Having got his suit dismissed by the trial court and that decree being confirmed in appeal, the plaintiff has approached this Court. 2. One Rama and Krishnan leased out 15 cents of property in Survey No.81/3 to one Parameswara Mayya as per Ext.A2 dated 02.12.1948 on ground rent. At that time, there was no structures in the property. It was a vacant land and the period of arrangement was 20 years and ground rent to be paid was Rs.10/-. The lessee under Ext.A2 assigned his rights in favour of Subbamma as per Ext.A3 dated 02.02.1953. It is significant to notice that in that document there is a mention of tiled building. Whatever rights Parameswara Mayya obtained under Ext.A2 were conveyed under Ext.A3. 15 cents of property so given on ground rent forms a larger extent of 2.60 Acres of land.
3. While things stood so, by virtue of Ext.A4 dated 23.07.1960, 2.60 Acres of land has been assigned in favour of the defendant in the suit. In Ext.A4, mention is made about the ground rent arrangement evidenced by Ext.A2 already mentioned of.
4. It appears that Subbamma filed an application under Section 72B of the Land Reforms Act before the Land Tribunal. She got assignment in respect of 8 cents of property though she had applied for 15 cents. Aggrieved by the said order, she went up in appeal. As the appeal was filed out of time, delay condonation petition was also filed. Consequent on the dismissal of the delay petition, the appeal was also dismissed. Though she carried the matter in revision before the High Court, she did not succeed.
5. In the meanwhile, the defendant herein filed an appeal against the order granting purchase certificate in respect of 8 cents to Subbamma before the Land Reforms appellate authority. That appeal was allowed and the matter was remanded to the Land Tribunal for fresh consideration by Ext.B1 order. It appears that in the meanwhile, by Ext.A1 dated 27.04.1987, Subbamma assigned whatever rights she had to the plaintiff.
6. The plaintiff laid the suit seeking declaration of his ground rent right and also for consequential injunction to protect his interest i.e. possessing right.
7. The suit was resisted by the defendant by pointing out that the ground rent document referred to earlier and also the document in favour of Subbamma did not take effect and the defendant obtained the entire 2.60 Acres of land as per Ext.A4. It was also contended that Subbamma was permitted to occupy a building in the property and she used to pay rent to the defendant. Contending that even if Subbamma and her predecessor in interest had any manner of right over the suit property that had been lost by adverse possession and limitation, she prayed for dismissal of the suit.
8. On the above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PW1 and the documents marked as Exts.A1 to A6 (d) from the side of the plaintiff. The defendant examined her husband as DW1 and had Exts.B1 to B18 marked. Exts.C1 and C2 are the commission report and plan. Exts.X1 and X2 are third party exhibits.
9. The trial court found that the claim put forward by the plaintiff under Section 106 of the Land Reforms Act cannot be considered in view of the fact that he being assignee from Subbamma and since Subbamma had claimed tenancy right under Section 72B of the Land Reforms Act, he is precluded from raising a claim under Section 106 of the Kerala Land Reforms Act. It was also found that there was an injunction suit filed by Subbamma as O.S.No.23/1979 as evidenced by Ext.B13 judgment wherein Subbamma sought injunction restraining defendants in that suit which included the defendant in this case from interfering with their possession over three buildings, one in the building in which she was staying and two other buildings on the eastern and western side of the building in which she was staying. That suit was dismissed.
10. On the basis of the above findings, the trial court dismissed the suit. The aggrieved plaintiff carried the matter in appeal as A.S.No.254/1996. The lower appellate court, for identical reasons, dismissed the appeal.
11. In this appeal, the following substantial questions of law are seen formulated on which notice has been issued.
(a) Whether on the facts and in the circumstances of the case the lower appellate court has not made an erroneous approach to the whole case by not comprehending the nature and scope of the suit any by holding that the case of the plaintiff need not be decided on merits?
(b) Is not the decision of the lower appellate court vitiated for non-consideration of the relevant issues raised in the suit?
(c) Has not the lower appellate court committed an error of law in holding that the claim of the plaintiff is barred by res-judicata?
(d) Whether on the facts and in the circumstances of the case the lower appellate court has not committed an error of law by ignoring the oral and documentary evidence relating to the ground rent arrangement pleaded in the plaint?
(e) Is not the defendant estopped from denying the ground rent arrangement in respect of the suit property in view of the specific recital in her own document of title?
(f) Is not the plaintiff entitled to the decree of declaration and injunction prayed for in the plaint?
12. Learned Senior Counsel appearing for the appellant, Sri.S.V. Balakrishna Iyer, contended that both the courts below have lost sight of the relief sought for in the plaint and considered extraneous matters for dismissing the suit. The issue involved, according to the learned counsel, is whether the plaintiff still retain the ground rent right which was obtained by Parameswara Mayya under Ext.A2, which fell on Subbamma as per Ext.A3 and which was subsequently transferred in favour of the plaintiff. Even assuming, according to the learned counsel for the appellant, the claim made by Subbamma under Section 72B of the Land Reforms Act may have been negatived and also even assuming that the plaintiff cannot put up a plea under Section 106 of the Kerala Land Reforms Act, that does not resolve the issue for the simple reason that the right acquired under Exts.A2 and A3 and transferred to plaintiff as per Ext.A1 still subsists and that right had to be adjudicated.
13. It was pointed out by the learned counsel for the appellant that there is no case for the defendant that the rights acquired by the respective persons under Exts.A2 and A3 have been validly terminated. According to the learned counsel, the issue is not whether the plaintiff is entitled to permanent tenancy or not but it is what is the extent of property outstanding on the ground rent arrangement which ultimately came to vest with plaintiff and whether that arrangement has been validly terminated by the defendant to enter into the property. So also it is contended by the learned counsel that the application under Section 106 of the Act can be put up only as a defence and not as a sword. Learned counsel went on to point out that both the courts below have not considered this crucial aspect and the real issue had not been adjudicated at all and therefore, the decree and judgment of both the courts below have to be interfered with to ascertain the rights of the respective parties.
14. Smt.Vidya A.C, learned counsel appearing for the contesting respondent pointed out that the litigation has been going on for years and there has to be an end to the same. The present suit is of the year 1988 and 25 years have elapsed and it is idle for the plaintiff to contend that the real issue has not been adjudicated. It was contended on behalf of the respondent that the assignor of the plaintiff staked claim under Section 72B of the Act and even though she succeeded in respect of 8 cents of property with a building therein, on appeal by the defendant, that matter was remanded which ultimately ended in dismissal. That puts an end to any sort of claim on the basis of the Land Reforms Act as far as the plaintiff is concerned since the plaintiff being an assignee from Subbamma. It was also contended on the basis of Ext.B13 that it is clear that Subbamma did not have possession over the two buildings situated on either side of the building where Subbamma was allowed to reside and therefore the claim of the plaintiff cannot stand. It was contended on behalf of the respondent that by virtue of Ext.A4, they had obtained possession of the entire 2 Acres and 60 cents of land and buildings were put up by the defendant with the aid of her husband and children. Accordingly, it is contended that the plaintiff has no manner of right over the suit property and dismissal of the suit was perfectly justified.
15. Well there is much to be said by either side. But it will be useful to refer to the relief sought for in the plaint which reads as follows:
“(a) For a declaration that the plaintiff is the owner of the ground rent right over plaint A schedule property and as a consequential relief for permanent prohibitory injunction restraining the defendant, her men and agents from trespassing into the undermentioned A schedule property or in any way interfering with the plaintiff's peaceful possession and enjoyment of the same”.
16. It would appear from the judgments of the lower courts that the claim under Section 106 of the Land Reforms Act was seriously agitated before the court below by plaintiff which was found against him. Whether it was necessary to consider that issue in this proceedings is a different matter. It is not in dispute that the assignor of the plaintiff namely, Subbamma had filed an application under Section 72B of the Act before the Land Tribunal in respect of 15 cents of property. However, she succeeded in obtaining purchase certificate with respect to 8 cents of land with a building therein. It is also not in dispute that Subbamma had preferred an appeal and since the appeal was filed out of time, delay condonation petition was also filed. The appellate authority did not find sufficient reason to condone the delay and the delay condonation petition was dismissed. Consequently, the appeal was also dismissed. The matter was taken up in revision which also did not succeed. In the meanwhile, it is seen that the defendant in this suit preferred an appeal against the grant of purchase certificate with respect to 8 cents of land before the appellate authority. The appellate authority allowed the appeal and remanded the matter to Land Tribunal for fresh consideration and disposal. The records indicate that the case came to be dismissed as not pressed since it was not pursued by Subbamma.
17. The defendant's claim that she was unaware of the arrangement of ground rent in favour of Parameswara Mayya cannot be accepted for the simple reason that the document of title by which the defendant obtained 2.60 Acres i.e. Ext.A4 makes mention of the arrangement with Parameswara Mayya. It is seen from the translation copy of the document that the assignors under Ext.A4 had specifically stated that the property covered by Ext.A2 is outstanding with a stranger and they are not in possession of the same. That would mean that they could not have handed over possession of that item of property to the defendant.
18. Much was argued regarding the impact of Ext.B13. Of course, that was a suit filed by Subbamma against the defendant herein and others. That was a suit for injunction. She claimed absolute possession over the three buildings situated in the property. The court which considered the issue found that except for the building situated in the property where Subbamma is residing, other two buildings situated on the eastern and southern side of that building was not in the possession of Subbamma. Consequently, the entire suit was dismissed. It does not appear that any finding was entered into as regards the rights over the land in the suit.
19. Both the courts below in the case on hand have proceeded on the basis that since the claim by Subbamma under Section 72B of the Land Reforms Act did not succeed and that ultimately her application came to be dismissed, whether it was due to non prosecution or not, the plaintiff is precluded from urging claim under Section 106 of the Act. Of course, whether that issue did arise in the case on hand is a different question. The claim put forward by the plaintiff was the right which he claims to have obtained as per Exts.A2, A3 and A1. Even assuming for argument sake that the two buildings situated on either side of the building where Subbamma was found to be residing in O.S.No.23/1979 as evidenced by Ext.B13 was not in the possession of Subbamma, the question remains is whether there is proprietary right left regarding the land over which the building is situated. It is well settled that in India, dual ownership s recognised.
20. It is significant to notice that there is no finding by either of the courts below that the arrangement evidenced by Ext.A2 has been validly terminated so as to make the occupation of Subbamma as per Ext.A3 and the plaintiff as per Ext.A1 is illegal. If, as a matter of fact, that arrangement still stands, then the person who obtained rights under the arrangement is certainly entitled to protect his right to that extent. In the case on hand, in the light of the various litigations between the parties, it becomes necessary to determine as to the extent of properties which was the subject matter of ground rent which though initially was 15 cents as would be evidenced by Exts.A2 and A1 which the respondent would say is much less now. Whatever that be, the extent of property to which ground rent arrangement subsists has to be determined and so also if there is any valid termination of that arrangement. The mere fact that the application under Section 72B of the Land Reforms Act did not succeed or even assuming that the claim under Section 106 of the Act also cannot succeed is not a ground to hold that the plaintiff is in illegal possession of the property. As already noticed, he traced his right and possession to Exts.A2 and A3 and A1. One may, at the risk of repetition, note that the arrangement made in Ext.A2 finds a place in Ext.A4 document of title in favour of the defendant. Therefore, the defendant cannot be heard to say that she was unaware of the arrangement under which the plaintiff's predecessor in interest came to hold the property.
21. The above aspects have not been gone into by both the courts below. In fact, one has to say that issue totally unconnected with the real issue on hand was adjudicated by the courts below. If, as a matter of fact, the arrangement under Ext.A2 still subsists, then persons who acquired their rights subsequently by way of assignments are entitled to protection of that right to the extent as sanctioned by law. Of course, necessarily it means that unless that arrangement is shown to have been validly terminated, the plaintiff is entitled to protection of the rights.
For the above reasons, this appeal is allowed. The judgments and decrees of the courts below are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has been stated above. The parties shall appear before the trial court on 21.07.2014. Both parties will be at liberty to adduce further evidence if they so choose. The trial court may make every endeavour to dispose of the case as expeditiously as possible, at any rate, within a period of nine months from the date of appearance of the parties.
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P.BHAVADASAN JUDGE smp // True Copy // P.A. to Judge.