IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 CRP.NO. 337 OF 2009() --------------------- {AA.45/2005 OF APPELLATE AUTHORITY (LR), ALAPPUZHA} .................... REVN. PETITIONER(S): (APPELLANT/1ST RESPONDENT) -------------------------------------------------------------- T.K.BHARGAVIKUTTY, SUDARSANA, THEKKUMBHAGAM, THRIPUNITHURA P.O., NOW RESIDING AT THELAPARAMBIL, PUTHIYAKAVU, TRIPUNITHURA. BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) RESPONDENT(S): RESPONDENTS/PETITIONERS & RESPONDENTS 2 TO 4 --------------------------------------------------------------------------------- 1. TREESA, D/O.RAPHEL, NEDUNILATHU VEEDU, MARADU P.O. 2. EMILY, D/O.RAPHEL, DO. DO. 3. RAMACHANDRAN, S/O.BHARGAVIKUTTY, THELAPARAMBIL, PUTHIYAKAVU, TRIPUNITHURA. 4. GANGADHARAN, S/O.BHARGAVIKUTTY, DO. DO. 5. LATHA, D/O.BHARGAVIKUTTY, DO. DO. 6. STATE OF KERALA, REP.BY THE DISTRICT COLLECTOR, ERNAKULAM. R6 BY GOVERNMENT PLEADER SRI.P.K.RAVIKRISHNAN SRI.A.T.ANILKUMAR FOR R1 & R2 SMT.V.SHYLAJA FOR R1 & R2 SRI.K.RAMACHANDRAN FOR R3 TO 5 SRI.S.SREEDEV FOR R3 TO 5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON 22/02/2010 PASSED THEFOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------------------------ C.R.P.No.337 of 2009 ----------------------------------------------- Dated this the 22nd day of February, 2010 O R D E R Concurrent decision rendered by the Land Tribunal, Ernakulam, Tripunithura and the Appellate Authority, Alappuzha holding that respondents 1 and 2 - the applicants in S.M.P.No.61/91 on the file of the Land Tribunal, Ernakulam are cultivating tenants entitled to get assignment of 21¾ cents of land in Survey Nos.271/1 and 272 of Maradu Village under Section 72 of the Kerala Land Reforms Act {for short “the Act”} is challenged in the revision filed under Section 103 of the Act. 2. The above suo motu proceedings was initiated on the basis of a report filed by the Revenue Inspector. The applicants (respondents 1 and 2) and the revision petitioner (1st respondent) filed statements in the above proceedings. The applicants claimed that their predecessor had obtained possession and C.R.P.No.337 of 2009 :: 2 :: enjoyment under an oral lease from the predecessor of the respondent. The respondent disputing the claim challenged the maintainability of the proceedings contending that it is bad for non-joinder of parties as the land covered by the proceedings is owned, possessed and enjoyed by the petitioner and also her children. Oral lease in favour of the predecessor of the applicants, viz., Raphael, from the predecessor of the respondent was impeached as incorrect and not true, setting forth a further case that in suit for partition, the property had been alloted to the family of the respondent as the share of the respondent and her children and during the pendency of the suit receiver appointed by the court was in possession and enjoyment and he had, during such proceedings, conducted auctions for the collection of usufructs from the property. On the basis of the objections raised by the 1st respondent, her children were also impleaded as C.R.P.No.337 of 2009 :: 3 :: additional respondents in the proceedings. Since there was some mistake over one of the survey numbers covered by the property in the report filed by the Revenue Inspector, a fresh report was collected by the Land Tribunal deputing the revenue authority. The report furnished the correct survey number of the land covered by the proceedings, reiterating the entitlement of the applicants/respondents 1 and 2 to get assignment of the land stating that they are in occupation and enjoyment of the land in continuation of their predecessor, a lessee over the land. The Land Tribunal, after enquiry, by order dated 17th August, 2000 held that the applicants/respondents 1 and 2 are entitled to purchase 21¾ cents of land in Survey No.271/1 and 272 of Maradu Village as tenants entitled to the assignment of such land. The order of the Land Tribunal was challenged by the first respondent preferring an appeal, A.A.No.45/05 before Appellate C.R.P.No.337 of 2009 :: 4 :: Authority (Land Reforms), Alappuzha. In the appeal, her children were shown as additional respondents 3 to 5 and the applicants in the proceedings before the Land Tribunal were respondents 1 and 2. The Appellate Authority, after hearing both sides, had passed judgment dated 24.9.2008, remitting the case for fresh consideration to the Land Tribunal, expressing a view that the records produced did not disclose as to who was in possession on 1.1.1970 when the Act came into force. The appellant/present revision petitioner and also applicants/respondents 1 and 2, both of them preferred separate writ petitions challenging the judgment so rendered by the Appellate Authority. Both the writ petitions were disposed of by a common judgment dated 28.11.2009 setting aside the judgment of the Appellate Authority and directing that authority to consider on merits the contentions advanced by the appellant and respondents in C.R.P.No.337 of 2009 :: 5 :: A.A.No.45/05, in the light of the documents already produced and also additional documents, if any, produced by either side and the arguments advanced. The Appellate Authority was directed to dispose of the appeal afresh on merits within the time limit fixed. After such remand, hearing both sides, the Appellate Authority passed the impugned judgment concurring with the decision rendered by the Land Tribunal that applicants/respondents 1 and 2 are entitled to assignment of the land covered by the proceedings as tenants as contemplated under the Act. Revision is directed against the judgment of the Appellate Authority confirming the order of the Land Tribunal ordering assignment in favour of applicants/respondents 1 and 2 in the proceedings. 3. Learned counsel for the revision petitioners assailed the order of the Appellate Authority as fundamentally erroneous contending that previously it C.R.P.No.337 of 2009 :: 6 :: had formed an opinion that on the materials produced in the proceedings, a definite finding as to who continued in possession had not been established and, further, there was no documentary evidence showing cultivation of the land at or before the commencement of the Act. On the very same materials, which were available before the remand ordered by the judgment rendered by this court in the writ petitions filed by both sides, according to the counsel, the Appellate Authority has now formed a different conclusion affirming the finding of the Land Tribunal that respondents 1 and 2 as tenants are entitled to assignment of the land covered by the proceedings. The finding so rendered by the Appellate Authority is perverse and not supported by any convincing evidence available on record, is the submission of the counsel. The Appellate Authority without examining the materials produced in the case, which were earlier C.R.P.No.337 of 2009 :: 7 :: found to be insufficient to enter a definite finding as to who continued in possession of the property when the Act came into force, according to the counsel, passed the impugned judgment without explaining or stating the reasons for forming a conclusion different from its previous judgment. It was further contended that the evidenciary value of the proceedings in the suit before the civil court that the property covered by the proceedings as well was under the management of a receiver appointed by the court, that the receiver so appointed had conducted auctions periodically for collecting the usufructs from such land, that the property allotted to the sharers under the decree passed in the suit had been taken delivery by them from the receiver etc., which were very material for determining the disputed issues covered by the proceedings, according to the learned counsel, were not appreciated nor even adverted to, by the Land C.R.P.No.337 of 2009 :: 8 :: Tribunal and the Appellate Authority in judging the merit of the claim of the respondents as cultivating tenants in possession of the property. Lastly, it is contended that both the Land Tribunal and Appellate Authority gave undue importance to the acquisition proceedings in which an award was passed jointly in favour of the predecessor of the revision petitioner and also respondents 1 and 2 to uphold the claim of the respondents, but, that was done, according to the counsel, without noticing that the acquisition proceedings related to a different survey number and not in respect of any portion of the land the under survey numbers covered by the proceedings. A report collected from the Revenue Inspector, after commencement of the suo motu proceedings based on his earlier report showing the survey number of the property as different from the previous report, according to the counsel, deserve no merit and should C.R.P.No.337 of 2009 :: 9 :: have been eschewed from consideration. At any rate, there was no material to show that the predecessor of respondents 1 and 2 and in continuation thereof these respondents possessed and enjoyed the property at any point of time, but, on the contrary according to the counsel, the materials tendered amply demonstrate that the revision petitioner and her children, respondents 3 to 5, are in possession of the property and it is supported by valid and convincing documents, the decree passed in the civil suit and other circumstances as to the possession of the land under a receiver appointed by the court in the above suit. 4. The learned counsel appearing for respondents 1 and 2/the applicants submitted that the 21¾ cents of land covered by the proceedings formed part of 27 cents of paddy land comprised in Survey Nos.271/1 and 272 of Maradu Village which belonged to the predecessor of the revision petitioner was under C.R.P.No.337 of 2009 :: 10 :: the possession and enjoyment of Raphael, the predecessor of the applicants, as a lessee in occupation and enjoyment of that land. Out of the 27 cents an extent of 5¼ cents had been acquired for the National highway in 1973 and the compensation amount was received after reference to the court and decree passed, equally by the mother of the revision petitioner and also the father of the present applicants. In the earlier report filed by the Revenue Inspector on which the proceedings arose a mistake crept in as to the description of the land as covered by Survey Nos.271/1 and 2. In fact, the acquired land 5¼ cents taken for the purpose of widening the road was given separate sub division No.271/2 after acquisition, and the remaining land in of the 27 cents of land is comprised in Survey Nos.271 and 272. The mis-description was corrected in the second report of the Revenue Inspector. It is further contended that the partition C.R.P.No.337 of 2009 :: 11 :: suit, appointment of receiver in that suit and the preliminary decree and final decree passed in such suit have no significance and it is not binding on the applicants, who had no notice of the proceedings in that suit. They were not only not parties to the suit and such a suit was filed after commencement of the Act solely with the fraudulent objective of defeating the rights of the applicants over the property covered by the proceedings, is the submission of the learned counsel. It is also submitted that the receiver appointed in the suit had appeared for the revision petitioner and respondents 3 to 5 in the proceedings before the Land Tribunal and filed objections on their behalf. On the materials placed, the authorities have rightly and correctly come to the conclusion that the applicants are entitled to fixity to tenure over the land and no interference with assignment of the land in their favour in exercise of the revisional jurisdiction, C.R.P.No.337 of 2009 :: 12 :: according to the counsel, arise in the present case. 5. I have considered the rival submissions of the counsel with reference to the records of the case. First and foremost, I do not find any merit in the submission made by the learned counsel for the revision petitioner that the impugned judgment rendered by the Appellate Authority suffer from serious infirmity since previously that authority before remission of the case by this court had expressed a view that on the available records no conclusive opinion could be given as to who continued in possession and enjoyment of the property as and when the Act came into force. Whatever be the opinion or conclusion formed by the Appellate Authority under its previous judgment that cannot be given any significance when that judgment had been set aside by this court directing reconsideration of the matter with reference to the materials produced. C.R.P.No.337 of 2009 :: 13 :: View taken by the Appellate Authority previously was challenged by both sides filing separate writ petitions and this court setting aside the previous judgment had directed reconsideration of the matter giving opportunity to the parties to lead further evidence, if any, to substantiate their respective case. It is futile to contend that the view formed by the Appellate Authority in its earlier judgment over the paucity of evidence to enter a finding as to who was in possession on the date of commencement of the Act is decisive and it cannot take a different view on a reappraisal of the evidence on remission of the case by this court. 6. The revision petitioner has assailed the order/judgment of the authorities assigning the land in favour of respondents 1 and 2 contending that the Land Tribunal went wrong in calling for a second report of the Revenue Inspector after the proceedings C.R.P.No.337 of 2009 :: 14 :: commenced with a previous report of the Revenue Inspector that the property is comprised in Survey Nos.271/1 and 2. Such proceedings were taken against the revision petitioner alone as the respondent, when respondents 3 to 5 were also co-landlords of the property and so it was fraudulent is another objection. Further challenge is that both authorities under the Act have ignored the binding force and evidenciary value of the reports of the receiver appointed by the civil court in conducting auction over the property, which was one among the items covered in the partition suit, and also the decrees passed in such suit. Perusing the records, I find, none of the objections canvassed by the revision petitioner has any merit or value at all. After the commencement of the proceedings when it was brought to the notice of the Land Tribunal that there is a discrepancy with respect to the survey number of the property involved, a second report from the Revenue C.R.P.No.337 of 2009 :: 15 :: Inspector was called for. That report disclosed that the land is situate in survey Nos.271/1 and 272 of Maradu Village. 27 cents of paddy land comprised in Survey Nos.271/1 and 272 of Maradu Village belonged to Neellikot Parameswara Menon, the father of the revision petitioner and it was under the occupation and enjoyment of the predecessor of respondents 1 and 2 viz., Raphael, was the report of the Revenue Inspector. An extent of 5¼ cents from Survey No.271 was acquired for the purpose of widening the National Highway and what remained with the landlord and the lessee in occupation was only ¾ cents in that survey number. The above ¾ cents was given a sub division number (1) and the land acquired for widening the National Highway was given a separate sub division as (2) in Survey No.271. Initially, the Revenue Inspector had filed a report that the land involved in the proceedings was in Survey Nos.271/1 and 2. In fact, C.R.P.No.337 of 2009 :: 16 :: the rest of the 21 cents out of the 27 cents of land was comprised in Survey No.272. The revision petitioner with her children - respondents 3 to 5 had attempted to develop and canvass a case that the acquired land was different and did not form part and parcel of the land covered by the proceedings. It is their further case that when a reference was made over the acquired land under Section 32 of the Land Acquisition Act to avoid complications on the advice given by their counsel an agreement was made to share the compensation equally with the predecessor of respondents 1 and 2/applicants in the proceedings. Sharing of compensation over the acquired land as between the predecessor of the revision petitioner and also that of the applicants goes a long way in substantiating the case of the applicants that their predecessor had been in enjoyment of the property as a lessee in occupation of such land. So far as the suit filed by the revision C.R.P.No.337 of 2009 :: 17 :: petitioner and her children the appointment of receiver therein and the records produced as to the receiver conducting auction over the property and the decrees passed in such suit, it is only to be stated that it cannot have any binding force to defeat the interests of respondents 1 and 2 over the property. The receiver who was appointed in the suit had appeared for the revision petitioner and her children in the proceedings before the Land Tribunal, and filed objections, till a fresh engagement by another counsel was made, is a circumstance which necessarily has to be taken note of in the back drop of the sharing of the compensation over the acquired land as between the predecessors of the revision petitioner and also that respondents 1 and 2/applicants in the proceedings. It is also seen that the final decree proceedings in the partition suit terminated on a compromise decree on the settlement arrived between the parties to that suit. So long as C.R.P.No.337 of 2009 :: 18 :: respondents 1 and 2, the applicants were not parties to the suit, the decree passed in that suit or the proceedings thereof will in no way affect their rights over the property. The evidence of PW.1 and also the exhibits produced by them were found convincing and reliable by both the authorities to conclude that the predecessor in interest of the applicant Raphael was a lessee in occupation of the land. Ext.A2 produced by them indicated that the compensation for the acquired land was agreed to be shared equally by the mother of the revision petitioner and also Raphael, the father of the applicants. Ext.A4 was the notice issued and received by Raphael in connection with the acquisition proceedings. The contention that he had possession only over the acquired land taken for widening the road and not to the rest of the paddy land cannot be accepted for a moment. It is reasonable to hold in the C.R.P.No.337 of 2009 :: 19 :: given facts and circumstances of the case that the predecessor of respondents 1 and 2, Raphael as a lessee was an occupant of the land comprised in 27 cents which originally belonged to the predecessor of the revision petitioner. The report of the Revenue Inspector and the other materials tendered in the case clearly establish the tenancy right of respondents 1 and 2 over that property and that being so, the assignment granted in their favour by the Land Tribunal as confirmed by the Appellate Authority is unimpeachable. There is no merit in the revision challenging the assignment ordered in their favour. A revision under Section 103 of the Act against the orders of the authorities under the Act is entertainable only when such authorities have decided erroneously or failed to decide 'any question of law'. Other than that there was a failure on the part of the authorities - Land Tribunal and the Appellate Authority in due giving significance C.R.P.No.337 of 2009 :: 20 :: to the proceedings and records relating to the partition suit filed by the revision petitioner and her children and the collection of a second report from the Revenue Inspector after suo motu proceedings had commenced on the previous report of that revenue authority no other point touching any question of law was canvassed in the revision to impeach the orders passed by the authorities under the Act. I have already found that the challenges canvassed as above are unworthy of any merit in the given facts of the case. Suffice to state, the revision lacks any merit, and it is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE SK/- //true copy//