IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 CRP.No. 686 of 2002() --------------------- AA.139/1990 of APPELLATE AUTHORITY(LR), KANNUR .................... REVN. PETITIONER(S): APPELLANTS/RESPONDENTS ------------------------------------------- 1. SMT. SREEMATHI PAI, W/O.B.KAMALAKSHA PAI, R/AT BADIADKA OF NEERCHAL VILLAGE, KASARAGOD DISTRICT. 2. VIVEKANANDA PAI,S/O.B.KAMALAKSHA PAI, R/AT BADIADKA OF NEERCHAL VILLAGE, KASARAGOD DISTRICT. 3. RADHAKRISHNA PAI, S/O.B.KAMALAKSHA PAI, R/AT BAILAMOLIC OF PADRE VILLAGE, KASARAGOD TALUK P.O.VANINAGAR, KASARAGOD DISTRICT.(DIED) 4. DEVANANDA PAI, S/O.B.KAMALAKSHA PAI, R/AT BADIADKA OF NEERCHAL VILLAGE, KASARAGOD DISTRICT. 5. JAYA V. SHENOY ALIAS MALATHI, R/AT 10TH SREET, TATA ROAD, COIMBATORE. 6. VANDAN A PRABHA, NANDAN GOKULA HOUSE, P.O.THIRUVANGAD, TELLICHERY TALUK. 7. K.VINAYA KAMATH, ROOM NO.206 C/2, WING AMBADY ROAD, 2ND FLOOR, EGENY APARTMENT, VASAI WEST. 8. M.SHAILA BHAT, R/AT MOOKAMBIKA PRASAD, P.O.MALPE, (VIA) UDUPI, UDUPI TALUK. 9.ARUNDATHIL S.NAYAK, W/O.WRINIVASA NAYAK, P.O.KOKKARN UDUPI. 10. SHANTHALA J.PAI, W/O.JAGADEESH PAI, C/O.LATE NARAHARI PAI, GUDIBAIL, UDUPI TALUK. (NO.1 IS THE WIDOW AND NO.2 TO 5 ARE SONS AND NOS.6 TO 11 ARE THE DAUGHTERS OF DECEASED KAMALAKSHA PAI, THE RESPONDENT IN O.A.837/73 AND THE APPELLANT IN A.A.139/90). SUPPLEMENTAL PETITIONERS 11 TO 13 : 11. RADHIKA, W/O.RADHAKRISHNA PAI, BAILAMOOLA, PEDRE VILLAGE, VIDYANAGAR P.O., KASARAGOD DISTRICT. 12. KRISHNANDA PAIL, S/O.RADHAKRISHNA PAI, BAILAMOOLA, PEDRE VILLAGE, VIDYANAGAR P.O., KASARAGOD DISTRICT. 13. RAMAKRISHNA PAIL, S/O.RADHAKRISHNA PAI, BAILAMOOLA, PEDRE VILLAGE, VIDYANAGAR P.O., KASARAGOD DISTRICT. (SUPPLEMENTAL PETITIONERS 11 TO 13 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 3RD PETITIONER VIDE ORDER DATED 20.6.2007 IN I.A.1358/07) BY ADV. SRI.KODOTH SREEDHARAN RESPONDENT(S): ----------------------- 1. BATYA NAIKA, R/AT.KAYARTHADKA PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT (DIED) 2. RAMA NAIKA, R/AT. KAYARTHADKA PADRE VILLAGE, P.O.PADRE, NOW RESIDING AT MULLAKOCHI HOUSE, P.O.VANINAGAR, PIN 671 552, KASARAGOD DIST. 3. ANNU NAIKA, R/AT. KAYARTHADKA PADRE VILLAGE, P.O.PADRE, NOW RESIDING AT MULLAKOCHI HOUSE, P.O.VANINAGAR, PIN 671 552, KASARAGOD DIST. (DIED) 4.KRISHNA NAIKA, R/AT. KAYARTHADKA PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 5.KORAGA NAIKA, R/AT. KAYARTHADKA PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 6. DEVAKI HENGSU, R/AT. KAYARTHADKA PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 7. GOWRI HONGSU, R/AT. KAYARTHADKA PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 8. NARAYAN, R/AT. KAYARTHADKA PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 9. PUSHPA, R/AT. KAYARTHADKA PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. ADDL.R10 TO R13 (LEGAL REPRESENTATIVES OF DECEASED R3) IMPLEADED : 10. SARASWATHI, S/O.ANNUNAIKA, R/AT. KAYARTHADKA, PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 11. GIRIJA, D/O.ANNUNAIKA, R/AT. KAYARTHADKA, PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 12. RADHAKRISHNA, S/O.ANNUNAIKA, R/AT. KAYARTHADKA, PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 13. LALITHA, D/O.ANNUNAIKA, R/AT. KAYARTHADKA, PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. ADDL.R10 TO R13 ARE IMPLEADED AS LRS. OF DECEASED R3 VIDE ORDER DATED 25.1.2011 IN I.A.3291/04. ADDL.R14 TO R18 (LEGAL REPRESENTATIVES OF DECEASED R1) IMPLEADED : 14. K.ISHWARA NAIKA, R/AT. KAYARTHADKA, PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 15. SHARADA, R/AT. KAYARTHADKA, PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 16. VENKAPPA NAIKA K., R/AT. KAYARTHADKA, PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 17. CHANIYAPPA NAIKA K., R/AT. KAYARTHADKA, PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. 18. AITHAPPA K., R/AT. KAYARTHADKA, PADRE VILLAGE, P.O.PADRE, KASARAGOD TALUK AND DISTRICT. R14 TO R18 IMPLEADED AS LRS. OF DECEASED R1 VIDE ORDER DATED 20.6.2007 IN I.A.1357/07). RESPONDENTS 1 TO 5 ARE CHILDREN OF HARIA NAIKA AND 6TH RESPONDENT IS THE DAUGHTER-IN-LAW AND WIFE OF GOVINDA NAIKA, S/O.HARIA NAIKA AND RESPONDENTS 7 TO 9 ARE HIS CHILDREN THROUGH 6TH RESPONDENT. ADV. SRI.K.G.GOURI SANKAR RAI FOR R1 TO 9 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2011, ALONG WITH CRP NO.699 OF 2002 THE COURT ON 15/12/2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- C.R.P. Nos.686 & 699 of 2002 ----------------------------------------------- Dated 15th December, 2011. O R D E R C.R.P.686/02 is filed by the heirs and legal representatives of the deceased respondent B.Kamalaksha Pai in O.A.837/73 on the file of Land Tribunal No.II, Kasaragod. C.R.P.699/02 is filed by the petitioners in that O.A. 2. O.A.837/73 was filed under Section 72B(3) of the Kerala Land Reforms Act for assignment of right, title and interest of the landlord vested in the Government in respect of the following properties situated in Padre village in Kasaragod Taluk : Sl.No. R.S.No. Extent A.C. 1. 509/2 2.32 2. 508/3 0.91 3. 508/4 1.69 4. 509/1 0.25 5. 508/2A 2.55 3. The case of the petitioners in O.A.837/73 is that the properties were obtained by Hariya Naika, the husband of the 1st petitioner and father of others, on chalageni lease from C.R.P.686 & 699/02 2 the father of the respondent about 20 years before the date of O.A. i.e., in or about 1953, on a rental of 40 muras of rice, that subsequently Hariya Naika converted a portion of the property in to arecanut garden, that in or about 1957 there was a partition in the family of the respondent and these properties were allotted to the respondent: that thereafter the rent was enhanced by 10,000 arecanuts per year and that all the improvements are effected by the tenant. The respondent filed a counter. He contended that, there is no lease and only the house and cowshed were leased on monthly rent to Hariya Naika as per the Rent Bond executed by him (neither the rent bond was produced along with the counter nor the date thereof was mentioned): that Hariya Naika was only a cooli by profession, all improvements belong to the respondent, that, there is no landlord-tenant relationship. The Revenue Inspector deputed by the Tribunal filed a report. In the report he stated that apart from the 5 items aforesaid, the petitioners are in possession of 3 more items i.e., R.S. No.507/1B, 1A and 4A measuring 1.78, 3.08 and 0.35 acres respectively. He further C.R.P.686 & 699/02 3 said that R.S.No.508/3, 509/2 and 509/1 are in the possession of petitioner and R.S.No.508/4 and 508/2A are in the possession of the respondent: and that both sides are claiming R.S.No.507/1B, 1A, 4A and 508/2A, that the Court may decide the dispute. As per order dated 24.12.1975 the Tribunal allowed the O.A. The respondent filed A.A. No.194/1976 before the appellate Authority (LR) Kozhikode. The order was set aside and remanded for fresh disposal. 4. Before the Land Tribunal, PW1 and PW2 and RW1 to RW3 were examined and Exts.P1 to P15, Exts.D1 to D122 and Ext.C1 were marked. The Land Tribunal, on considering the evidence on record allowed the O.A. and ordered assignment of right, title and interest of the landlord vested in the Government in respect of the properties shown in the schedule to the petitioners on finding that the petitioners are cultivating tenants in that properties. Against that order, the legal heirs of the respondent/Kamalaksha Pai filed A.A.139/1990 before the Appellate Authority (LR), Kannur. The Appellate Authority allowed the appeal in part and 1.69 acres in R.S.No.508/4 and C.R.P.686 & 699/02 4 2.55 acres in R.S.No.508/2A were deleted from the order of the Land Tribunal and the order of the Land Tribunal was modified to that extent. Aggrieved by the judgment of the Appellate Authority, the appellants filed C.R.P.686/02 and the respondents filed C.R.P.699/02. 5. Heard the learned counsel for the petitioners in both the Civil Revision Petitions. 6. Learned counsel for the revision petitioners in C.R.P.699/02 raised the following contentions at the time of hearing : The appellate Authority having held that the 3 items in R.S.No.507 are leasehold, even though they were not specifically mentioned in the O.A., went wrong in rejecting the claim over the 2 items. The Appellate Authority having held that Ext.C1 report of the Special Revenue Inspector was correct and wet land portion is held by the respondent and dry land portion is held by the appellants went wrong in deleting R.S.No.508/4 which was a nilam (wet land) now converted into a garden and not a dry land. This proves the lack of application of mind. The C.R.P.686 & 699/02 5 appellate Authority should not have overlooked the fact that dry lands are leased out along with wet lands for beneficial enjoyment. So also the dry lands contain cashew trees raised by the tenant. 7. Learned counsel for the revision petitioners in C.R.P.686/02 raised the following contentions at the time of hearing : The courts below ought to have rejected the evidence of PW1 and PW2. The evidence of PW1 is interested while that of PW2 is unreliable. Hariya Naika was the Karyasthan of the appellant and if he had received any levy notice, it does not alter his position as Karyasthan and convert him into a lessee. The cultivation registers are not inconsistent with the case of the appellant. Hariya Naika was cultivating the field on behalf of the appellant on a definite understanding regarding wages and not tenancy right. Anyway, the cultivation registers and levy notices cannot prove the lease in respect of the arecanut gardens and dry lands. The tenant has not produced copies of the Chalageni lease of 1953 or the copy of the lease deed of C.R.P.686 & 699/02 6 1958. Levy of paddy notices are issued in the name of Hariya Naika. It is stated and remain as fact also. Hariya Naika had been appointed as Kariyasthan (Manager) of the revision petitioners tharavad and he had been supervising the agricultural work on behalf of them. The issue of levy notices in the name of Kariyasthan or Manager of a landlord does not appear to be unusual during the period in question. The basic intention of Government could only be that such and such quantity of paddy should be got as levy to it. There is difficulty to treat this as exclusive proof of a tenancy-landlord relationship. 8. A perusal of the order of the Land Tribunal will show that the Land Tribunal believed the oral testimony of PW1 and PW2 and rejected the oral evidence of RW2 and RW3 on the ground that they are residing near the house of RW1 and that they belong to the community of RW1. When both sides adduced oral evidence, it is very difficult to find out the truth. The fact remains that the tenants have not produced the copy of the lease deeds alleged to have been executed in 1953 or C.R.P.686 & 699/02 7 the copy of the lease deed of 1958 and the tenants have not produced any rent receipts or the basic tax receipts in respect of the O.A. schedule properties. In the above circumstances, it is only reasonable to accept the other documents which appear to be genuine. 9. From the order of the Land Tribunal, it is clear that only 5 items of properties were included in the O.A. and 8 items of properties have been allowed by the Land Tribunal. 3 items were subsequently included on the basis of Ext.C1 report of the authorised officer. Therefore, there is nothing wrong in including those 3 items also while disposing the O.A. 10. The Special Revenue Inspector deputed to enquire into the question of tenancy, after detailed enquiry reported that the dried portion of the holding is in the possession of the landlord and the wet portion of the property is in the possession of the petitioners in the O.A. The tenants have produced Exts.P1 to P6 levy notices issued to them for the years 1965 to 1974, which would show that the petitioners in O.A. were in possession of the paddy fields. As observed by the C.R.P.686 & 699/02 8 Appellate Authority, since both sides have produced the receipts for selling arecanut in the market, it will not prove that the arecanuts were collected from the O.A. schedule properties. As observed by the Appellate Authority, the Exhibits relating to pump sets are also not conclusive to show that the landlord was irrigating the O.A. schedule property by using the pump sets. As rightly observed by the Appellate Authority, Ext.P7 receipt will not show that arecanut is also included in that receipt. The Appellate Authority found that Ext.P8 letter written by the first appellant to the Village Assistant does not reach the addressee, but to the court file, shows that the respondents in the appeal extracted Exts.P7 and P8 to mislead the court. That finding also cannot be considered as erroneous, on considering the facts and circumstances of the case. Considering all these aspects of the matter, the Appellate Authority came to the conclusion that Ext.C1 report of the Special Revenue Inspector was correct and that wet land portion is held by the respondents in the appeal and the dry land portion is held by the appellants in that appeal, and 1.69 acres of dry land in R.S.508/4 and 2.55 acres C.R.P.686 & 699/02 9 of dry land in R.S.508/2A were deleted from the order of the Land Tribunal. Since the decision taken by the Appellate Authority to exclude the dry lands from the properties to be assigned to the tenants is a reasonable and plausible view, in the light of the evidence on record, I find no reason to interfere with the judgment of the Appellate Authority. Accordingly, both the above Civil Revision Petitions are dismissed as they are without any merits. The parties are directed to suffer their respective costs. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.