A to apply for restoration of possession of the property surrendered in violation of the mandatory provisions of Section 51 of the Act. The question then is whether it would bar an institution of thesuit.

20. The right given to a tenant under sub section (2) of Section 13A is to apply for restoration of possession within a period of six months from the commencement of the Kerala Land Reforms Amendment Act, 1969. It cannot take awaythe right of the tenant to institute the suit for declaration of his right or for recovery of possession under the ordinary law of the land.

When a surrender is made in contravention of provision of Section 51, the surrender and thetransfer of possession could only be treated as invalid. If a surrender in contravention of the provision of Section 51 of the Act is invalid and if the tenant has fixity of tenure as providedunder section 13 of the Act and so long as hisremedy to seek declaration of the tenancy right andrecovery of possession is not barred under any ofthe provisions of the Act or any other law. for thereason that a tenant is provided with a remedy toapply to the Land Tribunal within a period of sixmonths, will not bar institution of a suit inspiteof the limited remedy provided to a tenant within a period of six months from the date ofcommencement of the Act. A tenant is entitled toinstitute a suit for declaration of his title onthe ground that the transfer is invalid and hencehis tenancy right subsists. Therefore theobjection raised by the appellants that the suit isnot maintainable can only be rejected.

21. Ext.A3 is styled as an assignment of theleasehold right. A reading of Ext.A3 reveals thatas per an oral lease the properties coveredthereunder was in the possession of Kunjali andaccepting the consideration for the assignment of S.A.NOS.311/88,517/88 & 885/8839

jenm right in respect of 75 cents transferred byMakkar Sahib in favour of Kunjali, (under Ext.A4)the entire lease hold right of Kunjali over theproperties is released in favour of Makkar Sahib.The schedule to the document makes it clear thatwhat was transferred under the document is thelease hold right of Kunjali over 4.92 acres, whichconsists of 58 cents in survey No.260/4C and 4.34acres in survey No.309/2C. The description further reveals that 58 cents in survey No.260/4C is

excluding the 75 cents jenm right of which wastranferred in favour of Kunjali under Ext.A4, whichis the north eastern plot of the eastern 1.33acres in 3.30 acres in survey No.260/4C. The 4.34acres in survey No.309/2C is the eastern portion of5.52 acres. Ext.A3 establishes that though it wasstyled as assignment of lease hold right it wasinfact surrender of the lease hold right by the lessee in favour of landlord. The consideration ofthe leasehold right was the assignment of jenmright over 75 cents of property which is the north S.A.NOS.311/88,517/88 & 885/8840

eastern plot of the eastern 1.33 acres of 3.33acres plot in survey No.260/4C. No otherconsideration was passed for the surrender of thelease hold right by the tenant to the landlord. Onthe date of execution of Ext.A3, in view of Section13 of the Act, the tenant who surrendered his leasehold right over 4.92 acres had fixity of tenureover the property. Though learned counselappearing for appellants argued that Ext.A3 was nota surrender but an assignment of lease hold right,courts below rightly found that in effect Ext.A3 isonly a surrender of the lease hold right by thetenant to the landlord. The question is how farthe surrender is valid?

22. Ext.A3 surrender was on 29.7.1968 after coming into force of Section 51 of the Actprohibiting termination of any tenancy in respectof any land held by a tenant and surrender of theinterest of the tenant except to the Government andthat too in accordance with the provisions ofSection 51. True, Section 51 does not provide that any surrender in contravention of provision of Section 51 is invalid, as is the case with Section74 of the Act.When sub section (1) of Section 74mandates that after the commmencement of the Act on1.4.1964, no tenancy shall be created in respect ofany land, sub section (2) of Section 74 declaresthat any such tenancy created after 1.4.1964 is invalid. Sub section (2) of Section 74 reads:- “Any tenancy created in contravention of the provisions of sub section (1)

shall be invalid.”

But the question is whether for the absence of asimilar provision like sub section (2) of Section74, it could be said that a surrender made by atenant in contravention of the provision of Section51 is not invalid. When section 13 of the Act provide fixity of tenure to a tenant in respect ofhis holding and mandates that no land from the holding shall be resumed except as provided undersection 14 to 22 of the Act, Section 51 mandatesthat there shall be no surrender of the interest of

the tenant in respect of a lease hold property heldby him except to the Government and that too asprovided under the said Section. So also Section51B provides that if any landlord enters intopossession of any abandoned land, which has notbeen surrendered in accordance with the provisionsof Section 51, landlord shall be deemed to havecontravened the provisions of Section 6 of theKerala Prevention of Eviction Act, 1966 and shallbe punished accordingly. Therefore by virtue ofthe prohibition against the surrender under section51, any surrender made by a tenant in contraventionof the said provisions and that too in favour ofthe landlord can only be treated as invalid in theeye of law. Even if the surrender deed is styledas an assignment of the leasehold right, when suchassignment of lease hold right is in favour of thelandlord, it could only be treated as the surrenderof the leasehold right and when such surrender ismade after coming into force of Section 51 thesurrender is invalid. The courts below rightly held that Ext.A3 surrender is invalid as itcontravenes the provisions of Section 51. The factthat Ext.A3 surrender was only in favour of thirddefendant who is only one of the legal heirs ofthe original landlord Makkar Sahib will not improvethe situation. It continues to be a surrender ofthe lease hold right in favour of the landlord,which is prohibited under section 51. Thereforeneither third defendant nor defendants 7 and 8being the assignees of defendants 1 to 3 couldclaim any right on the strength of Ext.A3.Similarly defendants 4 to 6 are also not entitledto built up a case basing on Section 43 of theTransfer of Property Act that by virtue ofsubsequent surrender of the tenancy right byKunjali, in favour of their assignor the rights soobtained by them after Exts.A1 and A2 shall enureto their benefits. It is more so, when their casewas that the surrender of Ext.A3 is in respect ofthe eastern plots and Exts.A1 and A2 are inrespects of the western plots. Appellants are not S.A.NOS.311/88,517/88 & 885/8844

entitled to claim title or interest to theproperty by virtue of Ext.A3 surrender.

23. Then the crucial question is whetherKunjali had tenancy right over the entire plaintschedule properties. According to plaintiffs,Kunjali was the tenant of the entire properties.What was contended in the plaint was that MakkarSahib had jenm right over approximately 13.95 acreswhich was granted on lease in 1120 M.E in favour ofKunjali but four acres were outstanding in thepossession of Hydrose and Kunjali and thereforeKunjali could get possession of only plaintschedule properties having an extent of 9.84acres. None of the defendants had a case thatthere was an oral lease in favour of Kunjali.Instead the existence of oral lease itself wasdenied. There was no case that Kunjali was not atenant of the entire plaint schedule propertiesbut he had tenancy right only over a portion of theproperties. As the question of tenancy necessarilyarises for consideration and the question of

tenancy could only be decided as provided undersection 125 of the Act, learned Sub Judge referredthe question of tenancy to the Land Tribunal,Perumbavoor under section 125(3) of the Act.Before the Land Tribunal, evidence was tendered byboth plaintiffs and defendants. Six witnesses wereexamined on the side of plaintiffs including secondplaintiff. On the side of defendants, defendants3,7 and 8 and the husband of the 5[th] defendant wereexamined. 24 exhibits were also marked on theirside. On the side of plaintiffs 12 exhibits weremarked. The Land Tribunal elaborately consideredthe oral and documentary evidence. The LandTribunal rightly interpreted Ext.A3 in the light ofSection 51 of the Act and held the surrenderinvalid. The Tribunal also took note of the denialof existence of tenancy right which was proved tobe incorrect in view of Ext.A3 surrender of thelease hold right by Kunjali where existence of theoral lease was specifically stated and theleasehold right obtained under that oral lease was taken note of. The Land Tribunal on the evidencefound that the entire plaint schedule propertieswere being enjoyed as a compact plot and upheldthe tenancy claimed by plaintiffs for the entireproperties. After accepting the finding, which isbinding on the trial court, suit was decreed. Whenthe decree and judgment of the trial court waschallenged before District Court, learnedAdditional District Judge elaborately reappreciatedthe evidence both tendered before the trial courtand before the Land Tribunal. The learned DistrictJudge upheld the finding of the Land Tribunalgiving valid reasons. Learned counsel appearingfor appellants argued that Ext.A3 only establishesan oral lease in respect of the property coveredunder Ext.A3 surrender and it will not establishtenancy in respect of the remaining portion of theplaint schedule properties. Advocate Mr.SathishNinan, learned counsel appearing for appellant inS.A.311/1988 relying on the description of theproperties in Exts.A1 and A2 on the one hand and Ext.A3 on the other argued that the propertiescovered under Exts.A1 and A2 are the westernportion of the plaint schedule properties whilethe leasehold right surrendered under Ext.A3 is theeastern plot and therefore existence of leaseholdright over the eastern portion of the propertieswill not entitle plaintiffs to get a declarationof the leasehold right over the western plotwithout sufficient evidence and therefore thefinding of the Land Tribunal and the trial courtaccepting that finding and the findings of theDistrict Judge are not correct. Advocate Mr.Dinesh R.Shenoy, learned counsel appearing forappellant in S.A.517/1988 also argued that there isno evidence to prove that Kunjali or plaintiffs,his legal heirs, had tenancy right over theproperties covered under Exts.A1 and A2 andtherefore the finding of the Land Tribunal and thatof the courts below are unsustainable. AdvocateSri.Rajan Babu, learned counsel appearing forappellants in S.A.885/1988 argued that Ext.R1

marked before the Land Tribunal in the referenceproceedings, a registered document of 1955establish that the leasehold right claimed byKunjali is absolutely incorrect and thereforecourts below should not have accepted the tenancyset up by plaintiffs. The appellants inS.A.885/1988 filed I.A.531/07, an application under Order VI Rule 17 to amend the appeal memorandum incorporating the contention that thesaid Ext.R1 would disprove the tenancy rightclaimed by plaintiffs.

24. Learned Senior Counsel Sri.KrishnankuttyAchan argued that defendants who denied existenceof the very leasehold right in favour of Kunjaliare not entitled to contend that tenancy right wasonly in respect of a portion of the properties.Learned Senior counsel relying on the decision ofthe Apex Court in Syed and Company and Others v.

State of Jammu & Kashmir and Others (1995 Suppl.(4)

SCC 422) argued that it is settled law that no evidence can be let in without the pleading andwhen there is no pleading for the defendants thatthe tenancy was only in respect of a portion of theproperties, appellants cannot be heard to contendotherwise and therefore the said contention hasonly to be rejected. Learned Senior counsel alsoargued that when the Land Tribunal elaboratelyconsidered the question and on appreciation ofevidence, in the proper perspective, found that thetenancy set up by plaintiffs is correct and firstAppellate Court on reappreciation of evidenceconfirmed that finding, this court cannotreappreciate the evidence in exercise of the powersunder section 100 of the Code of Civil Procedureand the factual finding cannot be interfered andfor that reason alone the challenge against thetenancy claimed by the plaintiffs are to berejected. The learned Senior counsel also arguedthat the evidence establish that Kunjali was thetenant of the entire properties and there is noreason to interfere with the findings of the courts below.

25. Both the Land Tribunal and the firstAppellate Court considered the question of tenancyin the proper perspective. None of the defendantshad a case that there was an oral lease in favourof Kunjali or that was only in respect of theproperties covered under Ext.A3. In the light ofExt.A3, appellants cannot be heard to contend thatthere was no lease. Ext.A4 was executed by thethird defendant, one of the legal heirs of theoriginal landlord Makkar Sahib. The considerationfor Ext.A3 is the consideration for the surrenderof the leasehold right under Ext.A3. Ext.A3establishes that there was an oral lease in favourof Kunjali, by Makkar Sahib and Kunjali was inpossession of the leasehold properties. Thereforethat fact cannot be denied.

26. The question then is whether the tenancy right was only in respect of a portion of theproperties or the whole property as claimed by plaintiffs and upheld by the courts below What was transferred under Ext.A3 is the leasehold right ofKunjali over 4.92 acres in survey No.260/4C and309/2C. When Ext.A3 is read along with Ext.A4 itproves that Kunjali had tenancy right not only over4.92 acres but 5.67 acres, including the 75 centscovered under Ext.A4. A combined reading of Ext.A3and A4 establish the leasehold right of Kunjaliover eastern 4.34 acres of 5.52 acres in surveyNo.309/2C and the eastern 1.33 acres of 3.3 acresin R.S. No.260/4C. Therefore in the light of Exts.A3 and A4 appellants cannot dispute existenceof the leasehold right of Kunjali atleast inrespect of 5.67 acres comprised in survey No.260/4Cand survey No.309/2C and covered under Exts.A3 andA4.

27. Ext.A1 is in respect of 1.18 acres in survey No.309/2C and 1.82 acres in survey No.309/2B. It was a jenm assignment deed inrespect of 3 acres in favour of sixth defendant.Ext.A2 was executed by defendants 1 to 3 in favourof defendants 4 and 5. It is in respect of 1.67

acres in survey No.260/2C2 and 33 cents in surveyNo.309/2 which together form 2 acres and 1 acre insurvey No.309/2B the total extent being 3 acres.The description of the properties in Ext.A1 showsthat 1.18 acres in survey No.309/2C is the westernportion of 5.52 acres in survey No.309/2C and 1.82acres in survey No.309/2B is the eastern portion of4.22 acres in survey No.309/2B. When Ext.A1 is readalong with Ext.A3, it makes it clear that out of5.52 acres in survey No.309/2C the eastern 4.34acres is covered by Ext.A3 and the remaining 1.18acres is covered by Ext.A1. Therefore a combinedreading of Exts.A1 and A3 establish that eastern4.34 acres in survey No.309/2C is the leaseholdproperty covered under Ext.A3 and the western 1.18acres is the property covered under Ext.A1.Similarly a reading of Exts.A3 and A4 establishthat the 75 cents jenm right of which wastransferred under Ext.A4, is the northern 75 centsof the eastern 1.33 acres in survey No.260/4C whichis having a total extent of 3.30 Acres and 58

cents covered under Ext.A3 is the remaining extentin the eastern 1.33 acres. So also a reading of Exts.A3, A4 and A2 make it clear that 1.67 acres in survey No.260/2C2 transferred thereunder is thewestern portion of 3.30 acres in that survey number and the remaining eastern 1.33 acres is the property covered under Exts.A3 and A4. Thereforeit is clear from Exts.A1 to A4 that propertiescovered under Exts.A3 and A4 are not the sameproperties covered under Ext.A1 and A2. Learned counsel relying on Exts.C1 report and Exts.C1(a)and C1(b) plans argued that when Exts.A1 and A2relate to the western portion of the property, Exts.A3 and A4 relate to the eastern plot andexistence of the lease on the eastern plot will notenable plaintiffs to get a decree in respect ofthe western plot. But the crucial question iswhether the oral lease which was in existence andgranted by Makkar Sahib in favour of Kunjali wasonly in respect of the eastern portion of the properties covered under Exts. A3 and A4 as S.A.NOS.311/88,517/88 & 885/8854

claimed by the appellants or in respect of thewestern property also.

28. As stated earlier, before Ext.A3 surrenderand Ext.A4 assignment of jenm right on 29.7.1968under Exts.A1 and A2, defendants 1 to 3 being thelegal heirs of deceased Makkar Sahib assigned 6acres of the property in favour of defendants 4 to6. In fact Ext.A3 and A4 were executed five daysafter the execution of Exts.A1 and A2. It wasthereafter on 27.9.1974 defendants 1 to 3 executedExt.A5 in favour of 7[th] defendant and Ext.A6 infavour of 8[th] defendant, the wife of 7[th] defendant.

Both were executed on the same day. The propertytransferred under Ext.A5 is 10.45 acres. A readingof Ext.A5 shows that the property transferredthereunder was in the possession of Kunjali, as peran oral lease and defendants 1 to 3 the assignorsthereunder obtained the rights of Kunjali as perdocument No.2648/68 (it is Ext.A3) and the rightsso obtained was transferred to 7[th] defendantthereunder for a consideration of Rs.300/-. A

S.A.NOS.311/88,517/88 & 885/8855

reading of Ext.A5 shows that the propertytransferred thereunder is the eastern 5.22 cents ofthe eastern 7 acre 20 cents out of 13.95 acres andthe said 13 acres 95 cents is comprised in eastern1.11 acres in survey No.260/4C/1 having a totalextent of 4.28 acres, 3.30 acres in surveyNo.260/4C/2, 4.02 acres in survey No.309/2B, 5.52acres in survey No.309/D. In addition 88 cents insurvey No.260/4C/2 and 4.34 acres of surveyNo.309/2C having a total extent of 5.52 acres werealso transferred thereunder. The total extentcovered under Ext.A5 is 10.44 acres. The questionis what is the effect of the recitals in Ext.A5 onthe claim of oral tenancy set up by the plaintiffsin respect of the plaint schedule properties. Asstated earlier, the right transferred under Ext.A5is the tenancy right which was surrendered byKunjali. Ext.A5 therefore conclusively prove thatdefendants 1 to 3 are admitting the oral tenancy inrespect of the properties covered thereunder. Itis that right, which was with Kunjali, that was assigned under Ext.A5 to the 7[th]defendantthereunder. If that be so, Ext.A5 does not confineto the properties covered under Exts.A3 and A4;instead it covers the entire plaint scheduleproperties. If that be so, in the light of Ext.A5defendants 1 to 3 the legal heirs of Makkar Sahibcannot dispute the leasehold right in favour ofKunjali in respect of the entire propertiescovered under Ext.A5. It definitely supports thecase of plaintiffs that the oral tenancy was notin respect of Exts.A3 and A4 property alone but inrespect of the entire properties. It is pertinentto note that on the very same day of execution ofExt.A5, defendants 1 to 3 executed Ext.A6 in favourof 8[th] defendant the wife of the assignee under Ext.A5. When Ext.A5 was registered as documentNo.3337/68, Ext.A6 was registered as documentNo.3338/74. A reading of Ext.A6 shows that thejenm right over the said properties was assigned bydefendants 1 to 3 in favour of 8[th] defendant, for aconsideration of Rs.5000/-. The properties covered under Ext.A6 is the same property coveredunder Ext.A5. Therefore when Exts.A5 and A6 areappreciated together, it is clear that under Ext.A5the leasehold right over the property wastransferred by landlords in favour of husband,while the jenm right over the same properties wereassigned in favour of the wife under Ext.A6. Theleasehold right transferred under Ext.A5, as seenfrom the document, is the leasehold right which waswith Kunjali, which as per the recitals in Ext.A5was surrendered under Ext.A3 in favour of the thirddefendant, while under Ext.A5 the jenm right ofthat properties was transferred in favour of thewife of the assignee under Ext.A5. True, Ext.A3shows that leasehold right surrendered under Ext.A3is only 4.92 acres. But the leasehold righttransferred under Ext.A5 is over 10.44 acres. Itis clear that the non-mentioning of the tenancyright of Kunjali over balance extent of theproperty in Ext.A3 or Ext.A4, is not muchrelevance in the light of recitals in Exts.A5 and

A6. Though learned counsel appearing for appellantin S.A.311/1988 relying on the western boundary inExt.A5 and A6 argued that the properties coveredthereunder are only the properties which lies tothe east of the property under Exts.A1 and A2 andtherefore the leasehold right over the entireproperties is not established, in the nature of theevidence on record, Land Tribunal and the courtsbelow rightly found that the oral tenancy in favourof Kunjali, which cannot be disputed, was notrestricted to the eastern portion covered underExt.A3 and A4 but to the whole properties. The LandTribunal as well as the District Judgeappreciating the evidence found that evidenceestablish that the entire plaint scheduleproperties were being enjoyed as a compact plotby the same person and evidence also establishthat the leasehold right is in respect of theentire plaint schedule properties. Though thelearned counsel appearing for the appellants inS.A.885/1988 relying on Ext.R1, a registration copy of which was also filed along with I.A.531/07,argued that 11.52 acres was outstanding in thepossession of tenants Seethi and Muhammad and itwas surrendered to Makkar only on 25.1.1955 andtherefore the oral lease of 1120 M.E. set up byplaintiffs cannot be accepted, I cannot agree withthe argument that Ext.R1 marked before the LandTribunal is sufficient to disallow the claim oftenancy set up by the plaintiffs. Ext.R1 does notestablish that there was no oral tenancy as claimedby the plaintiffs. On the otherhand, Ext.A3establishes that there was an oral tenancy andrecognizing the tenancy right surrender of thetenancy right over 4.92 acres were obtained bythird defendant as legal heir of landlord MakkarSahib. Appellants in S.A.885/1988 obtained Exts.A5 and A6 from defendants 1 to 3 and Ext.A5reiterates existence of the oral lease in favourof Kunjali. Under Ext.A5 the rights tranferred bydefendants 1 to 3 are the leasehold right availableto Kunjali in respect of the entire properties S.A.NOS.311/88,517/88 & 885/8860

covered therein. Therefore appellants inS.A.885/1988 relying on Ext.R1 marked before theLand Tribunal, are not entitled to dispute the oraltenancy recognised by the landlord in Ext.A3 andExt.A5 which is binding on them. Therefore on theevidence courts below rightly found that plaintiffshave leasehold right over the entire plaintschedule properties.

29. Learned counsel appearing for theappellants in S.A.311/1988 argued that the decreefor recovery of possession sought for is only thewestern 6 acres of the plaint schedule propertiesand the basis is the invalidity of Ext.A3 surrenderin violation of the provisions of Section 51 of theAct and when the surrender under Ext.A3 is only inrespect of the eastern portion of the properties, adecree for recovery of possession of the westernportion of the plaint schedule properties cannotbe granted. Eventhough Ext.A3 relates to only theeastern portion of the plaint schedule propertiesas stated earlier and the six acres transferred under Ext.A1 and A2 relate to the western portionof the properties, the plaintiffs have successfullyestablished that they have leasehold right overthe entire plaint schedule properties. Whenplaintiffs are entitled to get a decree for adeclaration of the leasehold right and defendantshave no better title to the western portion ofplaint schedule properties and their title is notperfected by adverse possession, plaintiffs areentitled to the decree for recovery of possessionof western portion of the plaint scheduleproperties on the strength of their title.Therefore the decree for declaration or recovery ofpossession cannot be interfered on this ground.

30. Learned counsel appearing for theappellant in S.A.517/1988 argued that out of sixacres delivered to the 9[th] defendant Bankpursuantto the decree for realisation of the amount dueunder the equitable mortgage, 1 acre wasredelivered to the 5[th] defendant by the executingcourt and as the redelivery was not challenged, plaintiffs are not entitled to get a decree inrespect of the one acre belonging to 5[th]defendant. It was also argued that the redeliverywas on 28.7.1980 and as the suit was not filedwithin 12 years from that date, the suit is barredby time and therefore the decree in respect of oneacre plot is unsustainable. What was contended by5[th] defendant in her written statement was that shealong with the 4[th] defendant obtained 3 acres fromdefendants 1 to 3 under Ext.A2 sale deed 2648/68and out of the three acres, she is in possessionof one acre and 4[th] defendant is in possession oftwo acres. It was further contended that as 5[th]

defendant was residing far away from plaintschedule properties, defendants 4 and 6 andhusband of 4[th] defendant in collusion with 9[th]

defendant created an equitable mortgage andobtained loan by mortgaging the properties underExt.A2, including the one acre belonging to 5[th]

defendant and obtained an ex parte decree inO.S.131/1974 and getting information of the decree, impleading defendants 4, 6 and 9 and husband of 4[th] defendant, 5[th] defendant filedO.S.140/1979 before Munsiff Court, Perumbavoor andthe said suit is pending. That written statementwas filed on 27.7.1981. Therefore it is clear fromthe written statement that the suit filed by 5[th]

defendant was pending before Munsiff Court,Perumbavoor, when she filed the written statement.

There is no contention in the written statementthat she had obtained possession of one acre asper an order for redelivery from the court, as isnow being contended. What was pleaded in theappeal memorandum in S.A.517/1988 was that in thesuit filed by 5[th] defendant redelivery was orderedin favour of 5[th] defendant and one acre was redelivered in favour of 5[th]defendant andplaintiffs have no case that the property was not delivered from their possession or was notdelivered back and they did not obstruct the redelivery and therefore plaintiffs were not in possession of the property as lessee when the delivery and redelivery were effected. But noevidence was adduced before courts below toestablish the redelivery. Moreover, as per the appeal memorandum, redelivery was pursuant to thesuit filed by 5[th] defendant. The written statementof 5[th] defendant shows that the suit O.S.140/1979was pending when the written statement was filed on24.7.1981. Therefore case of appellant inS.A.517/1988 that the suit is not maintainable because of the redelivery or that the suit isbarred by virtue of the redelivery is not sustainable because written statement shows thatproperty was not redelivered even on the date offiling of the written statement.

31. Learned counsel appearing for appellantsin S.A.885/1988 argued that in the suit no decree for recovery of possession was claimed from 7[th]

defendant and instead, a decree for recovery possession was claimed only from defendants 4 to 6and 9 and therefore the decree for recoverypossession granted as against the 7[th] defendant by S.A.NOS.311/88,517/88 & 885/8865

the first Appellate Court is not sustainable.

There is force in the submission.

32. The decree for declaration and recovery of possession sought for in the plaint reads:- “A)Declaringthe leaseholdright of plaintiffs and 10[th]defendant over plaint item and allowing that portion of plaint iteminthepossessionof acres of land forming western portion of the plaint item.”

Therefore recovery of possession was sought onlyfrom defendants 4 to 6 and 9 and not from the 7[th]defendant. The decree granted by learned Sub Judgeis recovery of possession from defendants. FirstAppellate Court while dismissing the appeal filed by defendants confirmed the decree holding thatplaintiffs are entitled to the declaration andrecovery of possession as prayed for in the plaint.Written statement of defendants 7 and 8 establishthat they are claiming right under Ext.A5 and A6.As stated earlier under Ext.A5, the lease hold right was obtained by 7[th] defendant and underExt.A6 the jenm right was assigned in favour of hiswife 8[th] defendant. The case of appellants inS.A.885/1988 was that there was no tenancy right atall and the property was in the possession ofMakkar Sahib and they were transferred under Exts.A5 and A6. If that be the case, 7[th]defendant could not claim any right as what wastransferred thereunder was only the leaseholdright and the right if at all could only be withthe 8[th] defendant under Ext.A6. When it is foundthat the properties are outstanding in thepossession of the lessee Kunjali and on his death,on his legal heirs what could have been transferred by defendants 1 to 3 the legal heirs of

the landlord is only the jenm right. It was thatright which was obtained by 8[th] defendant underExt.A6. Therefore appellants in S.A.885/1988 haveno better title to the plaint schedule propertiesthan plaintiffs and courts below rightly grantedthe decree for recovery possession. The decree forrecovery possession so granted is as prayed for inthe plaint. Learned District Judge also statedthat the decree confirmed is the decree forrecovery possession as prayed for. Therefore thedecree granted by the courts below is only thedecree sought for by the plaintiffs in the plaintas against defendants 4 to 6 and 9. In suchcircumstance, no modification of the decree iswarranted. There is no merit in the appeals andall the appeals are dismissed.

tpl/-

M.SASIDHARAN NAMBIARJUDGE

tpl/-

M.SASIDHARAN NAMBIAR, J.-----------------------------------S.A.NOS.311/88,517/88&885/88.--------------------------------JUDGMENT

March, 2007

M.SASIDHARAN NAMBIAR, J.

---------------------W.P.(C).NO. /06---------------------

JUDGMENT

SEPTEMBER,2006