IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 WP(C).No. 37294 of 2007(M) -------------------------- PETITIONER: --------------- NADUVATHEDATH VASUDEVAN NAMBOOTHIRIPAD, S/O.LATE VASUDEVAN NAMBOOTHIRIPAD, KEEZHUPARAMBA, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI. P.VIJAYAKUMAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, TRIVANDRUM. 2. DISTRICT COLLECTOR, MALAPPURAM. 3. THE CHAIRMAN, TALUK LAND BOARD, ERNAD, COLLECTORATE, MALAPPURAM. 4. TAHSILDAR, ERNAD, MANJERI. 5. VILLAGE OFFICER, KEEZHUPARAMBA, MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER: ADV. SRI P R JAYAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2010, ALONG WITH C.R.P.No.451 OF 2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37294 of 2007 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : LIST OF THE PROPERTIES ASSUMED FROM PETITIONER'S FAMILY ON 25-01-1977 EXHIBIT P2 : ORDER OF TALUK LAND BOARD DTD. 08.02.05 EXHIBIT P3 : REPRESENTATION SUBMITTED BY THE PETITIONER'S MOTHER DURING AUGUST 2005 EXHIBIT P4 : REPRESENTATION DTD. 13.09.07 SUBMITTED BY PETITIONER'S MOTHER BEFORE 2nd RESPONDENT EXHIBIT P4(A) AND P4(B) : RECEIPT OF THE REGISTRATION AND ACKNOWLEDGEMENT CARD. RESPONDENTS' EXHIBITS: NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 37294 of 2007 and C.R.P.No.451 of 2009 --------------------------------------- Dated this 08th day of July, 2010 JUDGMENT This revision petition as well as writ petition are the off shoot of an order passed by Taluk Land Board, Ernad (for short, “the TLB”) under Section 85 of the Kerala Land Reforms Act (for short, “the Act”). Property originally belonged to one Vasudevan Namboodiripad and while so the TLB passed order on 25-01-1977 directing surrender of 21.445 acres as excess land. Vasudevan Namboodiripad, the declarant challenged that order in C.R.P.No.685 of 1977 in this court. This order set aside the order dated 25-01-1977 remitted the case to the TLB for fresh decision. After remand the TLB revised order dated 22-12-983 reducing extent of excess land to be surrendered by the declarant to 14.71 acres. Declarant was not satisfied and filed C.R.P.No.426 of 1984. Some other persons who claimed to be tenants under the declarant filed C.R.P.No.425 of 1984. This court allowed both the revision petitions and remitted the case to the TLB for fresh decision in accordance with the directions in the order in W.P.C.No.37294 of 2007 and C.R.P.No.451 of 2009 : 2 : C.R.P.No.685 of 1977. Declarant then filed O.P.No.14795 of 1993 challenging the order of TLB reopening the case (as if declarant was liable to surrender 21.445 acres). That writ petition was allowed and order of the TLB was set aside. Then there was a revised order by the TLB on 30-08-1999 whereby excess land liable to be surrendered by the declarant was reduced to 11.41 acres. That order was challenged by 11 persons in C.R.P.No.2375 of 1999 and this court disposed of that revision petition directing the TLB to issue notice to the said 11 persons and dispose of the matter after hearing them also. Pursuant to that, the TLB has issued notice to the said persons. Of them two – one Velayudhan Nair and Sulochana did not respond. 5 other persons also made claim petitions before the TLB. The TLB considered claim of the said persons and disposed the same vide order impugned in C.R.P.No.451 of 2009 by the State. In the said order the TLB also directed that land in excess of the area referred to therein has to be re-conveyed to the legal heirs of the declarant. Since that order has not been complied legal heirs of the declarant have filed W.P.C.No.37294 of 2007 to enforce the said part of the order. 2. I have heard learned Government Pleader appearing W.P.C.No.37294 of 2007 and C.R.P.No.451 of 2009 : 3 : for the State and learned counsel for petitioner in W.P.C.No.37294 of 2007. It is contended by learned Government Pleader that so far as claimant Nos.7 to 13 are concerned, they have not produced any purchase certificate from the Land Tribunal to evidence their claim of tenancy in respect of the holdings said to be in their possession and hence the TLB was not correct in allowing claim of said persons. Learned counsel appearing for petitioner in W.P.C.No.37294 of 2007 while contending that there is no reason to interfere with the impugned order requested that since the declarant as well as his legal heirs were out of possession of the property from 1976 onwards, direction may be issued to the appropriate authority to re-convey the property to legal heirs of the declarant. 3. I shall refer to the impugned order allowing the claims under Section 85(8) of the Act. In common, all these claimants or their assignors claim to have derived right of tenancy from the lessee from the declarant. Claimant No.1 is one Radhakrishnan who claimed right over 17.5 acres as per document No.2175 of 1982 executed by one Imbichi Mammad. Land was taken on lease from the declarant by Koonoor Velukutty much before 01-04- 1964 and by successive assignments, it came to the ownership W.P.C.No.37294 of 2007 and C.R.P.No.451 of 2009 : 4 : and possession of claimant No.1, Radhakrishnan. He produced rent receipts prior to 01-04-1964. It has also come in evidence that one of the assignees got purchase certificate No.2360 of 1978 in S.M.437 of 1978 of the Land Tribunal, Kondotty. That was taken into account by the TLB along with rent receipts produced by the claimant which related to the period prior to 01- 04-1964. Claimant No.2 is one Ayishakutty and her claim concerned 28 cents of land in R.S.No.281/2. She claimed an oral entrustment from Velukutty in the year 1962 and produced purchase certificate No.58 of 1984 in S.M.83 of 1983 of the Land Tribunal, Kondotty. Claimant No.3 is one Velayudhan, his claim being over 50 cents under an oral lease from Kesavan Nampoodiri before 01-04-1964. He has produced a copy of order in S.M.208 of 1989 of Land Tribunal, Kondotty as per which Land Tribunal ordered to assign landlord's rights in his favour. The 4th claimant is one Pathumma claiming right over 1.25 acres as per document No.905 of 1984. It is stated that one Mohamed got oral lease of the property from the declarant and by subsequent assignments it reached her. She has produced purchase certificate bearing No.169 of 1984 issued in S.M.305 of 1983 of the Land Tribunal, Kondotty. The next is one Unni Moyi, his claim W.P.C.No.37294 of 2007 and C.R.P.No.451 of 2009 : 5 : being in respect of 20 cents covered by document No.1012 of 1980 in his favour. His claim is that Velukutty got oral lease of the property from declarant in the year 1962 and by subsequent assignments, it came to him. He purchased landlords rights in S.M.437 of 1978 of the Land Tribunal, Kondotty. He was issued purchase certificate No.2360 of 1978. He also produced rent receipts for the period 1137 M.E onwards. One Sainaba represented claimant Shoukathali. She claimed right over 12.5 cents as per document No.3535 of 1996 from one Imbichi Mammad. The land in possession of the claimant was taken on oral lease by Velukutty who is said to have obtained it on lease from the declarant and later assigned the property as per document No. 1179 of 1979. Claimant produced rent receipts for the period prior to 01-04-1964. 3. So far as claimant Nos.1 to 4 are concerned, there is no case or evidence that purchase certificates are obtained by fraud or collusion. When the Land Tribunal has issued purchase certificates in the absence of fraud and collusion it is binding on the TLB as well. More over rent receipts prior to 01-04-1964 also are produced. When purchase certificate is issued by the land Tribunal it is conclusive regarding the right, title and interest of W.P.C.No.37294 of 2007 and C.R.P.No.451 of 2009 : 6 : the person in whose favour that certificate is issued. 4. So far as claimant No.5 is concerned, though the Land Tribunal has stated that purchase certificates does not relate to the property over which claim is made, claimant produced rent receipts from 1137 M.E onwards which the TLB was inclined to accept on its face value. So far as other claimants are concerned, they have also produced receipts for payment of rent for the period prior to 01-04-1964. The TLB has also taken into account the fact that original lease was in favour of Velukutty and Kesavan Namboodiri who made assignments in favour of other persons and ultimately the respective holdings came into possession and enjoyment of the claimants. The TLB has also observed that accepting oral lease in favour of Velukutty and Kesavan Namboodiri the Land Tribunal has issued purchase certificates to some of the claimants referred to above and in that circumstance when other claimants produced rent receipts for payment of rent to the jenmi, there was no reason to disbelieve that evidence. It is on the above premise the TLB has accepted the claims of various claimants. This court sitting in revision under Section 103 of the Act is only to consider whether the TLB has failed to consider or erroneously considered a question of W.P.C.No.37294 of 2007 and C.R.P.No.451 of 2009 : 7 : law. A reappraisal of the evidence as if this court is sitting in appeal over the finding of the TLB is not permitted. It is not shown that in the absence of a purchase certificate issued by the Land Tribunal, the TLB cannot consider a claim of tenancy. Purchase certificate is not a document of title but only evidences title. Even when a person has not approached the Land tribunal and obtained a purchase certificate he continues to be a cultivating tenant if he is otherwise so, and is entitled, even in the absence of purchase certificate to prove that he is a cultivating tenant. Hence the contention that in the absence of purchase certificate claimant Nos. 5 onwards could not have proved their claim of tenancy cannot be accepted. The TLB has considered the evidence before it and accepted the claim of tenancy of claimant Nos.5 onwards. That is a finding of fact. Referring to the materials on record is only to satisfy whether the TLB has acted perversely or illegally. On going through the order under challenge and hearing learned Government Pleader and counsel for petitioner in W.P.C.No.37294 of 2007, I do not find reason to interfere with the impugned order. 5. So far as W.P.C.No.37294 of 2007 is concerned, following the finding in favour of the claimants in C.R.P.No.451 of W.P.C.No.37294 of 2007 and C.R.P.No.451 of 2009 : 8 : 2009 legal heirs of the declarant are entitled to get back rest of the property as ordered by the TLB. Respondents in W.P.C.No.37294 of 2007 are directed to re-convey the property to the legal heirs of declarant within two months from this day. Resultantly revision petitions fails. It is dismissed. W.P.C.No.37294 of 2007 is allowed as above stated. (THOMAS P JOSEPH, JUDGE) Sbna/-