IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 CRP.No. 2736 of 2002() ---------------------- AA.20/1997 of APPELLATE AUTHORITY, KANNUR OA.1787/1976 of .................... REVN. PETITIONER: PETITIONERS/APPELLANTS/B PARTIES IN THE TRIALCOURT -------------------------------------------------------------------- 1. DAMU 2. RAGHAVA 3. GANGADHARAN (ALL ARE THE CHILDREN OF BATYA SHETTY, RESIDING T AMMANADKA, MEENJA VILLAGE, KASARAGOD TALUK, P.O.MEYAPADAVU). 4. UMAVATHI, 5. THULASIDAS 6. JYOTHI, 7. BHARATHI, (PETRS 4 TO 7 ARE THE CHILDREN OF LATE KUNHIKANNA AND PETRS 4 TO 6 RE RESIDING AT AMMANADKA OF MEENAJA VILLAGE. KASARAGOD TALUK, P.O.MEEYAPADAVU 7TH PETR IS THE W/O GOPALA, RESIDING AT KRISHNA PURA NEAR M.R.P.L MANGALORE, D.K.DIST, KARNATAKA. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBA RESPONDENTS: RESPONDENTS/A PARTIES IN THE TRIAL COURT. ------------------------------------------------------ 1. MOIDINKUNHI, S/O.LATE PODIYA BEARY AND LATE AISAMMA, JODUKALLU OF MEENJA VILLAGE, P.O.KAYYAR, KASARAGOD DISTRICT. 2. KAIJAMMA, D/O.LATE PODIYA BEARY AND LATE AISAMMA, JODUKALLU OF MEENJA VILLAGE, P.O.KAYYAR, KASARAGOD DISTRICT. 3. MARIYAMMA, D/O.LATE PODIYA BEARY AND LATE AISAMMA, W/O.MAMMADE, KOLCHAPPU, MUDDANADUKKA, MEENJA VILLAGE, MEEYAPADAVU P.O., KASARAGOD DISTRICT. 4. BEEPATHUMMA, D/O.LATE PODIYA BEARY AND LATE AISAMMA, W/O.MAMMADE, BARANGAI, PAIVALIKE VILLAGE, P.O.MEEYAPADAVU, KASARAGOD DISTRICT. 5. DAINABAI, D/O.LATE PODIYA BEARY AND LATE AISAMMA, W/O.IBRAHIM, RESIDING AT NEERALIKE, MEENJA VILLAGE, P.O.KAYYAR, KASARAGOD DISTRICT. 6. NABEESA, D/O.LATE PODIYA BEARY AND LATE AISAMMA, W/O.KALANDAR, MEETHALA HOUSE, KULOOR VILLAGE, P.O.CHARLA, KASARAGOD DISTRICT. 7. NARAYANA SHETTY, S/O.LATE BATYA SHETTY, RESIDING AT AMMANADKA, MEENJA VILLAGE, KASARAGOD TALUK, P.O.MEENJA. 8. SAVITHRI, D/O.LATE BATSYA SHETTY, W/O.NAGESH, BHAGAVATHI PRINTERS, KRISHNAPURA, D.K.DISTRICT, KARNATAKA STATE. 9. RAMACHANDRA, S/O.LATE BATYA SHETTY, RESIDING AT AMMANADKA, MEENJA VILLAGE, KASARAGOD TALUK & DISTRICT, P.O.MEEYAPADAVU. 10. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER SRI.V.V.ASOKAN FOR R1 TO R6 SMT.S.AMINA FOR R1 TO R6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/07/2008, ALONG WITH CRP NO. 531 OF 2003. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------------------------- C.R.P.No.2736/2002 (C)& 531/2003 ----------------------------------------------- Dated this the 4th day of July, 2008 O R D E R The B parties in O.A.Nos.1787 of 1976 & 1787 of 1976 on the file of the Land Tribunal No.II, Kasargode are the revision petitioners. This revision is directed against the judgment of the Appellate Authority (LR), Kannur in A.A Nos.110/91 and 20/97. 2. The A parties in the Original Applications filed an application under Section 72 B(3) of the Kerala Land Reforms Act, 1963 for assessment of right, title and interest in respect of 16 cents of land in R.S.No.83/2 and 2 cents in R.S.No.83/7 of Bekur village. The special Revenue Inspector has reported that the A parties are cultivating tenants entitled to assignment of two items of properties namely 16 cents in R.S.No. 83/2 and 2 cents in R.S.No.87/2. It is also reported that all the improvements in the said properties are effected by A parties and that the building existing therein belongs to A party. The claimants pleaded that their predecessor-in-interest Shri.Podiya Beary obtained the OA proprities C.R.P.NO.2736 of 2002 2 on executing a chalagenichit about 45 years ago from the father of the respondents on an annual rent of Rs.25/- and at that time the property was a vacant land and there after Shri.Podiya Beary had constructed a thatched house, cowshed, a tiled shop building and effected other improvements in the property. The revision petitioners who are contesting respondents denied the status of the A parties. The A parties had produced Ext.P1 to P6 and also examined PWs 1 and 2. 3. The revision petitioners who are the B parties denied the averments in the original application and denied the status of the applicants. According to them , the deceased Shri. Podiya Beary was a tenant of the house constructed by the B parties and that the house was let out to him on oral lease on a monthly rent of Rs.5/-. The B party contended that the shop building mentioned in the petition is in their possession and the same was repaired and reconstructed in or about 1971 and that they have been using the said room as a godown and they had given permission to occupy this building on a temporary basis in the year 1971 at a time when the A parties house was under re-construction. C.R.P.NO.2736 of 2002 3 4. The Trial Court relied on Exhibits C1 and C2 reports of the authorised officer. The enquiry conducted by the authorised officer shows that the two items of properties measuring 16 cents and 2 cents are in the possession and enjoyment of the A parties. The oral evidence tendered by the applicants was also analysed and the Land Tribunal held that the possession of the applicants takes back to 1946 or 1947. The Land Tribunal also examined and appreciated Exhibit P1 certificate, copy of the Building Tax Assessment Register for the period from 1967-68 and 1971-72 which shows that Shri. Podiya Beary is the owner and occupant of the residential building. Exts. P2 to P15 are receipts for the payment of landcess and building tax. The Land Tribunal also on evidence found that the 16 cents contains agricultural improvements and that the property is primarily used for cultivation. The Land Tribunal also elaborately discussed the nature of the occupation of the property by the A parties and concluded that 16 cents in R.S.No.83/2 is not a commercial site or a building site but an agricultural land. Regarding the 2 cents in R.S.No.83/7, the Land Tribunal found that the entire area is covered by the building which is used for residential purpose. C.R.P.NO.2736 of 2002 4 The Land Tribunal after discussing the nature of the building held that the said portion of 2 cents can be treated as a commercial site and therefore, cannot be said to be an agricultural land. After discussing the entire evidence on record the Trial Court on facts found that the petitioners are cultivating tenants of the land. Both sides filed appeal before the Appellate Authority. The Appellate Authority confirmed the finding of the Land Tribunal in respect of 16 cents of land in R.S.No.83/2. 5. With regard to the 2 cents comprised in R.S.No.83/7, the Appellate Authority held that the B party has no case that the building has been used for commercial purposes. The Trial Court held that no claim has been put forward that the building in the 2 cents was used for any commercial purposes and that it is an admitted fact that the building has been used for residential purpose. The Appellate Authority observed that it may be possible that the said building can be as a commercial building as well. Taking into consideration Ext. C2 report and the evidence on record, the Appellate Authority reversed the finding of the Land Tribunal regarding the 2 cents in Survey No.83/7 and held that the appellants C.R.P.NO.2736 of 2002 5 therein are entitled to purchase that portion as well. 6. The Learned Counsel for the revision petitioners contended that the findings recorded by the authorities below are wrong and liable to be interfered with. According to the revision petitioners, the 16 cents of land is a commercial plot and that this cannot be leased for agricultural purposes and the parties also never intended to create an agricultural lease. It is also contended that 2 cents in R.S.No.83/7 is a commercial site as held by the Land Tribunal. The evidence on record would reveal the fact that the A parties came into possession of the properties in the year 1946 or 1947 as found by the Land Tribunal and that they continue to occupy the land and enjoy the land as cultivating tenants. It has also came out in evidence that the 2 cents of land was used for residential purpose and that residence was constructed by the tenants subsequently. It has also came out in evidence that they improved the property by planting trees. The authorised officer also reported regarding the agricultural improvements in the property. The Appellate Authority rightly reversed the finding of the Land Tribunal that the 2 cents of property is a commercial site. The building in C.R.P.NO.2736 of 2002 6 the 2 cents of property may appear to be a commercial building. But considering the residential use of the said building, the Appellate Authority rightly held that the 2 cents also is a part of the property. In the light of the findings of facts entered by the fact finding authorities, I find no reason to interefere with the said findings. The impugned orders suffer from no legal infirmity. In the result, the Civil Revision Petitions are without any merit and they are accordingly dismissed. There will be no order as to costs. HARUN-UL-RASHID, Judge bps/5-7-2008 C.R.P.NO.2736 of 2002 7