IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 CRP.No. 163 of 2010() --------------------- S.M.567/1977 OF LAND TRIBUNAL, MANJERI A.A.8/2005 APPELLATE AUTHORITY (LR), THRISSUR REVN. PETITIONER(S): PETITIONERS-CULTIVATING TENANTS IN SM/ APPELLANTS/ PETITIONERS IN CRP: ---------------------------------------------------------- 1. ABDUL MAJEED, S/O. LATE ERANI ALI, NILAMBUR AMSOM & DESOM, NILAMBUR TALUK, P.O.NILAMBUR, MALAPPURAM DISTRICT. 2. SAFFIAYA, D/O. LATE ERANI ALI, -DO- -DO- 3. NOORJAHAN, D/O. LATE ERANI ALI, -DO- -DO- 4. MOYINKUTTY, S/O. LATE ERANI ALI, -DO- -DO- 5. ARIFFA, D/O. LATE ERANI ALI, -DO- -DO- 6. MUHAMMED ISMAIL, S/O. LATE ERANI ALI, -DO- -DO- 7. M.PATHUMMAKUTTY, W/O. LATE ERANI ALI, -DO- -DO- BY ADV. SRI.N.SUBRAMANIAM RESPONDENTS. IN S.M. 567/1977/RES. IN AA/ RES IN CRP ----------------------------------------------------------- 1. KANHIRALA MAMMACHAKKUTTY UMMA, D/O. UNNIPOKKU, MAMPAD AMSOM & DESOM, NILAMBUR TALUK & AMSOM, MALAPPURAM DISTRICT. (RESPONDENT NO.1 IN C.R.P.) 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SMT.PRABHA R.MENON ADV.SRI.M.KRISHNAKUMAR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- C.R.P.NO.163 OF 2010 --------------------------------------------- Dated 22nd March, 2011 ORDER Petitioners are the legal heirs of Eranhi Ali, A party in S.M.567/1977 before Land Tribunal, Manjeri. On the death of Eranhi Ali, petitioners were impleaded as his legal heirs by the Land Tribunal. First respondent is the B party landlord. The suo moto proceedings was initiated in respect of 43 cents in R.S.No.419/3 of Mampad Village, with Eranhi Ali, as A party and first respondent as the B party landlord. An ex-parte order was passed in favour of Ali on 23.8.1977. First respondent challenged it before Appellate Authority (Land Reforms), Kozhikode in A.A.No.99/1982. By order dated 30.5.1983, CRP 163/10 2 Appellate Authority, Kozhikode set aside the order of the Land Tribunal and remanded the case for fresh disposal. Land Tribunal, thereafter, by order dated 7.10.1989, dropped the proceedings finding that Ali is not a cultivating tenant entitled to fixity of tenure. It was challenged before Appellate Authority, Kozhikode in A.A.No. 133/1989. By order dated 5.1.1991, it was dismissed. That was challenged before this Court in C.R.P.No. 669/1991. By order dated 4.10.1999, this Court remanded the case back to the Land Tribunal for fresh disposal. Land Tribunal, thereafter, by order dated 14.1.2005, again found that revision petitioners who were then impleaded as the legal heirs of Eranhi Ali, are not cultivating tenants entitled to fixity of tenure. The S.M.proceedings was dropped. CRP 163/10 3 Petitioners challenged the order before Appellate Authority (Land Reforms), Thrissur in A.A.No.8/2005. Appellate Authority, by order dated 5.3.2009, confirmed the order of the Land Tribunal and dismissed the appeal. CRP is filed challenging the said order. Meanwhile, O.S.No.227/1986 was filed by the first respondent against Ali. The suit was originally one for injunction. Subsequently, it was converted to a suit for recovery of possession. That suit was decreed on 31.5.1995. It was challenged before District Court, Manjeri in A.S.No.69/1995. It was dismissed on 27.9.2003. R.S.A.No.287/2004 is filed challenging the judgment. 2. The only question for consideration is whether there is any illegality or irregularity in the order passed by the CRP 163/10 4 Appellate Authority, Thrissur in A.A.8/2005, confirming the order of Land Tribunal in S.M.567/1977 finding that Ali was not a cultivating tenant entitled to fixity of tenure. 3. Fact that respondent is the landlord is not in dispute. Tenancy claimed by Eranhi Ali, the original party in S.M.P.567/1977, is not under the respondent. It is contended before the Land Tribunal that a lease was created in favour of Athan Moyin as per registered lease deed 2617/1942 and while the said Athan Moyin has been in possession of the property as a lessee, he created an oral lease in 1955 in favour of Kallingal Ahammedkutty and from the said Ahammedkutty the property was obtained on oral lease by Thettan Mohammad in 1960 and thereafter Eranhi Ali obtained it on oral lease in 1962. Land Tribunal and Appellate CRP 163/10 5 Authority found that when the alleged tenant filed a written statement in O.S.227/1986 the case was that a lease was granted under registered document in 1942 in favour of Athan Moyin and he created a sub lease in favour of Thettan Mohammad and in 1962 Ali obtained the property on oral lease from Thettan Mohammad. As distinct from the said case, the case before the Land Tribunal is that oral lease of 1962 was obtained from Thettan Mohammad, who obtained the property as sub lease not from Athan Moyin as contended in the written statement, but from Kallingal Ahammadkutty who obtained it as per an oral lease from Athan Moyin in 1955. Land Tribunal also found that there is absolutely no evidence to prove that Ali was a tenant as he did not produce any receipt for payment of pattom. CRP 163/10 6 4. The registered lease deed of 1942, under which it is alleged that the property was obtained by Athan Moyin was not produced. It is fatal. No evidence was adduced to prove an oral lease in favour of Ali. Ali could have obtained the property only if there was a lease in favour of Thettan Mohammad. When even the petitioners have no consistent case as to how Thettan Mohammad obtained the property, whether it from Athan Moyin as contended in the written statement or from Kallingal Ahammedkutty, the case can only be disbelieved, especially when there is no evidence to prove both the cases. Added to this, no other evidence was adduced. The basic tax produced was only subsequent to 1974. It does not prove that it is in respect of the disputed property. If there was a lease in favour of Ali in 1962 as claimed by him, CRP 163/10 7 after 1/1/1970 he is bound to pay the basic tax. When the entire evidence is properly appreciated by the courts below, I find no illegality or irregularity in the order rejecting the claim for fixity of tenure. Therefore, there is no merit in the revision. C.R.P is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.