IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 CRP.No. 725 of 2005 ----------------------------- (AA.NO.310/2000 OF THE APPELLATE AUTHORITY (LR),THRISSUR, OA.NO.82/1977 OF THE LAND TRIBUNAL, MANJERI) .................... REVISION PETITIONERS/APPELLANTS/RESPONDENTS: -------------------------------------------------------------------------------- 1. CHURCH OF SOUTH INDIA TRUSTEES' ASSOCIATION, REP. BY RT.REV. GEORGE ISSAC, P.O.KUNNAMKULAM, KUNNAMKULAM AMSOM DESOM, THRISSUR DISTRICT. 2. DR.GEORGE NINAN, TREASURER, C.S.I. DIOCESE OFFICE, SHORNUR, THRISSUR DISTRICT. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADV.SRI.S.SUJIN. RESPONDENTS/RESPONDENTS/APPLICANTS: ------------------------------------------------------------------- 1. M.P.SALEENA DANIEL @ BABY, KALARIKKAL HOUSE, P.O.KODAKKAD, TIRUR. 2. M.P.CLARA LAWRANCE, KATTIKULANGARA P.O. OLAVAKKODE. 3. M.P.FREDERIK LAWRANCE, MISSION COMPOUND, P.O.MANJERI. 4. REJINOLD BENJAMIN LAWRANCE, MISSION COMPOUND, P.O. MANJERI. 5. M.P.KAMALA BIATRICE, MANNET INDUSTRIAL ESTATE, P.O.OLAVAKKODE. 6. K.C.SUSEELA THAMPATTY, W/O.PRABHAKARA THIRUMALPAD, MANJERI KOVILAKOM, P.O.MANJERI. C.R.P. NO. 725/2005: 7. K.C.RAJENDRAN RAJA, S/O.PRABHAKARAN THIRUMALPAD, MANJERI KOVILAKOM, P.O.MANJERI. 8. K.C.VENUGOPALAN RAJA, S/O.PRABHAKARAN THIRUMALPAD, MANJERI KOVILAKAM, P.O.MANJERI. 9. K.C.NALINI THAMPATTY, D/O.PRABHAKARAN THIRUMALPAD, MANJERI KOVILAKAM, P.O.MANJERI. 10. K.C.KRISHNADAS RAJA, S/O.PRABHAKARAN THIRUMALPAD, MANJERI KOVILAKOM, P.O. MANJERI. 11. STANLY FESTEN, S/O.ELISABATH FESTEN, MISSION COMPOUND, CHOVVA, KANNUR. 12. BROTHER CHARLY FESTEN, S/O.ELISABATH FESTEN, MISSION COMPOUND, CHOVVA, CANNUR. 13. BROTHER SAMUEL FESTEN, S/O.ELISABATH FESTEN, MISSION COMPOUND, CHOVVA, KANNUR. 14. MELONY FESTEN, S/O.ELISABATH FESTEN, MISSION COMPOUND, THAZHE CHOVVA, CANNUR. 15. A.P.SARAMA VINCENT, W/O.M.P.VINCENT LAWRANCE, MICHAL SADANAM, ERANHIMANGAD, P.O.AKAMPADAM, NILAMBUR. 16. JULI, S/O.M.P.VINCENT LAWRANCE, MICHAL SADANAM, P.O.ERANHIMANGAD. 17. JIMI VINCENT, S/O.M.P.VINCENT LAWRENCE, MICHAL SADANAM, P.O.ERANHIMANGAD. 18. JINI VINCENT, S/O.M.P.VINCENT LAWRANCE, MICHAL SADANAM, P.O.ERANHIMANGAD. *ADDL. RESPONDENTS 19 & 20 IMPLEADED: 19. ALI HAJI, S/O. KODALI UNNIKAMMU HAJI, VALLAMBRAM (P.O), ERNAD TALUK, MALAPPURAM DISTRICT, PIN – 673 651. 20. MOIDEEN, S/O. KURUNTHADAN UNNIMOHAMMED HAJI, ERNAD TALUK, MORAYUR (P.O), MALAPPURAM DISTRICT, PIN – 673 649. *ARE IMPLEADED AS ADDL.R.19 AND R.20 AS PER ORDER DTD. 04/12/07 ON I.A. 852/06. C.R.P. NO. 725/2005: **ADDL. R.21. IMPLEADED: 21. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. **IS IMPLEADED AS ADDL. R.21 AS PER ORDER DTD. 04/12/2007 ON I.A. 306/07. R.1 BY ADV. SRI.CIBI THOMAS, R.2, R.5, R.15, R.16 & R.18 BY ADV. SRI. IYPE JOSEPH, ADV.SRI.R.RAJESH KORMATH, R.3 BY ADVS. SRI.T.A.RAMADASAN, SRI.K.SHIBILI NAHA, R.19 BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE, R.20 BY ADV. SRI.RAJESH NAMBIAR, R.21 BY GOVERNMENT PLEADER. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON 15/07/2010 PASSED THE FOLLOWING: prv. THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.725 of 2005 --------------------------------------- Dated this 15th day of July, 2010 ORDER This revision arises from the order of Appellate Authority (LR), Thrissur (for short, “the Appellate Authority”) in A.A.No.310 of 2000 arising from O.A.No.82 of 1977 of the Land Tribunal, Manjeri (for short, “the Tribunal”). O.A.No.82 of 1977 is an application filed by the late Saloma Lawrence claiming to be a cultivating tenant in respect of 28 cents in survey No.42/1 part of Manjeri Village with a residential building thereon. She claimed that the said property was orally entrusted to Lawrence, her husband by the Basal German Mission in the year 1927 for an annual rent of Rs.6/- and since then the said Lawrence and after his death in the year 1947 herself was in possession and enjoyment of the said property as cultivating tenant entitled to purchase landlord's right. Petitioners opposed the application. They contended that there was no such entrustment of land to Lawrence either in the year 1927 or thereafter. Instead, the building situated in the said property was rented out to Lawrence as per a registered lease deed No.62 of 1941 for an annul rent of Rs.10/-.They claimed that as per the said lease deed Lawrence C.R.P.No.725 of 2005 : 2 : was permitted to reside in the said building. Both sides adduced evidence in support of their respective contentions. The Tribunal originally dismissed the application against which Saloma Lawrence filed A.A.No.2756 of 1977 before the Appellate Authority. That appeal was allowed and the application was remitted to the Tribunal for fresh decision. The Tribunal on 22- 11-1985 allowed the application. In the meantime, Saloma Lawrence died and her legal representatives, respondents came into the picture. Petitioners filed A.A.No.72 of 1986 before the Appellate Authority. That appeal was allowed and again, there was a remand to the Tribunal for fresh disposal. Respondents, in vain challenged order of Appellate Authority in this court in C.R.P.No.2543 of 1998. After remand the Tribunal allowed the application in favour of respondents which petitioners challenged before the Appellate Authority in A.A.No.310 of 2000. Appellate Authority has confirmed order of the Tribunal and dismissed the appeal which, petitioners challenge in this revision petition. 2. Learned Senior Advocate appearing for petitioners contends that the Tribunal and the Appellate Authority have gone wrong in not considering legal issues involved in the case arising from Ext.B1, registered lease deed No.62 of 1941 and whether respondents were entitled to adduce evidence against terms of C.R.P.No.725 of 2005 : 3 : the said lease deed in view of Section 92 of the Indian Evidence Act. It is also contended by learned Senior Advocate that in so far as respondents have no case that Ext.B1, registered lease deed was either not executed or, was not intended to take effect the authorities below ought to have accepted Ext.B1 and rejected the evidence let in by respondents as not admissible in law. It is also the contention of learned Senior Advocate that evidence let in by the respondents is so feable and insufficient to displace the relationship created as per Ext.B1 between petitioner No.1 and Lawrence, predecessor-in-interest of respondents. Even if it is assumed that there was an oral lease of the year 1927 in respect of the O.A schedule property, execution of Ext.B1 in the year 1941 amounted to an implied surrender of that lease at a time when predecessor-in-interest of respondents was not entitled to fixity of tenure. Learned Senior Advocate has placed reliance on the decisions in J.J Pancholi Vs. Sridharjee and Ors. (AIR 1984 Allahabad 130), Sulaikha Beevi Vs. K C Mathew (1997 (1) KLT 69) and Raveendranatha Menon & Anr. Vs. Leelamma (1999(1) KLJ 352). It is pointed out by learned Senior Advocate that some receipts produced by respondents for payment of building tax and land revenue are of no significance since that cannot confer right, title or interest or prove C.R.P.No.725 of 2005 : 4 : possession on OA schedule property. Reliance is placed on the decision in Guru Amarjit Singh Vs. Rattan Chand & Ors. (1994 SC 227). Learned Senior Advocate prayed that decisions of the lower authorities may be reversed and original application be dismissed. In response it is contended by learned Senior Advocate appearing for respondents that revisional power of this court under Section 103 of the Kerala Land Reforms Act (for short, “the Act”) is limited to deciding whether the lower authorities have failed to decide or, erroneously decide any question of law. Learned Senior Advocate points out that this court is not exercising appellate jurisdiction to decide whether finding of fact entered by the lower authorities even if erroneous can be sustained. Reliance is placed on the decisions in Mathai Thomas Vs. Ouseph Anna (1998(8) SCC 550), Kerala Ayurveda Vydyasala Ltd Vs. Pandara Valappil Kallianai (1999 (3) SCC 238) and S.S Syed Moideen and Anr. Vs. Chakkan Pallialil Pathumma and Ors. (2004(13) SCC 111). According to the learned Senior Advocate there is sufficient evidence on record to show that O.A schedule property was in the possession and enjoyment of respondents and their predecessor- in-interest and that could be referred to the oral lease of 1927 pleaded by the respondents. C.R.P.No.725 of 2005 : 5 : 3. Section 103 of the Act as per which this court is conferred revisional power states that the High Court shall decide whether the authorities mentioned therein “have either decided erroneously or failed to decide, any question of law”. The decisions relied on by the learned Senior Advocate for respondents also say so. In Mathai Thomas Vs. Ouseph Anna (supra) it has been held that there is no scope of interference with a finding of fact unless that gave rise to a question of law. Kerala Ayurveda Vydyasala Ltd Vs. Pandara Valappil Kallianai (supra) has taken the same view. Referring to the said decisions it is held in S.S Syed Moideen and Anr. Vs. Chakkan Pallialil Pathumma and Ors. (supra) that the HIgh Court which referred to the evidence and reversed the finding of lower authorities went wrong in doing so in view of Section 103 of the Act. It is held that “looking at the scope of Section 103 of the Act, this court has in Mathai Thomas Vs. Ouseph Anna (supra) found fault with the High Court when it interfered with the findings of fact recorded by the two courts in exercising revisional jurisdiction”. It is also held that the High Court in the impugned order has not stated that the Tribunal or the Appellate Authority has failed to consider any question of law that arose for consideration or considered the question of law erroneously. C.R.P.No.725 of 2005 : 6 : Thus, power of this court under Section 103 of the Act is to consider whether lower authorities have not decided or erroneously decide any question of law. In Kerala Ayurveda Vydyasala Ltd Vs. Pandara Valappil Kallianai (supra) it is also pointed out by the Supreme Court that the High Court erred in not formulating any question of law in revision. Having heard learned Senior Advocates on both sides following questions of law are framed for a decision: (i) Are not the respondents precluded from adducing evidence to contradict the terms of Ext.B1, registered lease deed No. 62 of 1941? (ii) Have not the lower authorities gone wrong in law in not acting upon Ext.B1 and in accepting evidence let in by respondents to contradict the recitals in Ext.B1? (iii) Were respondents and their predecessor- in-interest “entitled to cultivate” the land in question to claim to qualify to be cultivating tenants? 4. First I stated, it is the case of respondents that their predecessor-in-interest, Lawrence obtained oral lease of the O.A schedule property in the year 1927 and since then was in possession and enjoyment of the property as a cultivating tenant. C.R.P.No.725 of 2005 : 7 : Petitioners on the other hand contend that there was no such lease at any point of time and instead, Lawrence who was working as a teacher was granted lease of building in the O.A schedule property as per Ext.B1, registered lease deed No.62 of 1941. It is not disputed by respondents also that Lawrence executed Ext.B1, registered lease deed in the year 1941. That lease deed is specific that the lease is in respect of building in the O.A schedule property for an annual rent of Rs.10/-. Ext.B1 does not mention about any lease of land either at the time of Ext.B1 or before that as claimed by respondents. In Ext.B1, the boundaries of the leased building is given as courtyard on all sides. It is not a case where respondents disputed execution of Ext.B1, instead, they admit Ext.B1. There is no case for respondents that Ext.B1 is a sham document as it was not intended to take effect or created for some other purpose. On the other hand going by the testimony of PW1 who gave evidence on behalf of respondents he has not much idea about Ext.B1. Though after the application was filed in the Tribunal, petitioners sent Ext.B2, notice to the late Saloma Lawrence specifically referring to the lease as per Ext.B1 and demanding vaccant possession of the building. She replied vide Ext.B3 seeking time to vaccate the building. Therefore, there is no reason to reject C.R.P.No.725 of 2005 : 8 : Ext.B1 and the evidence of RW1. Now question is whether in the light of Ext.B1, authorities below were justified in accepting the case of respondents and evidence let in by them. Section 92 of the Evidence Act states that when the terms of any contract, grant or other disposition of property, or any matter is reduced in writing, parties shall not be permitted to adduce oral evidence to contradict the terms of such contract, grant or other disposition. In Raveendranatha Menon & Anr. Vs. Leelamma (supra) this court has held that “contents of a registered document cannot be dispelled or eschewed by oral testimony”. May be respondents, notwithstanding Ext.B1 could have shown that it was not intended to take effect. But there is no such case for respondents. If that be so, there is weight in the contention of learned Senior Advocate for petitioners that respondents ought not have been permitted to contradict the terms of Ext.B1. I find from the orders of lower authorities that legal effect of Ext.B1 was not considered by the said authorities. Instead the Tribunal in its order stated in paragraph 7 that “applicants/cts hold some landed property in addition to the house described by Ext.B1, document for which respondent Trust demanded and collected pattom”. The appellate authority was of the view that “though the appellants had produced Ext.B1, coolichit of 1941 to prove their C.R.P.No.725 of 2005 : 9 : claim, they failed to produce any document to prove that from 1941 onwards rent was being paid as per Ext.B1. The other two documents produced by appellants are Exts.B2 and B3 and they are after the period of filing of application for patta”. It is not the case of respondents that any lease of land was created after Ext.B1. It is also not the case of respondents that lease of land was created in 1927 and thereafter the building was leased out as per Ext.B1. Hence the Tribunal has gone wrong in holding that apart from Ext.B1, respondents had been holding some land also. Now I shall refer to finding of the appellate authority that petitioners failed to produce any document to prove payment of rent from 1941. 5. Question is not whether any rent was claimed or paid by Lawrence or his successors pursuant to Ext.B1. That is not a matter connected with the issue on hand in the light of the case pleaded by respondents. Even if it is assumed that no rent was collected from Lawrence who executed Ext.B1 in the year 1941 that did not make Ext.B1 anything less than a lease in respect of the building. In this circumstances it is relevant to note Exts.B2 and B3. Ext.B2 is a copy of notice dated 06-02-1980 issued on behalf of petitioners to Saloma Lawrence demanding her to vacate the building. There is specific reference to the lease of C.R.P.No.725 of 2005 : 10 : building in favour of Lawrence as per Ext.B1. It is interesting to note from Ext.B3, reply dated 04-03-1980 that there was no resistance either to Ext.B1 or to Ext.B2 but, what is requested is only some time to vacate the building. I do not forget that Exts.B2 and B3 came into existence after litigation between parties started. But Ext.B3 is not a self serving document so far as petitioners are concerned. Ext.B3, reply is given by the predecessor-in-interest of respondents, it is in tune with the lease over the building as per Ext.B1 and hence the Appellate Authority was not correct in ignoring Exts.B2 and B3 for the reason that it came in to existence during pendancy of litigation. 6. I stated that the authorities below were not correct in ignoring Ext.B1 and allowing respondents to adduce evidence in contravention of the lease created by Ext.B1. I shall refer to the evidence adduced by parties to consider Ext.B1 could be ignored as contended by learned Senior Advocate appearing for respondents. Exts.A1 to A14 are documents relied on by respondents. Ext.A1 is a letter dated 08-08-1962 sent to Saloma Lawrence by the then manager of petitioner No.1 wherein it is stated that as per books of petitioner No.1 she is in arrears regarding “the compound occupied by you at Manjeri”. The letter reminds Saloma Lawrence to pay the arrears to avoid unpleasant C.R.P.No.725 of 2005 : 11 : measures. Ext.A2 is another letter dated 17-11-1969 as per which the then manager of petitioner No.1 demanded Saloma Lawrence to pay the arrears of 'pattom' (Rs.48/-) from 31-12-1969 for the “properties of Trust in your possession”. Ext.A3 is a notice dated 08-12-1969, also issued on behalf of petitioner No.1 to Saloma Lawrence demanding arrears of 'pattom' in respect of “properties of trust in your possession”. Ext.A4 is a letter dated 08-03-1971 from the office of petitioner No.1 and addressed to Saloma Lawrence informing her about resolution of petitioner No.1 to permit Saloma Lawrence “to convert your house with thatched roofing to a pucca building”. Ext.A5 is a receipt for payment of 'pattom' (it is in printed form and the word 'rent' is scored of) for 1957-58. Exts.A6 to A8 are demand notices for payment of tax for the building in the OA schedule property during 1962, 1963 and 1975. That tax was paid as per Exts.A9, 11 and 12. Ext.A10 is also a demand notice for payment of building tax. Ext.A13 is a memo dated 07-04-1979 from the Municipal office directing petitioner No.1 to attend a hearing on 07-07-1979 in connection with reduction of building tax (payable for the building in the OA schedule property). Ext.A14 series are receipts for payment of land revenue for 1977, 1979, 1980, 1983 and 1985. I shall refer to the above documents for the limited purpose of ascertaining C.R.P.No.725 of 2005 : 12 : whether the said evidence is sufficient to displace the lease of building created as per Ext.B1. So far as Ext.A1 is concerned, there is no reference in it whether it is a lease of land or building and of course, demand for arrears is in respect of “compound” occupied by Saloma Lawrence at Manjeri. The expresssion “Compound” does not mean the landed property. Use of such loose words cannot lead to the inference that it concerned the land. Exts.A2, A3 and A5 of course refer to payment of “pattom” for property in the possession of Saloma Lawrence but, I must bear in mind from Ext.A4 that notwithstanding the claim of respondents that their predecessor-in-interest had tenancy right over the OA schedule property and notwithstanding that by that time the Act created fixity of tenure on cultivating tenants, Saloma Lawrence sought permission of petitioner No.1 to convert the house with thatched roofing into a pucca building and petitioner No.1 on the basis of resolution taken by it granted permission to do so. Ext.A4 must be read along with Exts.B1, B2 and B3. If in fact lease was in respect of the entire land and by the time Ext.A4 was issued Saloma Lawrence had obtained fixity of tenure there was no need for them to seek permission of petitioner No.1 to repair roof of the building. Learned Senior Advocate for respondents argued that it is probably because C.R.P.No.725 of 2005 : 13 : Saloma Lawrence was not aware of the protection she had under the Act conferring fixity of tenure. But, that explanation cannot be accepted. 7. No doubt there is some evidence to show that on behalf of petitioners there was some demand for payment of 'pattom' for property in the possession of Saloma Lawrence. But, I must also bear in mind that Exts.A1 to A5 are only stray demands and receipts in 1959, 1962 and 1969. The word 'pattom' can mean 'rent'. 'Property' referred to in Exts.A2, A3 and A5 cannot lead to the only inference that it concerned the land. It is also true that as Exts.A6 to A12 and A14 series show, during certain period respondents or their predecessor-in-interest paid tax for the building or revenue for the land. Though the Building Tax Act cast liability on owner of the building to pay tax that Act does not prevent the occupier of building paying tax. The Land Tax Act also cast liability on the registered holder of land to pay tax but, no provision in that Act prevented another person from paying revenue on behalf of the registered holder of land. It is pertinent to note from Ext.A14 series that payment of revenue by respondents or their predecessor-in-interest was not in their capacity as cultivating tenant but their name is mentioned in the column for person paying land revenue. It is common knowledge C.R.P.No.725 of 2005 : 14 : that taxing authorities are not concerned with dispute of ownership and their concern is only collection of tax or revenue. This court in Syndicate Bank Vs. Modern Tile and Clay Works (1980 KLT 550) in paragraph 9 observed: “a receipt for payment of revenue may not be conclusive proof of ownership of the person in whose name it is issued even though the liability to pay revenue is on the owner. This is because in practice revenue is received by the concerned authorities form a person even without an enquiry whether he is the owner of the property...” In Guru Amarjit Singh Vs. Ratan Chand & Ors. (supra) and Durga Das Vs. Collectors & Ors. (1996(5) SCC 618) it is held that entries in revenue records are not sufficient to prove title and that those statements are for the limited purpose of collecting revenue. Hence the mere fact that predecessor-in- interest of respondents paid revenue for the land and tax for the building on stray occasions by itself is not sufficient to hold that she was in possession of the land referred to in O.A schedule in her capacity as cultivating tenant. I must say, payment of revenue at the best indicated that respondents or their predecessor-in- interest had been enjoying the land which was not objected by the petitioners. C.R.P.No.725 of 2005 : 15 : 8. The expression 'cultivating tenant' is defined in Section 2(8) of the Act as meaning “ a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding”. Two things emerging from that definition are that the person who claims to be a cultivating tenant must be in “actual possession” and should be “entitled to cultivate” the land. ‘Possession’ implies the power to exclude all others from occupation. In Anies Vs. Rapai (1986 KLT 1204) it is held that 'possession' is not necessarily the same thing as occupation or actual user. Possession means “the physical possibility of a person dealing with property as he likes, and it also implies some actual power over the object possessed and some amount of will to avail oneself of that power. A person who plants certain seasonal cultivation in Government land without being noticed by the agents of the State cannot be construed as a person in possession of that land. Mere occupation of a piece of land with the expectation that the same would be assigned to him at a later stage also cannot be taken as possession of Government land in the eye of law”. Here, evidence let in by respondents does not show that they had the power to exclude petitioners from enjoying or possessing the land in question or that respondents or their predecessor-in-interest have been in actual possession of C.R.P.No.725 of 2005 : 16 : the land. On the other hand Ext.A4 shows that even in early 1971 for effecting some repairs for the building (covered by Ext.B1) Saloma Lawrence requested for and obtained permission of petitioners. I also referred to Ext.A13, memo dated 04-07-1979 issued to petitioner No.1 from the Municipal office asking it to attend hearing in connection with reduction of building tax. That means, the municipal authorities also acknowledged petitioner No.1 as owner of the building so that, that authority thought that petitioner No.1 should be heard on the issue regarding reduction of building tax. It is pertinent to note that inspite of alleged possession from 1927 onwards respondent could produce only some stray receipts for payment of land revenue or building tax. It is a fact that petitioners did not produce any receipt for payment of revenue or building tax but I must bear in mind that they are the registered holders of the land. To qualify as a cultivating tenant