http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: THIRUMANGALATH KUNHIRATTAN APPU KURUP

       Vs.

RESPONDENT: KOILOTH KAMATH JANAKI & ORS

DATE OF JUDGMENT:       01/11/1996

BENCH: M.M. PUNCHHI, K. VENNKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T VENKATASWAMI, J.      The undisputed facts are the following :      The 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. The 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. Therefore such  a lease  deed cannot be pressed into service to claim  fixity of tenure under Section 7 or 7B of the Act. The appellant  herein preferred  a further Second Appeal No. 1074/71 before  the High  Court of  Kerala. The  High  Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

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 appellant.      We have  gone through  the judgments of the trial court and High Court and heard counsel for the parties.     We  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 1.1.1970.      In all  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.