IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 CRP.No. 1089 of 2005() ---------------------- AA.131/2000 of APPELLATE AUTHORITY, KANNUR S.M.CASE NO.1901/75 OF LAND TRIBUNAL, PAYYANNUR .................... REVN. PETITIONERS/APPELLANTS INQ.Q.131/2000/ RESPONDENTS 4 & 5 IN S.M.CASE NO.1901/75: ------------------ 1. PAZHADATH KALLIANI, MALAPPUTTAIN AMSOM, CHOOLIYAD DESOM, MALAPPUTTAIN P.O. 2. PAZHADATH MADHAVI, MALAPPUTTAIN AMSOM, CHOOLIYAD DESOM, MALAPPUTTAIN P.O. BY ADV. SRI.M.A.MANHU RESPONDENTS/RESPONDENTS 2, 4 &5 INA.A.NO.131/2000/: PETITIONER & 2ND RESPONDENT IN S.M.PROCEEDING ------------- 1. PUTHIYAPURAYIL VASUDEVAN, S/O.KUNHAPPA, IRIKKUR AMSOM, CHEDICKERI DESOM, CHEDICKERY P.O., PERUVALATHUPARAMBA. 2. S.K.KUNHI RAMAN NAMBIAR, KANHILERI, SREEKANTAPURAM P.O. 3. T.V.SAROJINI AMMA, C/O.JYOTHI LAKSHMI, ANKUR, PAYYANNUR P.O. 4. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER SRI. SHYSON P. MANGUZHA FOR R4 SRI.P.M.PAREETH FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/07/2008, ALONG WITH CRP NO. 1133 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. 3090 OF 2005 IN C.R.P. NO. 1089 OF 2005. DISMISSED 7.7.2008 Sd/-(HARUN-UL-RASHID, JUDGE) HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NOS. 1089 & 1133 OF 2005 -------------------------------------------- Dated this the 7th day of July, 2008 O R D E R These two appeals arise from the common order in A.A. Nos.131 of 2000 and 125 of 2000 respectively on the file of the Appellate Authority (LR), Kannur. The petitioner (A party) in S.M. case No.1901 of 1975 on the file of the Land Tribunal, Payyannur and respondents 4 and 5 in the suo motu proceedings contested the matter. Respondents 4 and 5 before the Land Tribunal are the revision petitioners in the above revisions. The parties herein are referred to as A party and B party for the sake of convenience. 2. S.M. No.1901 of 1975 was initiated under Section 72 C of the Kerala Land Reforms Act, 1963 (hereinafter referred to as "the Act") for assignment of right, title and interest of the land owner and intermediaries in respect of 2.26 acres of land comprised in R.S. Nos.1/1C, 1/1D and 1/1E of Irikkur Village, Chedichery desom. Originally, the suo motu application was allowed, but later the Appellate Authority remanded the C.R.P.NOS.1089 & 1133/2005 2 same for fresh consideration as per order in A.A. No.564 of 1981. Subsequent to the remand, the matter was again considered by the Land Tribunal and by order dated 5.11.1986, the Land Tribunal held that A party is not entitled to assignment of jenm right in respect of 0.48 acres of land comprised in R.S. No.1/1E where respondents 4 and 5 are residing. Aggrieved by the above order, A party preferred appeal as A.A. No.84 of 1987 and B party filed A.A. No.106 of 1987. The Appellate Authority by a common order dated 30.5.1990 set aside the impugned order and remanded the case to the Land Tribunal for fresh consideration. The Land Tribunal again considered the question elaborately as directed in the remand order and on the basis of the contentions raised by the contesting parties framed issues regarding the identity of the property, the correctness of the alleged oral lease set up by the petitioner, whether the petitioner is a cultivating tenant and whether the petitioner is entitled to purchase jenm right of the property in question. An issue was also framed as to whether respondents 4 and 5 are tenants entitled to purchase jenm right. 3. Suo motu proceedings were initiated under Section 72 C of the Act for assignment of right, title and interest of the landowner and intermediaries in respect of the properties claimed by the petitioner in the said proceedings as cultivating tenant. It is not known why issue No.5 C.R.P.NOS.1089 & 1133/2005 3 was formulated by the Land Tribunal. Whatever be the contentions raised by respondents 4 and 5, the enquiry should have been limited to the question as to whether the petitioner is entitled to assignment of right, title and interest of the landlord in respect of the property. The Land Tribunal considered the issues elaborately and found issue No.5 against the petitioner. The Land Tribunal held that the petition schedule property was not identified and that the petitioner Vasudevan is not entitled to purchase the jenm right of the property. With regard to issue No.5, the Land Tribunal held that respondents 4 and 5 have not proved actual possession over the schedule property under dispute. On the basis of the above finding, the Land Tribunal held that the petitioner Vasudevan is not a cultivating tenant entitled to fixity of tenure. The suo motu proceedings were accordingly dropped. The petitioner filed A.A. No.125 of 2000 and respondents 4 and 5 filed A.A. No.131 of 2000. The Appellate Authority again set aside the order of the land Tribunal and remanded the case for fresh consideration. 4. The facts of the case as advanced by A party is that the land in R.S. Nos.1/1C, 1/1D and 1/1E of Irikkur Village, Chedichery desom was taken on lease by the mother of A party along with his uncle Kunhiraman. At the time of the lease arrangement A party was a minor and that on C.R.P.NOS.1089 & 1133/2005 4 attaining majority, A party himself managed the property, constructed buildings and paid land tax to the Government and purappad to the landlord. According to A party, the shop building constructed in the property is still in his possession and enjoyment. 5. B party contended that the oral lease set up by A party is not proved, that the jenmi did not put him in possession of the property and that no lease arrangement was made between the jenmi and A party. The contention that A party constructed buildings in the property is also denied by B party. It is also pleaded by B party that they are in possession of the property in R.S. Nos.1/1C, 1/1D and 1/1E with properties on its south in R.S. 4/1 and 5/1 as per the documents produced by them in the case. It is their further case that they have effected improvements in the property and also constructed a house in the property and that they are residing in the said house. It is also pointed out that there are litigations between B party and the parents of A party before the Munsiff's Court, Taliparamba in O.S. Nos.156 of 1966 and 32 of 1970. There is also a subsequent suit, O.S. No.103 of 1976 between A party and B party. It is also contended that A party and his parents occupied the house in the property as tenants and that by the decree passed in O.S. No.156 of 1966, they were evicted and the house was put in the possession of B party. It is also contended by B party C.R.P.NOS.1089 & 1133/2005 5 that the receipts of payment of property tax, house tax and rent receipts in favour of the jenmi were falsely created by A party for the purpose of creating evidence in the suo motu proceedings as well as in the civil suits. B party, therefore, requested that the rent receipts, revenue receipts and license receipts may not be taken as piece of evidence to prove oral lease and possession of the property and the house therein. 6. It is the further case of B party that the property in issue was purchased by B party for valid consideration as per document dated 1.4.1959 from Naikkandambeth Kunhiraman and that the house situated in the property was given on leasehold right as per kychit executed by the mother of B party for monthly rent. They contended that they obtained delivery of the house which was given to the mother of the petitioner in execution of the decree in O.S. No.156 of 1966 and subsequently they started residing in the said house from 12.4.1975. 7. I have perused the common judgment in O.S. No.32 of 1970 and O.P. No.6 of 1974 on the file of the Sub Court, Tellicherry as well as the judgment in O.S. No.103 of 1976 of the Munsiff's Court, Taliparamba. O.S. No.32 of 1970 was filed by B party for recovery of possession of the disputed property on the strength of their title together with mesne profits C.R.P.NOS.1089 & 1133/2005 6 and damages. That suit was resisted by A party claiming right and title. The court below after an elaborate consideration decreed the suit finding that the plaintiffs (B party) have derived valid title and are bona fide transferees of the property and that they have got possession over the property pursuant to Exts.A5 and A9 therein. O.P. No.6 of 1974 filed by A party was dismissed with costs holding that Ext.A5 evidences a sale and not a debt and that the petitioner therein is not entitled to any relief including the declaration that he is an agriculturist entitled to the benefit of Act 11 of 1970. Subsequently A party filed O.S. No.103 of 1976 against B party for recovery of the house alleged to have been wrongly delivered to B party in O.S. No.156 of 1966. It is contended therein that property having an extent of 2 acres and 26 cents in R.S.1/1C, 1/1D and 1/1E belonging to Karakkattidam in jenm was taken on an oral lease from the jenmi family, that the house was constructed by A party and that the defendants have no manner of right over the property. B party contended that the oral lease set up by A party was found to be false and that the plaintiff did not satisfy the definition of cultivating tenant under the Act nor was he in possession of the property at any point of time or make any improvements or construct the house in the property. The Munsiff's Court framed issues regarding the plaintiff's title and possession and other relevant issues. The trial court came to the conclusion that the plaintiff (A C.R.P.NOS.1089 & 1133/2005 7 party) has not proved his title over the plaint schedule house and the property shown in the schedule to the plaint. The court further held that the property in dispute belongs to the defendants ( B party) which they obtained as per Ext.B3 document. Recording such finding, the suit was dismissed. 8. The parties let in evidence, both oral and documentary, before the Land Tribunal. The Land Tribunal called for the report of the authorised officer. The authorised officer after making enquires stated in his report dated 29.4.2000 that the property under dispute is covered by marupatt and sale deed executed in favour of Smt. Kalliani and Smt. Madhavi. It is further reported that there is no reliable evidence to prove that A party is a cultivating tenant of the land in R.S.1/1C, 1/1D and 1/1E as defined under the Act. He has also reported that the rent receipts and other receipts produced by A party was declared as not valid by the Munsiff's Court in O.S. No.103 of 1976. After stating all the facts necessary for the purpose of deciding the question, the authorised officer reported that A party is not a cultivating tenant as defined under the Act. 9. On a consideration of the oral and documentary evidence adduced by the parties, the only conclusion possible is that the oral lease C.R.P.NOS.1089 & 1133/2005 8 set up by A party is not true and, therefore, unacceptable. The civil court also considered the rival claims of the parties on more than one occasion and held that A party has no right over the property in question. It is pointed out by the learned counsel appearing for the revision petitioners that the case set up by A party is that he had taken the property on lease at the time when he was a minor. The Land Tribunal also held that the evidence adduced by A party at various stages appear to be contradictory and false. The Appellate Authority also considered all the questions. The findings of the civil court were also brought to the notice of the Appellate Authority. But the Appellate Authority without deciding the matter on merits directed the Land Tribunal to go into the question again which was not warranted under the given circumstances. 10. The evidence discussed by me in the preceding paragraphs strictly proves the case set up by B party and disprove the claim of cultivating tenant set up by A party. There is no necessity for the Land Tribunal to again go into the question as directed by the Appellate Authority. The direction to decide the question afresh is not at all necessary in the given circumstances, facts and evidence of the case. The suo motu proceedings initiated against B party is liable to be dismissed for the reasons stated above. C.R.P.NOS.1089 & 1133/2005 9 In the result, the order passed by the Land Tribunal and the Appellate Authority are set aside. Suo motu proceeding is dropped. The Civil Revision Petitions are allowed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P.NOS.1089 & 1133/2005 10 HAURN-UL-RASHID, J. C.R.P. NOS. 1089 &1133/05 O R D E R 7th July, 2008