Kerala High Court
Revision vs Pallath Mohd.Haji (Dead) Lrs on 19 September, 2012
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2012/28TH BHADRA 1934
CRP.No. 232 of 2007 (A)
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AA.49/2004 of APPELLATE AUTHORITY (LAND REFORMS), ALAPPUZHA
SM.63/1982 of LAND TRIBUNAL, ALAPPUZHA.
REVISION PETITIONER(S)/RESPONDENTS 1,3 AND 4/APPLICANTS 1,3 AND 4
WHO ARE THE LEGAL REPRESENTATIVES OF ORIGINAL TENANT(APPLICANT) IN SM :
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1. MARYKUTTY CLEETUS, PULIMOOTTIL,
FACTORY WARD, ALAPPUZHA.
2. BONY CLEETUS, PULIMOOTTIL, FACTORY WARD,
ALAPPUZHA.
3. SONEY CLEETUS @ BIBBY CLEETUS,
PULIMOOTTIL, FACTORY WARD, ALAPPUZHA.
BY ADV. SRI.P.R.RAJA
RESPONDENT(S)/APPELLANT,2ND RESPONDENT & GOVERNMENT/3RD RESPONDENT
IN SM AND 2ND LEGAL REPRESENTATIVE OF DECEASED ORIGINAL TENANT
(APPLICANT) IN SM AND GOVERNMENT :
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1. ANEY AMMA, NELLITHANATHU
PUTHANPARAMBIL RESIDING AT SNEHALAYAM
FACTORY WARD ALAPPUZHA.
2. BOBY CLEETUS, PULIMOOTTIL, FACTORY WARD,
ALAPPUZHA.
3. GOVERNMENT OF KERALA REPRESENTED BY
THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
R1 BY ADVS. SRI.P.K.MANOJKUMAR
SRI.N.NANDAKUMARA MENON (SR.)
R2 BY ADV. SMT.H.ANJALIDEVI
R3 BY GOVERNMENT PLEADER SRI.P.S.ABDUL KAREEM.
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
19-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
amk
K.VINOD CHANDRAN, J
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C.R.P.No.232 OF 2007
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Dated this the 19th day of September, 2012.
O R D E R
The legal representatives of a tenant claiming to be a cultivating tenant under the Kerala Land Reforms Act, 1963 (herein after referred to as the "Act") is before this Court in the above revision. Suo motu proceedings were initiated under Section 72 C of the Act as against 9 cents of land comprised in Survey Nos. 803/12D1 and 803/12D2 in Allappey West Village, Ambalapuzha Taluk. As per the report of the Revenue Inspector, the land which was reported to be in the possession of Chikkoo Cleetus for the last 19 years continuously, was assigned in favour of the said Chikkoo Cleetus by purchase certificate dated 29-09-1982 in suo motu Proceedings No.63/1983. C.R.P.No.232 OF 2007 2
2. The first respondent herein who was in possession and ownership of the said property along with other properties in the very same survey number filed an appeal before the appellate authority, which was numbered as A.A.No.32/1997. The respondent, contended in the said appeal, that there was no tenancy and that in any event there was no notice to the respondent who is the owner in possession of the land. The appeal was allowed by the appellate authority, against which the revision petitioners herein approached this Court, by way of C.R.P.No.2334/1998. This Court noticed the dispute between the parties as to whether the claim is with respect to a tenancy or a kudikidappu. Noticing the fact that no notice was issued to the land owner, the order of the appellate authority was set aside and the matter was C.R.P.No.232 OF 2007 3 remitted back to the appellate authority for consideration of the question whether the claim set up by the so called tenants was a tenancy or a kudikidappu.
3. Before the first appellate authority, on remand, the revision petitioners herein filed two applications, one for amendment of the pleadings and the other for issuance of a commission. The claim of tenancy set up by the revision petitioners was based on two documents of the year 1106 ME. The said documents were receipts said to have been issued by the then land owner to Sri. Chandi Chikkoo, acknowledging the rent received. On the basis of these receipts it is claimed that the predecessor-in-interest of the husband of the first revision petitioner had been cultivating the said land from 1106 ME and which had been continued by his son, Chikkoo Cleetus. On the said C.R.P.No.232 OF 2007 4 premise, the revision petitioners claimed that their predecessors-in-interest were cultivating tenants under the Kerala Land Reforms Act and hence entitled to fixity of tenure. The first appellate authority, however rejected their claim and reversed the order passed in suo motu Proceedings No.63/1982 dated 29-9-1983.
4. The learned counsel for the revision petitioner would primarily point out that there has been absolutely no consideration of the claim raised by the revision petitioners; by the first appellate authority. It is contended that the first appellate authority on the sole premise that the receipts were bogus rejected the claim. There was no evidence before the appellate authority to enter into such a finding. The appellate authority rejected two applications filed by the respondents for appointment of a C.R.P.No.232 OF 2007 5 Commissioner and seeking amendment of the statement originally filed in support of the claim. The prayer of the learned counsel for the revision petitioner is that for a proper consideration of the claim it would be required to adduce fresh evidence and hence the appellate authority ought to have remanded the matter to the Land Tribunal for fresh consideration. The learned counsel would seek a remand from this Court to the Land Tribunal. Though the records were called for from the appellate authority, it has been informed by the Deputy Collector, L.R, Alappuzha that the Special Deputy Collector, Land Tribunal, Alappuzha had been abolished years back and the case files could not be traced out. In such circumstance on this Court's direction the revision petitioners and the respondents produced the documents with copy to each C.R.P.No.232 OF 2007 6 other, this Court has perused the said documents also.
5. Evidently, the revision petitioners had earlier approached this Court by C.R.P.No.2334/1998, wherein this Court had remanded the matter specifically to the appellate authority, for consideration of the dispute, noticed in the said order of this Court. The revision petitioners did not challenge that order nor was a remand to the Land Tribunal sought at that point of time. It cannot also be disputed that the first appellate authority was competent to record evidence and that authority; in the scheme of the enactment, was also a fact finding authority.
6. The prejudice caused due to the dismissal of the application for commission as also the application for amendment does not at all impress this Court. The claim of being a cultivating tenant most specifically the entitlement C.R.P.No.232 OF 2007 7 to carry on cultivation or the actual factum of cultivation, would have to relate back to 1-4-1964. A commission taken out at this stage, in the year 2006, could not at all have led to any conclusive result as to the said claim.
7. The application for amendment was to amend the claim statement filed by the revision petitioners to correct, in the original claim statement, the name of the land owner, who is alleged to have granted the tenancy in favour of Chikkoo as Bhagavathi Ammal. The statement filed by Chikkoo Cleetus the predecessor-in-interest of the revision petitioners, before the Land Tribunal showed that the tenancy in the year 1106 ME was granted by one Bhavani Ammal, who is said to have been in the possession and ownership of the said lands. The receipts produced by the revision petitioners showed the same signed by Bhagavathi C.R.P.No.232 OF 2007 8 Ammal. The other amendment sought to be made was with respect to the contention in the statement that the first revision petitioner's husband Cleetus has obtained the tenancy in the year 1106 ME. By the said amendment, the revision petitioners wanted to affirm that the tenancy in fact was obtained by the father of Chikkoo Cleetus; Chandi Chikkoo.
8. The first amendment cuts at the very root of the revision petitioner's claim. It could not have been allowed by the first appellate authority. The claimants themselves claimed tenancy under Bhavani Ammal while the rent receipts allegedly of the year 1106 ME, showed a different name. In any event neither Bhavani Ammal or Bhagavathi Ammal was established as the owner in the year 1106 ME. The second amendment is unnecessary C.R.P.No.232 OF 2007 9 since in1106 ME, the husband of the revision petitioner would not have been even born and only the father namely Chandi Chikkoo could have obtained the lease. That is an obvious mistake and despite the dismissal of the amendment application, this Court considers it as an obvious mistake.
9. What is to be considered is whether there is any evidence to show that the father of the husband of the first revision petitioner had obtained tenancy in the subject property and whether any cultivation was carried on therein and as on the relevant date, i.e, 1-4-1964 whether the applicant, i.e, the husband of the first revision petitioner was occupying the land under a tenancy and whether he was entitled to cultivate the said lands.
10. The appellate authority has considered the C.R.P.No.232 OF 2007 10 issue and found that no documents were produced by the revision petitioners/respondents to prove that the executant of the receipts produced before the Land Tribunal, had any right, title or interest over the property. The appellate authority found that the receipts itself are bogus and the amendment application filed at this stage was to withdraw the admission made by the claimant. On such finding, it was opined that if at all the claim of the respondents before the Land Tribunal could be sustained, then, it would be only one of a kudikidappu and not of fixity of tenure.
11. The respondent herein came to possess and own 36 cents of land, in which the disputed 9 cents is situated; by two documents of 10-1-1975 and 3-9-1980 from one Kuriappan. Kuriappan obtained the same from Palavesampillai, who obtained it from Ramanatha Reddiar. C.R.P.No.232 OF 2007 11 These documents are said to be part of the record of the proceedings, copies of which have been produced here. The transfer by Ramanatha Reddiar to Palavesampillai was in the year 1951. The tenancy claimed is of the year 1931 (1106 ME). As noticed above, the receipts produced shows the executant to be Bhagavathi Ammal.
12. In the original statement filed by Chikkoo Cleetus before the Deputy Collector, L.R, Alappuzha in suo motu Proceedings No.63/1982, it was claimed that the applicant, i.e, Chikkoo Cleetus had obtained the tenancy in the year 1106 ME from the family of Palavesampillai. As noticed above, the claim that the applicant had obtained the tenancy would be an obvious mistake and the tenant then could only have been Chandi Chikkoo, father of Chikkoo Cleetus. However, it was claimed that the tenancy was C.R.P.No.232 OF 2007 12 obtained from Palavesampillai in 1106 ME (1931). Palavesampillai had come into ownership and possession of the property only in the year 1951, by deed dated 10-01-1951. The claim in the statement filed by the claimant before the Land Tribunal was that rent was paid to one Bhavani Ammal. There is nothing on record to show that Bhavani Ammal or a person by name of Bhagavathi Ammal had been in possession of the said properties.
13. The learned counsel for the revision petitioner however would take me through the judgement in O.S.No.4/1962 passed by the Additional Munsiff Court, Alleppey. The submission of the learned counsel is that, in the said suit the very same property, in which the revision petitioners set up their claim, was the subject matter. The C.R.P.No.232 OF 2007 13 judgement refers to an earlier suit also wherein the rents with respect to the very same property was in dispute; wherein the defendant was said to be one Gomathi Ammal. It is submitted that the judgement also refers to a Meenakshi Ammal, whose heir was one Bhavani Ammal. It is definite that the revision petitioners had no consistent case as to who had given the tenancy in the subject land and who was the owner in the year 1931 when the said tenancy is said to have been given. The judgment in O.S.No.4/1962, but for making some observations does not conclusively find the possession of any property by a Bhagavathi Ammal or a Bhavani Ammal. The inconsistency of the claim set up by the so called tenants and the blatant discrepancy in the names; cuts at the very root of the claim.
C.R.P.No.232 OF 2007 14
14. The refusal of the appellate authority to place any reliance on the rent receipts cannot at all be interfered with by this Court in the above revision petition. The learned counsel for the revision petitioner has also taken me through the entire statement filed by the revision petitioners before the appellate authority in the year 2005, i.e., after remand. But for a bland assertion that the revision petitioners 1 to 4 were the "cultivating tenants" in the plaint schedule property, there is nothing pleaded as to any cultivation being carried out in the said property or even an entitlement of the first revision petitioner's husband to carry on cultivation in the said property.
15. The learned counsel for the petitioner is correct in his submission that actual possession and entitlement to cultivate is obviously with reference to the C.R.P.No.232 OF 2007 15 date of commencement of the Act, i.e, 1-4-1964. The dictum laid down in (2003)10 Supreme Court Cases 94, P.K.Mohd.Shaffi Vs. Pallath Mohd.Haji (Dead) LRS. and Others is that the burden is on the claimant to prove the tenancy as on the crucial date. Though, it is not relevant as to whether any cultivation is being carried on, necessarily it had to be proven that such tenant was entitled to carry on such cultivation. But for the rent receipts of the year 1931, which is highly suspicious, there is nothing on record to show that either the husband of the first revision petitioner or his father had been paying any rent for such entitlement to cultivate the land. As noticed above, the ownership in the land at least from 1951 is evident from the documents produced by both parties. Neither the revision petitioners, the husband of the first revision petitioner, or C.R.P.No.232 OF 2007 16 Chandi Chikkoo have a claim of tenancy from any of these persons from 1951 onwards. The claim of tenancy relating back to 1931 also cannot be countenanced since there is nothing on record to identify the owner of the property on such date and the case of the revision petitioners itself is inconsistent.
16. The learned Senior counsel appearing for the respondent would also urge this Court to place reliance on (1999)3 Supreme Court Cases 238, Kerala Ayurveda Vydyasala Ltd. Vs. Pandara Valappil Kallianai and Another as to the jurisdiction to be exercised in a revision under the Kerala Land Reforms Act. Without there being a finding as to an erroneous decision on a question of law or failure to decide a question of law; the Supreme Court has cautioned the High Courts from exercising such C.R.P.No.232 OF 2007 17 jurisdiction. The decision relied on by the learned counsel for the petitioner in P.K.Muhammed Shafi's case (supra) also indicates that any proper appreciation of the fact finding Tribunals in the proper legal perspective cannot be upset by the High Court in exercise of the revisional power. This Court had in the earlier revision remanded the matter to the appellate authority. The appellate authority had considered the question of the claim of fixity of tenure and rejected the same. The appellate authority disbelieved the rent receipts produced by the tenants before it. There is no other material before this Court also to find otherwise. Though, the learned counsel for the revision petitioner would urge this Court to remand the matter to the Land Tribunal for adducing fresh evidence, it is not discernible as to what evidence is available with the petitioner, which C.R.P.No.232 OF 2007 18 could not have been produced before the appellate authority and why they failed to produce it. The predecessors-in-interest are also no more. Needless to say this Court has not dealt with the claim of kudikidappu of the respondents, since it has not been considered by the lower authority. It would be open for the respondents to work out their remedies with respect to such a claim, if still subsisting and if so advised. In such circumstances, this Court is of the opinion that the order of the appellate authority is not liable to be interfered with and the Civil Revision Petition is rejected with costs throughout.
K.VINOD CHANDRAN, JUDGE.
amk