K.G. RADHAKRISHNA MENON Vs. STATE OF KERALA

JUDGEMENT

(1.) PLAINTIFFS are the appellants. Suit was one for recovery of possession on the strength of title. Both the courts below turned down the relief canvassed for, and feeling aggrieved, the appeal is preferred.

(2.) FACTS involved in the case in a nut shell are thus: According to the plaintiffs, the suit property belonged to their tarwad viz., Kozhippurath tarwad, and at present they are owners of that property. The property had been leased out in 1884 in favour of two persons by the then owner of the property for a period of 99 years. The lessees were conducting a spinning mill under the name and style œMalabar Spinning and Weaving Company Limited  in the property. However, later, the company was declared as a sick unit by the Government and it was taken over paying an amount of Rs.30,60,724/ - to the owners of the company. While taking over the company, the Government proceeded as if the property also belonged to the owners of that company. According to the plaintiffs, the owners of the company had right over only the machinery and building in the property and the ownership over the land remained with the prior title holders, who are at present the plaintiffs. Impeaching the right of the defendants, among whom more particularly the 4th defendant, who now continues to be in possession and enjoyment of the property after the taking over of the land by the Government, the plaintiffs laid the suit for recovery of possession claiming that they are having subsisting title over the property.

(3.) ON the materials placed, which consisted of PW.1 and Exts.A1 to A11 for the plaintiffs and DW.1 and Exts.B1 to B4 for the defendants and a report and plan prepared by the advocate commissioner deputed by the court, which had been exhibited as C1 and C2, the trial court came to the conclusion that even on the case set up by the plaintiffs, they have not impleaded all the co -owners, who are having title over the property to claim the recovery of possession of the suit property from the defendants. The documents produced by the plaintiffs to substantiate their title, Ext.A2, copy of a final decree in a suit for partition, Exts.A10 and A11, copies of two partition deeds disclosing conflicting and contradictory derivation of title with different parties, the trial court came to the conclusion that, at best, the plaintiffs who were members of one of the two thavazhies covered by Ext.A10 partition deed under the partition effected thereunder had got one half right alone over the suit property. It was further noticed in the next partition deed entered into later produced as Ext.A11, there was no reference to Ext.A10 partition deed and also of Ext.A2 suit. Analyzing the claim of title in the above back drop as evidenced by the documents produced by them, Exts.A2, A10 and A11, which were banked upon to prove the title of the plaintiffs, with reference to the provisions covered by the Sick Textile Undertakings Act, which spelt out that once an acquisition had been made by the Government of a sick textile industry under the Act, all properties of such textile industry by force of the vesting are freed from any trust, obligation, mortgage, charge, lien and all other encumbrances, and the vesting shall be deemed to include all assets, rights, leaseholds, powers, authorities and privileges and all property, movable and immovable including the lands, buildings, machineries etc, in the Government, it was concluded that the plaintiffs have no subsisting title or right over the suit property. The learned Munsiff taking note that the present suit had been filed 12 years after the vesting of the suit property with the buildings and machineries with the Government under the Sick Textile Undertakings Act and later the 4th defendant by transfer and assignment is presently in possession and control of the suit property, concluded that the defendants have got title over the suit property. With such finding on title in favour of the defendants, but erroneously, approving the claim of fixity of tenure canvassed by them under Section 106 of the Kerala Land Reforms Act as well, the suit was dismissed by the trial court. In the appeal preferred by the plaintiffs, the lower appellate court, after re -appreciating the materials tendered, taking a different view from that of the trial court held that the plaintiffs have title over the property, but, the defendants enjoyed leasehold rights over the properties and it is protected under Section 3(2) of the Kerala Land Reforms Act. Confirming the decree of dismissal of the suit, the appeal was dismissed. As against such concurrent decision, the plaintiffs have preferred this appeal.