IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 SA.No. 612 of 1995() -------------------- AS.6/1992 of SUB COURT, KASARAGOD OS.192/1987 of MUNSIFF COURT, KASARAGOD .................... APPELLANT/APPELLANT/PLAINTIFF: ----------- SMT.KAMALA AGED 37 YEARS, W/O.D.VENKATRAMANA, HINDU, LANDLADY, RESIDING IN BAIRAMOOLE OF EDNEER VILLAGE, KASARAGOD TALUK, P.O.EDNEER. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMI NARAYANAN SRI.SATHYASHREE PRIYA RESPONDENTS/RESPONDENTS/DEFENDENTS: ------------- 1. KORAGAPPA MANIYANI, AGED 42 YEARS. 2. NARAYANA MANIYANI AGED 40 YEARS. 3. GOPI AGED 35 YEARS. BY ADV. SRI.A.P.CHANDRASEKHAR ) SRI.KODOTH PUSHPARAJAN ) SRI.M.KRISHNAKUMAR ) SRI.P.RAMACHANDRAN ) R1 TO R3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2008, ALONG WITH OP NO. 10411 OF 1998 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 612 OF 1995 =========================== Dated this the 13th day of March, 2008 JUDGMENT Plaintiff in O.S.192/1987 on the file of Munsiff Court, Kasaragod is the appellant. Defendants are the respondents. Originally the assignor of the appellant, Subraya Kunjuraya filed O.S.107/1980 a suit for permanent prohibitory injunction in respect of 4 acres in R.S.No.347/3 of Paddy village against respondents contending that the said 4 acres was obtained by him under Ext.A1 provisional patta issued in his favour by Tahsildar and respondents have no manner of right or possession over the same. When the suit was pending Subraya Kunjuraya assigned his rights in favour of the appellant. Appellant was impleaded as additional plaintiff. The trial court granted a decree for injunction. Respondents challenged that decree and judgment before Sub Court, Kasaragod in A.S.28/1985. Respondents claimed S.A.612/1995 2 possession of 91 cents out of the 4 acres, claimed by appellant based on Ext.B3 patta whereunder 91 cents was assigned in favour of Kunhiraman Maniyani on 25.10.1971. Under Ext.B5 judgment, first appellate court set aside the findings of trial court in respect of 91 cents covered under Ext.B3. Ext.A7 decree was modified and a decree granted in favour of the plaintiff in O.S.107/1980 excluding 91 cents covered under Ext.B3. Appellant thereafter filed O.S.192/1997 before Munsiff Court, Kasaragod for recovery of possession of that 91 cents on the strength of title. According to the appellant, she has title to the plaint schedule property under Ext.A5 assignment deed. The right obtained under Ext.A5 is the right available to the assignor, the original plaintiff in O.S.107/1980 under Ext.A1. It was contended that though in the appeal first appellate court granted a decree only in respect of the remaining property excluding 91 cents claimed by respondents as legal heirs of Kunhiraman Maniyani appellant has title to the S.A.612/1995 3 property and respondents trespassed into the property and obtained possession illegally on 1.5.1987 and therefore appellant is entitled to recover possession of the same on the strength of title. 2. First respondent resisted the suit contending that appellant has no title to the plaint schedule property. It was contended that though a provisional patta was issued in favour of Subraya Kunjuraya, it was not regularised and no final patta was issued and a provisional patta was issued in favour of Kunhiraman Maniyani in 1966 under Ext.B1 and subsequently Ext.B3 final patta was issued on 25.10.1971 and though that patta was cancelled subsequently, in the appeal that order was set aside and thereafter Tahsildar passed Ext.B6 order restoring the original patta and appellant is not entitled to claim any title to the plaint schedule property. As respondents are in possession of the property for the last 50 years, appellant is not entitled to the decree sought S.A.612/1995 4 for. Respondents 2 and 3 filed a written statement adopting the contentions raised by first respondent. 3. Learned Munsiff on the evidence of Pws.1 and 2, DW1 and Exts.A1 to A8, B1 to B6 dismissed the suit holding that appellant did not establish the title. It was found that though Ext.A1 provisional patta was issued in favour of the assignor of appellant, no final patta was issued and under Ext.B1 a provisional patta was issued in favour of Kunhiraman Maniyani father of respondents in 1966 and in 1971 Ext.B3 final patta was issued and though that order was cancelled, in the appeal filed by Kunhiraman Maniyani that order was set aside and under Ext.B6 proceedings dated 19.9.1987, patta issued in favour of respondents was finalised and appellant is not entitled to the decree sought for. Appellant challenged the judgment before Sub Court, Kasaragod in A.S.6/1992. The learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and S.A.612/1995 5 dismissed the appeal. It is challenged in the second appeal. 4. The appeal was admitted formulating the following substantial questions of law. 1. Whether a provisional patta granted in favour of a party requires any subsequent conformation under the provisions of Kerala Land Assignment Rules. 2. When a provisional patta is granted, will it not be in force and become final, if it is not cancelled under Rule 8 (3) of the Kerala Land Assignment Rules. 3. When a patta is granted in favour of a particular person with possession, can a fresh grant be given in favour of another person without S.A.612/1995 6 cancellation of the earlier grant and obtained possession from the earlier guarantee. 4. When the document relied on by the defendant as title deed has not become final and the same is still in controversy, whether courts below were justified in dismissing the suit. 5. Learned counsel appearing for appellant and respondents were heard. 6. Learned counsel appearing for appellant argued that once a provisional patta was issued in favour of the predecessor -in -interest of the appellant evidenced by Ext.A1, without cancelling that provisional patta, another grant cannot be made in favour of the predecessor-in-interest of respondents, and respondents cannot claim title to the property. It was argued that when as provided under Rule 8(3) of Kerala Land Assignment Rules, S.A.612/1995 7 Ext.A1 was not cancelled and as no subsequent order is warranted, appellant has title to the property and therefore courts below should have granted a decree for recovery of possession on the strength of title. Learned counsel also argued that O.P.10411/1998 is pending before this court filed by appellant challenging Ext.B6 proceedings, as the appeal filed against the said order was dismissed only on the ground of delay and appellant had filed an appeal immediately after coming to know about Ext.B6 order and based on Ext.B6 order, courts below should not have non-suited the appellant. 7.Learned counsel appearing for respondents argued that Ext.A1 provisional patta was issued in favour of appellant, not under Rule 8 of Kerala Land Assignment Rules but under Rule 13 of Rules for Assignment of Government Land For Settlement of Agricultural Labourers and therefore Rule 8 of Kerala Land Assignment Rules has no application. It was pointed out that as is clear from Ext.A1, a provisional patta was issued in Appendix C in S.A.612/1995 8 accordance with Rule 13 and the cancellation of the registry is provided under Rule 21 and cancellation of a registry is warranted, only if a regular patta was issued as provided under Rule 13. It was also argued that when the provisional patta issued under Rule 13 was not finalised and a regular patta was not issued in favour of the assignor of the appellant, appellant cannot claim title to the property and based on Ext.A1, appellant cannot claim title to the plaint schedule property. It was also argued that Ext.B2 provisional patta was issued pursuant to Ext.B1 order of assigment on 14.12.1966 and thereafter Ext.B3 final patta was issued as provided under Rule 9(2) of Kerala Land Assignment Rules. Though subsequently under a mistaken impression that the property covered under Ext.B3 forms part of the property assigned to the assignor of the appellant, it was cancelled by Tahsildar. That order was challenged before Revenue Divisional Officer in an appeal and the Revenue Divisional Officer set aside S.A.612/1995 9 that order cancelling Ext.B3 and directed the Tahsildar to pass fresh orders and as per Ext.B6 proceedings dated 19.9.1987, Ext.B2 patta which was regularised under Ext.B3 patta was finalised and appellant cannot claim title to the property. It was also argued that courts below rightly considered the question of title and when appellant has no title , she is not entitled to recover possession of the property and the appeal is only to be dismissed. 8. The title claimed by appellant is under Ext.A1. Ext.A1 with Ext.A2 proceedings of the Tahsildar dated 16.3.1965, show that 4 acres in R.S.No.347/3 of Paddy Village was provisionally assigned in favour of Subraya Kunjuraya as per proceedings dated 16.3.1965 under the Centrally Sponsored Plan Scheme for settlement of Agricultural Labourers on Government puramboke land. That assignment was not in accordance with the provisions of Kerala Government Land Assignment Act 1960 or Kerala Land Assignment Rules S.A.612/1995 10 1964. Section 3 of the Kerala Land Assignment Act 1960 provides for assignment of Government land. Rule 8 of Kerala Land Assignment Rules, 1964 provides the conditions of assignment on registry and Rule 9 collection of arrears of Government dues and issue of provisional patta. Under Rule 9 (1) order granting registry shall be issued in the form in Appendix 1 to the Rules and under sub rule (2) in cases where registry is made, patta shall be issued in the form in Appendix II to the rules and where such patta is issued, pending survey and demarcation, a note to the effect that the area noted in the patta is subject to revision after finalisation of the survey and demarcation shall be made in the patta. In such cases, when survey and demarcation is completed, the exact area assigned shall be noted in the patta by the assigning authority. Under sub rule (3) in cases where the land granted on registry is already held by the assignee either under a lease, current or time expired or by way of encroachment, not considered S.A.612/1995 11 objectionable, the arrears of assessment recoverable by the Government in lieu thereof including prohibitory assessment and fines, arrears of lease amount or licence fee shall be limited to the amount of basic tax due on the land for the actual period of occupation. Ext.A1 shows that the provisional patta was not issued as provided under Rule 9 of Kerla Land Assignment Rules. It is not in Appendix II to the Kerala Land Assignment Rules, 1964. Therefore it gives no room for any doubt that Ext.A1 was not issued as provided under the provisions of Kerala Land Assignment Rules, 1964. 9. Rule 9 of the Rules for Assignment of Government Land For Settlement of Agricultural Labourers provides for an application for assignment. Under the said Rule the application for assignment under the rules shall be forwarded to the Tahsildar having jurisdiction over the area. Under rule 10 before considering the applications for assignment of any land Tahsildar shall publish a notice under his signature S.A.612/1995 12 inviting objections in writing from interested persons to the registry of the land. Under Rule 11, Tahsildar shall consider the objection received under rule 10, by conducting such enquiries as he considers necessary and pass orders on the applications for assignment and communicate copies of the orders to the applicants. Rule 12 provides the form of order granting registry. Under the said rule, the order granting registry shall be in the form in Appendix B to the rules. Rule 13 provides for grant of patta. Under the said rule, in cases where registry is made subject to survey and demarcation of the extent assigned, a provisional patta shall be issued in the first instance pending such survey and demarcation, and a regular patta issued after survey and demarcation are completed. It provides that until the issue of the regular patta, the registry shall be treated as provisional. The patta, regular or provisional, shall be issued in the form in Appendix C to the rules. Ext.A1 shows that it is a provisional patta S.A.612/1995 13 issued as provided under Rule 13. It also shows that it is issued in the form as shown in Appendix C to the said rules. Rule 13 therefore makes it clear that a provisional patta issued under Rule 13 is not a document of title. The title will be complete only if a regular patta in Appendix C is issued, as provided under Rule 13. Rule 21 provides for cancellation of the registry. Under the said rule, the registry shall be liable to be cancelled for contravention of the provisions of the rules. The registry may also be cancelled if it is found that it was grossly inequitable or was made under a mistake of fact or owing to misrepresentation of facts or in excess of the limits of the powers delegated to the assigning authority or that there was an irregularity in the procedure. In the case of cancellation of registry the assignee shall not be entitled to compensation for any improvements he may have made, on the land. The authority competent to order such cancellation is the authority which granted the registry or an S.A.612/1995 14 authority superior to it. The Rules also provides for filing an appeal against such cancellation and also a further revision before the Board of Revenue. Though learned counsel appearing for appellant argued that in the absence of an order of cancellation of the provisional patta issued under Rule 13, the provisional patta is a valid title, I cannot agree with the submission. What is provided under Rule 21 is cancellation of registry. Rule 12 provides the form of order granting registry and it must be, as provided in Appendix B to the rules. Ext.A2 proceedings is not in Appendix B and it is not an order granting registry as provided under Rule 12. Therefore so long as a registry was not granted in Appendix B as provided under Rule 12 and a regular patta was issued under Rule 13, there is no necessity to cancel the registry as provided under Rule 21. So long as no regular patta is issued as provided under rule 13 and no order granting registry in Appendix B was issued appellant cannot claim title to the plaint S.A.612/1995 15 schedule property under Ext.A1 when it is only provisional as provided under Rule 13. Threfore irrespective of the question whether Ext.B3 final patta issued to the predecessor in interest of respondents is valid or not, appellant cannot claim title to the plaint schedule property based on Ext.A1. Therefore appellant has no title to the plaint schedule property and courts below rightly found that appellant is not entitled to the decree for recovery of possession sought for. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006