IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 SA.No. 818 of 1995(E) --------------------- AS.56/1992 of DISTRICT COURT, KASARAGOD OS.80/1981 of SUB COURT, KASARAGOD .................... APPELLANTS/RESPONDENTS 1 TO 7 IN THE APPEAL-PLAINTIFFS IN THE SUIT: ------------------------------------- 1. T. M ABDUL RAHIMAN, S/o. MAMMUNHI 2. T. A ABBAS, S/o. ABDUL KHADER 3. T.A. ZUHRA, W/o. 1st APPELLANT 4. JAINABI, W/o. 2nd APPELLANT 5. KUNHIBI, W/o. T A IBRAHIM 6. AISHA, W/o. T A ABDULRAHIMAN 7. BEEPATHUMMA, W/o. T A SULAIMAN APPELLANTS 1 TO 4 ARE RESIDING AT NEKARAJI VILLAGE OF KASARAGOD TALUK. APPELLANTS 5 TO 7 ARE RESIDING AT KOMBRAJE IN NEKRAJE VILLAGE OF KASARAGOD TALUK BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN SRI.A.PARVATHI MENON RESPONDENTS/APPELLANTS 1 TO 4 AND RESPONDENTS 8 TO 16 – DEFENDANTS AND LRS OF 4th DEFENDANT:- ----------------------------------- 1. SHANKARANARAYANA BHAT 2. ISHWARA BHAT 3. GANAPATHY BHAT RESPONDENTS 1 TO 3 ARE THE SONS OF THE 4th DEFENDANT AND ARE RESIDING AT RABETHU HOUSE IN NELLIKKARU VILLAGE, KARAKAL TALUK, POST NELLIKKAR, DAKSHINA KANNADA DIST. 4. VENKETA RAMANA BHAT, S/o. KOMBRAJE RAMA BHAT RESIDING AT DO – DO 5. SUBBARAYA BHAT, S/o. KOMBRAJE RAMA BHAT 6. RAMA 7. RAMA BHAT RESPONDENTS 5 TO 7 ARE RESIDING AT MUKNUM PADY HOUSE, POST DARBE PUTHUR TALUK, SOUTH CANARA DISTRICT *8. GOWRAMMA (DELETED) 9. SARASWATHI AMMA 10. LAKSHMI AMMA *11. VENKETESWARI AMMA (DELETED) 12. INDIRA AMMA RESPONDENT NO.8 IS WIFE OF SHAMA BHAT, RESIDING AT UDUPPU MOOLE IN PADY VILLAGE, POST EDANEER. RESPONDENT NO.9 IS W/o. RAMA BHAT OF DO – DO RESPONDENT NO.10 IS WIFE OF NARAYANA BHAT, RESIDING AT KILINAGAR BELA VILLAGE, KASARAGOD TALUK, POST NIRCHAL RESPONDENT NO.11 IS W/o. MADHAVABHAT, RESIDING AT CERNAL HOTEL BUS STAND, SHIVAJI NAGAR, BANGALORE RESPONDENT NO.12 IS RESIDING AT KALLIMAR IN PUTHUR VILLAGE POST DAKSHANA KARNATAKA. (*-THE NAME OF RESPONDENTS 8 AND 11 ARE DELETED FROM THE PARTY ARRAY AT the RISK OF THE APPELLANTS AS PER ORDER DATED 19-11-2003 ON I.A.NO.1266/03.) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.818 of 1995 --------------------------------------- Dated this 08th day of January, 2010 JUDGMENT This second appeal arises at the instance of the plaintiffs in O.S.No.80 of 1981 of the court of learned Sub Judge, Kasaragod. That is a suit for declaration of title and possession and for injunction against trespass. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 2. According to the plaintiffs, plaint A schedule property originally belonged in jenm to the joint family of defendants. Item No.1 of plaint A schedule was in the possession of Venkateswari Amma (defendant No.13) on Challangi lease obtained in or around the year 1950 executed by her in favour of Rama Bhatta (defendant No.4), a member of the joint family of defendants and then the Ejman and manager of the joint family. Item Nos.2 to 8 of the plaint A schedule were obtained by Purushothama Bhatta on Challangi lease from the said Rama Bhatta (defendant No.4) in or around the year 1961. Purushothama Bhatta assigned his right over item Nos.2 to 8 in favour of Venkateswari Amma (defendant No.13) as per Ext.A1, assignment deed dated 18-03-1976. She constructed a house in item No.1. Venkateswai Amma assigned her right in item Nos. 1 to 8 of plaint A schedule to the plaintiffs as per Ext.A2, assignment deed dated 18-06- S.A.No.818 of 1995 2 1979. Plaintiffs purchased jenm right as per S.M.Proceeding No.153 of 1979. A final decree for partition was passed in O.S.No.67 of 1969 of the Sub Court, Kasaragod involving the defendants and other members of the joint family. Plaintiffs (in the present suit) filed I.A.No.1016 of 1980 in O.S.No.67 of 1969 for their impleadment as parties but that application was dismissed. Plaintiffs say that the final decree was obtained by suppressing their tenancy right over item Nos.1 to 8 acquired in the manner stated above, they are the absolute owners of the said items and accordingly prayed for declaration of title and possession and for injunction. Defendant Nos.1 to 3 and 5 resisted the suit denying that there was any lease in respect of the plaint A schedule item in favour of Venkateswari Amma or Purushothama Bhatt as claimed by the plaintiffs. Venkateswari Amma is none other than the daughter of Rama Bhatta, defendant No.4 who was contesting the suit for partition (O.S.No.67 of 1969). The assignment deeds (Exts.A1 and A2) relied upon by the plaintiffs are created fraudulently at the instance of defendant No.4 and others. It is their further contention that S.M.Proceeding before the Land Tribunal was fraudulent. The Joint family ceased to have that status in view of the preliminary decree for partition passed in O.S.No.67 of 1969 and the Kerala Joint Hindu Family System (Abolition) Act (Act 30 of 1976). There was no joint family at the time S.M.Proceeding was initiated in the year 1979. Defendant Nos.1 to 3 and 5 are not parties in the S.M.Proceedings nor S.A.No.818 of 1995 3 did they get notice of the proceedings. Hence purchase certificate obtained by the plaintiffs cannot bind defendant Nos.1 to 3 and 5 or the suit property. 3. The issue regarding tenancy was referred to the Land Tribunal for a decision. Land Tribunal in view of order in S.M.Proceeding No.153 of 1979 which lead to Ext.A3, purchase certificate dated 16-01-1980 answered the issue in favour of plaintiffs. Learned Sub Judge accepting finding of the Land Tribunal granted decree in favour of plaintiffs. Defendant Nos.1 to 3 and 5 took up the matter in appeal. First appellate court found that the proceeding before the Land Tribunal in S.M.Proceeding No.153 of 1979 is not binding on defendant Nos.1 to 3 and 5 since they had no notice of the said proceeding. It also found that finding of the Land Tribunal on reference is unsustainable as there is no evidence of the alleged tenancy in favour of Venketaswari Amma and Purushothama Bhatta. The first appellate court also found that at any rate, Ext.A3 is hit by section 52 of the Transfer of Properties Act since the S.M.Proceeding was initiated when O.S.No.67 of 1969 was pending and hence, the decision of the Land Tribunal can only be subject to the result of the suit. Holding so, finding of the Land Tribunal regarding tenancy was set aside, decree granted in the suit was also set aside and the suit was dismissed. That judgment and decree are under challenge at the instance of the plaintiffs. The following substantial questions of law are S.A.No.818 of 1995 4 framed for a decision, (i) Whether the defendants whose application under section 72MM(7) of the Land Reforms Act was dismissed is entitled to raise the plea that the purchase certificate issued by the Land Tribunal is void? (ii) Whether the lower appellate court was correct in holding that the order of the Land Tribunal in an application filed under section 72 MM (7) is not bindign on the defendants on the ground that an appeal is pending against that order? (iii) Whether the lower appellate court was correct in holding that the assignment deed of the lease hold right by defendant No.13 to the plaintiff is not valid? 4. It is contended by learned counsel for appellants/plaintiffs that in so far as attempt of contesting defendants to reopen proceeding in S.M.P.No.153 of 1979 failed, they cannot contend that they had no notice of the S.M.Proceedings before the Land Tribunal and hence Ext.A3 is not binding on them. It is also contended by learned counsel that the finding of the first appellate court that purchase certificate was issued in violation of the provisions of the Kerala Land Reforms Act (for short, “the Act”) is not justified in law. 5. Ext.A3 is the purchase certificate dated 16-01-1980 relied on by the plaintiffs. That certificate is issued in S.M.P. No.153 of 1979. S.A.No.818 of 1995 5 Concededly the certificate was issued on the strength of J-form signed by the plaintiffs and defendant No.4 who is a defendant in O.S.No.67 of 1969. To set aside Ext.A3 order, contesting defendants filed I.A.No.75 of 1980 before the Land Tribunal under section 72 MM(7) of the Act. That application was dismissed against which they filed appeal before the Land Reforms Appellate Authority (for short, “the Appellate Authority”). Appellate Authority set aside the order on I.A.No.75 of 1980 remitted the application for fresh consideration to the Land Tribunal. Land Tribunal again considered that application and passed fresh order on 18-03-1991 dismissing the application. That order was challenged by the contesting defendants before the Appellate Authority. According to learned counsel, that appeal was dismissed. Now the argument advanced is that in view of dismissal of I.A.No.75 of 1980, it is not open to the contesting defendants to contend that Ext.A3 is not binding on them on the ground that they were not given notice of S.M.P.No.153 of 1979. 6. It is the settled position of law that a purchase certificate is conclusive only as against person to whom individual notice has been given. In other words as against person on whom individual notices are not served, the purchase certificate will not have conclusive character. Section 72MM of the Act provides for assignment of landlord's right by mutual agreement, ie. by filing J-form. Sub-section (4) states that before passing an order under section (3) (on the J- S.A.No.818 of 1995 6 form), the Land Tribunal shall, as far as may be, follow the procedure laid down in sub-section (1), (2), (3a), (4) and (5)of section 72F of the Act. Under section 72F(1), the Land Tribunal has to publish a notice in the manner prescribed therein calling upon all persons interested in the land to prefer their claims or objections. Sub-section (2) requires the Land Tribunal to issue notice individually to the land owner, intermediaries and other persons referred to therein. Hence by virtue of section 72MM (4) and 72F (1) and (2) the Land Tribunal was bound to publish notice and give individual notices to all persons interested in the matter. There is no case or evidence that in S.M.P.No.153 of 1979, any such notice was either published or, individually served on defendant Nos.1 to 3 and 5. It is also not shown that as on the date J-form was submitted by defendant No.4, he was competent to bind the entire family if at all it is assumed that the status of joint family remained as such even as on that date. Contesting defendants have a case that by virtue of the preliminary decree in O.S.No.67 of 1969 and since the Kerala Joint Hindu Family System (Abolition) Act came into force on 01-12-1976 there could be no joint family thereafter and hence defendant No.4 was not competent to bind defendant Nos. 1 to 3 and 5. Either way there is no evidence to show either that notice was published as required under section 72F(2) or that individual notice was given to defendant Nos.1 to 3 and 5. Hence notwithstanding that attempt of contesting defendants to reopen S.A.No.818 of 1995 7 S.M.Proceeding failed, it is open to them to contend with Ext.A3, purchase certificate issued in that proceeding without complying with the mandatory requirements of the Act referred to above and hence is not binding on them. The purchase certificate (Ext.A3) cannot therefore assume any conclusive or binding character as against defendant Nos.1 to 3 and 5. 7. The issue regarding tenancy raised by the plaintiffs was referred to the Land Tribunal in the present case. But it is seen that the Land Tribunal has not referred to the relevant issue and instead referring to the proceedings in S.M.P.No.153 of 1979 it held that plaintiffs are cultivating tenants. Though not the trial court, appellate court is entitled to consider the issue whether plaintiffs are cultivating tenants. When the civil court has jurisdiction to decide whether purchase certificate is issued fraudulently the question as to who is the cultivating tenant is an allied matter which also the civil court can decide. Even under the provisions of section 125 of the Act the appellate court is competent to decide the issue on the evidence recorded by the Land Tribunal. 8. According to the plaintiffs, lease in respect of item No.1 was originally obtained by Venkateshwari Amma (defendant No.13) in or around 1950 from Rama Bhatta, her father who is defendant No.4 in the present suit. In respect of item Nos. 2 to 8 of the plaint A schedule, the claim is that a similar lease hold right was obtained by S.A.No.818 of 1995 8 Purushothama Bhatta in or around 1961 from the said Rama Bhatta. It is not disputed that defendant No.4, Rama Bhatta is a party in O.S.No.67 of 1969 and that with him on party array preliminary and final decrees were passed. He never contended that item Nos.1 to 8 of the plaint A schedule are not in his possession but were outstanding with lessees. This is a circumstance to show that there was no such lease. Apart from that, absolutely no evidence has been produced, except of course Exts.A1 and A2 which I shall refer to a bit later, to show that there was any lease in favour of Venkateswari Amma or Purushothama Bhatta. I must bear in mind the close relation between the parties. If actually Venkateswari Amma and Purushothama Bhatta were in possession of the respective items from 1950 and 1961, respectively there must have been some evidence to prove the same. Exts.A1 and A2, assignment deeds are executed by Venkateswari Amma on 18-03-1976 and 18-06-1979. These transactions as well as S.M.P.No.153 of 1979 come during the pendency of O.S.No.67 of 1969. Therefore , the order of the Land Tribunal on S.M.P.No.153 of 1979 culminating in Ext.A3 purchase certificate and Exts.A1 and A2 are all subject to the result of O.S.No.67 of 1969 and are hit by section 52 of the Transfer of Properties Act as held by the Full Bench of this court in Venkitaraman Iyer Vs. Vesu Amma (1995 (2) KLT 295). Hence, the S.M.P.No.153 of 1979 as well as Exts.A1 and A2 are all subject to the decision in O.S.No.67 of 1969 where it has been found that these S.A.No.818 of 1995 9 properties formed part of property of family of defendants and are available for partition. First appellate court in the circumstance is justified legally and factually in holding that Ext.A3 must yield to the decision in O.S.No.67 of 1969. If that be so, plaintiffs who are pendente lite transferee cannot claim any right or possession of the suit property. The substantial questions of law framed are answered accordingly. Resultantly the second appeal fails and it is accordingly dismissed without any order as to cost. THOMAS P JOSEPH, JUDGE Sbna/