MAMMU HAJI AND COMPANY Vs. VASANTHALAKSHMI

JUDGEMENT

(1.) The appellant herein is the defendant in OS No. 3/2002 on the files of the Munsiff's Court, Vadakara as well as the respondent in AS No. 30/2004 on the files of the Court of Subordinate Judge, Vadakara. The above suit was filed by the respondent / plaintiff for recovery of possession of the plaint schedule property, on the allegation that the defendant is a lessee in possession of the property. The defendant contended that he is not liable to be evicted from the plaint schedule property as he is entitled to get the protection under S.106 of the Kerala Land Reforms Act, 1963 (for short, 'the Act'). The Trial Court accepted the contentions raised by the defendant and dismissed the original suit. Feeling aggrieved, the plaintiff had preferred the above appeal suit and, after re - appreciating the entire evidence on record, the Appellate Court reversed the findings arrived at by the Trial Court and decreed the suit. This Regular Second Appeal is filed challenging the judgment and decree, reversing the findings of the Trial Court, passed by the First Appellate Court. The plaint averments, in brief, are as follows:

(2.) The defendant is in occupation of an immovable property having an extent of 946 m2 in area corresponding to 19.177 sq. ft. and building. The last payment of rent by the defendant to the plaintiff is Rs.625/- for the period from November 2000 to November 2001. The defendant has illegally put up one thatched shed and another tiled shed in the property. The immovable property and the building were shown in the Schedule to the plaint. The plaintiff terminated the tenancy of the defendant over the plaint schedule property by notice dated 23/10/2001 with effect from 11/12/2001 with an option Clause, terminating the tenancy on such day in the month of December. The said notice was acknowledged by the defendant on 29/10/2001. The defendant has sent a reply setting up incorrect averments to bolster a false claim of tenancy under the Act.

(3.) The defendant filed a written statement contending that he is not liable to be evicted as the tenancy cannot be terminated in view of the provisions of the Act. It is admitted that the lease was a land with a Pandikasala, Chapra and Kalam in the property known as Vallaparambu in Chorode amsom Erapuram desom, having an extent of approximately 24 cents leased to the defendant more than 50 years back and the defendant is still in possession of the property as a lessee and he has constructed structures with the permission of the plaintiff. At the time of this, there was a Pandikasala only in the property and within years of lease, the defendant company had put up structures for which he was given right. The structures said to have been constructed by the defendant are not unauthorised constructions as pleaded in the plaint and the same were constructed with the consent of the plaintiff's predecessor in possession of the property. That apart, the defendant has constructed a wall surrounding the plaint schedule property. According to the defendant, since the matter in dispute involved in the suit pertains to right conferred under the Act, the suit is liable to be referred to the Land Tribunal under S.125(3) of the Act. At any point of view, the suit is not maintainable before the Civil Court and the plaintiff is not entitled to get the decree granting the reliefs as prayed for. No oral evidence was adduced by the plaintiff, but produced and marked Exts. A1 to A4. DW 1 and DW 2 were examined as defendant's witnesses and Exts. B1 to B8 were marked for the defendant. Exts. C1 to C4 were marked as Court Exhibits.