IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 RP.No. 610 of 2011(O) -------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.28366/2010 Dated 12/11/2010 .................... REVIEW PETITIONER(S): RESPONDENT IN THE WRIT PETITION ------------------------------------------------------------------------------------------ THIRUMANGALATH PACHIRIMANAKKAL UNNIMA @ UNNIMA ANTHARJANAM,AGED 75,W/O.NARAYANAN NAMBOOTHIRI,THIRUMANGALATH PACHEERI MANA, THRIKKANAPURAM PO, MALAPPURAM DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): PETITIONERS IN THE WRIT PETITION ------------------------------------------------------------------------------- 1. CHERIYAMU HAJI,S/O.MARAKKAR, PALATHINKAL CHOLAYIL, THRIKANAPURAM PO, MALAPPURAM DISTRICT. 673 121. 2. MUHAMMED @ BAVA,S/O.MOIDEENKUTTY, CHOLAYIL HOUSE,THRIKANAPURAM PO, MALAPPURAM DISTRICT – 673 121. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 31/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- R.P.No.610 of 2011 in W.P.(C) No.28366 of 2010 -------------------------------------- Dated this the 31st day of August, 2011. ORDER This application is for review of judgment dated November 12, 2010 in W.P.(C)No.28366 of 2010. Defendants 8 and 9 in the suit challenged Ext.P2, finding entered by the learned Sub Judge, Tirur that the claim of tenancy raised by defendants 8 and 9 is not required to be referred to the Land Tribunal (for short, “the Tribunal”) for a finding since the Tribunal is bound by the earlier order it has passed. This Court while disposing of the Writ Petition held that so far as the 8th defendant is concerned it was within the power of the civil court to decide whether purchase certificate issued to him was obtained fraudulently or not and while deciding that issue, it is within the power of the civil court to decide on the allied question whether 8th defendant is a cultivating tenant entitled to fixity of tenure. It was therefore directed that so far as 8th defendant is concerned, a reference to the Tribunal is not required. 2. So far as 9th defendant is concerned it was pointed out that he had not obtained the purchase certificate and hence the claim of tenancy raised by him had to be decided. Therefore it was held that so far as 9th defendant is concerned the claim of tenancy raised by him is required to be referred to the Tribunal. It is accordingly that the Writ Petition was allowed in part. R.P.No.610 of 2011 in W.P.(C) No.28366 of 2010 2 3. In the petition for review filed by the respondent in the Writ Petition it is pointed out that it is not a case where defendants 8 and 9 claimed independent tenancy as against the respondent. On the other hand, both of them claimed that there was an oral lease of 3.44 acres in favour of their father Cholayil Marakkar in the year 1938 and after his death there was a partition of the said property as per document No.3470 of 1982 as per which item No.1 – 1.56 acres was allotted to the 8th defendant and item No.2 – 1.25 acres (in the partition deed) was allotted to the 9th defendant. The rest of 3.44 acres was allotted to defendants 10 and 11. 4. It is contended by learned counsel for review petitioner (respondent in the Writ Petition) that in so far as claim of tenancy is traced by defendants 8 and 9 to the oral lease in favour of their father in the year 1938, if the claim of 8th defendant is to be decided by the civil court and that of the 9th defendant by the Tribunal, there is possibility of conflicting and divergent findings as to whether Cholayil Marakkar, the ancestor of defendants 8 and 9 was a cultivating tenant or not. It is also submitted by learned counsel that if the civil court while considering the claim of 8th defendant enters a finding regarding the alleged oral lease in favour of Cholayil Marakkar, that should apply to the 9th defendant also R.P.No.610 of 2011 in W.P.(C) No.28366 of 2010 3 and the claim of 9th defendant should depend on that finding. In the circumstances a reference of the claim of tenancy raised by the 9th defendant to the Tribunal is not warranted. 5. Learned counsel for defendants 8 and 9 (respondents in the review petition/petitioners in the Writ Petition) contend that these aspects were considered while disposing of the Writ Petition. It is also submitted that assuming that the 8th defendant fraudulently obtained a purchase certificate, that cannot deprive 9th defendant of his right to get his claim of tenancy decided by the Tribunal under Section 125(3) of the Kerala Land Reforms Act. 6. I have gone through the judgment in W.P.(C)No.28366 of 2010. It is seen that the question raised by petitioner in the review petition as to whether the lease hold right claimed by defendants 8 and 9 flowed from Cholayil Marakkar based on the alleged oral lease of the year, 1938 and what would be the consequence of a finding regarding that oral lease that may be entered by the civil court while deciding whether 8th defendant is a cultivating tenant, on the claim of 9th defendant was not considered by this Court while deciding W.P.(C) No.28366 of 2010. That in my view is an error apparent on the face of records which requires the judgment to be reviewed. R.P.No.610 of 2011 in W.P.(C) No.28366 of 2010 4 Resultantly this review petition is allowed. Judgment in W.P.(C)No.28366 of 2010 is reviewed. Post the Writ Petition for hearing after Onam holidays. In the meantime it is directed that the civil court and the Land Tribunal shall stop further proceedings pending before it until further orders. THOMAS P.JOSEPH, Judge. cks