IN THE HIGH COURT OF KERALA AT ERNAKULAM

RFA.No. 346 of 2005(E)

1. YACOB, S/O. MATHAI, KACHAPPILLY

... Petitioner

Vs

1. LILLY KORAH, S/O. LATE KUNJIKORA,

... Respondent

2. VARTHAKA KSHEMA HIRE PURCHASING

For Petitioner :SRI.S.SHYAM

For Respondent :SRI.M.P.SREEKRISHNAN

The Hon'ble MR. Justice M.N.KRISHNAN

Dated :13/10/2010

O R D E R

M.N. KRISHNAN, J.

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R.F.A. NO. 346 OF 2005

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DATED THIS, THE 13TH DAY OF OCTOBER, 2010

J U D G M E N T

This is an appeal preferred against the judgment and decree of the Subordinate Judge, North Paravur, in O.S. No. 35 of 1996.

2. The suit is one for declaration and consequential injunction and for recovery of money. It is the case of the plaintiff that the property originally belonged to the father-in-law of the plaintiff and that he had executed a settlement deed in favour of the plaintiff in 1952 and thereafter, she is the owner in absolute possession of the property. She had also assigned some of the properties. The plaintiff's husband was a judicial officer employed in various places and therefore, out of sheer necessity, the first defendant was asked to be the care taker of the property. The care taker did not pay any amount since 1992 and he is trying to stake claim over the property and so the suit is filed. On the other hand, the first defendant would contend that the property originally belonged to the father-in-law of the plaintiff. According to him, about 72 years back, the father of the first defendant had taken 3 Acres and 38 cents of property including the plaint schedule property from the father-in-law of the plaintiff and thereafter, he is  RFA 346/2005 2

holding the property as a tenant who is entitled to fixity of tenure. Thereafter, by virtue of an order of the Land Tribunal, tenancy had been conferred upon the first defendant and therefore, the plaintiff is not entitled to any relief. The second defendant is a transferee from the first defendant and his right depends upon the rights of the first defendant in the matter.

3. The plaintiff had also amended the plaint incorporating the prayer to declare that the certificate of purchase is void and it is not binding on her. After consideration of the entire materials, the trial court granted a decree in favour of the plaintiff and it is against that decision that the first defendant has come up in appeal.

4. Heard the learned counsel on both sides. The undisputed fact is that the property belonged to the father-in-law of the plaintiff. According to the plaintiff, by virtue of a settlement deed in the year 1952, the father-in- law of the plaintiff had settled the property in her favour and from that day onwards, she is the person in occupation and possession of the plaint schedule property. According to her, since her husband was a judicial officer serving through out the State, he was unable to look after the property personally and so he had authorised the first defendant to look after the property as a care taker. After 1992, the care taker did not pay any amount and therefore, he was terminated and the suit was filed. The first  RFA 346/2005 3

defendant, on the other hand, would contend that from the father-in-law of the plaintiff, about 72 years back, the father of the first defendant had taken on lease of the property and ever since his father was in occupation and on his death, it has come to him and therefore, he is a tenant entitled to fixity of tenure which had been recognised by the Land Tribunal by issuing certificate of purchase. So, the paramount title of the plaintiff is an undisputed fact. Now the questions are whether the first defendant is only a care taker as contended by the plaintiff or the predecessor in interest of the first defendant and the first defendant are the tenants of the property entitled to fixity of tenure. There was a proceeding before the Tribunal with the son of the plaintiff as a party and the Land Tribunal had issued purchase certificate. It has also to be stated that no document is forthcoming to establish that at any point of time, the plaintiff had informed the defendant about her ownership over the property. It has also to be stated that in the proceeding before the Land Tribunal, notice is seen served on the son of the plaintiff. But whatever it may be, if the plaintiff is the true owner of the property entitled to be in possession, by virtue of Act 72(3) of the Kerala Land Reforms Act, unless a notice is given to the landlord, then that certificate of purchase cannot have any binding effect on the landlord. It can be contended that publication of a notice is available and therefore, the  RFA 346/2005 4

landlord is expected to know about the same. These facts have been considered in very many decisions of this Court and it has been held that resortment to publication of a public notice is contemplated only when individual notice could not be served. Here, in this case, the plaintiff was not made a party at all to the Land Tribunal Proceeding. It is contended that her son had been served with notice, which is denied by the plaintiff. Whatever it may be, an acknowledgment card of the said person is available. Whatever, it may be, it has to be stated that an attempt had been made to implead one of the members of the family as a party to the proceeding. But in the absence of specific impleadment of a person entitled to be heard, it has to be held that the certificate of purchase obtained by the defendant behind the back of the plaintiff is not binding on the plaintiff and therefore, that will not confer any independent title on the defendant. I am not in agreement with the trial court when it is said that it is vitiated by fraud. What is the mistake that is made is only that instead of the mother, the son has been impleaded as a party. Therefore, I restrict the finding regarding the certificate of purchase and hold that it was obtained without notice to the plaintiff. When a certificate of purchase is obtained without notice to the plaintiff who is legally entitled to be heard, it is an error apparent on the face of the record and it is inaccurate and therefore, the  RFA 346/2005 5

certificate of purchase issued under Section 72(k) of the Kerala Land Reforms Act on that basis cannot have any binding effect and so, it has to be held that the certificate of purchase will not be binding on the plaintiff at that stage.

5. Now, the larger question arises. What will have to be done with respect to the matter? The learned senior counsel appearing for the plaintiff would contend before me that the suit is one for declaration and consequential injunction and therefore, really the question of tenancy does not arise and further, he relies upon the order of this Court in C.R.P. 2566/2000 wherein a learned Judge of this Court held that 'after recording the finding on other issues, the trial court can record finding on Issue No.5 whether the matter can be referred to the Land Tribunal or not". Really Issue No.5 is in relation to lease arrangement and Additional Issue No. 10 is in relation to the reference. When the certificate of purchase is not binding on the plaintiff, then the question of tenancy which is raised in the written statement whether needs consideration is a short question. According to the learned senior counsel, in a suit for declaration and consequential injunction, unlike in a suit for recovery of possession on the strength of title, really the question of tenancy does not arise for consideration and therefore, it need not be referred to the Land Tribunal. The learned senior counsel has  RFA 346/2005 6

heavily relied upon the decision of a Full Bench of this Court in Kesava Bhat v. Subraya Bhat (1979 KLT 766). In that case, Their Lordships were considering the question of reference in a matter where the suit was one instituted for injunction. The Full Bench held that when the subject matter of the suit is regarding the possession of the plaintiff on the date of suit, it is a matter which could be decided by the court irrespective of the question of tenancy or not. Even if the matter is referred to the Land Tribunal, to find out whether the defendant is a tenant, if the court ultimately finds that the plaintiff is in possession of the property, then the suit has to be decreed and therefore, the reference becomes quite unnecessary in that background. Now as far as this case is concerned, we are having a suit for declaration with consequential injunction. It has to be remembered that a prayer for declaration itself will not lie in the light of the specific provisions under Section 34(2) of the Specific relief Act and when a suit is filed for a declaration with a consequential injunction, unless the declaratory relief can be granted, the consequential injunction shall not follow. So, the prayer of declaratory relief becomes very important in this matter.

6. Then, how to decide? There is no dispute that the plaintiff's father-in-law had title over the property which had been transferred in favour of the plaintiff. The defendant is setting up the tenancy with the  RFA 346/2005 7

predecessor in interest of the plaintiff. So, by virtue of the provisions of the Kerala land Reforms Act, which came into effect on 1.1.1970, a person who is a cultivating tenant is entitled to fixity of tenure and is competent to file an application under Section 72 of the Kerala Land Reforms Act and under Section 72(k) of the said Act, a certificate of purchase is the conclusive proof of tenancy and in the light of the decision of the Supreme Court reported in Mathew v. Taluk Land Board (1979 KLT 601), unless it is inaccurate on the face of the record, it has got all the evidentiary value.

7. Now the title of the plaintiff is resisted by putting up a rival title in the form of a tenant entitled to fixity of tenure. So unless the question of tenancy is decided, it may not be possible to answer the question. Therefore, really the question of tenancy arises for determination in the suit. Then I may refer to the decision of the Supreme Court of India in Mathevan Padmanabhan v. Parmeswaran Thampi (1995 Supp (1) SCC 479). Their Lordships had clearly held in Para 8 of the said judgment that 'a reading thereof clearly indicates that if in any suit or other proceeding, any question regarding right of a tenant etc. arises, the civil court should stay the suit or other proceeding and refer such dispute to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situated together with the relevant records for the decision of that dispute  RFA 346/2005 8

in question. The Supreme Court continued to hold that 'the High Court, therefore, was clearly in grave error in divesting the jurisdiction of the Tribunal and conferring the same on the civil court to settle, decide or deal with any question or determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal'. The learned counsel for the respondent had cited a decision reported in Chacko Kochu vs. Abraham (1977 KLT 868). It was a case where the defendant denied the title of the plaintiff and in the alternative set up tenancy. This Court held that when tenancy is disputed it has to be considered first for the reason that the plaintiff to become a landlord must be the title holder. So far as this case is concerned the defendant is claiming tenancy under the father-n-law of the plaintiff from whom the plaintiff had got the title. Therefore, here there is no dispute with respect to the title of the plaintiff but it is the tenancy that is claimed. Therefore, the said decision will not come to the rescue of the plaintiff.

8. So from these discussions, I hold that really there is a question of tenancy that arises for determination and under the provisions of law, it is only the competent Land Tribunal which is entitled to decide the question. The approach of the trial court to find out that the first defendant is only a care taker is to be viewed with care for the reason that it is done without an  RFA 346/2005 9

authority to consider the question of tenancy and a finding without considering the same would amount to illegality. The first defendant may be a care taker or may not be a care taker, he may be a tenant or may not be a tenant. But it is a point to be resolved by the Land Tribunal while answering the tenancy. In the light of the fact that the consequential injunction cannot be granted without a declaratory relief, I am bound to interfere with the decision and therefore, the judgment and decree of the trial court are set aside and the matter is remitted back to the trial court with a direction to refer the matter which falls for consideration under Issue No.5 framed by the court and on receipt of the finding, decide the case. If the defendant is found to be a tenant, the plaintiff has necessarily to fail and if it is found that the defendant is not a tenant, it follows that the plaintiff is entitled to the declaratory relief as well as the consequential relief. The parties are directed to appear before the trial court on 15.11.2010. M.N. KRISHNAN, JUDGE.

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