Kunhirattan Appu Kurup Vs. Koiloth Kamath Janaki & Ors  INSC 1370 (1 November 1996)
Punchhi, K. Vennkataswami Venkataswami, J.
undisputed facts are the following :
suit land was assigned under an assignment deed dated 5.6.1897 by one Nambra Kurup
in favour of one Rayiru Kurup, Madhavi Amma and Chiruthayi Amma. they being
brother and sisters. The said Rayiru Kurup purported to have executed a
registered deed of kuzhikanam(lease) dated 25.5.1946 in favour of his son by
name Appu Kurup (appellant herein), stipulating a sum of Rs. 5/- and 50 coconut
leaves as purappadu (rent) Though the said Rayiru Kurup mentioned the names of
his sisters as co-assignees. they were not parties to the said kuzhikanam deed.
The legal heirs of Chiruthai (one of the assignees). being respondents 4-3l
herein. filed a suit No. 642/58 on 26.5.1958 for partition of their l/3rd share
in the suit land with their share of future mesne profits ignoring the lease (kuzhikanam)
above- mentioned. A preliminary decree in that suit was passed on 14.11.1960
expressly rejecting a claim put forward by the present appellant of his tenancy
rights in the suit property. The appeal filed by the appellant was dismissed on
2.12.1963. Thereafter, the plaintiffs in the suit filed a petition for passing
final decree. On 16.12.1967, a final decree came to be passed. Against that
final decree. the appellant preferred A.S. 335/67 before the subordinate court.
When the appeal was pending. Kerala Land Reforms (Amendment) Act. l969 came
into force with effect from 1.1.1970. Taking advantage of that, the appellant
moved the learned Sub-Judge in the pending appeal to grant him leave to file
additional ground on the basis of Sections 7 and 78 of the Kerala Act l of 1964
as amended by Act 35 of l969.
first Appellate Court allowed that application. However. by a judgment dated
22.10.1971, the appeal was dismissed on the ground that the lease deed executed
by Rayiru Kurup was a collusive one and purposely created to defeat the right
of the plaintiffs and defendants Nos 3 to 17 in the suit.
such a lease deed cannot be pressed into service to claim fixity of tenure
under Section 7 or 7B of the Act.
appellant herein preferred a further Second Appeal No. 1074/71 before the High
Court of Kerala. The High Court remanded the matter to the trial court to find
out factually whether the appellant herein who was the first defendant in the
suit. was in possession on 1.1.1970 of the land over which he claimed tenancy
rights. After remand, the trial court by judgment dated 17.11.1977 upheld the
claim of the appellant under Section 7B in respect of the plots A, B and C in
the Ext. C-4 Plan filed in the suit . Accordingly. the right of the appellant
in those plots for fixity of tenure under Section 7B was upheld. The plaintiffs
(respondents Nos 4 to 31 herein) preferred a Revision to the Kerala Hight Court
against the order of the trial court and the High Court by order dated
28.5.1982 upset the trial court's order and rejected the claim of the appellant
under Section 7B of the Kerala Land Reforms Act in respect of the plots A, B
and C. It is under these circumstances, the present appeal is preferred by the
have gone through the judgments of the trial court and High Court and heard
counsel for the parties.
have seen in the narration of the facts that Rayiru Kurup knowing that there
are two other co-assignees, has deliberately and in order to deprive his
sisters (co- assignees) of their right in the suit land cunningly executed the
said lease in the year 1946. The High Court. apart from noticing the findings
rendered in the suit both by the trial court and by the appellate court (before
remand by High Court) to the effect that the said lease was a collusive
document, and therefore, not valid and bindings came to the same conclusion
independently also. But for the amendment in the year 1970. the appellant would
not have got the right of fixity of tenure. As a matter of fact. it is not in
dispute that a portion of the plaint schedule land was taken possession of by
the heirs of another co-assignee, namely. Madhvi Amma. For some reason or
other, the plaintiffs could not take delivery of their share and in the
meanwhile the amendment to the Kerala Land Reforms Act came into force from
these circumstances. we are not inclined to exercise our jurisdiction under
Article 136 of the Constitution to interfere with the order to the High court
which has done substantial justice to the parties in the facts and
circumstances of the case. Accordingly, we dismiss the appeal, however. there
will be no order as to costs.