IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 7TH APRIL 2009 / 17TH CHAITHRA 1931 OP.No. 19989 of 1998(D) ----------------------- PETITIONER(S): --------------- 1. P. MUKUNDAN, PULLOTHINTAVIDA, EDACHERI AMSOM, DESOM, BADAKARA TALUK, CALICUT. 2. OTHAYOTH POYIL ANANDAN, EDACHERI AMSOM, DESOM, BADAKARA TALUK, CALICUT. BY ADV. SRI.MKS.MENON RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. REVENUE DIVISIONAL OFFICER, KOZHIKODE. 3. KOMATH KANARAN, THAZHE VANNATHANKANDIYIL, EDACHERI P.O., BADAKARA, CALICUT. (DIED) 5. P.V. KUNJABDULLA HAJI, P.O. EDACHERI, BADAKARA, CALICUT. 6. LEELA, D/O. KANARAN, THAZHE VANNATHANKADIYIL, EDACHERI P.O., BADAKARA, CALICUT. 7. RADHA, D/O. KANARAN, DO. DO. 8. CHANDRAN, S/O. KANARAN, DO. DO. 9. LATHA, D/O. KANARAN, DO. DO. 10. SAJEEVAN, S/O. KANARAN, DO. DO. 11. SUNOIL, S/O. KANARAN, DO. DO. ADDL. RESPONDENTS 6 TO 11 ARE IMPLEADED AS LEGAL HEIRS OF DECEASED 3RD RESPONDENT AS PER ORDER IN I.Q. 3545/2009 DT. 12-3-2009. ADV. SMT.I.SHEELADEVI GOVERNMENT PLEADER SMT. SMITHA SUKUMAR. SRI.M.C.SEN, SENIOR ADVOCATE FOR R3 TO 5 APPEARING ALONG WITH SRI.M.P.SREEKRISHNAN FOR R3 TO 5 SMT.SHAHNA KARTHIKEYAN FOR R3 TO 5 SMT.SAVITHA GANAPATHIYATAN FOR R3 TO 5 SRI.P.R.VENKITESH. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/03/2009, ALONG WITH OP NO. 20699 OF 1998 THE COURT, ON 7/4/2009, DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: O.P.NO. 19989/1998. ----------------------------------------------------------------- EXT.P1 TRUE COPY OF FIRST PAGE OF ADANGAL REGISTER. EXT.P2 MANUAL VILLAGE ACCOUNT. EXT.P3 TRUE COPY OF REPORT. EXT.P4 ORDER DT. 22-12-1993. EXT.P5 ORDER DT. 7-12-1994. EXT.P6 ORDER DT. 11-3-1997. EXT.P7 ORDER DT. 4-8-1998. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R3A JUDGMENT IN O.S.NO. 68/93 DT. 12-12-1996 OF SUB COURT, VADAKARA. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 19989 & 20699 of 1998 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 7th April, 2009. J U D G M E N T The issue involved in these two original petitions is as to whether the petitioners in these two original petitions are entitled to be registered as 'Proprietors' of 9.42 acres of unassessed land in R.S.No. 33/1 in Edachery amsom of Edachery village in Vatakara Taluk, under the Madras Land Registration Act, 1895 (the 'Act' for short). 2. I shall refer to the ranks of parties and Exhibits as obtaining in O.P.No. 19989/1998 for the sake of convenience. 3. In the year 1980, the two petitioners in O.P.No. 19989/98 and respondents 3 to 5 therein who are the petitioners in O.P.No. 20699/98, applied to the Revenue Divisional Officer, Vatakara for registering them as proprietors of the said property under the Act. The petitioners sought registration in respect of the entire 9.42 acres and respondents 3 to 5 sought registration of 1 acre out of the said 9.42 acres. Subsequently, 29 other persons also joined the fray. By Ext. P4 order dated 22-12-1993, the Revenue Divisional Officer accorded sanction for registration of the entire 9.42 acres of land in favouor of the petitioners, rejecting the claim of all the others. Against that order, respondents 3 and 5 (the 4th respondent is the wife of the 3rd respondent), filed revision petition before the District Collector, Kozhikode, who, by Ext. P5 order dated 7-12-1994, set aside Ext. P4 order and remanded the matter to the Revenue Divisional Officer for fresh disposal. Although the petitioners challenged Ext. P5 order before this Court in O.P.No. 18168/1996, this Court by Ext. P6 judgment directed the Revenue Divisional Officer to pass fresh orders as directed by the Collector. Thereafter, by Ext. P7 order dated 4-8-1998, the Revenue Divisional Officer O.Ps.. 19989 & 20699/98 -: 2 :- passed fresh orders holding that neither the petitioners nor the respondents 3 to 5 are the real owners of the land and rejected their claim for registration. The claims of the other 29 claimants were also rejected. After rejecting their claims, the Revenue Divisional Officer held that as the said rocky land has no real owners, the land has to be taken over by the Government. Accordingly, by the said order, the Tahsildar, Vatakara was directed to prepare proposal to convert the said land into poramboke land and submit proposal before the District Collector for the same. There was a further direction therein to recover loss caused to the Government on account of blasting of rock by the petitioners as per the provisions of the Kerala Minor Mineral Concession Rules. That order is under challenge before me. 4. During the pendency of these original petitions, the first petitioner in O.P.No. 20699/98 died and additional petitioners 3 to 8 have come on record as legal heirs and they have also been impleaded as additional respondents in O.P.No. 20699/1998. 5. Another fact to be noted while considering the issue is in respect of a suit between the petitioners on the one hand and respondents 3 and 5 on the other. The petitioners filed O.S.No. 68/1993 before the Sub Court, Vatakara seeking injunction against respondents 3 and 5 and others from trespassing into the properties in Sy. No. 33/1 and other properties. That suit was compromised and a compromise decree was passed granting an injunction in favour of the petitioners in respect of C1 plan produced in the suit excluding plot A therein. The petitioners and respondents 3 to 11 now submit that the said plot A is the one acre in respect of which the respondent nos. 3 to 5 sought registration. 6. The contention of the petitioners is that their predecessors- in-interest was in physical possession of the property from 1954 onwards based on an oral lease and subsequently the jenmom right O.Ps.. 19989 & 20699/98 -: 3 :- over the land was also transferred to them by document No.1247/67 of Edachery S.R.O. In support of their claim for registration under the Act as owners of the property, they also produced 12 documents which are: (1) Document No.1247/67 of SRO, Edachery, a jenmom assignment deed, executed by one Kunhappan Nambiar in favour of Pollathantavida Thamasikum Ingoli Krishnan and Othayoth Poyil Anandan. (2) Document No.9/73 of S.R.O., Edachery, a will executed by Otheyoth Poyil Kanaran in favour of his son Anandan (claimant No.2) (3) Copy of the receipt No.49 dt.29.3.1977 for Rs.1.50. (4) Copy of the receipt No.Nil dt.28.3.81 for Rs.4.20. (5) Copy of the receipt No.90 dt.10.10.81 for Rs.500/- (6) Photocopy of the agreement dated 19.11.74 entered into between Methale Mevalli Kannan, Vellathantavida Krishnan and Othayothpoyil Kanaran, for construction of a road through the land in question. (7) Proceedings of the Director of Mining and Geology dated 13.3.1976 in Ref.No.9387/09/73 issuing permit for extracting granite from R.S.No.33/1 in the name of Mukundan. (8) Agreement executed by Krishnan and Anandan between the Uralungal Labour Contract Co-operative Society Ltd. granting permission for extracting granite from 1.10 acres of land out of 9.42 acres of land in R.S.No.33/1. (9) Proceedings No.D1.8476/84 dt.2.3.1985 of the Tahsildar, Vadakara directing Sri.Mukundan (Claimant No.1) to remit Rs.500/- towards royalty and Rs.250/- towards fine. (10) Receipt No.81 dt.5.8.85 for remitting Rs.750/- by Sri.Mukundan (11) Letter No.9387/G9/73 dt.27.1.1976 of the Director of Mining O.Ps.. 19989 & 20699/98 -: 4 :- and Geology directing Mukundan to furnish an undertaking for payment of royalty. (12) Receipt No.81 dt.6.11.1985 for Rs.250/- towards compounding fee for extracting granite. They would contend that the rejection of the title deed viz. Doc.No.1247/67 on the ground that there is no evidence to show that the tarawad of the vendor Kunhappa Nambiar or the vendor Kunhappa Nambiar had jenmon right over the land is clearly faulty in so far as the said tarawad was in undisputed ownership of the property for years, and it is impossible to trace the documents of title at this point of time. The petitioners would contend that they and their predecessors are in undisputed possession of the land from 1954 onwards and their title to the property cannot be denied simply because they could not produce evidence regarding tittle of their vendor or his tarawad, especially when there are no other persons who claim to be owners of the said land. They further contend that possession is nine points of law and therefore, their undisputed possession of the property from 1954 onwards coupled with the sale deed would be sufficient proof of their title. They would also contend that for registration as 'proprietors' of the land it is not necessary to prove absolute ownership of the land in so far as the registration is for the purpose of assessment of revenue through a summary procedure. According to them, the word 'proprietor' does not mean absolute owner and it would only mean the person who is to pay tax in respect of the property which can be the land holder, mortgagor, lessee etc. also, who has right over the land. They would refer to the various provisions of the Act to show that the object of the Act is not to decide the question of title over the land for the person claiming registration, but only to register the land in the name of a person who has ostensible ownership, for the purpose of collecting revenue from O.Ps.. 19989 & 20699/98 -: 5 :- that person in respect of that property. According to the petitioners, they are the absolute owners of the property and in any event, they are the proprietors of the property which has been proved with sufficient material and as such, the impugned order, is clearly perverse and unsustainable. 7. A counter affidavit has been filed by the 2nd respondent supporting the impugned order. Firstly it is contended therein that the petitioners should be relegated to the alternate remedy by way of revision before the Collector, which they had availed of earlier pursuant to which the Collector had remanded the matter for fresh consideration by the 2nd respondent. Secondly it is contended that the petitioners have not been able to prove any proprietary right in the land by any acceptable material. It is further contended that the documents produced by the petitioners cannot be relied on to prove the petitioners' title in the absence of evidence to show that the vendor Kunhappa Nambiar or his tarawad had any right over the property and that since the adjacent property was owned by another tarawad, the claim that this property belonged to the tarawad of Kunhappa Nambiar cannot be believed. 8. I have considered the rival contentions in detail. 9. On the first contention, these original petitions having been admitted in the year 1998 and having allowed the same to be kept pending for ten years, I am not inclined to relegate the petitioners to the alternate remedy, that too, only of a revision. 10. On merits, it is not disputed before me that the land in question is not Government land. Ext.P1, which the petitioners claim to be the adangal register ( a revenue record) of Edachery Amson of Vatakara Taluk, kept by the Edachery Village office, in which the property in Sy.No.33/1 is shown as 'unassessed land'. This document is not disputed by the 2nd respondent in his counter affidavit. In fact O.Ps.. 19989 & 20699/98 -: 6 :- this is supported by Ext.P3 report of the Tahsildar, Vatakara. Apart from that, the fact that all lands in the erstwhile Malabar, where the subject property is situated, have from time immemorial been held by private owners and Malabar jenmis, and the Government has no right thereto, has been judicially recognised also. [See Meenakshi Amma v. Secretary of State, AIR 1914 Madras 341]. Therefore, this land certainly cannot be classified as Government land. 11. If it is not Government land, then at some point of time the same must have belonged to somebody. The petitioners have admittedly produced document No.1247/67 of Edachery Sub Registrar's office, by which one Kunhappa Nambiar of the Pookkotath Thottathil Tarawad claiming to be owner of the property had sold the jenmom rights over the property to Krishnan and Kanaran, the predecessors in interest of petitioners. The genuineness of the document, in the sense that such a document has been so registered in Edachery S.R.O. has not been disputed by anybody. According to the petitioners, pursuant to an oral lease of the year 1954, their predecessors-in-interest Krishnan and Kanaran came into possession of the land and purchased the jenmom rights over the said property also by the said document. Such possession from 1954 is also not disputed by anybody. No other person has also come forward to challenge their possession or title over the property. The other documents produced would go to show that the predecessors-in- interest of the petitioners and the petitioners have been dealing with the property as their own, without any challenge from anybody. Under the Standing Orders of the Board of Revenue, which were in force in the erstwhile Malabar, a copy of which had been produced by the petitioners as obtained from the Regional Archives, Kozhikode, contains the following provision relating to transfer of registry on the basis of possession. O.Ps.. 19989 & 20699/98 -: 7 :- “7. Transfer in favour of persons proving possession for twelve years.- where parties who have no documents of title are shown in a summary enquiry to have been in possession as reputed owners for twelve years or more, transfer of registry may be made after notice etc. as provided in rule 3(a).The action contemplated in this paragraph may be taken by the revenue officers either on their own motion or on the application presented by the parties concerned. Payment of revenue as evidenced by the production of kist receipts or by the testimony of village officers may be taken as proof of possession, but the absence of such proof should not be considered entirely to invalidate the claim and oral evidence of possession may be accepted.” Going by the above provisions, I am more than satisfied that the petitioners have proved more than sufficiently their title at least to have the land registered in their name under the Act. 12. Now let us examine what the R.D.O. is expected to do under the Malabar Land Registration Act, 1895 on applications for registration. The said legislation declares itself as “an Act to make better provision for the registration of proprietors of estates subject to the payment of revenue direct to Government in Malabar and Wynad”. The preamble to the Act reads thus: “WHEREAS Regulation XXVI of 1801 provides that landed property paying revenue to Government shall be registered by the Collector; and whereas such landed property in Malabar and the Wynad has in many cases not been registered in the names of the proprietors thereof, and whereas it is desirable for the security of the public revenue to provide a summary means whereby the Collector may ascertain such proprietors; it is hereby enacted as follows:- xxx xxx xxx xxx xxx” The application for registration under the Act is to be made under Section 3 which reads thus: “3. Within such time as the District Collector may fix as hereinafter provided, any person who is or claim to be proprietor O.Ps.. 19989 & 20699/98 -: 8 :- or Joint Proprietor of an estate and whose name is not already registered, or any other person having authority act on his behalf, may make application to the District Collector or an officer empowered by him to receive such application for registration as proprietor or joint proprietor of the estate.” The registration is to be done by the Collector in the manner provided under Section 6 which provides as follows: “6. As soon as conveniently may be after the date so fixed, the Collector shall, on a day and at a place to be previously notified in the District Gazette whether or not an application for registration under the preceding sections has been made, and whether or not there is any dispute as to the entry to be made in the register, ascertain and determine by such summary inquiry as he thinks fit, in respect of every estate to which the date applies, the person who, in his opinion, is entitled to be registered as proprietor thereof and shall register him accordingly; and, if any such estate shall not previously have been separately surveyed or demarcated, may cause it to be so surveyed or demarcated, or both.” Going by the above provisions, the registration is to be made in the name of the proprietor of the estate;. The word 'estate' is defined thus: '“estate” means any land which is subject either now or retrospectively to separate assessment to land-revenue payable direct to Government:' But the word “proprietor” is not defined in the Act. Black's Law Dictionary gives the meaning of the word Proprietor thus: “Proprietor, n. An owner. esp. one who runs a business”. The New International Websters Comprehensive Dictionary of the English Language gives the following meaning: “Proprietor. A person having the exclusive title to anything”. 13. During the late 1880's and early 1990's the State of Madras to which State the erstwhile Malabar area belonged before the States O.Ps.. 19989 & 20699/98 -: 9 :- Reorganization had promulgated several Acts relating to land which contained reference to the word 'proprietor' such as the Madras Proprietary Estates' Village Service Act, 1894, (Act II of 1894) the Madras Limited Proprietor's Act 1911 (Act iv of 1911). In the Madras Proprietary Estates' village Service Act, 1894, 'proprietor' is defined thus in Section 4 thereof. “Proprietor.- “Proprietor” means any person in whose name any estate is for the time being registered in the office of the Collector of the district wherein the estate is situated and in respect of an estate specified above in clause (e) the holder thereof: “xxx xxx xxx xxx xxx” (As it presently appears in Manual of Kerala Laws Vol.15 by K.G.Rajamohan) The said definition does not throw any light on the meaning of the word. But referring to the same Section in the same Act (Act II of 1894), in Secretary of State v. Kumaragiri Janardhana Rao (1916 Volume XXX MLJ 456) it is stated thus: 'These suits arise out of certain appointments to Karanamships by the Court Receiver of the Nidadavole Estate and reported to the Revenue Divisional Officer under Section 15 of Act II of 1894 (vide Exts.P, Q and R dated 9.3.1910). These appointments have to be made by the “proprietor” of the estate. The term proprietor is defined in Section 4 of the Act and includes any person who is in lawful management of the estates otherwise than as an agent or the servant of the proprietor or as mortgage or lessee'.” 14. Since the meaning assigned to the word proprietor in a contemporary legislation relating to rights over land differs from the dictionary meaning one can adopt the meaning in the contemporary land legislation. Therefore for the purpose of Malabar Land Registration Act, 1895, the word 'Proprietor' would mean 'the person in lawful management of the estate'. Therefore, what the R.D.O. is expected to find out is as to whether the petitioners are in lawful O.Ps.. 19989 & 20699/98 -: 10 :- management of the estate. 15. In this connection other provisions in the Act should also be noted. Under Section 8, the Collectors enquiry for the purpose of registration is summary in nature. Section 8 of the Act provides thus: “8. Procedure in inquiries under section 6.- In any inquiry under section 6 of the Collector shall hear any party to a dispute who attends on the day notified or on the day to which the inquiry may be adjourned, and shall receive such evidence as he may see fit; and in the case of a dispute he shall record the nature of the dispute, his decision thereon, the grounds of the decision and such other particulars as he thinks fit”. Section 13 reads thus: “Registered proprietor to be deemed the landholder for the purposes of Madras Revenue Recovery Act.- Every person registered as proprietor of an estate shall be deemed to be the landholder in respect of such estate within the meaning and for the purposes of the Madras Revenue Recovery Act II of 1864, and no proceedings taken under the said Act against such person or against any land registered in his name shall be deemed invalid or ineffectual by reason of any error in such registration or on the ground that such person was not the real or sole proprietor.” Again Section 19 reads thus: “Saving clause:- Subject to the provisions of section13, nothing contained in this Act and nothing done in accordance with this Act shall be deemed to- (a) preclude the Government or any person from bringing a regular suit for possession of, or for a declaration of right to, any immovable property to which the Government or such person may deem itself, or himself, entitled; or (b) render a registration under this Act an admission on the part of the Government of the right of the person in whose name such estate may be registered or an admission of the validity of the title under which the estate is held; or (c) affect the rights of the Government or of any person in respect of any estate or of any interest therein”. O.Ps.. 19989 & 20699/98 -: 11 :- 16. In respect of registration under the Malabar Land Registration Act, this Court had in Gopalakrishna Guptan V. Ammalu Ammal [1971 KLT 578], in paragraph 10 held thus: “10. Ext. A8 is the patta for the property issued in 1944. The property is shown there as belonging to Kongattil Nair and the possession of the plaintiff. The weight to be given to entries in a patta would depend upon the circumstances under which the patta was issued. In the Malabar area pattas were issued as per the provisions of the Malabar Land Registration Act, III of 1896. S.6 of that Act provided that the enquiry preceding the issue of patta was to be made by the Collector in a summary manner. S. 19(c) of that Act expressly says that nothing done under the Act would affect the rights of any person in the land. The issue of patta under the Act is only for the purpose of collection of revenue. In such counter affidavit, much importance cannot be given to statements in pattas like Ext. A8 about possession of the property.” Earlier, a Division Bench of this Court has in Andi Alias Appu V. State of Kerala [1965 KLT 1046] in paragraph 5 held thus: “5. The survey fields in question have been registered as river porombokes. The lower court has held, and quite correctly, that the registration cannot affect the rights of the real owner. It said: 'The mere registration of these land as Government poromboke cannot improve matters for the Government for the simple reason that under S. 19 of the Malabar Land Registration Act, such registration shall not be deemed to affect the right of any person in respect of any estate or interest therein.'” 17. From the above provisions and decisions, it is clear that what the Collector (or R.D.O.) is to do while considering applications for registration under the Act is not to find out the absolute owner with perfect title to the property confirming the title of all the previous owners also for all intents and purposes. What he is supposed to do is to find out in a summary enquiry, whether the applicant for registration is in lawful management of the estate so as to fix the liability to pay in respect of the property on the basis of the evidence adduced before him. If there is dispute as to who is in lawful management then he has to decide as to who among the rival O.Ps.. 19989 & 20699/98 -: 12 :- claimants has the superior claim. Such decision does not confer any absolute title over the person in whose name the land is registered. The registration is only for the purpose of collection of revenue in respect of the property. In Gopalakrisha guptan's case (supra) this Court held that much importance cannot be given to statements in pattas issued under the Act. 18. As such