- (1.) Heard the learned counsel on both sides.
(2.) The plea raised before the High Court in second appeal was that the appellant before us (the first defendant in the suit) was a "deemed tenant" within the meaning of Sec. 7 of the Kerala Land Reforms Act, 1963 (for short "the Act") The High Court rejected this contention by the following observations: "It is admitted that what is pleaded in the written statement is that he was in continuous occupation and was a tenant and because of such occupation he did have adverse possession and, therefore, the plaintiff did not have right to seek partition. That will not come within Sec. 7. For the purpose of Sec. 7, the minimum factual foundation necessary was that he continued, whatever be the rights of the plaintiff, to occupy the land believing himself to be a tenant. When that factual foundation is not there, in the pleadings, there arises no question of answering this mixed question of law and fact, in favour of the appellant."
(3.) A reference to the judgment of the trial court shows that the suit was initially instituted by the original plaintiffs as a suit for injunction in which interim injunction had been sought. The relief of interim injunction was rejected by the trial court holding that the plaintiffs were not shown to have been in possession of the suit property. Thereafter, the plaint was amended and the suit was converted into one on title. The first defendant, who is the appellant before us, filed an additional written statement taking a plea of adverse possession. Obviously, the question as to whether Defendant 1 was in possession of the suit property, whether adversely to the plaintiffs' right or otherwise, ought to have been decided in the trial. Unfortunately, we notice that the trial court merely relied on the findings returned by the Land Tribunal on the issue of tenancy, which too happened to come into existence because of the failure of the plaintiffs to attend to the proceedings before the Land Tribunal. Basing its decision on it, the trial court did not go into the question whether Defendant 1 was in possession of the suit property. The first appellate court held against the plaintiffs and dismissed the suit. Even the first appellate court, which reversed the judgment of the trial court, did not go into the question of possession. When the issue was raised before the High Court in second appeal, the High Court dismissed the second appeal by the aforesaid observations to which we have referred.;