IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE [ENTITY] WEDNESDAY, THE 5TH DAY OF OCTOBER 2016/13TH ASWINA, 1938 [CASE NUMBER] AGAINST THE [ENTITY] AND DECREE IN AS NO. [SECTION]8/2005 of SUB COURT, PALA DATED [SECTION]-[SECTION]-2007 AGAINST THE [ENTITY] AND DECREE IN [CASE NUMBER] of MUNSIFF COURT,PALA DATED 30-09-2005 APPELLANTS/APPELLANTS PLAINTIFFS/& ADDITIONALAPPELLANTS 17 TO 22 (LEGAL HEIRS OF DECEASED 4TH APPELLANT): 1. [ENTITY], S/[ENTITY], AGED 59 YEARS, PUNNACHERIL, VAZHAPPALLYEAST VILLAGE, VAZHAPPALLY MURI, CHANGANACHERRY TALUK. (*) 2. [ENTITY],S/[ENTITY], AGED 52 YEARS, (DIED) PUNNACHERIL, VAHZAPPALLYEAST VILLAGE, VAZHAPPALLY MURI, CHANGANACHERRY TALUK. (LEGAL HEIRS ARE IMPLEADED AS ADDL.APPELLANTS 26 TO 28) 3. [ENTITY], S/O. [ENTITY], AGED 36 YEARS, PUNNACHERIL, VAZHAPPALLY EAST VILLAGE,VAZHAPPALLY MURI, CHANGANACHERRY TALUK. 4. [ENTITY], (DIED) S/[ENTITY], ARAYASSERIL HOUSE, THURUTHY VILLAGE, THURUTHY MURI, CHANGANACHERRY. 5. [ENTITY], W/[ENTITY], AGED 48 YEARS, PUNNASSERIL, VAZHAPPALLY EAST VILLAGE, VAZHAPPALLY MURI, CHANGANACHERRY TALUK. 6. [ENTITY], W/O. [ENTITY], AGED 53 YEARS, PUNNASSERIL, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK. 7. [ENTITY], W/O.[ENTITY], PUNNASSERIL, VAZHAPPALLY EAST VILLAGE, VAZHAPPALLYMURI, CHANGANACHERRY TALUK. 8. [ENTITY], W/[ENTITY],AGED 36 YEARS, [ENTITY], [ENTITY], CHANGANACHERRY. ( ) 9. [ENTITY],S/O. P.T.THOAMS, (DIED) PUNNASSERIL, VAZHAPPALLY EAST VILLAGE, VAZHAPPALLYMURI, CHANGANACHERRY TALUK. (LEGAL HEIRS ARE IMPLEADED AS ADDL.APPELLANTS 23 TO 25) [CASE NUMBER] 2 [SECTION]. [ENTITY],S/[ENTITY], AGED 34 YEARS, PUNNASSERIL,VAZHAPPALLY EAST VILLAGE, VAZHAPPALLYMURI, CHANGANACHERRY TALUK. 11. [ENTITY],W/[ENTITY], NELLITHANATHU, VAZHAPPALLY VILLAGE, CHANGANACHERRY. 12. [ENTITY],S/O. [ENTITY], AGED 47 YEARS KIZHAKKEPARAMBIL, THRIKODITHANAM VILLAGE, CHANGANACHERRY TALUK. 13. [ENTITY],S/[ENTITY],AGED 42 YEARS,CHANGANKERIL, CHETHIPUZHA VILLAGE, VEROOR KARA, CHANGANACHERRY TALUK. 14. [ENTITY], W/[ENTITY], AGED 50 YEARS, PUNNASSERIL, VAZHAPPALLY EAST VILLAGE VAZHAPPALLY MURI, CHANGANACHERRY TALUK. 15. [ENTITY],W/O.SCARIA, AGED 56 YEARS, KALLUKALAM, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY. 16. [ENTITY],S/[ENTITY], AGED 60 YEARS KALLUKULAM, VAZHAPPALLY EAST VILLAGE ,CHANGANACHERRY TALUK. (APPELLANTS 1 TO 3 AND 5 TO 16 ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER [ENTITY], PUNNACHERIL, VAZHAPPALLY EAST VILLAGE,VAZHAPPALLYMURI, CHANGANACHERRYTALUK) 17. [ENTITY] W/O.LATE [ENTITY], AGED 56 YEARS,[ENTITY], [ENTITY], VAZHAPPALLY PADINJARE VILLAGE, KUVALAYATTOM DESOM, VAGAMON. 18. [ENTITY],S/O.LATE [ENTITY], [ENTITY], [ENTITY], VAZHAPPALLY PADINJARE VILLAGE., KUVALAYATTOM DESOM, VAGAMON. 19. [ENTITY],D/O.LATE [ENTITY], [ENTITY], [ENTITY], VAZHAPPALLY PADINJARE VILLAGE, KUVALAYATTOM DESOM, VAGAMON. 20. [ENTITY], D/O.LATE [ENTITY], [ENTITY], [ENTITY], VAZHAPPALLY PADINJARE VILLAGE KUVALAYATTOM DESOM, VAGAMON. 21. JOB S/O. LATE [ENTITY], [ENTITY], [ENTITY], VAZHAPPALLY PADINJARE VILLAGE, KUVALAYATTOM DESOM,VAGAMON. 22. [ENTITY],D/O.LATE [ENTITY], [ENTITY], [ENTITY], VAZHAPPALLY PADINJARE VILLAGE KUVALAYATTOM DESOM,VAGAMON (APPELLANTS 18 TO 22, ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER [ENTITY] APPELLANT) [CASE NUMBER] 3 ( )ADDITIONALAPPELLANTS: 23. [ENTITY], AGED 25, S/O.LATE [ENTITY], PUNNASSERIL, VAZHAPPALLY EAST VILLAGE, VAZHAPPALLY MURI, CHANGANACHERRY TALUK. 24. [ENTITY], AGED 21, D/O.LATE [ENTITY], PUNNASSERIL, VAZHAPPALLY EAST VILLAGE, VAZHAPPALLY MURI, CHANGANACHERRY TALUK. 25. [ENTITY], AGED 19, S/O.LATE [ENTITY], PUNNASSERIL, VAZHAPPALLY EAST VILLAGE, VAZHAPPALLY MURI, CHANGANACHERRY TALUK. LEGAL HEIRS OF DECEASED 9TH APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 23 TO 25 AS PER THE ORDER DATED18.07.2016 IN [CASE NUMBER] (*)ADDITIONALAPPELLANTS: 26. [ENTITY], AGED 27, S/O.LATE [ENTITY], PUNNASSERIL, VAZHAPPALLY EAST VILLAGE, VAZHAPPALLY MURI, CHANGANACHERRY TALUK. 27. [ENTITY], AGED 24, D/O.LATE [ENTITY], PUNNASSERIL, VAZHAPPALLY EAST VILLAGE, VAZHAPPALLY MURI, CHANGANACHERRY TALUK. 28. [ENTITY], AGED 21, S/O.LATE [ENTITY], PUNNASSERIL, VAZHAPPALLY EAST VILLAGE, VAZHAPPALLY MURI, CHANGANACHERRY TALUK. LEGAL HEIRS OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 26 TO 28 AS PER THE ORDER DATED27.07.2016 IN [CASE NUMBER]. BYADV. [ENTITY] RESPONDENTS/RESPONDENTS/DEFENDANTS: 1. OFFICER IN CHARGE, KERALA LIVE STOCK DEVELOPMENT MILK MARKETING BOARD, KOLAHALAMEDU, P.O., ELAPPARAVILLAGE, PEERMADE TALUK, IDUKKI DISTRICT. 2. KERALA LIVE STOCK DEVELOPMENT MILK MARKETING BOARD, HEAD OFFICE, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 3. [ENTITY] REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM. R1 & R2 BYADVS. [ENTITY] (SENIOR ADVOCATE) [ENTITY] R3 BY GOVERNMENT PLEADER SHRI [ENTITY] THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.08.2016, THE COURT ON 05-[SECTION]-2016 DELIVERED THE FOLLOWING: [ENTITY], J. [CASE NUMBER] Dated this the 5th day of October, 2016 [ENTITY]
Surviving plaintiffs and the legal heirs of plaintiffs 2 and 4 in [CASE NUMBER] before the Munsiff's Court, Pala are the appellants in this second appeal. Defendants in the suit are the respondents. The suit is one for declaration and permanent prohibitory injunction reliefs. After an elaborate trial, the first court dismissed the suit. Aggrieved by the dismissal of the suit, the appellants approached the Court of Subordinate Judge, Pala in A.S.No.[SECTION]8 of 2005. Lower appellate court also agreed with the findings of the trial court and dismissed the appeal.
2. Facts relevant, stated in nut-shell, are as follows: The suit is for declaration of title and consequential prohibitory injunction relief. The plaintiffs separately purchased the properties described in the plaint schedule as per Ext.A1 series documents and they lie as a single plot without any division. Plaintiffs' assignors were the cultivating tenants under the [ACT] (in short, "[ACT]") in respect of the properties and they obtained jenm right through Kottayam Special Munsiff's Land Tribunal vide Ext.A2 series purchase certificates. Original plaintiffs 1 to 16 purchased their respective portions of the plaint schedule property from the above mentioned cultivating tenants as per Ext.A1 series documents. On the eastern side of the plaint schedule property, there is a stone wall. Adjacent to the stone wall, there are survey stones planted by the survey authorities as boundary. The property belonging to the defendants lies on the north-eastern portion of the plaint schedule property, which is beyond the boundary and survey stones. According to the plaint averments, the defendants have only one hectare of property in Kottayam District. On the south of the defendants' property and on the east of the plaint schedule property, the forest land lies. Beyond the defendants' property on the south, there is no stone wall upto a length of [SECTION]0 ft. to demarcate the properties. But, there are clear demarcating feature by way of survey stones which separated the plaint schedule property from the forest land. The plaintiffs are residing about 85 kms. away from the plaint schedule property. It is alleged that the defendants and their men started grass cultivation by entering the plaint schedule property through the portions where there were no stone wall. Therefore, the plaintiffs filed the suit for aforementioned reliefs.
3. Defendants 1 and 2 contended in the written statement that the suit is liable to be dismissed at the threshold because it is bad for non- joinder of necessary parties. According to them, the Kerala Livestock Development Milk Marketing Board (in short, "Board") is fully owned by the Government of Kerala and therefore the State Government is a necessary party. These defendants contended that the plaintiffs were never in possession and enjoyment of any portion of plaint schedule property. The vendors who allegedly assigned the lands to the plaintiffs were not cultivating tenants. The purchase certificates said to have been issued in the names of vendors of the plaintiffs were obtained by playing fraud on the Land Tribunal and therefore they are void. The Land Tribunal should not have issued purchase certificates in favour of the plaintiffs' vendors as they did not produce any evidence to prove their tenancy right. Plaintiffs never got title or possession over any portion of the plaint schedule property on the basis of Ext.A1 series sale deeds. Those documents are created by the plaintiffs in collusion with their vendors. There is no well defined boundary for the plaint schedule property. The survey authorities never put any survey stones to demarcate the boundary. The plaint schedule property is a waste land with grass grown all over, coming within the scope of a private forest under the [ACT] (in short, "Act of 1971"). It is a Government land and has been surveyed as Government land by the survey authorities. The Board is in possession of the entire extent of land including the plaint schedule property. The property along with other lands remained in the possession of the State Government from 1965 onwards. Indo-Swiss Project was carried on in the plaint schedule property. It was taken over by the Board in the year 1976. Accordingly the plaint schedule property came into possession of the Board in that year. Thereafter the properties were mainly used by the Board for the purpose of cattle development activities. It was also utilised for research on grass land management, fodder preservation, fodder seed production and other related activities. Earlier some of the predecessors-in-interest of the plaintiffs had instituted [CASE NUMBER] before the trial court to restrain the defendants from trespassing upon the plaint schedule properties. Plaintiffs in that suit also relied on the same title and ultimately the suit was dismissed. Hence the present suit is barred by res judicata. Even if the plaintiffs had any right over the plaint schedule property, it has been lost by adverse possession and limitation. Thus the Board has perfected title by way of adverse possession. An order passed by the District Collector, Kottayam allowing mutation of the lands to the plaintiffs' name had been stayed by the Revenue Board since the said order was issued without ascertaining as to whether the plaint schedule properties belonged to the plaintiffs.
4. [ENTITY] was impleaded as additional 3rd defendant. Additional 3rd defendant also supported the plea raised by the defendants 1 and 2. According to the averments in the written statement of the additional 3rd defendant, a total extent of 2619.38 hectares of land inclusive of the plaint schedule properties comprised in survey No.2651 of Koottickal Village belonged to [ENTITY]. The above property got vested in the Government as per the [ACT]. Out of the above property an extent of 790.73 hectares of land was handed over to the Indo-Swiss Project. It is in respect of the above land the purchase certificates were issued to 12 members of [ENTITY] Palace contrary to the provisions of law. They were paying land revenue till the year 1990. Re-survey was finalised in that area on 04.05.1993 and the notification was issued in the year 1993. As per the re-survey records, the plaint schedule property forms part of the Government land. In the basic tax register and re-survey field register the plaint schedule property is shown to be belonging to the Indo-Swiss Project, Kolahalamedu estate. After the re-survey, the plaintiffs had not remitted any land revenue. Even though the District Collector, Kottayam allowed mutation of property in the name of the plaintiffs on 21.02.1997, the above order was stayed by the Revenue Board and finally it was set aside. Against that decision the plaintiffs had filed [CASE NUMBER] before this Court. The matter was pending at the time of filing the written statement. According to the additional 3rd defendant, plaintiffs have no right to file the suit and the property now belongs to the Board.
5. Heard Shri [ENTITY], learned counsel for the appellants, Smt.[ENTITY], learned Senior Counsel appearing for respondents 1 and 2 and Shri [ENTITY], learned Government Pleader appearing for the 3rd respondent.
6. After filing the appeal, the appellants have filed three applications, viz., [CASE NUMBER] and [CASE NUMBER] by invoking [SECTION] of the [ACT] (in short, "Code") requesting this Court to allow them to adduce additional evidence. The respondents opposed those applications. However, the acceptability of the same can be considered at the time of considering merits of the contentions in the appeal.
7. At the time of admission of this second appeal, this Court issued notice to the respondents on the following substantial questions of law:
"i) Whether the lower courts were justified in interfering with Exhibit A2 to A2(k) purchase certificates in the facts and circumstances of this case particularly without an issue being framed regarding the validity of Exhibit A2 to A2(k) purchase certificates?
ii) Can a Civil Court, while dealing with a suit for injunction and declaration of title decide upon the validity of purchase certificates which had already become final?
iii) Whether the finding of the Courts below regarding possession of the plaintiffs were justified in the facts and circumstances of this case?
iv) Whether Exhibits A1 to A1(q) and A2 to A2(k) are valid and binding on parties to the proceedings?"
8. Shri [ENTITY] strongly contended that the courts below wrongly exercised their jurisdiction in interfering with the findings of the Land Tribunal leading to the issuance of Ext.A2 series purchase certificates. According to him, the courts below ought to have seen that the respondents did not challenge the orders passed by the Land Tribunal concerned issuing the purchase certificates to the vendors of the appellants. The lower courts mistakenly placed reliance on some precedents to find that the findings of the Land Tribunal leading to the issuance of Ext.A2 series purchase certificates were vitiated.
9. Per contra, Smt.[ENTITY] and Shri [ENTITY] appearing for the contesting respondents contended that ex facie it can be seen that Ext.A2 series purchase certificates are not valid and binding on the respondents. Ext.X series are the third party exhibits summoned and produced from the Land Tribunal concerned. According to the learned counsel appearing for the respondents, a perusal of the files relating to issuance of the purchase certificates, especially the order sheet in various original applications disposed by the Land Tribunal, would show the callousness and irregularity in the proceedings. It is to be remembered that since the suit being one for declaration of title and permanent prohibitory injunction, burden is heavy on the plaintiffs/appellants to establish their case.
[SECTION]. The extractions from the pleadings show that neither in the plaint, nor at the time of adducing evidence, the details about tenancy set up in favour of the vendors of the appellants were shown. It is interesting to note that none of the vendors of the appellants was examined. Ext.X series documents produced from the Land Tribunal would show that there is no specific plea of tenancy set up in the original applications filed before the Land Tribunal and no materials were produced to establish any tenancy right having fixity of tenure under the provisions of the [ACT]. Interesting feature is that in most of the cases only the basic tax receipts were produced to prove the tenancy set up. On realising the difficulty arising out of non-production of the materials to prove the terms of tenancy, now the appellants have, as per [CASE NUMBER], sought to produce rent receipts said to be issued for and on behalf of the so-called jenmi, viz., [ENTITY]. Merits of those documents will be separately considered hereunder.
11. I shall deal with the contentions raised by the parties regarding the creditworthiness of the purchase certificates issued by the Land Tribunal concerned in favour of the assignors of appellants. Learned counsel for the appellants contended that no issue had been cast by the trial court regarding the incorrectness or illegality of Ext.A2 series purchase certificates. Even without framing the relevant issue, the trial court as well as the lower appellate court decided this question to the detriment of the appellants. He further contended that the proceedings before the Land Tribunal were properly initiated and prosecuted and reliable materials were placed to uphold the claims of tenancy raised by the predecessors-in-title of the appellants. Again, it is contended by the learned counsel for the appellants that none of the defendants has a case that the appellants' assignors were having any land in excess of the ceiling limit prescribed in the [ACT]. It is the further contention of the appellants that the case in the written statement that Ext.A2 series purchase certificates were obtained by perpetrating fraud on the Land Tribunal deserves no consideration because no specific fraud is set up as required under [SECTION] of the Code. Moreover, if at all any fraud was pleaded, it could not be sustained for the reason that it was barred by limitation. To crown all these difficulties, it is to be noticed that no attempt was made by the respondents to challenge Ext.A2 series purchase certificates in a manner provided by law.
12. It is apposite to take note of the relevant provisions in the [ACT]. [SECTION] of the [ACT] defines "cultivating tenant" as a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding. The expression "tenant" is defined in [SECTION] of the [ACT] as any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land. It is an inclusive definition taking in an heir, assignee, legal representative, etc. of any person deriving rights through the tenant, an intermediary, a kanamdar, etc. [SECTION] of the [ACT] confers right on the tenants to have fixity of tenure. [SECTION] of the [ACT] says that on a date notified by the Government in the Gazette, all right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants entitled to fixity of tenure under [SECTION], shall, subject to the provisions of the Section, vest in the Government free from all encumbrances created by the land owners and intermediaries. [SECTION] of the [ACT] proclaims the right of a cultivating tenant to get assignment of the right, title and interest in respect of the holdings which have vested in the Government under [SECTION] of the [ACT].
13. The [ACT] is one of the relevant subordinate legislations enabling purchase of the landlord's right by a cultivating tenant. Further, the provisions in the [ACT] are also material.
14. I have carefully perused Ext.X1 series file. Exts.X1, X1(a) and X1(b) relate to the purchase certificate issued in the name of [ENTITY], [ENTITY] Palace, [ENTITY]. Ext.X1(a) is the order sheet maintained by the Land Tribunal. It shows that this purchase was in respect of 15 acres of land in survey No.2651. The property belonged in jenm to [ENTITY]. On 11.01.1977, it is seen recorded, the tenant was represented before the Land Tribunal. It was posted for evidence to 24.02.1977. On 18.06.1977, an order was passed in the following manner: "Tenant filed vakkalath and produced two basic tax receipts for 1975-76 and 1976-77. No other records. Revenue report filed. For orders 25.06.1977." on 25.06.1977, tenant represented and the petition was allowed directing the tenant to pay purchase price of `135/- in lump. Ext.X1(b) is the order issued in the above proceedings. It can be seen therefrom that some blank columns in a type-written order were mechanically filled up. The statement in the order that the contract rent for the holding was `15/- is not substantiated either from the application for purchase or from any other material produced before the Land Tribunal. The Special Tahsildar (LR) and the Land Tribunal, Kottayam mechanically passed the order without insisting on evidence to hold that the applicant was a cultivating tenant.
15. Now we shall examine Ext.X2 which pertains to [ENTITY], [ENTITY] Palace. The land involved in this case is 15 acres in survey No.2651. Ext.X2 proceedings paper also shows that on 18.06.1977 the tenant filed vakkalath and produced two basic tax receipts for 1975-76 and 1976-77. Tenant had not filed any other records. The Revenue Inspector filed a report and the matter was taken for orders on 25.06.1977. On that date, Ext.X2(a) order was passed. As in the case of Ext.X1, this is also a type-written order with blank columns here and there, which were filled up without any reference to the evidence produced for determination of tenancy. Similar is the case with other orders. On perusal of the file, it is evident that the courts below are justified in finding that the Land Tribunal concerned decided the tenancy rights in favour of the assignors of the appellants without any document or without proving tenancy set up.
16. Learned counsel for the appellants vehementally argued that reliance placed by the lower appellate court on a Full Bench decision of this Court in [ENTITY] v. Kunhunni Nair (1993 (1) KLT 227) was misplaced. In a suit for redemption of mortgage, one of the defendants pleaded that a certain item was in his possession on an oral lease granted before the advent of the [ACT] and therefore, he claimed tenancy over some of the items sought to be redeemed. In that case the Land Tribunal parallely considered the claim of tenancy and determined the question. The Full Bench considered the procedure adopted by the Land Tribunal in that case in granting the purchase certificate and in paragraph 22 of the judgment observed as follows:
"Respondents' counsel Mr. [ENTITY] also highlighted the fact that in rendering the decision in [CASE NUMBER], the Land Tribunal failed to comply with the provisions specified in [SECTION] and [SECTION] of the [ACT] and [SECTION] of the Act. It was argued that [SECTION] and [SECTION] aforesaid contemplate passing of a preliminary order regarding the vesting of the right, title and interest of the landowner and intermediaries in respect of such holding. It is only where the Tribunal passes an "order" to the effect that the holding is held by a cultivating tenant or that the right, title and interest of the land owner and intermediaries have vested in the Government, then the Land Tribunal shall, follow the procedure specified in [SECTION]; consider the application, gather information referred to in [SECTION], peruse the written statement and other documentary evidence, if any, produced and the report, if any, of the officer appointed under [SECTION] and after such further enquiries as it may deem necessary - ([SECTION] etc. of the Act) and after giving a reasonable opportunity of being heard to "all" the persons, pass an order in accordance with [SECTION] of the Act. It is seen from the records that only a final order was passed in [CASE NUMBER]. The application was posted for filing written statement on [SECTION]-8-1977 and adjourned to 24-8- 1977. On 26-5-1977 the second respondent in this appeal (5th respondent in the suit) filed a written statement stating that the Land Tribunal has already answered the matter on 31-12-1976, in [CASE NUMBER]. There was no sitting of theTribunal on 24-8- 1977. The first respondent-[ENTITY] filed another written statement on 24-8-1977. The matter was adjourned to 26-9-1977. On that day, the matter was part-heard and was adjourned to 17-[SECTION]-1977 and on that day the order in [CASE NUMBER] was passed. A bare perusal of the way in which the matter stood posted from time to time and was considered by the Land Tribunal would go to show that the Land Tribunal has failed to conform strictly to the procedure specified in [SECTION] of the Act and [SECTION] and [SECTION] of the [ACT]. The statutory Tribunal failed to comply with the provisions of the Act and the Rules. No order on the preliminary point, as to whether the land comprised is held by a cultivating tenant or not or that the right, title and interest of the landowner and intermediaries in respect of such holding have vested in the Government or not, seems to have been passed. It is only thereafter further proceedings for assignment and determination of compensation purchase price etc., should be pursued. That is not the way in which the Land Tribunal has proceeded in disposing of [CASE NUMBER]. The application for assignment filed under [SECTION] and the written statement filed by the parties seem to have been perused. But, it does not appear that the Land Tribunal has complied with [SECTION] of the Act and obtained the advice of the village committee under [SECTION] of the Act. It is not clear whether any report was obtained from the officer appointed under [SECTION] of the Act. The procedure contemplated by [SECTION] of the Act was not followed which is necessary before passing an order under [SECTION] of the Act. The statutory Tribunal failed to act in conformity with the procedure prescribed by [SECTION] of the Act read with [SECTION] and [SECTION] of the [ACT]. We perused through the order of the Land Tribunal in [CASE NUMBER] dated 17-[SECTION]-
1977. The order states that the notices contemplated by [SECTION] of the Act were published and issued to the interested parties and the application and the written statement and evidence adduced during the enquiry were perused. There is not even a formal recital that the procedure contemplated by [SECTION] were followed. There is also no formal recital even, that the report, if any, of the officer under [SECTION] of the Act was obtained. As to whether any further enquiry was made is not clear. The order passed under [SECTION] does not even mention whether the advice was received from the village committee contemplated by [SECTION] of the Act. We are constrained to hold that the order passed by the Land Tribunal, in the circumstances, is perfunctory and it is obvious that the provisions of the Act and the Rules have not been complied with. The fundamental principles of judicial procedure, as required by the Act, were totally contravened. In such cases, the jurisdiction of the civil court is not excluded, as stated by the Privy Council in Secretary of State v. Mask & Co. (AIR 1940 PC [SECTION]5 at p.1[SECTION]) and [ENTITY]'s case ([PRECEDENT]). This is another fundamental infirmity in the later decision rendered by the Land Tribunal, rendering it a nullity."
17. The ratio in the decision is squarely applicable to this case. On a perusal of the materials produced from the Land Tribunal, the courts below correctly arrived at the conclusion that flagrant violations of procedure were made by the Land Tribunal concerned in granting purchases in the names of assignors of the appellants. Even without adjudicating the genuineness of the statement that they were cultivating tenants and without deciding the terms of tenancy and also without affording an opportunity to all interested parties to be heard, the purchase certificates were issued. Therefore, the courts below are justified in finding that the orders passed by the Land Tribunal granting purchase certificates in favour of the assignors of the appellants are legally unsustainable.
18. Learned counsel for the appellants strongly contended that the respondents cannot challenge the genuineness and validity of Ext.A2 series purchase certificates without challenging the same before the appropriate forum. In spite of spelling out claims of tenancy in an earlier round of litigation, the respondents did not choose to question the validity of the purchase certificates. According to the appellants, the respondents are legally precluded from questioning the correctness of the purchase certificates in this suit. I am afraid, I cannot accept this contention for the reason that the courts below have carefully perused the procedure adopted by the Land Tribunal in considering the original applications for purchase of jenm right by assignors of the appellants. Ex facie the proceedings before the Land Tribunal were illegal and without adhering to the statutory provisions. Therefore, the respondents have every right to challenge genuineness of the purchase certificates in a suit of this nature and the courts below had the duty to examine the same. The appellants cannot have any complaint in this regard.
19. Learned counsel for the appellants placing reliance on a decision rendered by a Single Judge of this Court in Gopalakrishnan and others v. M.Srinivasan (20[SECTION] (2) KLT 216) contended that the courts below failed to consider the principle that a document even if it was registered fraudulently is not void abinitio, but it is only voidable. Therefore, the assignment deeds in favour of the appellants cannot be wished away in a proceedings of this nature. This proposition, although may be true in certain circumstances, may not help the appellants in the present case. The facts in the above decision have no similarity with the facts in this case. Above all, the plaintiffs who seek a declaration and reliefs on the basis of title have to establish their title. If the anterior title from which they claimed title is found to be defective, the defendants in such a suit have every right to question the correctness of the plaintiffs' title even without attacking the registered document in their favour.
20. In order to buttress the argument that the plea of fraud on the Land Tribunal, raised by the respondents, cannot be accepted, a decision reported in [PRECEDENT] is pressed into service. It is fundamental that as required in [SECTION] of the Code, the allegation of fraud, misrepresentation, breach of trust, etc. will have to be specifically set up in the pleadings and such vitiating circumstances so set up will have to be specifically proved. The courts below entered a finding against the purchase certificates not on the basis of any fraud pleaded and proved by the respondents, but on the basis of the inherent illegalities and irregularities borne out from the records which led to the issuance of the purchase certificates. Therefore, this principle will not salvage the appellants' case.
21. Another decision relied on by the learned counsel for the appellants is the one reported in Rajan A. and another v. T.K.Kumari (20[SECTION] (2) KHC 688). The principle stated in the decision that a civil court has no right to examine the correctness or otherwise of the purchase certificates issued by the Land Tribunal, even if fraud is alleged, cannot have a universal application. The learned Single Judge in that case was examining the contentions against a purchase certificate in a writ petition. The facts in that case are totally dissimilar with those in this case and therefore the statement of law in that case cannot apply to the facts in this case.
22. Learned counsel for the appellant placed reliance on Jithesh v. [ENTITY] (2013 (4) KLT 565) to argue a proposition that unless a purchase certificate is set aside by a competent authority or by a court of law, the statutory conclusiveness in terms of [SECTION] of the [ACT] has to be honoured. The said principle is stated in a writ petition filed under [SECTION] of the [ACT] seeking police protection. Those observations by this Court in the above matter were totally in a different factual setting uncomparable to the facts in this case. Moreover, the file maintained by the Land Tribunal in respect of the issuance of purchase certificates unambiguously show that the statutory procedures have been blatantly violated. Hence the presumption of conclusiveness cannot be claimed in such matters. Therefore, I do not find any legal infirmity in the findings of the courts below that the purchase certificates (Ext.A2 series) were issued by the Land Tribunal and secured by the predecessors-in-title of the appellants without complying with the provisions of law and without establishing any valid tenancy. Mere production of some basic tax receipts, that too for a period much after 01.04.1964 prescribed in [SECTION] of the [ACT], without pleading or proving any specific tenancy in Exts.B1 to B11 applications would not have entitled the predecessors-in- title of the appellants to claim fixity of tenure and therefore ex facie their purchases are bad in law. The irregularities and illegalities in the proceedings before the Land Tribunal, going by the principles in [ENTITY]'s case (supra) are writ large and therefore, they were rightly discounted by the courts below from consideration.
23. From the above discussion, it is clear that the foundation of the appellants' claim of title is shaky and therefore, the declaration sought for cannot be allowed. However, since the appellants have raised certain other points at the time of hearing, it is apposite to deal with them too.
24. Learned counsel for the appellants seriously challenged Ext.B14 order passed by the Special Secretary (Revenue), Government of Kerala dated 04.03.1998. By virtue of this Government Order, the order passed by the District Collector, Kottayam vide proceedings No.E2- 28340/96 dated 21.02.1997, making corrections in the re-survey records and the transfer of registry of 43.63 hectares of land in survey No.2651 of Kuttickal Village in Meenachil Taluk, was interfered with. It is seen from Ext.B14 that the Managing Director, Kerala Livestock Development Board, Thiruvananthapuram had filed an appeal petition before the Secretary, Board of Revenue against the order of the District Collector, Kottayam mentioned above sanctioning mutation resulting in the correction of re- survey records leading to the transfer of registry of 43.63 hectares of land in survey No.2651 of Kuttickal Village in Meenachil Taluk. In the appeal, it was contended by the Board that the land was in the possession of the appellants for over 30 years and as per the re-survey records, the said area was recorded as Government puramboke, Indo-Swiss project. It was the allegation that things being so, the District Collector without any authority sanctioned correction, that too without giving a notice to the appellant Board or hearing the appellant. According to the appellant Board, the land was declared as "sarkar puramboke" in Kolahalamedu as per the [ACT]. This contention of the appellant Board was accepted by the Government and set aside the order passed by the District Collector.
25. Learned counsel for the appellants vehementally contended that Ext.B14 is unsustainable as the Government had no authority to entertain an appeal. Relying on a decision of the Supreme Court in [PRECEDENT] the learned counsel for the appellant contended that the Apex Court has clearly drawn a distinction between a right of suit and a right of appeal. As there is an inherent right in every person to bring a suit of civil nature, there is no corresponding right with respect to an appeal as the right of appeal inheres in no one and therefore an appeal for its maintainability must have a clear authority of law. According to him, the order passed by the Collector cannot be challenged in appeal before the Government by any provision of law and therefore entertainment of the appeal, which resulted in Ext.B14, was illegal.
26. Ext.B14 was challenged in [CASE NUMBER] before this Court. The learned Single Judge disposed of the original petition as follows:
"The challenge is on Ext.P3 order passed by the Government. An appeal is filed against Ext.P1 order passed by the 3rd respondent. The issue pertains to rectification of certain alleged errors with regard to resurvey. Government in the impugned order has held that in view of pendency of a civil case, [CASE NUMBER] on the files of the Munsiff's Court, Pala the 3rd respondent should not have passed Ext.P1 order and hence the order was set aside. In the above circumstances, this Writ Petition is disposed of making it clear that subject to the outcome of the civil case it will be open to the petitioners to approach the 3rd respondent."
This judgment is produced along with [CASE NUMBER].
27. Learned counsel for the appellants argued that the contesting respondents cannot oppose the appellants' claim of title over the property on the basis of revenue registers alone. It is trite that the revenue records by themselves cannot confer title on any one. However, it can be an indication that title inheres in the named person. This proposition is unchallengeable. Learned Senior Counsel appearing for the Board contended that in spite of the best efforts by the Board, they could not get any document evidencing the handing over of property by the Government to the Indo-Swiss Project. According to the learned Government Pleader and the learned Senior Counsel appearing for the Board, the disputed property is in the possession of the Board for long time and nobody has ever challenged the authority of the Board to hold the property. Learned Senior Counsel seriously challenged Ext.A[SECTION], a report submitted by the Tahsildar, Kanjirappally to the District Collector, Kottayam. The report proceeds on the correctness of the purchase certificates issued in the name of assignors of the appellants. If the validity of the purchase certificates, viz., Ext.A2 series, falls to ground, the basis of Ext.A[SECTION] gets eroded. Ext.A11 would indicate that the Divisional Forest Officer, Kottayam on 14.06.1996 informed the District Collector, Kottayam that certain portion of the disputed land in survey No.2651 was not a vested forest, taken possession of by the Department. From the above facts, it is evident that claim of the appellants is on the basis of tenancy set up by their predecessors-in-title, which cannot be sustained for the reasons mentioned above. Even though the Board failed to establish their title by producing documents, it cannot be held that the appellants could derive any benefit out of that as it is incumbent on them to establish a clear title to get the discretionary relief of declaration in their favour. The virus of Ext.B14 is of no significance in this case as the appellants have failed to establish their right, title and interest over the land.
28. Learned counsel for the appellants contended that the plea of adverse possession raised by the respondents in their written statements has not been established. True, there is no evidence adduced to satisfy the ingredients to be established for acquiring title by adverse possession and limitation. However, the appellants cannot capitalise the deficiency in the evidence adduced by the respondents to fortify their claim of title. It is to be remembered that the respondents have a definite case that the land belonged to the Government and it was handed over to Indo-Swiss Project earlier and then to the Board. Therefore, even if the plea of adverse possession is not established, the appellants cannot succeed unless they establish an unblemished title to claim a declaratory and other reliefs.
29. Another argument by the learned counsel for the appellants is the non-maintainability of a contention regarding the bar of suit under the Act of 1971. [SECTION] of the Act of 1971 defines the term "private forest"
as follows:
private forest" means-
(1) in relation to the Malabar district referred to in [SECTION] of the [ACT] -
(i) any land to which the [ACT], applied immediately before the appointed day excluding-
(A) lands which are gardens or nilams as defined in the [ACT];
(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.
Explanation.- Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;
(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;
(ii) any forest not owned by the Government, to which the [ACT] did not apply, including waste lands which are enclaves within wooded areas.
(2) in relation to the remaining areas in the [ENTITY], any forest not owned by the Government, including waste lands which are enclaves within wooded areas.
Explanation.-For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs."
We are only concerned with [SECTION] of the Act of 1971. According to this part of the definition, waste lands which are enclaves within wooded areas also taken in within the definition of "private forest". Admittedly the disputed property is lying contiguous to the property in the admitted possession of the Board. It is also come out in evidence that they were using this property for cultivation of grass to be used as fodder. Learned counsel for the appellants contended that as it is not established that the disputed land is an enclave within a wooded area, the respondents are not entitled to get any benefit under the Act of 1971. It may be true that there is not much evidence available to find that it is a private forest as defined in the Act of 1971. But the lie of the land, user of the land and other attending circumstances borne out from the evidence indicate that the respondents are using the property as part and parcel of the land admittedly in their possession. It is also pertinent to note that there is no demarcating feature between the disputed properties and the properties unquestionably held by the respondents. Therefore, these are all indications to infer that the appellants never enjoyed the property as a distinct entity.
30. Learned counsel for the appellants strongly contended that the reasoning of the lower appellate court, that members of [ENTITY] could never be cultivating tenants and the purchase certificates issued in their names by the Land Tribunal are bogus for the reason that they were having large tracts of land in that area, is incorrect. Learned counsel for the appellants contended that even though centuries before, they might have owned vast extent of property, even much before the advent of the [ACT], they had lost everything and they became ordinary citizens. In order to trace their history, reliance is placed by the learned counsel on the Survey of Kerala History by Shri [ENTITY]. At page 166 of the book, the description about [ENTITY] is mentioned as follows:
"[ENTITY], like [ENTITY], was a small principality under a family which traces descent from the Pandyan kings of Madurai. In memory of their migration the family still worships Lord [ENTITY] and Goddess [ENTITY], the chief deities of the Madurai temple. According to the tradition the ancestors of the [ENTITY] family were, on their arrival in Kerala, received with hospitality by some of the local Rajas and [ENTITY] chieftains including the [ENTITY] chief who had married a woman of their family. Their chief [ENTITY] acquired the tract of [ENTITY] in the present Minachil taluk and also the whole of the High Ranges from the Tekkumkur Raja and exercised sovereign powers over the area. The [ENTITY] family became subject to [ENTITY] with the conquest and annexation of Tekkumkur and Vadakkumkur by [ENTITY] in 1749-'50. It may be noted that the High Ranges of Idukki district which now abound in rich tea estates (540.5 sq.kms) were leased out by the [ENTITY] to European planters in the 19th century. In fact, the beginnings of the famous Kannan Devan Hills Concession lie in the agreement between an English planter by name [ENTITY] and [ENTITY] of [ENTITY] dated July 11, 1877."
Another book relating to the history of [ENTITY] cited at the Bar is " by [ENTITY]. There also "
the rise and fall of [ENTITY] has been depicted. The [ENTITY] State Manual by [ENTITY], Vol.III, page 402 also shows that the [ENTITY] Chief belongs, it is said, to an ancient offshoot of the Pandyan dynasty of kings, that left Madura, their capital, and sought refuge in the fastnesses of the Western Ghauts, about 5 or 6 centuries ago. The tract of land called [ENTITY] was purchased by them from the then holder, a Rajah of Thekkumkur. The decline of their dynasty is also described in this Manual. On the basis of these authorities, learned counsel for the appellants argued that the assumption by the lower appellate court that members of [ENTITY] could not be regarded as cultivating tenants is baseless because they are now living as ordinary citizens of this country without any special privilege. They were virtually denuded of their administrative powers long before. The predecessors-in-title of the appellants belonged to [ENTITY] may not be a reason to hold that they were not cultivating tenants, if the conditions in the [ACT] are otherwise satisfied. But, that question is of academic importance only since the appellants failed to establish that there were valid tenancies created in favour of their predecessors-in-title.
31. The applications for reception of additional evidence cannot be allowed at this stage of the proceedings mainly for the reason that the prescriptions in [SECTION] of the Code are not satisfied. Further, it is well settled that reception of an additional evidence in appeal is not a matter of course. No tangible reason for not producing these documents before the trial court has been established by the appellants. Moreover, the documents now sought to be produced were within the reach of the appellants even at the time of trial. Therefore, I find no reason to accept the additional evidence at this stage of the proceedings. Hence the applications are dismissed. The appeal is found to be devoid of any merit and the substantial questions of law are decided against the appellants.
In the result, the appeal is dismissed.
All pending interlocutory applications will stand dismissed.
[ENTITY], JUDGE.