IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 LA.App..No. 2106 of 2008() -------------------------- LAR.184/2000 of III ADDL.SUB COURT, ERNAKULAM .................... APPELLANT(S): -------------- 1. K.K.JAYAKESAN, S/O.LATE KALARIKKALVEETTIL KUNJAN, AGED 70, R/AT.KALARIKKALVEEDU, PANAMBUKAD, VALLARPADAM. 2. K.K.RAJU, S/O.LATE KALARIKKALVEETTIL KUNJAN, AGED 70, R/AT.KALARIKKALVEEDU PANAMBUKAD, VALLARPADAM. BY ADV. SRI.A.BALAGOPALAN SRI.C.MURALI SMT.V.B.SANTHINI RESPONDENT(S): --------------- 1. SAROJAM, W/O.RATNAKUMAR, 45, R/AT.THAIKKOTTATHIL HOUSE, KUTTUVALLIKARA, MOOTHAKUNNAM VILLAGE, VADAKKEKARA, PARAVUR TALUK. 2. STATE OF KERALA, REP. BY SPECIAL TAHSILDAR(LA), GENERAL, ERNAKULAM, KOCHI-30. ADV. SRI.M.A.ABDUL HAKHIM FOR R1 SRI.JYOTHISH.J.KALLINGAL FOR R1 GOVERNMENT PLEADERSRI. BENNY VARGHESE THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2009, ALONG WITH LAA NO. 2291 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA.NO.4710/2008 IN LAA.NO.2106/2008 DISMISSED 1.12.2009 SD/= M.N. KRISHNAN, JDUGE. /TRUE COPY/ P.A. TO JUDGE. CL M.N. KRISHNAN, J. ........................................... L.A.A.Nos.2106 & 2291 OF 2008 ............................................. Dated this the 1st day of December, 2009 J U D G M E N T These appeals are preferred by the rival claimants in LAR.No.184/2000. The short point that arises for determination by the court is to find out who is the title holder of the property. Smt. Sarojam is respondent No.2 in the land tribunal reference and applicants therein are Sri.K.K. Jayakesan and Sri.K.K. Raju. The rival contentions of the parties are that 1 acre and 28 cents of land comprised in Sy.No.650/5 of Mulavukad village was taken on lease by Kunjan from Kottram Pappootty and on his death, the property had devolved upon the applicants before the land tribunal reference and therefore,they are claiming exclusive right over 1 acre and 28 cents of property as lessees. 2. On the other hand, respondent No.2 namely Smt. Sarojam would contend that she had purchased the property by virtue of a registered instrument- Ext.B1 dated 16.7.1965. According to her, she is in possession of the property on the strength of that document and therefore, she is the : 2 : L.A.A.Nos.2106 & 2291 OF 2008 exclusive title holder of the property. 3. I am made to understand that the applicants before the land tribunal, who are the legal heirs of Kunjan, are claiming tenancy right under one Kottram Pappootty and not under anybody else. Whereas, Smt.Sarojam is claiming right to the property by virtue of a registered instrument - Ext.B1. In order to have a resolution regarding the tenancy dispute, unless the landlord is in the party array, one cannot decide the question of tenancy. A question of reference to the land tribunal arises when there is a dispute regarding the tenancy. For example, when a plaintiff claims tenancy under the defendant or the defendant claims tenancy under the plaintiff, then by virtue of the provisions of the Land Reforms Act, especially under Section 125, the civil court jurisdiction is barred and the matter has to be referred to the land tribunal for a proper adjudication on that issue. Therefore unless there is a dispute regarding the landlord and the tenant in a proceedings, really the question of tenancy does not arise for determination in such a case. Suppose A is claiming tenancy under B and the defendant in the suit namely C is claiming an independent right over the : 3 : L.A.A.Nos.2106 & 2291 OF 2008 property, consideration of that has to be done by the court as to whether A has got title to the property or C has got title to the property and for that purpose, there is no point in referring the matter to the land tribunal to adjudicate the tenancy right of A under B for the reason that, B is not a party to the proceedings at all. Therefore, in this case really the scheme and scope of consideration is whether as legal heirs of Kunjan, Sri.K.K. Jayakesan and Sri.K.K.Raju are having title to the property or whether Smt. Sarojam is having title to the property as per Ext.B1. For that purpose, the land acquisition court can permit the parties to adduce evidence and then consider the question of title between the two and arrive at a decision that who is having a better title to the property and that will govern the field. Therefore, a reference to the land tribunal was totally uncalled for. If there is any certificate of purchase issued, that may be the relevant piece of evidence. The binding nature of which would depend upon various factors. I am conscious of the fact that when a certificate of purchase is issued under Section 72 K of the Kerala Land Reforms Act, it is a conclusive proof of tenancy. Similarly there is a well : 4 : L.A.A.Nos.2106 & 2291 OF 2008 settled decision that when a certificate of purchase is obtained without proper issuance of notice as contemplated under Section 72 F (3) of the Kerala Land Reforms Act, since it is not a notice in person, it will not have any binding effect. 4. So, these are all matters which the civil court may have to consider in order to appreciate the rival titles of the parties. Therefore, the award passed is set aside and the matter is remitted back to the land acquisition court with a direction to consider the question of rival title set up by Sri.K.K Jayakesan and Sri. K.K.Raju as well as Smt. Sarojam with the materials available and also by permitting the parties to adduce evidence on that regard and then decide the matter in accordance with law. The parties are directed to appear before the land acquisition court on 8.01.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 5 : L.A.A.Nos.2106 & 2291 OF 2008