AMINA BEEVI Vs. THACHI

JUDGEMENT

(1.) These Special Leave Petitions have been filed against the common judgment and decree dated 28.03.2007 passed by the Kerala High Court in Second Appeal Nos. 517 of 1988 and 311 of 1988.

(2.) The facts very briefly are that Makkar Sahib was the owner of the suit property and in the year 1945-46 he made an oral lease of the suit property in favour of Kunjali on an annual rent. Pursuant to the oral lease, Kunjali obtained possession of the suit property and remained in possession of the suit property. Makkar Sahib died and on 24.07.1968, the legal heirs of late Makkar Sahib, namely, his wife Mariyumma, his daughter Kochu Pathu and his son Abdul Kadar executed a sale deed (Ext. A1) in respect of three acres of land out of the suit property in favour of Aisu and another sale deed (Ext. A2) in respect of two acres and one acre out of the suit property in favour of Fathima Beevi and Amina Beevi. On 29.07.1968, Kunjali executed a leasehold assignment deed (Ext. A3) in favour of Abdul Kadar. On 29.07.1968 Mariyumma, Kochu Pathu and Abdul Kadar executed a sale deed (Ext. A4) in favour of Kunjali in respect of 75 cents of land. The purchasers of the suit property under Exhibits A1 and A2, namely, Aisu, Fathima Beevi and Amina Beevi obtained loans from the State Bank of Travancore and mortgaged the properties purchased by them under Exhibits A1 and A2 in favour of the Bank as security for the loan. When the loan was not repaid, the State Bank of Travancore filed a mortgage suit, O.S. No. 131 of 1974, and obtained a decree for sale of the mortgaged property. In the year 1974, Mariyumma, Kochu Pathu and Abdul Kadar also sold some portions of the suit property to V.K. Kesavan and Janaky. Kunjali died leaving behind his wife Thachi, sons C.A. Sulaiman and M.A. Karim and daughters Aisha, Pathu and Howa. Thachi, Sulaiman, Aisha, Pathu and Howa (Plaintiffs) filed a suit, O.S. No. 129 of 1980, against Mariyumma, Kochu Pathu, Abdul Kadar, Fathima Beevi, Amina Beevi, Aisu, V.K. Kesavan, Janaky and the State Bank of Travancore (defendant Nos. 1 to 9) and the Trial Court decreed the suit declaring that the plaintiffs have leasehold right over the suit property and are entitled to recover possession of the suit property from defendants No. 1 to 9 and are also entitled to mesne profit from the date of suit till recovery of the possession or till expiry of period of 3 years whichever was earlier. Aggrieved, the State Bank of Travancore, Amina Beevi, V.K. Kesavan and Janaky filed three appeals, A.S. Nos. 111, 117 and 121 of 1986. By a judgment and decree dated 30.10.1987, the Additional District Judge, Parur, dismissed the appeals. Against the judgment and decree of the Additional District Judge, Parur, Amina Beevi and the State Bank of Travancore filed Second Appeal Nos. 517 of 1988 and 311 of 1988 under Section 100 of the Code of Civil Procedure, 1908 and by the impugned common judgment and decree dated 28.03.2007, the High Court dismissed the second appeals.

(3.) Mr. C. S. Rajan, learned senior counsel appearing for the petitioner in S.L.P. (C) 15221 of 2007 Amina Beevi, submitted that the High Court has taken a view that Ext.A3 was a surrender of the interest of the tenant Kunjali in the suit property in favour of the landlord Abdul Kadar and such surrender of the interest of the tenant in favour of any party other than the Government was prohibited under Section 51 of the Kerala Land Reforms Act, 1963 (for short Rs. the Act). He submitted that a plain reading of Ext.A3 would show that it is not a surrender but an assignment by Kunjali in favour of Abdul Kadar and, therefore, the High Court was not right in coming to the conclusion that Ext.A3 was a surrender hit by the statutory prohibition in Section 51 of the Act. He next submitted that in any case the fact remains that the plaintiffs in the suit, who are the legal heirs of the tenant Kunjali, had been dispossessed of the suit land and their remedy was not a suit in the civil court but an application to the Land Tribunal under Section 13A of the Act for restoration of possession. He cited the decision of this Court in Koyappathodi Puthiyedath Ahammedkutty v. State of Kerala and Ors., (1987) Suppl. SCC 158 in which it has been held that when a surrender is shown to have been made contrary to the provision contained in Section 51 of the Act, the tenant concerned would be entitled to restoration of possession under Section 13A of the Act.