IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 CRP.No. 2207 of 2001 ---------------------- ( SR.156/1997 of TALUK LAND BOARD, NILAMBUR. ) REVN. PETITIONERS/CLAIMANTS: -------------------------------------------------- 1. PUTHIYARA UMMACHA (WRONGLY STATED AS 'UNNIYACHA' IN THE PROCEEDINGS OF THE TALUK LAND BOARD.) W/O. VARAMPANKALLAN ABDULLAKUTTY, KARAPURAM, NILAMBUR TALUK, MALAPPURAM DISTRICT. 2. PUTHIYARA NAFEESA (WRONGLY STATED AS ' W/O. MOITHEENKUTTY ' IN THE PROCEEDINGS OF THE TALUK LAND BOARD) KARAPURAM, EDAKARA, NILAMBUR TALUK,. MALAPPURAM DISTRICT. 3. PUTHIYARA KADIYAMUNNI, W/O. THANDUPARAKAL ABU, ' (WRONGLY STATED AS ' W/O. ABDU IN TLB PROCEEDINGS.) MOOTHEDAM P.O., EDAKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. 4. PUTHIYARA MOITHEENKUTTY, S/O. UNNI ALAVI, (WRONGLY STATED AS 'S/O. ALAVI' IN THE TLB PROCEEDINGS) KARAPURAM, EDAKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. 5. AMINA, W/O. PUTHIYARA ABDUTTI, KARAPURAM, EDAKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. 6. AYISHA, W/O. KAREEM, PULIYANKODAN VEEDU, POOVATHIPOYIL, VAZHIKADARU, NILAMBUR TALUK, MALAPPURAM DISTRICT. 7. MOHAMMED HANEEFA, S/O. PUTHIYARA ABDUTTI, KARAPURAM, EDAKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. CRP.No. 2207 of 2001 8. NAJUMUDDIN, S/O. PUTHIYARA ABDUTTI, KARAPURAM, EDAKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. 9. SALAMUDDIN, S/O. PUTHIYARA ABDUTTI, KARAPURAM, EDAKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. 10. SAMEERA, W/O. ABRUL RAZAAQ, VALANPARAMBIL VEEDU, KARULAI VILLAGE, NILAMBUR TALUK , MALAPPURAM DISTRICT. 11. PUTHIYARA JASEEM, S/O. PUTHIYARA ABDUTTI, (WRONGLY STATED AS 'JASIN' IN THE TLB PROCEEDINGS) KARAPURAM, EDAKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. 12. PUTHIYARA SABNA, D/O. PUTHIYARA ABDUTTI, KARAPURAM, EDAKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. 13. PUTHIYARA NISHITHA, D/O. PUTHIYARA ABDUTTI, (WRONGLY STATED AS 'NISHILA' IN THE TLB PROCEEDINGS) KARAPURAM, EDAKARA, NILAMBUR TALUK, MALAPPURAM DISTRICT. (PETITIONERS 12 AND 13 ARE MINORS REPRESENTED BY THEIR MOTHER-NATURAL GUARDIAN SMT. AMINA, PETITIONER NO.5 HEREIN REFERRED TO ABOVE.) BY ADV. SRI.N.N.SUGUNAPALAN (SR.) ADV. SRI.S.V.BALAKRISHNA IYER ADV. SRI.K.JAYAKUMAR RESPONDENTS: --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. TALUK LAND BOARD, NILAMBUR, MALAPPURAM DISTRICT. 3. THE TAHSILDAR, NILAMBUR. CRP.No. 2207 of 2001 *ADDL.R4. ATHOYI, S/O. MANCHERI ABDUL KURIKKAL, AGED 52 YEARS, EDAKKARA VILLAGE, MALAPPURAM DISTRICT. (BY ORDER DATED 29.01.2008 , THE PETITIONER ON I.A.NO. 33 OF 2008 IS IMPLEADED AS ADDL. RESPONDENT NO.4 IN THE CRP.) BY GOVERNMENT PLEADER SHRI S. DILEEP. ADV. SRI.V.C. JAMES ADV. SRI.GEORGE MECHERIL THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P.NO. 2207 OF 2001 ORDER ON C.M.P. NO. 4742 OF 2001 IN C.R.P.NO. 2207 OF 2001 DISMISSED. 29.01.2008 SD/- K.T. SANKARAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. K.T. SANKARAN, J. ................................................................................... C.R.P. No. 2207 OF 2001 ................................................................................... Dated this the 29th January, 2008 O R D E R The legal representatives of the declarant challenge in this revision the order dated 29.03.2001 in S.R.NO. 156 of 1997 on the file of the Taluk Land Board, Nilambur. By the order impugned, the Taluk Land Board held that the declarant is holding an extent of 381.80 acres. The declarant is a single member who can retain 7.50 acres of land. The Taluk Land Board held that the declarant has to surrender an extent of 373.80 acres of land. 2. Earlier, the Taluk Land Board had passed an order dated 28.03.1988 holding that the declarant was liable to surrender an extent of 34.33 acres. That order was challenged by the declarant in C.R.P.No. 2548 of 1988. When that revision was pending, the Taluk Land Board invoked Section 85(9) of the Kerala Land Reforms Act and set aside the order dated 28.03.1988. On the ground that the order impugned in C.R.P.No. 2548 of 1988 was set aside, the revision was dismissed as infructuous. Thereafter, the Taluk Land Board passed the present order dated 29.03.2001, which is impugned in this revision. 3. In the order dated 28.03.1988, the Taluk Land Board had considered the claim petitions of several claimants. It is submitted that there were 84 claim petitions. It was held in the order dated 28.03.1988 thus: “In the light of the reports from the authorised officers evidences adduced by the claimants and after hearing the counsel for the claimants, Taluk Land Board decides to delete the above lands from the late assessee's account except in the case of claimant No.31” . C.R.P. No. 2207 OF 2001 2 It was after such deletion, the Taluk Land Board came to the conclusion that the declarant was liable to surrender an extent of 34.33 acres. It is stated in the present order that after the order dated 28.03.1988 was set aside under section 85(9) of the Act, notices were issued to all the claimants. But only few persons appeared and prosecuted their claim petitions. Those claim petitions were allowed and the extent claimed by them were deleted from the total extent included in the account of the declarant. These claims are dealt with as item Nos. 1 to 13 at pages 9 to 14 of the order. On going through the order dealing with the claim petitions, I am of the view that the claim petitions were rightly allowed by the Taluk Land Board. Hence that part of the order, by which the claim petitions were dealt with and allowed by the Taluk Land Board, is confirmed. 4. As regards the claimants who did not appear before the Taluk Land Board, though their claims were allowed earlier as per the order dated 28.03.1988, the Taluk Land Board stated in the present order thus: “By order dated 28.3.88, the Taluk Land Board had deleted large extent of lands being tenanted and being involved in civil suits. By reopening the case setting aside the order all these deletions stand and the case has to be considered as a fresh one cancelled. Notice was sent to all the persons whose lands were thus deleted to appear on the Taluk Land Board and to prefer their claims. But only the following persons have filed claim petitions. Hence their cases only are considered in this order. Regarding the others, their claims will be considered as and when claims are preferred. “ In so far as the claimants are concerned, this observation made by the Taluk Land Board would satisfy them. But the question is whether these lands, allegedly in the C.R.P. No. 2207 OF 2001 3 possession of the claimants who did not appear, should be included in the account of the declarant . In that matter, the declarant has a say and he is entitled to put forward all his contentions. The declarant had put forward such contentions and was accepted by the Taluk Land Board in the earlier order dated 28.03.1988 by allowing the claim petitions filed by the persons who claimed tenancy right. But in the present order, there is no discussion about the tenancy claims. On the ground that the claimants did not appear after receipt of notice, the Taluk Land Board has not discussed the case on the merits in respect of the claims made by these persons. The Taluk Land Board also did not consider the objections raised by the declarant in respect of the tenancy claims and the report submitted by the authorised officer was also not considered and discussed . Therefore, the Taluk Land Board should be directed to consider the claims of tenancy raised by the claimants afresh. It is true that notices were issued to them and many of them failed to appear . Since the Taluk Land Board did not consider the claims of tenancy as projected by the declarant, a fresh consideration of the whole issue, as regards the tenancy claims made by the claimants, is necessary. The Taluk Land Board shall issue notices to all the claimants other than those claimants, whose claims were allowed as per order dated 29.03.2001 and shall afford an opportunity to the claimants to put forward their case. The declarant shall also be afforded an opportunity to put forward his case regarding the claims of tenancy by the claimants. It is open to the declarant to put forward all his contentions and to produce documents and to adduce evidence. Granting of this opportunity to the declarant is not un-conditional. Having not properly prosecuted his case which resulted in the loss of several years, I am of the view that an opportunity could be granted to the declarant in this regard only on payment of costs of Rs. 10,000/- (Rupees ten thousand only). The petitioners shall C.R.P. No. 2207 OF 2001 4 pay or deposit the costs within a period of six weeks from today. On failure to pay the costs, the Civil Revision Petition will stand dismissed. 5. As regards some of the objections raised by the declarant and dealt with in the order impugned, I think , it is necessary to dispose of the same on the merits. The objections are the following: (i) The present proceedings are barred by limitation, as the proceedings were initiated under section 85(9) of the Kerala Land Reforms Act, beyond time. This objection was dealt with by the Taluk Land Board and it was held that the case was re-opened in 1989, while the original order was dated 28.03.1988 and therefore there is no bar of limitation. I confirm this finding of the Taluk Land Board. (ii) It was contended by the declarant that an extent of 25.70 acres of land was purchased by the declarant from Palakkal Karunakara Menon by registered document No. 176 of 1940 and the assessee was in possession of only 5.09 acres of land as on 01.01.1970. It was contended that an extent of 20.61 acres of land was gifted by the declarant to his children and nephew by an un-registered gift deed. This contention was dealt with by the Taluk Land Board and held that no registered gift deed was executed by the declarant and that no records were produced to prove that the persons to whom the lands were entrusted were put in possession of the lands. It was also held that there is no evidence to indicate that the donees were in possession of the property. A contention was put forward that payment of agricultural incometax was in respect of only an extent of 5.09 acres and it would probabilise the contention of the declarant that he is in possession of only that much extent of land out of the extent of 25.70 acres of land purchased from Palakkal Karunakara Menon. This contention was negatived by the Taluk Land Board holding that the agricultural income tax would be C.R.P. No. 2207 OF 2001 5 payable only in respect of that much extent of land which was cultivated. I am of the view that the Taluk Land Board has rightly rejected the contention put forward by the declarant in respect of the extent of 25.70 acres of land in R.S.Nos. 1228/2, 1231/2 and 1253 and I confirm the order of the Taluk Land Board in this regard. (iii) The declarant contended that an extent of 1.56 acres in R.S.No. 1235 belongs to his daughter Kadiyammunni . No records were produced by the declarant to prove this contention and the Taluk Land Board rightly rejected the same. I confirm this finding. (iv) As regards the extent of 22.80 acres in R.S.No.1186/2A, it was contended by the declarant that the property was held by Entheenkutty and Alavi under a lease deed. Entheenkutty is the father of the assessee's wife. The assessee's wife had only a fractional share, which, on her death, devolved on the assessee. The assessee had gifted his share to his children before 01.01.1970. The Taluk Land Board found that the donees had attained majority as on 01.01.1970 and therefore, the extent of 22.80 acres of land is liable to be deleted from the account of the declarant . This part of the order of the Taluk Land Board is right and I confirm the same. 6. Except the findings of the Taluk Land Board which are confirmed as mentioned above, all other objections raised by the declarant are left open to be decided by the Taluk Land Board afresh. 7. One of the claimants, viz., Athoyi, who did not appear before the Taluk Land Board has filed I.A.No. 33 of 2008 to implead him as additional respondent No.4. The application is allowed. The claim petition filed by Athoyi shall also be considered and disposed of by the Taluk Land Board on the merits. In the result, the Civil Revision Petition is allowed in part in the manner indicated C.R.P. No. 2207 OF 2001 6 above, on payment of cost of Rs.10,000/- as mentioned above. If the petitioners fail to pay the costs within 6 weeks from today, the Taluk Land Board shall not consider the case afresh and the order dated 29.03.2001 shall be treated as confirmed. K.T. SANKARAN, JUDGE. lk C.R.P. No. 2207 OF 2001 7 K.T. SANKARAN, J. .......................................................... C.R.P. No. 2207 OF 2001 ............................................................. Dated this the 29th January, 2008 O R D E R