IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 CRP.NO. 754 OF 2006() --------------------- {AA.90/2005 OF THE APPELLATE AUTHORITY (LR), ALAPPUZHA} .................... REVN. PETITIONER(S): --------------------- 1. VAREED JACOB, PALAPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT (DIED). 2. JOSEPHEENA JACOB, W/O. LATE JACOB, AGED 84, RESIDING AT PALAPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, PONEKKARA ELAMAKKARA P.O., ERNAKULAM DISTRICT. 3. MARY LONAPPAN, D/O.LATE JACOB, AGED 59, RESIDING AT PALAPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. 4. LEELAMMA KUNJAPPAN @ ELIZABATH, D/O. LATE JACOB, AGED 54, RESIDING AT PALAPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. 5. TRESSA FREDDY, D/O. LATE JACOB, AGED 51, RESIDING AT PALAPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. 6. ANTONY P.V., S/O. LATE JACOB,, AGED 48, RESIDING AT PALAPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. CRP.NO. 754 OF 2006 :: 2 :: 7. JEMMA JOY, D/O.LATE JACOB, AGED 46, RESIDING AT PALAPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. 8. SILVI GEORGE, D/O.LATE JACOB, AGED 46, RESIDING AT PALAPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. BY ADV. SRI.SHIJU VARGHEESE SRI.DILEEP VARGHESE SRI.C.S.YESUDAS SMT.M.J.SAJITHA SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.SHIJU VARGHESE RESPONDENT(S): APPELLANT/STATE: ------------------------------- 1. E.A. JAYAKUMAR, S/O. AYYAPPAN PILLAI, `VISHNU VIHAR' 50/114 C, PONNEVAZHY, EDAPPALLY NORTH VILLAGE, ELASMAKKARA P.O., EDAPPALLY. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. JOSEPH P.J., S/O.LATE JACOB, AGED 56, RESIDING AT PALAPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. 4. P.C. FRANCIS, S/O. LATE CHANDY, AGED 42, RESIDING AT PALAPARAMBIL HOUSE, H/NO.31/1612, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. 5. P.C. CLEETUS, S/O. LATE CHANDY, (DIED) * AGED 41, RESIDING AT PALAPARAMBIL HOUSE, H.NO.31/1612, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. CRP.NO. 754 OF 2006 :: 3 :: 6. KUNJAMMA, S/O. LATE CHANDY, AGED 57, RESIDING AT MAVILA HOUSE, H.NO.31/1068, MEENACHIRA ROAD, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. 7. ESTHER, C/O. LATE CHANDY, AGED 50, RESIDING AT MAVILA HOUSE, H.NO.31/1068, MEENACHIRA ROAD, PONEKKARA, ELAMAKKARA P.O., ERNAKULAM DISTRICT. 8. ELSY, D/O. LATE CHANDY, AGED 50, RESIDING AT MAVILA HOUSE, H.NO.31/1068, MEENACHIRA ROAD, PONEKKARA, ELAMAKKARA P.O., KOCHI-26. 9. GOVINDAN NAMBOOTHIRIPAD, S/O. NARAYANAN NAMBOOTHIR, AGED 79, MANGALATHU MANA, CHUTTUPADUKARA, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. 10. DEVAKI ANTHARJANAM, W/O. GOVINDAN NAMBOOTHIRIPAD, RESIDING AT MANGALATHU MANA CHUTTUPADUKARA, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. 11. NARAYANAN NAMBOOTHIRIPAD, S/O. GOVINDAN NAMBOOTHIRIPAD, EMPLOYEE OF THE UNIVERSITY, RESIDING AT MANGALATHU MANA, CHUTTUPADUKARA, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. 12. GOVINDAN NAMBOOTHIRIPAD, S/O. NARAYANAN NAMBOOTHIRI, EMPLOYEE OF SALES TAX DEPT., RESIDING AT MANGALTHU MANA CHUTTUPADUKARA, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. CRP.NO. 754 OF 2006 :: 4 :: 13. NEELAKANDAN NAMBOOTHIRIPAD, S/O. NARAYANAN NAMBOOTHIRIPAD, EMPLOYEE OF GCDA, MANGALTHU MANA CHUTTUPADUKARA, EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. ADDL.R14: P.C.JOSHY, S/O.LATE P.C.CLEETUS, PALAPARAMBIL HOUSE, KOODANNAPARAMBU ROAD, ELAMAKKARA P.O., PONEKKARA, KOCHI -26. THE ABOVE PERSON BEING THE SOLE LEGAL HEIR OF THE DECEASED FIFTH RESPONDENT IS IMPLEADED AS ADDL. R14 IN THE CRP VIDE ORDER DT. 16.10.07 IN I.A.NO.2115/07. R1 BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE & ADV. SRI.R.DIVAKARAN R4 TO R8 BY SRI.ANTONY MATHEW R9 TO 13 BY ADV. SRI.N.NEELAKANDHAN NAMBOODIRI, & SRI.P.S.NARAYANA RAJA R2 BY GOVERNMENT PLEADER BY GOVERNMENT PLEADER SRI.P.K.RAVIKRISHNAN R3 BY ADV. SMT.A.K.RANI THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ALONG WITH WPC NO.11921 OF 2007 ON 07/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.NO. 754 OF 2006 :: :: ORDER ON I.A.NOS.2792/06 & 2755/07 IN CRP No.754/06 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 07.06.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, JJ. --------------------------------------- C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 --------------------------------------- Dated this the 7th day of June, 2010 O R D E R In both the revision and the writ petition, which emanate from two different proceedings, subject matter involved and also the questions emerging for consideration are the same. The revision is filed by some of the respondents in A.A.No.90/05 on the file of the Appellate Authority (Land Reforms) Alappuzha, challenging the judgment dated 1.9.2006 of that authority setting aside the order of the Land Tribunal, Palluruthy assigning the right, title and interest over a property in favour of the 1st respondent in the appeal. The writ petition is filed by the plaintiffs in O.S.No.1581/05 on the file of the Munsiff Court, Ernakulam, who are legal representatives of the above said 1st respondent in the appeal before the appellate authority, challenging Ext.P10 order passed by the learned Munsiff referring the question of C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 2 :: tenancy raised by some of the defendants (defendants 13 to 19) in the suit to the Land Tribunal for determination. 2. Subject matter covered by the appeal before the appellate authority and also the suit, O.S.No.1581/05 before the Munsiff's Court, Ernakulam are one and the same viz., 1.22 acres of land in Survey No.87/5B of Edappally North Village. 3. Short facts necessary for disposal of both the above cases can be summed up thus: The Land Tribunal, Palluruthy, on an application under J-Form, viz., O.A.No.3024 of 1970 moved by the land owner and the tenant-(first respondent in A.A.No.90/05), after enquiry, assigned the title, right and interest over 1.22 acres of land in Survey No.87/5B of Edappally North Village, in favour of the tenant recognising his status as a cultivating tenant over that property. That order was C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 3 :: challenged 34 years after the issue of the purchase certificate by a third party, the first respondent in the revision, who claimed of obtaining jenmom right and possession under a registered sale deed in 2005 from the jenmi of the land. The appeal was preferred impeaching the purchase certificate issued to the first respondent by the Land Tribunal impleading that respondent alone in the party array. The first respondent had already passed way, admittedly, even before the presentation of the appeal. Though an application for condonation of delay was moved by the appellant it was not considered, and no enquiry thereof was conducted. However, later, the legal representatives of the first respondent (the revision petitioners), some members of the jenmi family including the landowner - executant of the sale deed in favour of the appellant, and also some others who also claimed interest over C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 4 :: the property canvassing rival tenancy rights were brought in the appeal as additional respondents. The appellate authority, after hearing both sides, allowed the appeal, setting aside the order passed by the Land Tribunal granting purchase certificate in favour of the first respondent with a direction to that Tribunal to consider and dispose another proceeding relating to the subject matter, S.M.P.No.172/02, which was initiated by some of the respondents, claiming interest over the land as cultivating tenants seeking assignment of the right, title and interest over the property in their favour. Propriety and correctness of that decision is challenged in the revision. 4. The judgment of the appellate authority is assailed in revision by the legal representatives of the first respondent in the appeal, who had been impleaded as additional respondents 2 to 9 in the appeal. C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 5 :: 5. The writ petition emerges from an order passed by the learned Munsiff, Ernakulam in O.S.No.1581/05 directing a reference to the Land Tribunal, Palluruthy to determine the claim of tenancy canvassed by some of the defendants in the suit. The above suit had been instituted by the revision petitioners as plaintiffs. They are the wife and children of the tenant viz., late Vareed Jacob, in whose favour the Land Tribunal had previously issued purchase certificate over the subject matter recognising his status as a cultivating tenant. Suit was one for cancellation of a deed and in the alternative for recovery of possession and also for a prohibitory injunction against the defendants from trespassing upon the property and interfering with the possession and enjoyment of the plaintiffs in any manner. Suit claim was based on the purchase certificate issued in favour of late Vareed Jacob, the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 6 :: predecessor of the plaintiffs over the subject matter, impeaching the sale deed executed by the jenmi in favour of a stranger (first defendant) and also to restrain and thwart the alleged attempts made by the legal heirs of a brother of late Vareed Jacob, who have set up a rival claim contending that their predecessor too had leasehold right over the property and, therefore, they are entitled to the tenancy right over the same. The claim for tenancy canvassed by the rival claimants, according to the plaintiffs, had been negatived by the Land Tribunal previously by dismissing their application. The learned Munsiff, however, after examining the pleadings of the parties, particularly, the contentions raised by the rival claimants setting forth a claim of tenancy over the subject matter and also the pendency of an application at their instance claiming tenancy right over the property before the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 7 :: Tribunal, passed an order under Section 125(3) of the Kerala Land Reforms Act {for short “the Act”} referring the question of tenancy canvassed by the rival claimants for determination by the Land Tribunal, staying further proceedings of the suit. Challenge in the writ petition is against the legality and correctness of the order of reference so made by the Civil Court. 6. Before proceeding with the enquiry on the disputed questions posed for consideration on the rival case canvassed by the parties, some of the pertinent facts involved in the case deserve to be taken notice of. Over the common subject matter involved in both the proceedings, that is, 1.22 acres of land, the Land Tribunal had issued a purchase certificate in favour of Vareed Jacob, the predecessor of the plaintiffs (who are the revision petitioners C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 8 :: as well) on a joint application filed by the landowner and the tenant under Section 72MM of the Act. That application was allowed by the Land Tribunal on 16.1.1970, and later, a purchase certificate was issued directing the tenant to pay the land value fixed in instalments. That order remained unimpeached for more than three decades. Validity of that purchase certificate was assailed by a third party, the appellant in A.A.No.90/05, who claimed to have purchased Jenmom right over the property under a registered sale deed executed by the prior jenmi, who had joined the tenant in moving the J-Form application before the Tribunal. After the registration of the sale deed in his favour and when steps were taken for mutation over the land in his favour, the issuing of the purchase certificate came to his knowledge, was the case of the appellant. The certificate issued is vitiated by fraud and, C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 9 :: further, the order of the Land Tribunal is patently illegal, was his case for preferring the appeal impeaching the correctness of the order of the Tribunal. The appeal was preferred against the sole respondent, the tenant viz., Vareed Jacob, in whose favour the purchase certificate was issued. Long before the presentation of the appeal, the tenant had passed away. A petition moved with the appeal for condonation of delay in challenging the order issuing the purchase certificate was not enquired into nor disposed on merits before entertaining the appeal. Subsequently, the legal representatives of the tenant, the revision petitioners, were brought on record with some others, the legal heirs of one of the brothers of the tenant, who have set up a rival claim of tenancy moving an application, which was then pending consideration before the Land Tribunal, and also some members of the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 10 :: landowner's family. The appellate authority, after hearing the parties, decided the appeal on merits, without deciding the entertainability of the appeal preferred against a dead person as the sole respondent, and also whether justifiable ground had been made out for condoning the inordinate delay in challenging the orders of the Land Tribunal. 7. The learned counsel for the revision petitioners assailed the order of the appellate authority as illegal and unsustainable under law. The maintainability of the appeal against a dead person as the sole respondent and nonconsideration of entertaining an appeal without examining whether the delay in challenging the order of the Land Tribunal, after a span of more than 34 years, was highlighted by the learned counsel to urge that the appellate authority abused its jurisdiction C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 11 :: in deciding the appeal on merits and that its judgment is not only perverse, but, illegal. The appellant in the appeal as an assignee is claiming right over the land in respect of which a purchase certificate had been issued prior to the assignment is banked upon by the learned counsel to contend that after the vesting of the land in the Government on the advent of the Act, any transaction over such land by the prior Jenmi or any member of his family would not confer any title on the assignee and on the basis of such assignment, he could not claim any interest over the land, nor maintain an appeal to challenge the orders passed by the statutory authority, the Land Tribunal ordering issue of purchase certificates to the cultivating tenant in possession and enjoyment of such land. Pointing out that the issue of purchase certificate was based on a joint application moved with the landowner, it is C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 12 :: contented by the counsel that neither the landowner nor any member of his family till this date has assailed the issue of purchase certificate in favour of the tenant by the Land Tribunal. The appellant has no title, interest or possession over the land and the assignment obtained by him from the prior Jenmi is a fraudulent transaction as the transferor had no right over the land after the commencement of the Act, is stressed upon by the learned counsel to contend that an appeal at the instance of the assignee, the appellant, to impeach the correctness of the purchase certificate issued in favour of the predecessor of the revision petitioners, the first respondent in the appeal, deserved only to be rejected at the threshold. Referring to the judgment rendered by the appellate authority, running to 47 pages, it is contended that the appeal was finally heard on 31.8.2006 and the judgment was rendered the very C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 13 :: next day, which, on the face of it, according to the counsel, smacks of something fishy and unpalatable in the disposal of the case by the statutory authority - appellate authority constituted under the Act. Statements made in the judgment by the appellate authority while disposing the appeal on merits that the delay in preferring the appeal is condonable, that too, without conducting any enquiry over the inordinate delay in entertaining such appeal, according to the counsel, have no value or merit and, at any rate, it would not infuse life into that appeal, which without condonation of delay, could never be treated as an appeal under law. The appeal was preferred by a third party who could never be considered as an 'aggrieved person' competent to challenge the order of the Land Tribunal over the issue of purchase certificate is also stressed by the counsel to contend that the judgment rendered by the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 14 :: appellate authority is liable to be set aside and the appeal struck off as not entertainable. 8. Per contra, the learned Senior counsel appearing for the appellant contended that the revision challenging the judgment of the appellate authority, setting aside the purchase certificate issued in favour of the predecessor of the revision petitioners is not worthy of any merit. Inviting attention to the reasonings given by the appellate authority, as spelt out in its judgment, to hold that the issue of purchase certificate was vitiated by fraud, and also the noncompliance of the mandatory provisions in the publication of notice, it is submitted, no reference with the judgment is called for. The property belonged to a Nambudiri family, governed by the Kerala Nambudiri Act, 1958, and a Karanavan of the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 15 :: family had no authority to alienate the Illam property, except for consideration and for Illam necessity, and that too, with written permission from the majority of the members, according to the learned counsel. The joint application moved by the Karanavan, with the predecessor of the revision petitioners before the Land Tribunal for assignment of the land and issue of purchase certificate in favour of the latter is violative of the statutory provision as the Karanavan was incompetent to prefer such joint application, according to the counsel. Procedural formalities in the publication of the notice, which are mandatory, have not been complied with and there was no proper enquiry before the Land Tribunal before passing an order assigning the land in favour of the predecessor of the revision petitioners, is the further submission of the counsel. Since the order so passed for issue of the purchase certificate is vitiated by fraud, C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 16 :: it cannot operate against the land owner, according to the counsel. Since the members of the Illam had not been given individual notice of the proceedings, it is the submission of the counsel that the Land Tribunal had acted without jurisdiction, and in such a case, the right of an affected party, as in the present case, the appellant, is to prefer an appeal and that alone was done in the present case. When the very order issued by the Land Tribunal is vitiated by fraud, technical pleas that the appeal was preferred against a dead person and the revision petitioners were impleaded only later, and there was some delay in challenging the order of the Land Tribunal, according to the counsel, cannot be given much significance. Where the order from the very inception is vitiated by fraud it is non est and the delay in questioning such order is of no moment, contends the counsel. It is further argued that the order of the Land C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 17 :: Tribunal based on the joint application of the Karanavan and the predecessor of the revision petitioners was void, and, that being so, challenge against such order before the competent authority - appellate authority - by way of an appeal, as provided by the statute, is perfectly maintainable. The order of the Land Tribunal is per se illegal and unsustainable under law, according to the counsel. The appellate authority did not have an enquiry before proceeding with the consideration of the appeal on merits, according to the counsel, has to be viewed in the back drop of the direction issued by this court stipulating a time limit for disposal of the appeal. In a writ petition filed by one among the revision petitioners, this court had directed for disposal of the appeal within a period of three months and thus, pressed with the command of this court, a speedy disposal was effected under the judgment by the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 18 :: appellate authority, according to the counsel. The revision against the judgment of the appellate authority is, therefore, liable to be dismissed, according to the counsel. 9. The respective counsel appearing for respondents 4 to 8 and respondents 9 to 13 supported the arguments advanced as above by the first respondent contending that the revision is meritless. 10. So far as the merit of the judgment rendered by the appellate authority, which is challenged in the revision, the most significant question to be considered is whether the appellate authority was justified in deciding the appeal on merits, before examining whether the appeal was entertainable without condoning the delay, and also the competency of the appellant, the assignee, who had purchased the land covered by a purchase certificate under a sale deed executed by the prior Jenmies of the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 19 :: land to file the appeal. The appeal was preferred as against the sole respondent, who, on the date of presentation, had already expired, also require to be examined whether there was a proper and competent appeal entertainable under Section 102 of the Act. The defence projected by the contesting first respondent, who, in fact, is supported by the other respondents as well to sustain the decision of the appellate authority entered on merits, without any enquiry on the vital questions touching upon the entertainability of the appeal under law, was that this court, in a previous writ petition, had ordered for a time bound disposal of the appeal. In view of the time limit fixed for disposal, it was not practicable nor feasible to conduct the enquiry on the delay involved and the question of delay was considered by the appellate authority when it rendered the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 20 :: decision on merits, as reflected in its judgment, is the case of the appellant. It was also argued that as the order of the Land Tribunal for issue of purchase certificate in favour of the first respondent had been found to be vitiated by fraud and unsustainable under law it was non est from inception and that being so, the delay in challenging that order, or absence of enquiry on that question, is of least value and significance. There is no merit in any of the propositions canvassed as aforesaid to salvage and thereby to sustain the decision rendered by the appellate authority in disposing the appeal on merits without examining the question of condonation of delay and also the entertainability of the appeal under law. An appeal under Section 102 of the Act is entertainable if only it is presented within such time as may be prescribed, or the delay in such presentation is condoned. Sub section (2) C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 21 :: of Section 102 empowers the appellate authority to admit an appeal after expiration of the period prescribed, if it is satisfied the appellant has sufficient cause for presenting it after such period. Indisputably the appeal in the present case against an order of the Land Tribunal ordering issue of a purchase certificate was challenged three decades after the passing of such order. Before entertaining such an appeal whether there was any justifiable cause for condoning delay in presenting such appeal has necessarily to be examined and appropriate orders passed thereof. Even a statement in the appeal memorandum explaining the reasons for presentation of the appeal beyond time cannot be looked into as there is no competent appeal when it was presented after the time prescribed. A separate petition to condone delay must accompany the appeal filed beyond time stating sufficient cause, if any, for the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 22 :: delay in its presentation of the appeal. (See Thambayi v. Janardhanan Nambiar {1988 (2) KLT 1030}). Before the appeal is admitted and taken on file, when it is presented beyond time, the appellate authority is bound to issue notice on the delay petition to the opposite party and then decide the question whether sufficient cause has been made out for admitting the time barred appeal. The appeal can be received on the file of the court only if the delay is condoned. In a case where an appeal has been presented beyond the period prescribed, the appeal is “still born” and the appellate authority has no jurisdiction to admit the appeal without condoning the delay. Any decision rendered by the