IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 OP.No. 32973 of 2001(A) ----------------------- PETITIONER(S): --------------- 1. RAGHAVAN, THIRUVINAL VEETIL, THAZHAKKARA, MAVELIKKARA. 2. CHANDRIKA, THIRUVINAL VEETIL, THAZHAKKARA, MAVELIKKARA. BY ADV. SRI.R.KRISHNA RAJ SRI.A.SHANAVAS KHAN RESPONDENT(S): --------------- 1. M.T.VARGHESE, MURIYAYITHARA VEETTIL, THAZHAKKARA, MAVELIKKARA. 2. KUNJIKKUTTY, THERUVINAL VEETTIL, ARUNOOTTIMANGALAM THAZHAKKARA, MAVELIKKARA. 3. DAMODARAN, KUZHIPPARAMBIL VADAKKATHIL ARUNOOTTIMANGALAM, MAVELIKKARA. 4. P.V.NANU, PLAVILEKIZHAKKATHIL ARUNOOTTIMANGALAM, MAVELIKKARA. 5. VASU RAJAN, THERUVINAL VEETTIL, ARUNOOTTIMANGALAM, MAVELIKKARA. 6. RAGHAVAN, VALIYAPARAMBIL THEKKATHIL, ARUNOOTTIMANGALAM, MAVELIKKARA. 7. LAND TRIBUNAL, CHERTHALA. GOVERNMENT PLEADER SMT.K.R.DEEPA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 32973/01. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER IN R.C.NO.99/99 OF THE LAND TRIBUNAL, CHERTHALA. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 32973 of 2001 ================== Dated this the 20th day of January, 2009 J U D G M E N T The petitioners' father was one of the defendants in O.S.No.2/1991 before the Munsiff's Court, Mavelikkara. That suit was filed for evicting the father of the petitioners and other defendants from the plaint scheduled property. Since in that suit a question of tenancy arose, the Munsiff's Court referred the matter to the Land Tribunal for answering the issue regarding tenancy. That reference was numbered as RC 99/1999 before the Land Tribunal, Alappuzha. During the course of the trial, the father of the petitioners expired and the petitioners and their mother got themselves impleaded as additional applicants. Subsequently the petitioners' mother also died. The Tribunal proceeded with the trial. While so, the matter was transferred to the Land Tribunal, Cherthala, who continued the trial, and ultimately since no evidence was produced by any party, the reference was answered against the petitioners, by Ext.P1, which is under challenge in this original petition. 2. The only contention raised is that the petitioners were not given sufficient opportunity to adduce evidence and therefore, Ext.P1 order should be set aside and the matter remanded to the Land Tribunal for fresh decision after affording an opportunity to adduce 2 evidence to the petitioners. 3. A counter affidavit has been filed by the 7th respondent, wherein the various proceedings in the Reference had been narrated to point out that more than sufficient opportunity was given to the petitioners to prove their case, which they have not availed of and therefore, the Land Tribunal was constrained to pass final orders on 2.8.2001. It is specifically pointed out therein that from 1992 to 2001, for 8 years, the matter was pending before the Land Tribunal, during which time, ample opportunity was given to the petitioners to prove their claim, which they had not chosen to avail of. 4. I have considered the rival contentions in detail. 5. This original petition was filed on 31.10.2001. Notice could not be served on the 1st respondent. Therefore, this Court by order dated 13.1.2005 directed issue of notice to the 1st respondent in the correct address. The petitioners did not take any steps. As such, the original petition still remains defective for failure to take steps to serve notice on the 1st respondent. 6. The petitioners do have an alternative remedy by way of appeal to the appellate authority under the Kerala Land Reforms Act. The only reason stated in the original petition for not availing of that remedy is that it will take years for the petitioners to get a remand from the appellate authority. That, I do not think, is a good reason for 3 by-passing the alternate remedy provided under the Kerala Land Reforms Act. 7. In the counter affidavit filed by the 7th respondent it is stated thus: '3. With reference to the averments contained in paragraph 1 and 2 of the O.P. it is submitted that ample opportunities were given to the petitioners to prove their claim of tenancy. The case records were received in the Land Tribunal, Alappuzha during 1992 and the case was registered as R.C.154/92 there. On the first posting date of the case itself, that is on 23.7.2002, petitioners A1, A3, A4 and A5 have filed vakalath. Sri.Madhavan, Thiruvinal Veettil, Thazhakkara was the first applicant therein. From second posting date, that is 13.8.92, the case was posted for objection of counter petitioners and evidence of A parties. From that day onwards, several chances were given to A party for adducing evidence and on 20.4.95, the Land Tribunal ordered that no further chance will be given for evidence. On 30.9.95 applicants 3 and 4 filed statement to the effect that they are withdrawing the claim of tenancy. On 23.7.96, Sri.Madhavan, 1st petitioner expired and his wife Smt.Kuttiamma, Son Sri.Raghavan and daughter Smt.Chandrika were impleaded as 7th, 8th and 9th petitioners. They filed vakalath in the name of advocate Sri.Raveendranath. From that day onwards, the case was adjourned to several dates for evidence but in vain. On 31.10.98, the Land Tribunal, Alappuzha was abolished and amalgamated to the Land Tribunal, Cherthala and case taken for trial on 8.4.99. In the meantime, both sides represented that they are going on a settlement. But compromise petition was never filed. The applicants and the advocates representing them were always interested to delay the matter. On 15.2.2001 the applicants were finally warned that “if evidence is not produced during next sitting, the case will be decided and the case was adjourned to 8.3.01”. On 8.3.01 both parties were present. The advocate for additional petitioners 8 and 9 were present. The additional 9th petitioner was also present on that day. She was informed in person that no steps have been taken till date from their part to submit evidence in the case and that the case will be dismissed if evidence is not produced. This was the final warning given. But no steps were taken. Hence on 8.2.01 final order was passed. In this connection, it may kindly be noted that from 1992 to 2001 there was ample chance for the petitioners to prove their claim of tenancy. Not even a scrap of paper was produced to substantiate their contention. Hence the contention that sufficient opportunity was not given is irrelevant and only to be ignored.' 8. The petitioners have not chosen to file reply affidavit to 4 controvert those averments. From the same it is clear that for 8 years from 1992 to 2001 the Land Tribunal had been posting the case for evidence and the petitioners have not produced even a scrap of paper to substantiate their contention of tenancy. As such, I am unable to find any lack of opportunity to the petitioners to adduce evidence. In fact twice on 15.2.2001 and 8.3.2001 the petitioners were warned that those are last opportunities that would be given to the petitioners to adduce evidence. Even thereafter, only after five months Ext.P1 order has been passed. During the said interregnum also, the petitioners did not take any steps to produce evidence in support of their case. I do not think that this Court should come to the assistance of such petitioners. Accordingly, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioners and therefore, the original petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. =============== O.P.No. 32973 of 2001 =============== Dated this the 20th day of January, 2009 J U D G M E N T