IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 RSA.No. 1185 of 2009() ---------------------- AS.184/1999 of I ADDL.DISTRICT COURT, THRISSUR OS.192/1985 of MUNSIFF COURT,WADAKKANCHERRY .................... APPELLANTS/APPELLANTS 2 TO 4, 6,7 & 8/LEGAL HEIRS OF THE PLAINTIFF: -------------------- 1. THANKAMANY, W/O.KRISHNAN, ALOOR VILLAGE, THALAPPILLY TALUK. 2. SAROJINI, D/O.KRISHNAN, -DO- -DO- 3. BABURAJAN, S/O.KRISHNAN, -DO- -DO- 4. HARIDASAN, S/O.KRISHNAN, -DO- -DO- 5. GEETHAKUMARI, D/O.KRISHNAN, -DO- -DO- 6. SAJITHAKUMARI, D/O.KRISHNAN, -DO- -DO- BY ADV. SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENT(S)/RESPONDENTS 1, 3, 4 & APPELLANT NO.4/DEFENDANTS 1,3 4: --------------- 1. APPUKUTTAN, S/O.ALOOR THATTAN SANKUNNY, ALOOR VILLAGE, TALAPPILLY TALUK. 2. PARUKUTTY, D/O.ALOOR TATTAN SANKUNNY, -DO- -DO- 3. JANAKY, D/O.-DO- -DO- 4. SURESH BABU, S/O.KRISHNAN, ALOOR VILLAGE, TALAPPILLY TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/11/2009, ALONG WITH RSA NO.1186/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.Nos.1185 & 1186 of 2009 -------------------------------------- Dated this the 25th day of November, 2009. JUDGMENT These Regular Second Appeals arise from common judgment and decree of learned Additional District Judge-I, Thrissur in A.S.Nos.184 of 1999 and 183 of 1999, respectively which arose from common judgment and decree of learned Munsiff, Wadakkanchery in O.S.Nos.192 of 1985 and 209 of 1985, respectively. O.S.No.192 of 1985 is a suit for injunction against trespass into the suit properties while O.S.No.209 of 1985 is a suit for partition instituted by the defendants in O.S.No.192 of 1985. Parties are referred to as plaintiff and defendants as in O.S.No.192 of 1985 for convenience. 2. According to the plaintiff (in O.S.No.192 of 1985) suit property belonged to Kanjangattu tharwad wherefrom he obtained a lease. Ext.A1 is copy of the pattachit dated 26.8.1975 which plaintiff claimed to have executed in favour of the jenmi. Following that, plaintiff obtained purchase certificates from the Land Tribunal in S.M. Nos.653 of 1997 and 654 of 1997, improved the property, constructed building and is in possession and enjoyment of the said property. Alleging that defendants are attempting to trespass into the property, he sought for reliefs as first above stated. Defendants (plaintiffs in O.S.No.209 of 1985) contended that the lease was taken by their father, Sankunni who constructed building in the property. On the death of the father, lease hold RSA Nos.1185 & 1186/2009 2 right devolved on plaintiff and defendants and the plaintiff (in O.S.No.192 of 1985) was managing the properties on behalf of all the legal heirs. They stated that it was on behalf of all of them that purchase certificates were obtained by the plaintiff. They resisted the prayer for injunction in O.S.No.192 of 1985 claiming that they are also co-owners and at the same time sought partition and separate possession of their share, in O.S.No.209 of 1985. On the very same allegations plaintiff (in O.S.No.192 of 1985) defended the prayer for partition in O.S.No.209 of 1985. While the suit was pending in the trial court, on the request of defendants (in O.S.No.192 of 1985 and plaintiffs in O.S.No.209 of 1985) issue regarding tenancy was referred to the Land Tribunal. Land Tribunal found that the property was taken on oral lease by Sankunni, predecessor-in- interest of the plaintiff and defendants. Reference was answered accordingly and the matter was sent back to the trial court which accepted the finding, dismissed O.S.No.192 of 1985 and granted preliminary decree in O.S.No.209 of 1985. First appellate court considered the appeals preferred at the instance of plaintiff in O.S.No.192 of 1985, concurred with the finding of the Land Tribunal and dismissed the appeals. Hence these Second Appeals. It is contended by learned counsel for plaintiff (in O.S.No.192 of 1985 and defendant in O.S.No.209 of 1985) that in the absence of any challenge to the purchase certificates issued in the name of the plaintiff on the ground of any fraud, a second reference to the Land Tribunal was not permissible since the Land Tribunal had already found that plaintiff (in O.S.No.192 of 1985) is the cultivating tenant. According to the learned counsel the reference suffered from RSA Nos.1185 & 1186/2009 3 jurisdictional error which went to the root of the decision of the courts below. Learned counsel for plaintiff therefore submits that courts below ought to have accepted the purchase certificates issued by the Land Tribunal so far as they are not challenged before the appropriate forum by defendants (in O.S.No.192 of 1985 and plaintiffs in O.S.No.209 of 1985) 3. Ext.A1, I stated is the copy of pattachit which the plaintiff in O.S.No.192 of 1985 is claimed to have executed in favour of jenmi. Exts.A2 and A3 are copy of purchase certificates issued in favour of the plaintiff in O.S.No.192 of 1985. Exts.A4 and A5 are copy of the proceedings of the Land Tribunal. Plaintiff has also produced documents to prove that he has been paying revenue for the suit property and residing in the building in the suit property. 4. I have gone through the order of Land Tribunal on reference. Land Tribunal came to the conclusion that there was much irregularity in the matter of issue of purchase certificates to the plaintiff in O.S.No.192 of 1985 as per proceedings before it. It also found on evidence let in by the parties that Sankunni, predecessor-in-interest of plaintiff and defendants was the cultivating tenant of the property he having acquired lease from the jenmi. A further fact that has come in evidence is that at the time of death of Sankunni, plaintiff in O.S.No.192 of 1985 was aged only ten years. Therefore there was no possibility of plaintiff taking any lease prior to the death of Sankunni and also there is no case in that line. Going by the averments in the plaint in O.S.No.192 of 1985 RSA Nos.1185 & 1186/2009 4 and written statement in O.S.No.209 of 1985 plaintiff claims tenancy only on the strength of Ext.A1, copy of pattachit dated 26.8.1975. Having gone through the plaint in O.S.No.192 of 1985 and written statement in O.S.No.209 of 1985 I do not find any contention on behalf of the plaintiff that prior to Ext.A1 dated 26.8.1975, he had any leasehold right in the suit property. Under Section 74 of the Kerala Land Reforms Act, no tenancy could be created in respect of any land after the commencement of that Act (ie. 1.4.1964). In the light of that specific bar tenancy if any created as per Ext.A1 dated 26.8.1975 is something which is forbidden by law and which cannot be recognized by any court of law or Tribunal. Therefore purchase certificates issued by the Land Tribunal in favour of plaintiff in O.S.No.192 of 1985 are void and do not have the sanction of law. Exts.A2 and A3, copy of purchase certificates. and Exts.A4 and A5, copy of the proceedings of the Land Tribunal pursuant to which those certificates are issued need only be ignored. 5. A further fact to be noted is that there is no case for the plaintiff in O.S.No.192 of 1985 (defendant in O.S.No.209 of 1985) that he obtained the purchase certificate being a legal heir of Sankunni in whose favour the lease- hold right was created and for and on behalf of all the legal heirs of Sankunni. There is no case that in the proceedings which culminated in Exts.A2 to A5 any notice was given to other legal heirs of Sankunni. It is settled position of law that purchase certificate will not bind a party to whom individual notice is not given (See K.C.Nair v. E.K.Nair (AIR 1982 Kerala 232) and George v. State of Kerala (1987 (1) KLT SN 67). In the light of the above factual RSA Nos.1185 & 1186/2009 5 and legal position, learned Munsiff was justified in ignoring Exts.A2 to A5 and referring the issue regarding tenancy which arose between the parties to the Land Tribunal for decision. 6. So far as the finding of Land Tribunal on tenancy is concerned it is based on evidence on record which the first appellate court has also considered and confirmed. Since that is a finding of fact based on evidence and so far as the finding cannot be said to be perverse, no substantial question of law is involved in that regard. 7. The decision in the above suits flows from the finding regarding tenancy. It is accordingly that O.S.No.192 of 1985 was dismissed and preliminary decree was passed in O.S.No.209 of 1985. On going through the judgment under challenge, the order of the Land Tribunal on reference and also hearing learned counsel I do not find any substantial question of law involved in these appeals requiring its admission and issue of notice to defendants/respondents. Second Appeals are accordingly dismissed in limine. I.A.No.2697 of 2009 in R.S.A. No.1185 of 2009 and I.A.No.2698 of 2009 in R.S.A.No.1186 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks