1. The plaintiffs, Who are the appellants is this second appeal, Had filed a suit for declaration of their lease - hold right and possession in respect of plaint property and for consequential injunction to restrain the 25th defendant from disposing them.
2. The property consists of 114 acres 84 cents and forms part of a larger extent of 297 acres 67 cents comprised in sy. No. 545/17b of chennamkari village. The property belonged to kakkattu tarwad. The grandfather of plaintiffs 1 to 8, One varkey thomman is alleged to have been in possession and cultivating the whole block as lessee of the jenmi tarwad from 1097 onwards, The rental of the property being 11/2 paras of paddy be kalloorkadan measure for each para of paddy field. The plaint proceeds on the allegation that after the death of varkey thomman in 1117, The father of plaintiffs 1 to 8 was in possession. He died in 1957 when the plaintiffs succeeded him as lessees. There was a suit for partition in the jenmi tarwad as os. 56/1102 of quilon district court, In which defendants 1 to 24, Who are members of the jenmi tarwad were allotted 108 acres 90 cents. It is alleged that the defendants in the said partition suit were entitled to 174 acres 73 cents in the whole block. The jenmom right over 28 acres out of 108 acres 90 cents was purchased by plaintiffs and an area of 87 acres 9 cents of the leasehold was surrendered to some of the defendants in the partition suit. The 25th defendant in the present suit had been appointed receiver in the above said partition suit. On a motion by the father of plaintiffs 1 to 8 not to allow the receiver to disturb his possession as old lessee, It is alleged that this court ordered that he need pay only an enhanced pattom of 31/2 paras of paddy per para of paddy field. The plaintiffs' allegation in substance is that the plaintiffs' father continued in possession as old lessee as before. Valuable improvements are alleged to have been effected by plaintiffs and their predecessors - in - interest. The plaint schedule property is the oodukur right over 114 acres 84 cents. It is alleged that the plaintiffs are entitled to fixity of tenure under act 1 of 1964, The leasehold right being allowed to continue. The suit is brought as it was apprehended that the 25th defendant receiver was attempting to disturb the plaintiffs' possession. The contesting defendants denied the leasehold right and possession set up by the plaintiffs. Their stand was that the plaintiffs were only lessees under the receiver and not entitled to get fixity of tenure.
3. Both the courts below have held in favour of the defendants and dismissed the suit. This has given rise to the second appeal. Proceedings were pending before the land tribunal, Alleppey under s. 31 of act 1 of 1964 for fixation of fair rent. The application for fixation of fair rent was dismissed holding that there was no landlord - tenant relationship. It is states in the appeal memo that a revision from this fixation of fair rent had been filed before this court as c. R. P. 708/ 71 which had been dismissed. The main contentions that sri. V. Harihara iyer, Learned counsel for the appellants raised in this second appeal are:
(i) the lower appellate court has erred in holding that a co - owner who is in possession of part of the joint property cannot claim to be a lessee of co - ownership property;
(ii) the lower appellate court has again erred in holding that as the application for fixation of fair rent has been dismissed by the land tribunal holding that the plaintiffs are not lessees which decision had been confirmed in appeal and subsequently in revision by (he high court the plaintiffs cannot claim to be tenants entitled to benefits under act 1 of 1964; 'and
(iii) the plaintiffs in the circumstances of the case and in the light of the evidence ought to have been found entitled to fixity of tenure.
we shall deal with these questions one by one:
(i) whether a co - owner who is in possession of part of the joint property can claim to be a lessee of co - ownership property:
4. The learned district judge has on the basis of rulings reported in thomas v. Luka 1968 klt 63 and jahori shah and others v. Dwarika prasad jhunjhunwala and others 1967 s. C. 109 held that the plaintiffs who are admittedly co - owners of the suit property cannot claim to be lessees of their own property. The relevant passage in thomas v. Luka 1968 klt 63 extracted by the court below is as follows:
"a co - owner who is in possession of the entire property on the understanding that he will account to the remaining co - owners for their due share of the profits is not a person who has agreed to pay rent or other consideration for being allowed to possess and enjoy the land of another so as to make him a tenant as defined by the body of s. 2 (57) of the act."
the passage relied on from the decision of the supreme court in jahori shah and others v. Dwarika prasad jhunjhunwala 1967 s. C. 199 by the district judge is the following:
"under the law every co - owner of undivided property is entitled to enjoy the whole property and is not liable to pay compensation to the other co - owners who have not chosen to enjoy the property. It is also true that liability to pay compensation arises against a co - owner who deliberately excludes the other co - owners from the enjoyment of the property.
it does not however follow that the liability to pay compensation arises only in such a case and no other. Co - owners are legally competent to come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any terms concerning the enjoyment of the property. There is no principle of law which would exclude them from providing in the agreement that those of them as are in actual occupation and enjoyment of the property shall pay to the other co - owners
compensation. The mere fact that the defendants agreed to pay compensation to the plaintiffs for their occupation of the entire property (ignoring the portion in possession of the tenants) would not bring into existence a relationship of landlord and tenant. By this agreement parties never intended to constitute a relationship of landlord and tenant between the defendants and their co - owners. "
from these observations one cannot come to the conclusion that a co - owner cannot be a lessee of a portion of the co - ownership property as such. The learned district judge has stated the proposition too widely. No doubt, A co - owner who is in possession of the entire property on the understanding that he will account to the remaining co - owners for their due share of the profits is not a tenant. Payment of due share of profits to the co - owners will not be payment of rental as such. It is also true that co - owners are legally competent to come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any terms concerning the enjoyment of the property. There is no principle of law as stated by the supreme court which excludes them from providing in the agreement that those of them as are in actual occupation and enjoyment of the property shall pay to the other co - owners compensation. At the same time nothing prevents the co - owners from entering into a lease arrangement with one of the co - owners; the property can be put into possession of one of the co - owners as lessee with a fixed rental. In regard to the share of the other co - owners, The co - owner who has taken the lease is in the position of a lessee. The relevant law on the point has been discussed with clarity in great detail by viswanatha sastri, J. Speaking for the bench in venkayya v. Subbarao air. 1957 a. P. 619. The learned judge stated that the interest of a co - sharer in common property can be sold, Mortgaged, Or leased to another co - sharer or to a stranger; s. 7, 8 and 44 of the transfer of property act recognise the validity of such transfers. It is not the law that one co - sharer can only release his interest in favour of the other co - sharers. There can be a conveyance of the interest of one co - sharer to another co - sharer or to all the remaining co - sharers with the statutory and other covenants applicable to such conveyance. S. 44 of the transfer of property act provides that a transferee from a co - owner of his share of the property or any interest therein acquires, As to such share or interest, And so far as it is necessary to give effect to the transfer, The transferor's right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same. A lessee from a co - sharer is entitled to the rights of his lessor and can even enforce a partition if it is necessary to give effect to his lease. Therefore, There should be a valid lease of his interest by a co - sharer in favour of another co - sharer. No doubt this will not conclude the case, Because we will have to examine whether really a lease has been created in favour of the plaintiffs.
(ii) how far the decision in the fixation of fair rent proceedings bars the present suit:
5. The learned district judge has proceeded on the basis that because as per ext. D - 3 the land tribunal has fixed fair rent of the property which decision has been confirmed in appeal the plaintiffs cannot claim fixity of tenure of the suit property. He seems to think that the decision of the land tribunal is res judicata on the question, Whether the plaintiffs are lessees or not. This view is clearly erroneous. The present suit from which the appeal arose does not deal with matters which are within the exclusive jurisdiction of the land tribunal. In the matter of suits we have to look into s. 11 of the code of civil procedure in considering the question whether the decision in the earlier proceedings, Would be res judicata as far as the issue in the suit are concerned. The relevant part of s. 11 of the code of civil procedure reads:
"no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, Litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, And has been heard and finally decided by such court."
the land tribunal, Taking all the appropriate provisions of the land reforms act into consideration is not a court as such. Moreover, Even assuming it to be a court the land tribunal is not competent to try the present suit in which the same issue regarding the question whether the plaintiffs are tenants is raised. It follows that in terms of s. 11 of the code, The decision on the said issue by the land tribunal could not operate as res judicata for the necessary condition of competency of that court to try the present suit is lacking. It is only in respect of disputes or matters exclusively within the jurisdiction of a tribunal that its decision would be binding on the parties in a subsequent civil proceeding and not its decision on incidental disputes or matters which arise in the course of adjudicating on the disputes and matters falling exclusively within its jurisdiction see venkatarama rao v. Venkayya a. I. R. 1954 madras 788 f. B., Bhagvan dayal v. Reoti devi (1962 (3) s. C. R. 440; gopalakrishnan nair v. Padmavathi amma 1970 klt 888. No doubt under s. 101 (3) of the kerala land reforms act the land tribunal is competent to decide the question whether a person is a tenant or not in deciding the question of fixing fair rent of the property. But the jurisdiction of the land tribunal to decide the question is not an exclusive one. Whether a person is a tenant in lawful possession, Or a trespasser, Is essentially a question for a civil court to decide, Not, In the last resort, For a tribunal of limited jurisdiction like the land tribunal constituted under (kerala) act 4 of 1961 unless there is an express or implied bar to cognizance within the meaning of s. 9 of the civil procedure code. [see kunjan kumaran v. Ramachandra iyer 1969 klt 822 and gopalakrishnan nair v. Land tribunal, Chengannur 1967 klt 181. ] the principle that governs this question is what is laid down by coleridge, J., In bunbury v. Fuller 9 ex. 111,140 which is as follows:
"now it is a general rule, That no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars, Making up together that subject matter which, If true, Is within, Its jurisdiction and however necessary in many cases it may be for it to make a preliminary inquiry, Whether some collateral matter be or be not within the limits, Yet, Upon this preliminary question, Its decision must - always be open to inquiry in the superior court."
therefore, The lower court was definitely in error in holding that the decision of the land tribunal bad concluded the matter that the plaintiffs are not lessees.
(iii) whether the plaintiffs are lessees and entitled to fixity of tenurer:
6. This is the crucial question that has to be decided in the case. After going through the relevant oral and documentary evidence in the case we have no hesitation in concluding that the plaintiffs have not established whether they or their predecessors - in - inteiest were in possession of the property as lessees as the time when the suit o. S. 56/1102 was filed. The plaintiffs have not succeeded, Is establishing that there was a lease of the entire property in favour of their predecessors - in - interest in 1097 as set up by them. As the trial court pointed out, It is no doubt true that from 1103 onwards the predecessors of the plaintiffs were in possession of the properties and were cultivating the same. The documents under which the predecessor - in - interest was in possession and cultivation would only indicate that by an arrangement he was being allowed to cultivate the property from year to year under certain conditions. The document is termed'nadappuchits'. The receiver was appointed for the first time when the integrity of the jenmi tarwad was broken by a preliminary decree for partition. At the time the receiver was appointed, The plaintiffs were cultivating under arrangement from different co - owners who held oodukur rights. The predecessor of the plain tiffs thomman thomas and subsequently the plaintiffs are admittedly co - owners of portions of the property. After the appointment of the receiver the properties were being cultivated by the plaintiffs as per arrangement of the receiver. The burden is on the plaintiffs to establish that they are lessees of the property entitled to fixity of tenure. This they have failed to establish by cogent evidence. Even if any lease arrangement was entered into after the partition suit bad been filed with any of the co - owners such arrangement will be hit by lis pendens. In the absence of positive evidence to indicate the existence of a lease prior to the partition suit and its continuance after such suit, The plaintiffs have to fail in this case.
therefore, The second appeal is dismissed with costs. Dismissed.
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