IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 CRP.No. 557 of 2002() --------------------- AA.172/1997 of A.A.(LAND REFORMS),THIRUVANANTHAPURAM. SMP.6/1993 of LAND TRIBUNAL, KOLLAM REVN. PETITIONERS: RESPONDENTS 5 TO 7 AND 9: 1. ALIAMMA, JAYA BHAVANAM, PADINJAREVILAPURAYIDOM, THAZHAM NORTH, MEENAD, KOLLAM. 2. JACOB KURIAN, JAYA BHAVANAM, PADINJAREVILAPURAYIDOM, THAZHAM NORTH, MEENAD, KOLLAM. 3. SARAMMA, JAYA BHAVANAM, PADINJAREVILAPURAYIDOM, THAZHAM NORTH, MEENAD,KOLLAM. 4. THANKAMMA, JAYA BHAVANAM, PADINJAREVILAPURAYIDOM, THAZHAM NORTH, MEENAD, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENTS: APPELLANT/RESPONDENTS 3,4,8 AND GOVERNMENT: 1. V.MEENAKSHY, CHARUVILA KIZHAKKETHIL, THAZHAM NORTH, MEENAD. 2. A.K.HUKE MUTHALALI, SALIM BUNGALOW, THAZHAM NORTH, MEENAD, KOLLAM. 3. SUSEELA, SALIM BUNGALOW, THAZHAM NORTH, MEENAD, KOLLAM. 4. ANNAMMA, JAYA BHAVANAM, PADINJAREVILAPURAYIDOM, THAZHAM NORTH, MEENAD, KOLLAM. 5. GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. THE NAMES OF 2ND AND 3ES RESPONDENTS ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 7.11.2006 IN I.A. NO.3116 OF 2006. BY ADVS. SRI.K.SUBASH CHANDRA BOSE-R1 SRI.K.P.SUJESHKUMAR FOR R.4 GOVERNMENT PLEADER SRI. SHYSON P. MANGUZHA FOR R5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO.1675 OF 2007 IN C.R.P. NO.557 OF 2002. DISMISSED 24.7.2008 Sd/-(HARUN-UL-RASHID, JUDGE) HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 557 OF 2002 -------------------------------------------- Dated this the 24th day of July, 2008 O R D E R The legal heirs of the second respondent in S.M.P. No.6 of 1993 on the file of the Land Tribunal, Kollam are the revision petitioners. The first respondent herein is the applicant before the Land Tribunal. The Land Tribunal by order dated 19.2.1997 held that it is an admitted fact that the applicant is in occupation of 3 cents as kudikidappu and that the occupation of the balance area other than the three cents has not been proved. Finding that the applicant failed to prove that she is a cultivating tenant entitled to fixity of tenure, the Land Tribunal dropped the S.M. proceedings. The applicant challenged the said order before the Appellate Authority (LR), Thiruvananthapuram. The Appellate Authority as per order dated 23.8.2001 in A.A. No.172 of 1997 set aside the order passed by the Land Tribunal and allowed the appeal holding that the appellant/applicant is a cultivating tenant entitled to fixity of tenure in respect of the schedule property of 19.390 cents in Survey No.2082. The legal heirs of the second respondent in the S.M. proceedings have come C.R.P. NO.557/2002 2 up in revision challenging the order of the Appellate Authority. 2. The applicant/first respondent submitted an application under Section 72 C of the Kerala Land Reforms Act, 1963 (hereinafter referred to as "the Act") for assignment of right, title and interest over 19.390 cents of land in Survey No.2082 of Meenad Village, Kollam Taluk. Based on the said application, the Land Tribunal initiated S.M. Proceedings after getting a report from the authorised officer. It is the case of the applicant that her parents got 20 cents of land in Survey No.2082 of Meenad Village about 60 years back from the parents of the first respondent on lease arrangement and that they constructed a hut in the said 20 cents with the permission of the land owner. It is also pleaded by the applicant that she had filed O.A. No.742 of 1975 with the first respondent (Alexander Luke Muthalali) in the party array claiming tenancy right over 20 cents. The said Original Application was allowed and purchase certificate was issued in favour of the applicant. The second respondent in A.A No.172 of 1997 was not a party in the above case. In the appeal, A.S. No.43 of 1980, filed by the second respondent, the appellate court as per Ext.B2 judgment held that the property in dispute is in the possession of the second respondent and that the order passed by the Land Tribunal in O.A. No.742 of 1975without the second respondent, the land owner in the party array was not validly C.R.P. NO.557/2002 3 passed . 3. The second respondent resisted the application. He contended that he was the owner of 2.77 acres of land in Survey Nos.2082 and 2083 of Meenad Village having obtained the same by Ext.A3 sale deed of 1960. According to him, he gave 3 cents of land to the applicant in the year 1966 and vide Ext.B13 proceedings under Section 80 B of the Act, the said 3 cents of land was registered in the name of the applicant as kudikidappu. Subsequently when the landlord noticed that the applicant is in possession of more than the 3 cents of land given to her, he was constrained to file O.S.No.811 of 1967 for recovery of possession of the property covered by his title deed and the portion of the property trespassed upon by the applicant. Ext.B7 is the judgment passed by the civil court granting a decree for recovery of possession. Ext.B5 is the delivery kychit by which excepting the three cents, the rest of the property which was found to be in the possession of the applicant was delivered to the landlord. That judgment and decree was not appealed against and the same has become final. It is also contended by the landlord that on coming to know about the issuance of the purchase certificate in the name of the applicant, he filed O.S. No.164 of 1978 for a decree of perpetual injunction restraining the defendant therein from trespassing into any portion of the land. The C.R.P. NO.557/2002 4 said suit was dismissed, but the appeal filed by him as A.S. No.43 of 1980 was allowed by the appellate court granting the injunction sought for. Ext.B2 is the judgment in A.S. NO.43 of 1980 and Ext.B3 is the decree in O.S. No.164 of 1978. 4. The question decided in Exts.B2 and B3 is whether the plaintiff/landlord is entitled to an injunction in respect of 17 cents of land also. The appellate court observed that the fact that the plaintiff had purchased the property from its prior owner under Ext.A1 is not in dispute. The further fact that 3 cents of land was given to the defendant as kudikidappu is also admitted. The question adjudicated by the lower appellate court was whether in addition to the 3 cents, the applicant was in possession of 17 cents lying adjacent to the three cents. The appellate court held that the defendant (applicant) had no case as to how she came into possession of 17 cents of land now claimed by her in addition to the 3 cents. The appellate court also observed that the only claim of the defendant/applicant is on the strength of the order passed in O.A. No.742 of 1975. The appellate court held that since the plaintiff was not a party to the said proceedings, the order passed in O.A. No.742 of 1975 and the certificate of purchase issued in favour of the defendant/applicant are not valid and binding against the plaintiff and that the defendant cannot put C.R.P. NO.557/2002 5 forward any claim against the plaintiff on the strength of Exts.B1 to B3. The appellate court held that the evidence on record shows that the plaintiff was in possession of plaint A schedule property and that the defendant had really attempted to trespass upon it on the strength of the purchase certificate fraudulently and collusively obtained by her and that the application for injunction restraining her from trespassing into any portion of the plaint A schedule property should be allowed. 5. The judgment in A.S. No.43 of 1980 has become final and is binding on the parties. The applicant had not chosen to challenge the said judgment. Subsequent to the decree passed in A.S. No.43 of 1980, the applicant filed O.S. No.401 of 1982 for fixation of boundary in respect of 20 cents of land. The said suit was dismissed as per Ext.B4 judgment finding that the applicant is not in possession of 20 cents of land as claimed by her. The applicant filed A.S. No.71 of 1986 against the dismissal of O.S. No.401 of 1982 which also ended in dismissal, confirming the judgment and decree passed by the trial court. The applicant took up the matter before this Court in S.A. No.44 of 1988. This Court considered the dispute in detail and dismissed the appeal. This Court noted the decree passed in the first suit filed by the landlord, O.S. No.811 of 1967 and Ext.B5 delivery kychit by which excepting three C.R.P. NO.557/2002 6 cents, the rest of the property which was found to be in the possession of the applicant was taken delivery of by the landlord. This Court also noted that O.S. No.164 of 1978 was filed by the landlord for injunction. This Court further held that on the basis of the application filed by the applicant with the second respondent on the party array, three cents of property in Survey No.2082 was registered as kudikidappu in favour of the applicant in the year 1966 and that the same would indicate that the applicant knew that the property actually belonged to the second respondent. It is further stated by this Court that in spite of that knowledge, the applicant filed O.A. No.742 of 1975 for purchase of kudikidappu, not against the second respondent, but against the first respondent who was the assignor of the second respondent and hence O.A. No.742 of 1975 was a fraudulent and collusive proceeding and, therefore, the patta obtained cannot have any legal validity. 6. After culmination of all the battles, the present application was filed claiming assignment of right, title and interest over 20 cents of land including the 3 cents of land. The Land Tribunal after taking into consideration all the relevant facts found that the applicant failed to prove that she is a cultivating tenant entitled to fixity of tenure and in that premise dropped the S.M. proceedings. The Appellate Authority wrongly C.R.P. NO.557/2002 7 approached the questions involved in the case and held that there is a direction in the judgment in S.A. No.44 of 1988 directing the applicant to move the forum below. In fact, this Court after entering a positive finding that the applicant has no right over any portion of the 20 cents observed that if so advised, the appellant/applicant may approach the proper forum for establishing her alleged right of kudikidappu. Taking note of this observation and without examining the documents produced on the side of the landlord, which are mostly decrees and judgments passed in cases decided between the parties, the Appellate Authority simply held that the area to the extent of 19.390 cents in Survey No.2082 in respect of which fixity of tenure is claimed is situated beyond the area in Survey No.2082 covered by Ext.A3 sale deed. In fact, the materials on record positively prove that the property now claimed by the applicant is the property in dispute in all the pending litigations which were culminated by the decrees and judgments produced by the parties. It is very clear from those cases that the dispute between the parties is in respect of the property which is surrounding the three cents of land in which there is a hut. For establishing the right over the said property, the applicant filed civil cases, the result of which are mentioned in the preceding paragraphs. Therefore, the reasons stated by the Appellate Authority for allowing the application filed by the applicant ignoring the documents which positively C.R.P. NO.557/2002 8 go to show that the applicant is not entitled to claim the property in question, are erroneous and unsustainable in law. The impugned order passed by the Appellate Authority is set aside and the order of the Land Tribunal is restored. The Civil Revision Petition is allowed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.557/2002 9 HAURN-UL-RASHID, J. C.R.P. NO. 557/2002 O R D E R 24th July, 2008