Point of Law: Weight to be attached to an admission made by a party is a matter different from its use as an admissible evidence.”

JUDGMENT :

This Regular Second Appeal arises from the judgment and decree dated 28.11.2001 in O.S.No.438 of 1990 passed by the Additional Munsiff’s Court, Kasaragod. The Subordinate Judge’s Court, Kasaragod confirmed the judgment and decree of the Munsiff's Court in A.S.No.15 of 2002. The plaintiff who lost the case in the courts below is the appellant.

2. Material facts relevant for the adjudication of this appeal are narrated below:-

2.1. The plaint ‘A’ schedule property was assigned by the Government in favour of Maruvala Thirumaleshwara Bhat. According to the plaintiff, this was the self-acquired property of Sri.Thirumaleshwara Bhat who died in 1980. After his death, the plaint ‘A’ schedule property devolved upon the plaintiff, his mother, two sisters and two brothers. The plaintiff is one of the co-owners of the plaint ‘A’ schedule property. The defendants have no right, title, or interest over the plaint ‘A’ schedule property. The father of the plaintiff permitted to run a branch post office in a portion of the building in the ‘A’ schedule property. He constructed a building on the property. In 1984, the defendants trespassed upon the plaint ‘A’ schedule property and occupied the building thereon. The occupation of the defendants in the building is unlawful. They have no manner of right, title, or interest in ‘A’ schedule property. One Bhandary Bunt was the branch Post Master till 1965. He was permitted to use a portion of the building by the father of the plaintiff. After his death, defendant No.1 became the branch Post Master, and he continued in the same building. Defendant No.1 fraudulently managed to get the name of the owner of the property changed in his favour in the Panchayat register. The plaintiff is entitled to recover possession of the property on the strength of his title from the defendants.

2.2. The Defendants contended that the plaint ‘A’ schedule property was not recognized as the self-acquired property of Thirumaleshwara Bhat. ‘A’ schedule property, as well as the entire remaining extent in R.S.No.100/1A1, had been treated as family property. Defendant No.1 obtained ‘A’ schedule property and another 1.51 acres of land in R.S.No.100/1A1, measuring a total extent of 1.61 acres of property in Kudalamerkala village on 'chalgeni lease' (See Sec.2(57)(j)(i) of the Kerala Land Reforms Act, 1963) from the father of the plaintiff Sri.Maruvala Thirumaleshwara Bhat about 30 years back for an annual rent of Rs.32/-on executing 'chalgeni chit' in his favour for one year. After the expiry of the lease period, he continued as a tenant holding over under the same terms and conditions and was paying rent.

Defendant No.1 constructed a tiled building in ‘A’ schedule property by spending his own money. The branch post office is housed in a portion of the said building. Defendant No.1 himself is the branch Post Master. Another part of the building is also in possession of the defendants, wherein they are running a ration shop and grocery shop. Defendant No.1 is a cultivating tenant of the aforementioned entire 1.61 acres of land in R.S.No.100/1A1, including the plaint ‘A’ schedule property. He is entitled to get all the benefits of the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the Act'). He has got fixity of tenure, and he is not liable to surrender vacant possession of ‘A’ schedule property.

2.3. On the side of the plaintiff PWs 1 and 2 were examined, and Exts.A1 to A7 were marked. DW1 was examined, and Exts.B1 to B26 were marked on the side of the defendants. Ext.C1 was marked as Court exhibit.

2.4. The trial Court referred the question of tenancy to the Land Tribunal under Section 125(3) of the Act. The Tribunal recorded a finding that defendant No.1 is a cultivating tenant. Relying on the order of the Land Tribunal dated 19.6.2001 (Ext.C1), the trial Court dismissed the suit. The plaintiff challenged the judgment and decree dismissing the suit before the Subordinate Judge’s Court, Kasaragod in A.S.No.15 of 20