IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 CRP.No. 223 of 2010() --------------------- AA.21/2001 of APPELLATE AUTHORITY(LR), KANNUR SMP NO.61/1984 OF LAND TRIBUNAL NO.III, KASARAGOD .................... REVN. PETITIONER(S): RESPONDENTS 19 &20 IN A.A. - A PARTIES (ALSO LRS. OF DECEASED RESPONDENTS 2 & 3 IN S.M.) ----------------------------------------------- 1. ABOOBACKER, S/O.KADEEJUMMA, RESIDING AT KANNADAKATTA HOUSE, PAVOOR VILLAGE. 2. HASSAN KUNHI, S/O.DO. IN DO. DO. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN SRI R.SURAJ KUMAR, SMT.GEETHA P.MENON RESPONDENT(S): NO PARTY, APPELLANTS 2 AND 3, RESPONDENTS 4, 5,8 TO 18, 21 TO 31 IN A.A - 3RD PARTIES, RESPONDENTS 4, 5, 8 TO 18 (LRS OF DECEASED RESPONDENTS 2 AND 3) AND LRS OF DECEASED RESPONDENT NO.1 IN S.M. ------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. P.K.UMMER, S/O.P.K.HASSANKUTTY HAJI, RESIDING AT KANNADAKATTA, PAVOOR VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. 3. P.K.MOHAMMED HANEEFA, S/O.DO. IN DO. DO. 4. MAMMAD, S/O.UMMER HAJI, BEKUR VILLAGE, P.O.BEKUR. 5. AVUNHI, W/O.P.K.HASSANKUTTY HAJI, RESIDING AT KANNADAKATTA HOUSE, PAVOOR VILLAGE. 6. ISUBU, S/O.UMMER HAJI, RESIDING AT BEKUR HOUSE, BEKUR VILLAGE. 7. BEEPATHUMMA BEEBI, W/O.ABDUL RAHIMAN, KANNADAKATTA, PAVOOR VILLAGE. 8. BAPANKUNHI, S/O.UMMER HAJI, BEKUR VILLAGE. CRP NO.223/2010 2 9. MOOSA, S/O.DO. IN DO. DO. 10. ABDULLA, S/O.DO. IN DO. DO. 11. IBRAHIM, S/O.DO. IN DO. DO. 12. NABEESA, W/O.ABDULLA, KODENGA, BEKUR VILLAGE. 13. MARIYAMMA, W/O.MOIDEEN KUNHI, RESIDING AT BELA, BELA VILLAGE. 14. SUFIYA, W/O.KUTTIAMI, KODENGI, BNEKUR VILLAGE. 15. KHALID, S/O.UMMER HAJI, BEKUR VILLAGE. 16. THAHIRA, D/O.DO. IN DO. DO. 17. BAVUNHI, S/O.LATE HASSANKUNHI, RESIDING AT CHIRITHODY HOUSE, DHANDAGOLI, KODYAMME, VIA.KUMBLA. 18. BEEPATHUMMA, W/O.LATE HASSANKUNHI, RESIDING AT DANDAGOLI HOUSE, P.O.KIDOOR, KASARAGOD TALUK. 19. MOHAMMED, S/O. DO. DO. DO. 20. M.AVANHI, W/O.USMAN, IN DO. DO.DO. 21. ANDA, S/O. DO. DO. 22. HAMSA, S/O. DO. IN DO. DO. 23. YUSUF, S/O. DO. IN DO. DO. 24. JAMEELA, D/O. DO., RESIDING AT KUKKAR OF MANGALPADY VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. 25. KHALID, S/O.DO.RESIDING AT DANDAGOLI HOUSE, P.O.KIDOOR, KASARAGOD TALUK. 26. IBRAHIM, S/O.DO. IN DO. DO. 27. SAMEEYA, DAUGHTER OF DO. IN DO. DO. ADV. SRI.P.K.MUHAMMED FOR R2,R3 & R5 GOVERNMENT PLEADER SHRI B.JAYASURYA FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.223 of 2010 -------------------------------------- Dated this the 20th day of October, 2010. ORDER With petitioners as A parties and showing them among the array of B parties also suo motu proceeding was initiated by Land Tribunal No.1, Kasaragod as S.M.P.No. 61 of 1984 in the matter of assignment of landlord's right regarding six items of properties referred to therein. The Land Tribunal on evidence found that petitioners are entitled to assignment of landlord's right and passed an order in their favour. After some time one Sheik Abba filed A.A.No.297 of 1985 before the Appellate Authority (LR), Kannur (for short, “the Appellate Authority”) challenging the order of assignment and contending that he is the cultivating tenant of the said properties he, having obtained a sub-lease from the Chalgeni lessees of the said properties, Poovani Moolya and Akkamma Hengsu. Application to condone the delay in filing that appeal was dismissed against which Sheik Abba came to this Court with C.R.P.No.1363 of 1988. That revision was allowed and the delay was condoned. Appeal was taken on file as A.A.No.21 of 2001. Pending that appeal Sheik Abba died and his assignees, respondent Nos.2 and 3 were impleaded as additional appellant Nos.2 and 3. The Appellate Authority allowed the appeal as per order dated March 4, 2010 setting aside order of the Land Tribunal and remitting the matter to that Tribunal for fresh consideration and decision. Certain observations/findings were made by the Appellate Authority in the said order CRP No.223/2010 2 concerning the right of parties. Petitioners/A parties are aggrieved by the order of Appellate Authority and the observations/findings therein and have filed this revision. It is contended by learned Senior Advocate appearing for petitioners that the remand order is unwarranted since no acceptable evidence has been let in by Sheik Abba or his assignees in support of their claim of sub-lease under the Chalgeni lessees. Learned counsel for respondent Nos. 2, 3 and 5 supported order of the Appellate Authority. 2. As regards remand ordered by the Appellate Authority is concerned, I do not find reason to interfere since it does not involve any question of law not decided or wrongly decided by the Appellate Authority required to be decided by this Court in revision under Section 103 of the Kerala Land Reforms Act (for short, “the Act”). Moreover it is seen that it is an open remand with opportunity for all parties concerned to adduce evidence in respect of their respective claims. 3. Learned Senior Advocate contended that the findings and observations made by the Appellate Authority are unwarranted and that the Appellate Authority has virtually found that assignees of Sheik Abba (additional appellants before the Appellate Authority) are in enjoyment and possession of the property and that they are the cultivating tenants. It is pointed out that the Appellate Authority went to the extent of saying that petitioners have committed CRP No.223/2010 3 fraud on the Tribunal in that they figured as A parties and B parties in S.M.P.No.61 of 1984. I have been taken through the order of Appellate Authority in this regard. 4. The S.M.Proceedings were initiated at the instance of the Land Tribunal. According to the petitioners, they got right from the Chalgeni lessees as per Exts.A1 and A2 of the year, 1972 and 1983, respectively. Claim of the contesting respondents is that Sheik Abba got the property in the year 1959 as per a sub lease from the Chalgeni lessees and Sheik Abba assigned his right in favour of contesting respondents in the year, 1995. It is seen from the order of Appellate Authority that it went to the extent of saying that contesting respondents (assignees of Sheik Abba) are in possession and enjoyment of the property and hence that they are cultivating tenants of the property entitled to obtain purchase certificate. It is also observed that the Revenue Inspector has reported that schedule properties were in the possession of Sheik Abba and he was the cultivating tenant. The further report is that the assignees of Sheik Abba are in possession and enjoyment of the property as cultivating tenants and they have effected improvements in the said property. Appellate Authority observed that the presence of petitioners on the array of A parties and B parties was intended to defraud the Land Tribunal. 5. I must bear in mind that the proceedings were initiated by the Land Tribunal and petitioners cannot prima facie be faulted for their names appearing on the side of B parties as well. I also find that all observations and findings CRP No.223/2010 4 entered by the Appellate Authority on the merit of case as to who is in possession and enjoyment of the property, who is entitled to purchase landlord's right and whether Sheik Abba got any right, interest or possession of the properties were all unwarranted and uncalled for as the Appellate Authority was not finally deciding the case one way or the other and, instead was remitting the matter to the Land Tribunal for fresh decision after giving opportunity to all parties to adduce evidence. In that situation the disputed questions should have been left to the decision of Land Tribunal. Equally unwarranted was the observation that petitioners were committing fraud on the Land Tribunal by their presence on the side of A and B parties. The Land Tribunal which initiated the S.M.Proceedings should have been careful about that and if necessary deleted unnecessary names from the side of A or B parties as circumstances warranted. Hence all findings entered by the Appellate Authority regarding possession and enjoyment of the properties, who is the cultivating tenant of the properties entitled to purchase landlord's rights and the observation that petitioners committed fraud on the Land Tribunal are to be set aside being unwarranted for the ultimate order of remand passed by the Appellate Authority. But I do not find reason to interfere with the ultimate order passed by the Appellate Authority remanding the case to the Land Tribunal for fresh decision. The Land Tribunal is directed to decide the claim of respective parties on its merit based on the evidence on record or to be produced by them. Resultantly this revision is disposed of in the following lines: CRP No.223/2010 5 i. All observations and findings made by the Appellate Authority stated in paragraph No.5 above, are set aside being unwarranted and unnecessary for the order of remand passed by it. ii. The Land Tribunal No.1, Kasaragod is directed to decide the respective claims made by the parties as to possession and enjoyment of the properties and their entitlement to purchase landlord's rights based on the evidence on record and/or to be adduced by them. iii. The Land Tribunal shall give the parties sufficient opportunity to adduce further evidence if any. I.A.No.1024 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks