IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 CRP.No. 871 of 2005 AGAINST THE ORDER DATED 16.2.2005 IN AA.98/2000 OF APPELLATE AUTHORITY (LR), KANNUR SM.335/1993 OF LAND TRIBUNAL, KUTHUPARAMBA REVN. PETITIONER: APPELLANT: ------------------ REV. FR.MANI KANDATHIL, S/O.MANI, AYYANKUNNU AMSOM DESOM, KANDATHIL HOUSE, `PRIEST HOME', KARUVANCHAL. BY ADV. SRI.C.MURALIKRISHNAN (PAYYANUR) RESPONDENTS: RESPONDENTS & STATE: --------------------------------- 1. KANDATHIL ANTONY, S/O.SEBASTIAN, AYYANKUNNU AMSOM DESOM, P.O.KOOMAN THODU. 2. P.C.MUHAMMED, PUTHIYAPURAYIL, NEERVELI, P.O.NEERVELI. 3. P.C.POCKER, MANNAYAD, P.O.NETTOOR, THALASSERY. (DIED) 4. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.3 NEED NOT BE IMPLEADED AS PER ORDER DATED 10.1.2007 IN I.A.NO.3657/06. EXEMPTED FROM SUBSTITUTING THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.3 IN THE CRP AT THE RISK OF THE REVISION PETITIONER AS PER ORDER DATED 27.7.2007 IN I.A.NO.1880/2007. R1 BY ADV. SRI.N.NAGARESH SRI.K.BABU R4 BY GOVERNMENT PLEADER SRI.V.T.K.MOHANAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 871 OF 2005 C -------------------------------------------- Dated this the 31st March, 2008 O R D E R The petitioner, Fr.Mani Kandathil, was not a party to S.M.No.335 of 1993, on the file of the Land Tribunal, Kuthuparamba. Fr.Mani Kandathil challenged the order dated 27.9.1994 in S.M.No.335 of 1993 in appeal before the Appellate Authority as A.A.No.98 of 2000. The Appellate Authority dismissed the appeal. The petitioner challenges the judgment of the Appellate Authority in this Revision. 2. The first respondent is shown as the cultivating tenant in S.M.No.335 of 1993. The first respondent is the son of Sebastian. Sebastian and the revision petitioner, Fr.Mani Kandathil, are brothers. They are the children of Ouseph Mani. It is admitted that the property in dispute belonged to Ouseph Mani. There is a dispute between the parties regarding identity of the property, as revealed from the contentions put forward before the Appellate Authority. Even if there is a dispute regarding identity, both parties are claiming title to the respective items claimed by them under Ouseph Mani. The property originally belonged to Parambath Chathankandi alias Ponnambillath Parapravan Tarwad. As per 'marupatt' No.627/1948, Ouseph Mani took on lease three items of immovable property. Item No.3 in the 'marupatt' is the property claimed C.R.PNO.871 OF 2005 :: 2 :: by Fr.Mani Kandathil, the revision petitioner. According to the revision petitioner, in 1953, as per document No.3010/1953, Ouseph Mani and his children including Sebastian, entered into a partition deed with respect to the three items of immovable property covered by 'marupatt' No.627/1948. According to the petitioner, the disputed property is item No.1 in the partition deed. Item No.1 in the partition deed was allotted to Ouseph Mani. The revision petitioner further contended that in 1959, as per document No.498/1959, Ouseph Mani gifted the property to his wife Eli and the revision petitioner. Item No.1 in the gift deed is the disputed property, according to the revision petitioner. Later, as per document No.1312/1959, Eli gifted her share to the revision petitioner. Thus, the revision petitioner claims that he is the absolute owner in possession of the one acre of land. The revision petitioner also contended that he obtained purchase certificate in respect of that property as per the order dated 20.10.1972 in S.M.No.1128/1971. 3. The case of the first respondent is that he has got the property as per the gift deed No.2277/1989, executed by his father Sebastian in his favour. The case of the first respondent before the Appellate Authority is that the property belonged to Ouseph Mani and that Sebastian, father of the first respondent, got the property from Ouseph Mani, on an oral lease in the year 1950. The first respondent contended that the purchase C.R.PNO.871 OF 2005 :: 3 :: certificate issued by the Land Tribunal in S.M.No.335/1993 was perfectly valid and proper and that the revision petitioner was not a necessary party. The Appellate Authority dismissed the appeal mainly on two grounds: (1) Sebastian, father of the first respondent Kandathil Antony, took the property on lease from his father Mani Kandathil and not from his brother, Fr.Mani Kandathil (revision petitioner). The recital in the gift deed No.1128/1971 that Sebastian took the property on lease from Fr.Mani Kandathil (revision petitioner) is a mistake; and (2) The property claimed by the revision petitioner as item No.1 in the 1953 partition deed and the property covered by the gift deed No.2277/1989 are distinct and different. 4. There is no evidence in the case that the recitals in gift deed were mistakenly made. No evidence was adduced in the case to prove that Sebastian obtained an oral lease from his father Ouseph Mani. If the disputed property forms part of the partition deed of 1953, the revision petitioner would be the title holder since in 1959 Ouseph Mani executed the gift deed in favour of Eli and the revision petitioner and later in the year 1959, Eli gifted her share to the revision petitioner, Fr.Mani Kandathil. On the other hand, if the disputed property is not part of the partition deed and the gift deed of 1959 executed by Ouseph Mani in favour of Eli and the revision petitioner, then the question would arise whether there was an oral lease by Ouseph Mani in favour of Sebastian C.R.PNO.871 OF 2005 :: 4 :: as alleged by the first respondent Kandathil Antony. The SM proceedings were initiated showing the first respondent Kandathil Antony as a cultivating tenant. No evidence was adduced before the Land Tribunal. The petitioner was not a party to the proceedings before the Land Tribunal and evidently there was no contest in the proceedings. The Land Tribunal has disposed of the case as there was no contest. 5. In a dispute like this, the Appellate Authority was not justified in concluding the issue without any evidence on record except a few documents produced by the parties. Identification of the property, derivation of the title by the respective claimants etc. would be relevant for deciding the question involved in the proceedings. The Land Tribunal had no opportunity to afford the parties an opportunity of being heard, since the revision petitioner was not a party to the proceedings. The Appellate Authority did not afford an opportunity to the petitioner to prove his case by remanding the case to the Land Tribunal. 6. I am of the view that the Appellate Authority should have remanded the case to the Land Tribunal for fresh disposal after affording both parties an opportunity to adduce evidence and to produce documents. The Appellate Authority was not justified in concluding the issue without any evidence on record. The respective contentions put C.R.PNO.871 OF 2005 :: 5 :: forward by the parties were apparently decided on scanty materials by the Appellate Authority and one set of contentions was accepted on grounds, which, on the face of record, are not sufficient to conclude the issue in favour of the first respondent. 7. For the aforesaid reasons, the judgment of the Appellate Authority and the order of the Land Tribunal are set aside and the case is remanded to the Land Tribunal for fresh disposal. The Land Tribunal shall afford an opportunity to both parties to produce documents and to adduce evidence. The Land Tribunal shall also afford an opportunity of being heard to the parties and dispose of the case on the merits, as expeditiously as possible. No order as to costs. Parties shall appear before the Land Tribunal on notice. (K.T.SANKARAN) Judge ahz/