IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 CRP.No. 1001 of 1995(A) ----------------------- AA.153/1991 of APPELLATE AUTHORITY, KANNUR OA.3036/1972 of LAND TRIBUNAL, KASARGOD .................... REVN. PETITIONERS: RESPONDENTS 3 TO 5 LR'S OF PETITIONER ----------------------------------------------------------------------------------- 1. KALYANI 2. PARVATHI 3. NARAYANI ALL ARE CHILDREN OF MUTHU ACHARY, RESIDING AT PAYALAMGARI, THAYATHE VALAPPU, PERUMBALA VILLAGE P.O.KOLIYADKA, KASARGOD TALUK. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS: APPELLANT AND RESPONDENTS 7 TO 11 AND STATE ------------------------------------------------------------------ 1. B.M.MAHIN 2. BANDAD ABDULRAHIMAN - DIED 3. ABDULLAKUNHI 4. AHAMAD 5. ABBAS 6. MACHAMMA ALIAS MARIYAMMA NO.6 IS THE WIDOW AND NOS. 1 AND 3 TO 5 ARE THE CHILDREN OF BANDAD MOHAMMAD, NOS. 1 AND 6 ARE RESIDING AT CHERKALA IN CHENGALA VILLAGE AND POST, KASARGOD TALUK NO.3 IS RESIDING AT KOLIAT IN CHEMNAD VILLAGE, P.O.KOLIYADKA, KASARAGOD TALUK, NOS. 4 AND 5 ARE RESIDING AT BANDAD IN THEKKIL VILLAGE AND POST, KASARAGOD TALUK. NO.2 IS SON OF ABBAS, RESIDING AT BANDAD IN THEKKIL VILLAGE AND POST, KASARGOD. CRP NO.1001/1995 7. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY SECRETARIAT, THIRUVANANTHAPURAM. ADDL. R8 AND R9 IMPLEADED. ADDL.R8: B.MOHAMMAD KUNHI 9. B.ABBAS CHILDREN OF BANDAD ABDUL RAHIMAN NOS. 8 AND 9 ARE RESIDING AT BANDAD IN THEKKIL VILLAGE, KASARAGOD TALUK, P.O.THEKKIL FERRY. ADDL.R8 AND R9 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT AS PER ORDER DATED 26.9.06 IN C.M.P.NO.6255/01. BY ADV. SRI.H.B.SHENOY SRI.P.K.MUHAMMED GOVERNMENT PLEADER SRI.B.ASHOK SHENOY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/01/2008, ALONG WITH CRP NO. 1002 OF 1995, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------------- C.R.P.NO.1001 OF 1995 & C.R.P.NO.1002 OF 1995 ------------------------------------------- Dated this the 7th day of January, 2008 O R D E R The legal heirs of the original tenant, Sri.Muthu Achary, are the petitioners in both the civil revision petitions. The legal heirs of the Bandad Mohammad and Bandad Abdul Rahiman are the contesting respondents herein. Muthu Achary, the applicant and Bandad Mohammad, the first respondent in O.A.No.3036/72 died pending O.A. Sri.Bandad Abdul Rahiman who is the second respondent in the original application died during the pendency of these civil revision petitions. 2. The predecessor of revision petitioners Sri.Muthu Achary filed an application under Section 72B of the Kerala Land Reforms Act for the assignment of the right, title and interest in respect of the holding comprised in the schedule to the application. Before the Land Tribunal, both sides adduced evidence. The Land Tribunal perused the documents produced CRP1001/95 & 1002/95 2 by the parties and the depositions of PW1, RW1 and RW3. Ext. C1 is the report of the authorised officer. The Land Tribunal held that the applicant proved possession and enjoyment of the property prior to 1950 under the then landlord Sri.Abbas, the father of the first and second respondents in the O.A., that the tenant has effected valuable improvements in the property and he had paid basic tax and building tax with respect to the property. The Land Tribunal after discussing the evidence rendered by the parties in detail, finally concluded that the petitioners are the cultivating tenants of the property entitled to assignment under Section 72B of the Kerala Land Reforms Act. By the order dated 13.6.1991, the Land Tribunal allowed the O.A. The land owners filed A.A. No.153/91 and A.A.No.174/91 separately challenging the order passed by the Land Tribunal. 3. The revision petitioners herein claimed tenancy in respect of the land in resurvey No.164/9 and 164/10 in Perumbala Village in Kasaragod Taluk. According to the revision petitioners, their predecessor by name Muthu Achary commenced possession and enjoyment of the property from 1934 CRP1001/95 & 1002/95 3 and continued to enjoy the property during the time of introduction of the Land Reforms Act till his death and thereafter by the revision petitioners, being his legal heirs. The authorised officer, who was asked to report the nature of possession and other details, reported that Muthu Achary is the tenant of the property who came into possession of the property before 1950 and reported that he is entitled to assignment of the land under Section 72B. 4. The respondents in the above said appeals contended before the appellate authority that the tenancy claimed by the applicant is false, that there is no tenancy arrangement between the parties, that the houses in the properties are constructed by the predecessors in interest of the landlord, that the applicants are permissive occupiers of the property and the houses and therefore pleaded for setting aside the order passed by the Land Tribunal. It is also contended by the land owners that Muthu Achary was the Karyasthan of their father Sri.Abbas and therefore, it so happened that some documents relating to the property happened to be in the possession of the applicant and CRP1001/95 & 1002/95 4 that in his capacity as a Karyasthan, he was permitted to reside in the house and sheds situated in the property. The counsel for the revision petitioners submitted that they have produced Exts. A1 to A8 documents and examined PWs 1 to 3 in order to substantiate their case of tenancy and further contended that the oral and documentary evidence convincingly proved that their predecessor was the tenant of the properties scheduled in the application. The applicants also produced building tax receipts and basic tax receipts in order to prove that they have been enjoying property since long years. 5. The appellate authority noted some discrepancies in the extent of the land covered by Form A application in paragraph 6 and 7 of the judgment. The appellate authority noted that the extent of holding applied for is different from the extent of holding reported by the Special Revenue Inspector. Another reason stated by the appellate authority is that the documents are produced by the tenant relates to 1950 onwards and not from 1934 onwards. According to the appellate authority, tenancy commenced as pleaded by the applicant is of CRP1001/95 & 1002/95 5 the year 1934. Therefore, the documents produced should have been those documents that relates to the period from commencement of the tenancy. The appellate authority also noticed that Exts.23 25, 26 and 27 will go to show that the payment is effected for the land owner and that the independent evidence for the payment of basic tax produced by the tenant relates only to the period from 1973 onwards. The appellate authority failed to note the fact that the tenant is bound to pay basic tax for the property only after from 1.1.1970. Till 1.1.1970, the property belongs to the land owners. Therefore, the land owners are the persons bound to pay the basic tax for the property. 6. The appellate authority also find fault with the applicants for not producing tax receipts for the years prior to 1963 after stating that a building was in existence 10 years prior to 1976. 7. The oral evidence tendered by the parties PWs 1 to 3, RWs 1 to 3 and the documentary evidence marked as Exts. A1 to A31 and Exts. D1 to D28 and Ext. C1, authorised officer's report CRP1001/95 & 1002/95 6 are not evaluated for the purpose of deciding the legality of the order passed by the Land Tribunal. The appellate authority only picked out certain portions of the evidence and decided the question. The primary question to be decided is whether the applicant has succeeded in proving the case of tenancy set up by him in his application. On an appreciation of the documents produced by the applicants, the court should arrive at a conclusion as to whether the applicants are entitled to assignment of the right, title and interest of the landlord keeping in mind the provisions of the Land Reforms Act relating to assignment of lands. Since evidence passed by both sides are not appreciated in the manner in which it was expected to appreciate, I am of the view that reconsideration of the matter is necessary for the ends of justice. The appellate authority shall reappreciate the evidence on record and enter findings of the question of tenancy set up by the revision petitioners in the original application for assignment. 8. In the result, the judgment under appeal is set aside. The case is remanded to the appellate authority, Kannur for CRP1001/95 & 1002/95 7 de-novo consideration. The appellate authority shall issue notice to all the parties including legal heirs of Bandad Mohammad. The appellate authority shall dispose of the appeal within a period of six months from the date of appearance of the parties. These civil revision petitions are disposed of as above. There will be no order as to costs. HARUN-UL-RASHID, Judge csl