Kerala High Court
T.Mukundan Namboodiri vs The Taluk Land Board on 16 October, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 30TH DAY OF OCTOBER 2012/8TH KARTHIKA 1934
CRP.No. 947 of 2007 ( A )
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TLB(K)150/1981 of TALUK LAND BOARD, KOZHIKODE DATED 16-10-2007.
REVISION PETITIONER(S)/PETITIONER:
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T.MUKUNDAN NAMBOODIRI,
S/O.SREEDHARAN NAMBOODIRI, AGED 41, YEARS
THAZHAKODE AMSOM AND DESOM, KOZHIKODE DISTRICT.
BY ADVS.SRI.V.T.MADHAVANUNNI
SRI.V.A.SATHEESH
RESPONDENT(S):
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1. THE TALUK LAND BOARD, KOZHIKODE.
2. THE STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT
THIRUVANANTHAPURAM.
BY GOVERNMENT PLEADER SMT. SUSHEELA BHATT.
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
30-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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K.VINOD CHANDRAN, J
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C.R.P.No.947 OF 2007
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Dated this the 30th day of October, 2012.
O R D E R
The revision petitioner claiming to be a member of the "Thamarakulath Illam", was aggrieved by the order in TLB (K)150/81 dated 27-06-1989 passed by the Taluk Land Board, Kozhikode in the ceiling proceedings taken against one Vishnu Namboodiri. Ceiling proceedings were initiated against Vishnu Namboodiri by the Taluk Land Board and eventually after the death of the land owner, with the legal representatives on the party array, the order dated 27-06-1989 was passed directing surrender of an extent of 6.82 1/6 acres of land. In the year 1996, the revision petitioner claiming to be a member of "Thamarakulath Illam" filed an application under Section 85(8) of the Kerala Land Reforms Act, seeking that the order passed in the year 1989 be set aside on the ground that the finding of the Taluk Land Board regarding the ownership and possession of the lands as on 1-1-1970 was erroneous and the land directed to be surrendered was not the individual property of Vishnu Namboodiri but belonged to the C.R.P.No.947 OF 2007 2 'Illam', a joint Hindu family, in which the revision petitioner is a member. The Land Tribunal after considering the application, rejected the same by order dated 16.10.2007 which is impugned in the above revision.
2. Though the entire records were called for and forwarded by the Taluk Land Board to this Court, it is found that the application of the revision petitioner and the original order of 1989 is not available therein. However the argument notes filed by the petitioner is part of the records of the Taluk Land Board and I have called for and verified the judges paper in O.P.No.8610/1996, which was disposed of by the judgment dated 18-10-2003. The application filed by the revision petitioner is seen from the copy produced in the O.P as Ext.P2, to be on 12-03-1996. The original order dated 27-06-1989 has also been produced as Ext.P1 in the above original petition. On going through the original order of the year 1989, it is discernible that in the year 1935, four brothers, viz. Sreedharan, Dhamodharan, Vishnu and Raman along with their mother Parvathi Antharjanam entered into a partition C.R.P.No.947 OF 2007 3 of the joint family properties. The joint family was divided into two; one, under the eldest brother Sreedharan and the other, comprising of the three brothers Damodaran, Vishnu and Raman. Certain amounts were set apart for the mother which was to be paid by both the branches so partitioned. The landed properties of Thamarakulath Illam, hence in 1935 stood partitioned.
3. When ceiling proceedings were initiated under the Kerala Land Reforms Act, the Taluk Land Board found that the branch comprising of the three brothers, viz., Dhamodharan, Vishnu and Raman had been holding the properties as such from the date of partition till 1-1-1970. Hence a notional partition between the said three brothers were effected to ascertain the individual share and land holdings of the brothers, individually. It was on such ascertainment and determination that the order dated 1989 was passed. Needless to say that the order passed by the Land Board in the year 1989 was preceded by a number of proceedings by the various claimants being members of the family as also assignees.
C.R.P.No.947 OF 2007 4
4. In the year 1996, the petitioner filed the application under Section 85(8) of the Act claiming that 2.96 acres of land in R.S.No.39/03 in Kumaranelloor Village and 2.65 acres of land in R.S.No.209/03 in Thazhakode Village, both of Kozhikode Taluk, is a joint Hindu family property belonging to "Thamarakulath Illam" and that the partition said to have been effected in the year 1935 is void for the reason of not having included all the members then existing in the family. The revision petitioner in the argument notes filed before the Taluk Land Board also had a specific case that the applicant being a member of the Illam and having not been included in the year 1935 partition deed, the said deed could not have been taken into account by the Taluk Land Board for deciding the ceiling limit of Vishnu Namboodiri individually. The revision petitioner also produced a genealogy showing the descent from one Sreedharan Namboodiri, who was the father of the brothers who effected the partition in 1935. The revision petitioner as per the genealogy claims to be the grandson of Sreedharan, the eldest brother who was a party to the 1935 partition C.R.P.No.947 OF 2007 5 deed. The revision petitioner also produced a number of documents prior to the 1935 partition.
5. Twice the petitioner was before this Court in O.P.No.8610/1996 and W.P.(C) No.21986/2007 seeking consideration of his application filed under Section 85(8) of the Act. The Taluk Land Board after hearing the petitioner found that the petitioner has not adduced any document or material to prove that the partition effected in 1935 was not valid. Hence the claim under Section 85(8) of the Act was rejected, against which the petitioner is before this Court. The learned counsel for the petitioner Sri.V.T.Madhavanunni would strenuously contend that the petitioner who was a member of the Illam did not have notice of the proceedings initiated against Vishnu Namboodiri. The petitioner having come to know of the orders passed by the Taluk Land Board from one Sri.Mukkath Puliyakot Ali Hassan on 2-3-1996, immediately thereafter the application under Section 85 (8) was filed on 12-3-1996. According to the learned counsel for the revision petitioner it was incumbent on the Taluk Land Board to issue C.R.P.No.947 OF 2007 6 notice to all interested persons and he being a member of the Illam was entitled to such notice. In any event, the legislature has by abundant caution provided for sub section 8 in Section 85, so as to redress the grievance of any interested person who did not have such notice. The 60 days within which any such interested person has to approach the Taluk Land Board, it is contended, has to be necessarily taken from the date of knowledge of such order. The revision petitioner hence is entitled to be given an opportunity to establish his claim after setting aside the order of 1989 under sub section 8 of Section 85.
6. The learned counsel would place before me the decision of a learned Single Judge reported in 1979 KLT 209, Krishnan v. Taluk Land Board, Vaikom to contend that any person interested, if prevented by sufficient cause from appearing in the case, then he can approach the Taluk Land Board under Section 85(8) of the Act and then the delay has to be calculated from the date of knowledge of such order. Venkiteswara Naidu v. Taluk Land Board reported in 1981 K.L.T 545 was relied on to contend that for maintaining an application C.R.P.No.947 OF 2007 7 under Section 85(8), the petitioner need not conclusively establish his interest. If prima facie the petitioner is able to satisfy the Taluk Land Board about his interest, then that alone would enable the Taluk Land Board under Section 85(8) to set aside the earlier order passed. That is not to say that his claim has been established; which he need establish but only in the enquiry contemplated under sub section 5 or sub section 7 of section 8; after setting aside the earlier order. Velayudhan v. State of Kerala, 1981 K.L.T 696 was urged to put forward the proposition of the specific mandate of a notice to all interested persons and to contend that a member of the family is also a person interested in the land.
7. 1979 K.L.T 209 (supra) was a case in which the applicant under Section 85(8) was a person who was issued with a certificate of purchase by the Land Tribunal. No notice was issued to the said person on the draft statement by the Taluk Land Board, since the land covered by his purchase certificate was not included in the lands directed to be surrendered in the final order. The final order was challenged before this Court in revision and the Taluk Land Board issued modified orders C.R.P.No.947 OF 2007 8 in compliance with the order passed in revision by this Court. That modified order included the land covered by the purchase certificate issued to the applicant by the Land Tribunal. It was in that fact situation that this Court held that the petitioner therein was prevented by sufficient cause from appearing in the case in which the direction to surrender was made. With respect to the interest of the petitioner in the land, this Court also found that the existence of the purchase certificate would amply demonstrate the interest. It was also held that, whether the interest claimed by the petitioner was legal and valid and whether it would save the land from surrender, where questions to be considered by the Taluk Land Board while passing fresh order under Section 85(5) or 85(7). It was also noticed that the petitioner had approached the Taluk Land Board within 60 days from the order in the Civil Revision Petition and hence the application was not barred by limitation.
8. 1981 K.L.T 545 (supra) dealt with two civil revision petitions, in which, the challenge was against the rejection of separate applications filed under Section 85(8) of the Act. Both the applicants C.R.P.No.947 OF 2007 9 claimed tenancy, which was rejected by the Taluk Land Board. This Court while interpreting the scope of Sub Section 8 of Section 85 held that the Taluk Land Board must be satisfied on three specific aspects. One, that the applicant is a person interested and second that he has filed an application within 60 days from the date of the final order and finally that he was prevented by sufficient cause from appearing before the Taluk Land Board prior to the final order. In considering the meaning of the words "person interested" as contemplated by Sub Section 8 of Section 85, it was held that at the stage of the proceedings under Section 85(8) the lawful title or right in the land need not be established by the applicant. It was held that it would be sufficient that a prima facie claim upon, or legal concern, in the land, would be sufficient to invoke the provisions of sub section 8 of Section 85. This Court considering the facts of the Civil Revision Petitions found that in one of the Civil Revision Petitions, a certificate issued by the Land Tribunal was produced and in the other a registered partition deed which specifically referred to the tenancy claim set up by the revision C.R.P.No.947 OF 2007 10 petitioners were also produced. It was held that for the limited purpose of Section 85(8) of the Act, these would be acceptable as prima facie proof of the claims to be put forward. Hence this Court set aside the earlier order of the Land Board and remanded the matter for fresh consideration under Section 85(5) or (7).
9. The clear proposition of law which comes to fore as held in the above cited decisions is with respect to the three conditions that are to be satisfied for successfully maintaining an application under Section 85(8). With respect to the facts of the above case, the question of significant delay of more than 7 years also looms large.
10. Applying the law as discernible from the above cited decisions to the facts of the instant revision petition, this Court in exercise of the limited jurisdiction under Section 103 is called upon to examine the Taluk Land Board's order on the ground of an erroneous decision in a question of law or a failure to decide a question of law. Needless to say that any perversity in appreciation of facts would also vitiate the order. The main thrust of the claims set up by the revision C.R.P.No.947 OF 2007 11 petitioner before the Taluk Land Board was that in the year 1970, relevant for the purposes of the Kerala Land Reforms Act, the joint family of "Thamarakulath Illam" consisted of many members as is evidenced by the genealogy. The fact that the said members were not party to the partition deed of 1935 would itself make the partition void. It is pertinent that it is not the number of members in the year 1970 that is relevant, but the members as on 1935. It is also to be noticed that the specific case of the revision petitioner was that except for Sreedharan, the elder brother and the grandfather of the revision petitioner, all the three other brothers married out of the community. Hence in the genealogy he has shown only Damodaran, Vishnu and Raman as entitled to claim membership of the Illam. The elder brother Sreedharan's five children and their children have been included as being entitled to share as on 1-1-1970. The revision petitioner's claim is that this genealogy coupled with his pleadings would show the prima facie interest. I am unable to accept the said contention. The mere assertion of the interest in land cannot be considered as a prima facie C.R.P.No.947 OF 2007 12 material, upon which prima facie satisfaction can be entered into by the Taluk Land Board.
11. The reliance placed on Velayudhan v. State of Kerala (supra) in my opinion is misplaced. Therein, the applicant under Section 85(8) was the son of the declarant. The applicant claimed that the properties found to be in the possession of his mother, the declarant, was actually acquired by his father. The question raised therein was whether a member of the family of the declarant/land owner can put up a claim under Section 85(8) or only a stranger can seek its aid. This court found that any 'interested person', even a member of the family could maintain an application under sub section 8 of Section 85. This Court respectfully agrees with that as a proposition of law. However what has to be examined in the instant case is as to the proof of the revision petitioner being a member of the family. Again the petitioner is satisfied by his mere assertion.
12 . It is also to be noticed that going by the earlier order of 1989, which is sought to be set aside, Sreedharan by himself and the C.R.P.No.947 OF 2007 13 three other brothers jointly were holding the partitioned properties separately from the date of such partition. It had been so continued from then, till 1-1-1970; the relevant date under the Kerala Land Reforms Act, as found by the Taluk Land Board. The claim of the petitioner to be a member of the family is also under the elder brother Sreedharan. From the genealogy, it can be seen that the said Sreedharan's elder son viz., the petitioner's father, was also named Sreedharan. Of the four brothers of the petitioner's father, one did not have any children. Among the children of the three other brothers, the eldest of each was named Sreedharan. The revision petitioner's eldest brother was also named Sreedharan. It is evident from the order of 1989 that one T.Sreedharan Namboodiri had filed an application under Section 85(8) of the Kerala Land Reforms Act. That T.Sreedharan Namboodiri could only have been a person having a similar claim like the petitioner. The petitioner cannot after 7 years contend that he was not aware of the order passed in the year 1989. He was evidently a major in the year 1989 since the memorandum of revision of the year C.R.P.No.947 OF 2007 14 2007 shows him to be aged 41. One member from his family had also filed an application under Section 85(8). The petitioner does not have a contention that there was no public notice. His contention is that Section 85(8) as held in 1981 KLT 696 (supra) would enable him to file an application under Sub Section 8 of Section 85. Looking at the facts it cannot be gainsaid that the petitioner has established even a prima facie interest in the land directed to be surrendered by the order of 1989. Admittedly, the petitioner has not appeared before the Board before passing of the order or 60 days after the date of order. The date of knowledge, offered as an explanation is a mere cursory statement which cannot be taken at the face value. As noticed above, even before the 1989 order, one of the members of the family had filed an application under Section 85(8) which was allowed. It cannot be said that the petitioner has explained or put forward any sufficient cause which prevented him from appearing before the Taluk Land Board either before the passing of the order or within 60 days thereafter. In the circumstances, it cannot be said that the order of the Taluk Land C.R.P.No.947 OF 2007 15 Board passed under Section 85(8) of the Kerala Land Reforms Act is vitiated by non consideration of a question of law or an erroneous consideration of a question of Law. The Taluk Land Board has rejected the claim for the reason of lack of any material to upset the earlier order. The findings of the Taluk Land Board are unassailable and cannot be interfered with under Section 103 of the Kerala Land Reforms Act. The Civil Revision Petition is devoid of merit and hence stands dismissed.
K.VINOD CHANDRAN, JUDGE.
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