IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 CRP.No. 914 of 2000(H) ---------------------------------- AA.250/1998 of APPELLATE AUTHORITY (LR), ALAPPUZHA SM.31/1997 of LAND TRIBUNAL, PATHANAMTHITTA .................... PETITIONER/RESPONDENT/APPLICANT: ----------------------------------------------------------- * CHACKO MATHAI, UTHIRAKUZHIYIL, KOTTOOR, KAVIYOOR VILLAGE, THIRUVALLA. *(DIED) *ADDL. PETITIONERS 2 TO 10 IMPLEADED ADDL. P2: MARIAMMA MATHEW, W/O.CHACKO MATHEW, UTHIRAKKUZHIYIL HOUSE, KOTTOOR, KAVIYOOR VILLAGE, THIRUVALA. ADDL. P3: SALI MATHEW, D/O.CHACKO MATHEW, -DO- -DO-. ADDL. P4: JAMES MATHEW, S/O.CHACKO MATHEW, -DO- -DO-. ADDL. P5: SAJINI MATHEW, D/O. CHACKO MATHEW, -DO- -DO-. ADDL. P6: SABU MATHEW, S/O.CHACKO MATHEW, -DO- -DO-. ADDL. P7: SARITHA MATHEW, D/O.CHACKO MATHEW, -DO- -DO-. ADDL. P8: SHYMOL MATHEW, D/O. CHACKO MATHEW, -DO- -DO-. ADDL. P9: SANCY MATHEW, D/O.CHACKO MATHEW, -DO- -DO-. ADDL. P10: SAJU MATHEW, S/O.CHACKO MATHEW, -DO- -DO-. * IT IS RECORDED THAT THE SOLE PETITIONER IN THE C.R.P. DIED AND THAT ADDL. PETITIONERS 2 TO 10 ARE IMPLEADED AS LR'S OF THE DECEASED PETITIONER AS PER ORDER DATED 10/02/2004 IN I.A.448/2004. BY ADV. SRI.T.P.VARGHESE, SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE. CRP.No. 914 of 2000(H) RESPONDENTS/ADDITIONAL APPELLANT & 2ND RESPONDENT/RESPONDENT: ----------------------------------------------------------------- 1. SOSAMMA POTHEN, VALIYAMANAKKAL HOUSE, KAVIYOOR P.O., PADINJATTUCHERRY, THIRUVALLA. 2. SUSAMMA KOSHY, PUTHENPARAMBIL HOUSE, KADAPRA P.O., KUMBANAD. 3. BABUJI POTHEN, VALIYAMANAKKAL HOUSE, KAVIYOOR P.O., PADINJATTUCHERRY, THIRUVALLA. 4. THOMAS POTHEN, VALIYAMANAKKAL HOUSE, KAVIYOOR P.O., PADINJATTOCHERRY, THIRUVALLA. 5. GOVERNMENT OF KERALA, REPRESENTED BY THE GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM. R5 BY SPL. GOVT. PLEADER MR.M.L. SAJEEVAN. R1 & R3 BY ADV. SRI.SATHISH NINAN, SRI.SANTHOSH MATHEW. ADV. SRI.JOMY GEORGE (CAVEATOR). THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs CRP.No. 914 of 2000(H) ORDER ON C.M.P. NOS.1895/2000 & 1708/2002 IN C.R.P. NO.914/2000 DISMISSED 21/01/2011. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs M.N. KRISHNAN, J. = = = = = = = = = = = = = = C.R.P. NO. 914 OF 2000 = = = = = = = = = = = = = = = Dated this the 21st day of January, 2011. O R D E R This revision petition is preferred against the order of the Appellate Authority, Alappuzha in A.A.250/98. The brief facts necessary for the disposal of the revision are stated as follows. It is the case of the original revision petitioner that the property which was having an extent of 2 acres and 76 cents of land were in the possession of the original petitioner and his father and during the year 1994 there had been a sale of the property by the respondents and the revision petitioners are claiming tenancy over that 50 cents of property. The Land Tribunal found in favour of the applicants therein and in appeal it has been reversed. The Land Tribunal found that the original revision petitioner is entitle to get CRP NO. 914 of 2000 -:2:- fixity of tenure with respect to 32 cents of land whereas the alleged tenant claiming possession over 45½ cents of land and preferred a cross objection before the appellate Court. The Appellate Authority on a consideration of the materials allowed the appeal rejected the cross objection and dismissed the case of tenancy. It is against that decision the revision petition is preferred. 2. Heard the counsel for both the sides. It is true that the Kerala Land Reforms Act is a welfare legislation intended to confer benefit on the cultivating tenants if they satisfy the ingredients enumerated under S.72 of the Kerala Land Reforms Act. It is the cultivating tenant who is entitled to fixity of tenure. 3. Now the case of the revision petitioners are to the effect that from 1941 CRP NO. 914 of 2000 -:3:- onwards the original petitioner and the father were in possession and enjoyment of the property and at the request of the respondent they had parted with an acre of land in order to enable the respondent to sell the property. Ultimately the tenancy right is restricted to a claim of 50 cents. Now if a person or persons had been in possession of a property as contended by them from 1941 onwards at least one may have a scrap of paper to establish that factor. Absolutely no paper is produced before the Tribunal to show any act of possession prior to 1.4.64 which is the crucial date in claiming tenancy. The father of the first petitioner died in the year 1965 when PW1 was examined before Court he would depose before Court at least that though the respondent had not come to cultivate the property they come and take income from the CRP NO. 914 of 2000 -:4:- property. Suppose a person is a tenant of the property it is certain at least after 1970 nobody will permit taking such income by the landlord. In his own words “.................. .............................................. ...............................................” It is also admitted by him that the land tax for the property is paid by the respondent. It is true that only u/s 72(S) of the Kerala Land Reforms Act the tenant gets the right to pay tax but no landlord who is not in possession of the property will venture to pay tax to the property held by the tenant. So evidence of PW1 does not establish the factum of any lease much less the possession. 4. Now the next witness is PW2. He is one Samuel. He is examined to prove the factum of the old possession of the alleged cultivating CRP NO. 914 of 2000 -:5:- tenant. He does not know about many important factors that are necessary to accept his evidence. He had also admitted, “......... ...............................................” The sale of a portion of the property is only in 1994. So the factum of admission by PW2 that the respondent was taking income from the property cuts at the root of the case of the revision petitioner. 5. PW3 is one Philipose. He is also examined to prove the tenancy. According to him the property is having one acre and 26 cents of land. Even the tenant does not have such a case. His evidence also does not reveal that he is very much familiar with the property. He does not know for what purpose evidence had been put up and who is plucking the coconuts from the property. The mere assertion that he knows CRP NO. 914 of 2000 -:6:- about the possession is not sufficient to prove the same. His version is that he had seen both the landlord and the tenant speaking in a cordial manner from the plaint schedule property. That will not indicate any confirmation of tenancy. 6. PW4 is one Ulakan. His evidence also on a reading does not show that he knows about the tenancy at all. A perusal of the order of the Land Tribunal also makes it clear that there is no documentary evidence in support of the contention of the tenancy. So preponderance of probabilities have to be looked into. The contention that a person is a tenant of 2 acres and 76 cents of property and that he voluntarily permits the alleged landlord to sell the property that too in 1994 itself indicates the falsehood of the case. If a person had been in CRP NO. 914 of 2000 -:7:- continuous long possession of the property right from the year 1941 certainly cultivation register at least would show who is the person in possession of the property. Except for the mere interested oral assertion there is nothing forthcoming to prove the case of tenancy. Even the witnesses of the revision petitioner would depose that the usufructs were taken till 1994 by respondent. When it is so, one cannot hold that there is sufficient evidence to establish the factum of tenancy. When such evidence is lacking he cannot be termed as a cultivating tenant entitled to fixity of tenure under the provisions of the Act. Though the Appellate Authority had written a very short judgment the materials which is supplied and which had been perused and analysed by me also would reveal that tenancy is not proved at all. Therefore I CRP NO. 914 of 2000 -:8:- do not find any ground to interfere with the decision of the Appellate Authority as it is not suffering from any illegality or irregularity which requires revisional interference at the hands of this Court. Therefore the CRP fails an the same is dismissed. M.N. KRISHNAN, JUDGE. ul/- CRP NO. 914 of 2000 -:9:- M.N. KRISHNAN, J. = = = = = = = = = = CRP NO. 914 of 2000 = = = = = = = = = = = O R D E R 21st January, 2011.