KRISHNANKUTTY Vs. UNNIKUTTY

JUDGEMENT

(1.) The 4th defendant in O. S. No. 166 of 1987 on the file of the Munsiff - Magistrate Court, Ponnani, is the appellant. Suit was one for recovery of possession. Concurrent decision rendered by the two Courts below in favour of the plaintiffs upholding their claim for recovery of possession over the property on the strength of their title, is assailed in this second appeal.

(2.) Plantiffs and the 6th defendant in the suit are the children of one Kumaran, and defendants 1 to 5 are the children and wife of Kunhan, the younger brother of the aforesaid Kumaran. Plaintiffs claimed title over the suit property, having an extent of 44 cents, alleging that their father Kumaran had obtained the property under Ext. A3 Kanam assignment deed, the original of which was exhibited as Ext. B1, in his favour by the jenmi, Arangathavalappil Kunhu, in the year 1949. Admittedly there was a previous suit for injunction over the suit property instituted by the plaintiffs and the 6th defendant together against one Kunhan, the predecessor of defendants 1 to 5 in the present suit. That suit was dismissed and the decision thereof, which was challenged upto this Court, had been confirmed. Alleging that the defendants had committed trespass over the property during the pendency of the previous suit, the plaintifs filed the present suit for recovery of possession with mesne profits. Defendants 1 to 5 filed a joint written statement, in which, resisting the claim for recovery of possession, they contended that the property had been orally leased to their predecessor, Kunhan, and, later, while he continued in possession and enjoyment, an assignment deed over the property was got executed in the name of Kumaran as his benami. The funds for purchase of the leasehold was provided by Kumaran, and, therefore, the deed was taken in his name on agreement between Kumaran and Kunhan that on payment of that sum, the property would be conveyed to Kunhan. Though the entire amount had been repaid to Kumaran by Kunhab, the lease was not assigned in favour of Kunhan as agreed upon. Kunhan, who continued in possession and enjoyment, got assignment of his tenancy right over the property, and a purchase certificate had been issued in his favour by the Land Tribunal. An alternate plea was also raised contending that Kunhan and his successors (the defendants) by their continuous possession which was hostile to that of Kumaran and his successors, have prescribed title over the property by adverse possession.

(3.) The trial in the suit proceeded first with determination of the question of title to the property canvassed by the plaintiffs, which was disputed by the defendants, and a finding thereof arrived in favour of the plaintiffs a reference was then made to the Land Tribunal to examine the claim of tenancy set up over the suit property by them, adopting the procedure laid down by this Court in Chacko Kochu v. Abraham,1977 KerLT 868, which had been followed, then, in the matter of reference under Section 125 (3) of the Kerala Land Reforms Act in cases where the title was disputed. The Land Tribunal entered a finding on the reference made that there was no tenancy arrangement between the jenmi Arangathavalappil Kunhu with Kunhan, the predecessor of the defendants, before the execution of Ext. B1 deed, and the claim of tenancy right canvassed by the defendants over the property was found against. Negativing the tenancy right claimed by the defendants as not proved, the Land Tribunal held the tenancy right over the property in favour of Kumaran, predecessor of the plaintiffs. Reference being returned with such finding, suit was decreed allowing the plaintiffs to recover the property from the defendants. In the appeal preferred by the defendants, the lower appellate Court. after reappraisal of the materials tendered in the case, concurring with the view formed by the trial Court, confirmed the decree granted in favour of the plaintiffs negativing the challenges raised. Concurrent decsion so rendered by the two Courts below is impeached in the second appeal by the defendants setting forth a challenge that the contention raised by them that Ext. B1 lease assignment deed was taken by the predecessor of the plaintiffs as a trustee on behalf of and for the benefit of his brother Kunhan, the predecessor of the defendants, and this was a case where Section 92 of the Indian Trust Act has application, was not considered nor analysed in the proper perspective by both the Courts below and it has resulted in miscarriage of justice.