Kerala High Court
* 1. Mathilakath Skaria vs Mathilakath Joseph on 21 July, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 26TH DAY OF NOVEMBER 2012/5TH AGRAHAYANA 1934
R.S.A.No.975 of 2003 (G)
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(AGAINST THE DECREE AND JUDGMENT IN A.S.NO.79 OF 2001 ON THE FILE OF
THE SUBORDINATE JUDGE'S COURT, VADAKARA DATED 21.07.2003;
FROM THE DECREE AND JUDGMENT IN O.S.NO.66 OF 1996 OF THE COURT OF
THE MUNSIFF, NADAPURAM, DATED 6.10.2001)
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APPELLANTS/APPELLANTS/DEFENDANTS:-
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* 1. MATHILAKATH SKARIA, S/O.ZAVIER,
KAVILUMPARA AMSOM AND DESOM,
VADAKARA TALUK, KOZHIKODE DISTRICT (DIED).
2. MATHILATH JOHN, S/O.SKARIA OF -DO- -DO-.
* 1st APPELLANT DIED AND THE RIGHT TO SUE SURVIVES TO THE
2nd APPELLANT ALONE IS RECORDED, VIDE ORDER DATED
3.12.2010 IN MEMO BEARING cf 7422/10 DATED 30.11.2010.
BY ADV. SRI.R.SUDHIR.
RESPONDENT/RESPONDENT/PLAINTIFF:-
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MATHILAKATH JOSEPH, S/O.SKARIA, AGRICULTURIST,
KAVILUMPARA AMSOM AND DESOM,
VADAKARA TALUK, KOZHIKODE DISTRICT
BY ADVS. SRI.R.PARTHASARATHY
SRI.B.KRISHNAN.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 21-11-2012, ALONG WITH R.S.A.976/2003, THE COURT ON 26-11-2012
DELIVERED THE FOLLOWING:-
K. Vinod Chandran, J
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R.S.A.Nos.975 of 2003 & 976 of 2003
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Dated this the 26th day of November, 2012
JUDGMENT
These are appeals filed by the defendants before the Courts below, against concurrent findings. The plaintiffs in the two suits, O.S.Nos.65 of 1996 and 66 of 1996, were respectively the wife and husband and the common defendants in both the suits were the father and brother of the husband. The plaintiffs in the two separate suits claimed that the husband, M.Joseph, had taken an oral lease of two plots, measuring 2 acres each, separately in the year 1960 from one Mukkath Kollandi Moideen Haji. Both the properties were barren lands and to effectuate the lease, for agricultural purposes, Joseph effected valuable improvements and obtained Purchase Certificates of these properties as per orders of the Land Tribunal, Kunnummal, in S.M.C.No.1586/1977 and O.A.No.776/1975.
2. The plaintiffs alleged trespass and sought for an injunction simplicitor initially. Along with the said suits, the wife Rosamma had filed another suit O.S.No.30 of 1997 against the very same defendants, contending that 1 acre was gifted by her husband RSA Nos.975/2003 & - 2 - 976/2003 to their daughter Jomol Joseph and she, as the mother, had been looking after the said properties. Joseph and Rosamma contended that out of the 4 acres, 1 acre and 46 cents was gifted to their son Jomon Joseph. The balance 1 acre gifted to Rosamma was the plaint schedule property in O.S.No.65/1996 and these were covered by S.M.C.No.1586 of 1977. From the balance 2 acres of property, 1 acre was gifted to the daughter, which was the subject matter of O.S.No.30 of 1997, and the 1 acre remaining in the possession of Joseph was the subject matter of O.S.No.66 of 1996; both covered by the orders in O.A.No.776/1975.
3. The plaintiffs in all the suits set up an apprehension of trespass and sought for injunction simplicitor. That being declined by the original Court, the plaintiffs were unsuccessfully before the appellate and revisional Courts. Then the plaint was amended, alleging actual trespass and seeking recovery of possession. Both the trial Court and the first appellate Court found that the lease set up by Joseph in 1960 from Moideen Haji was not correct. However, relying on the Purchase Certificates produced by the plaintiffs, the Courts below found that the RSA Nos.975/2003 & - 3 - 976/2003 mandate under Section 72K of the Kerala Land Reforms Act, 1963, hereinafter referred to as "the KLR Act", disables them from looking into the title of the plaintiff; in so far as Exhibits A6 and A7 are to be taken as conclusive proof of such title. O.S.No.30 of 1996 was dismissed on the short ground that the minor daughter, in whose name gift was alleged, was not a party to the suit and, hence, the suit was not maintainable. O.S.No.65 of 1996 was decreed, granting an injunction restraining the defendants from entering into the plaint schedule property. It was found that since the defendants were not in possession of the property, there was no requirement for granting a relief of recovery of possession. That was declined. O.S.No.66 of 1996 was decreed, granting the prayer for recovery of possession as also injunction against trespass. The first appellate Court confirmed the decree and judgments passed by the trial Court. The first appellate Court found, that, it is proved that the plaintiff has title over the property and the defendant had no title. The defendant's plea of possessory title was found to hold good against all the world, except against the true owner. The title of the plaintiffs were concluded on the strength of the Purchase Certificates. RSA Nos.975/2003 & - 4 - 976/2003
4. The above Second Appeals, filed under Section 100 of the Code of Civil Procedure, when admitted; the following substantial question of law was raised:
(i) Whether the Courts below were justified in granting a decree in favour of the plaintiff on the strength of Exhibit A6 (Exhibit A7) Purchase Certificate(s) in the nature and circumstances of the pleadings and the evidence in the case?
Two additional substantial questions of law were sought to be raised by the appellants, subsequent to the admission:
(ii) Whether the Purchase Certificate(s) covered by Exhibit A6 (Exhibit A7) is (are) liable to be set aside on the ground of fraud and collusion?
(iii) Whether the validity of the Purchase Certificate can be challenged in a Civil Court in view of the conclusiveness under Section 72K of the Kerala Land Reforms Act?
5. I have heard Sri.R.Sudheer, learned counsel appearing for the appellants/defendants in both the appeals and Sri.B.Krishnan, learned counsel appearing for the respondents/ plaintiffs.
RSA Nos.975/2003 & - 5 - 976/2003
6. Sri.Sudheer made a pointed and specific challenge against the reliance placed on the Purchase Certificates, Exhibits A6 and A7, and the orders in the suo motu proceedings, marked as Exhibits A1 and A2 respectively. It is the defendants' contention that the plaintiff has failed to prove title over the properties and the suits should have been dismissed on that short ground. The Purchase Certificates by reason of the corrections made therein are vitiated on the ground of fraud and collusion, is the contention.
7. As noticed earlier, the prayer for recovery of possession was incorporated in the suit by an amendment after the plaintiff failed to get ad interim injunction in three Courts. At that point of time, these corrected Purchase Certificates were not a part of the record. Photo copies of the Purchase Certificates without corrections were produced initially. Subsequently, the certified copy of the orders in O.A. And S.M.C. (Exhibits A1 and A2), and the Purchase Certificates (Exhibits A6 and A7) were produced with corrections made thereon with respect to the three boundaries of the properties covered by the Certificates. The orders in the suo motu proceedings issued on 5.7.1996 and the RSA Nos.975/2003 & - 6 - 976/2003 statement in Form-I appended thereon, in both the orders, showed correction of three boundaries; with the endorsement "Necessary corrections made as per IA.2/98 dt.3.8.2000" (sic). The correction in the boundaries in the Form-I Statement as also the above endorsement was authenticated by the Special Tahsildar (LR), Vadakara. Similar was the case of the Purchase Certificates, Exhibits A6 and A7, wherein again the corrections were authenticated by the Special Tahsildar (LR), Vadakara.
8. The learned counsel for the appellants would take me through the various provisions of the KLR Act, The Kerala Land Reforms (Vesting and Assignment) Rules 1970, hereinafter called "the Assignment Rules", and the Kerala Land Reforms (Tenancy) Rules, 1970, hereinafter referred to as "the Tenancy Rules". It is submitted that the definition of "holding" in Section 2 (17) and a reading of Section 72K would show that the extent and the boundaries are the essence of the Purchase Certificate and on it would turn, the identity of the property. Form-A and Form-B referred to respectively in Rules 4 and 5 of the Assignment Rules would again indicate the significance of boundaries and extent in deciding the identity of the property; that being essential RSA Nos.975/2003 & - 7 - 976/2003 particulars of the "holding" to be specified by the applicant. Sections 72A to 72K of the KLR Act contemplates an elaborate procedure before the issuance of the Purchase Certificate, supplemented by the Rules. Rule 103 of the Tenancy Rules mandates an order sheet to be maintained and Rule 104 provides that every Land Board and Land Tribunal shall have a seal of office and by sub-rule (6) of Rule 122 even certified copy shall be sealed with such seal of office. Rule 17 of the Assignment Rules would show that the procedure of the Tenancy Rules would apply to assignments too. Once the Purchase Certificate is issued, the Land Tribunal becomes functus officio and there is no power of review conferred on the Land Tribunal; nor is such power of review, available to civil Courts, conferred under Section 101.
9. It is not clear as to under what provision the corrections were made in Form-I Statement appended to the order in the suo motu proceedings as also the Purchase Certificates. Moreover, such corrections, as seen by the authentication, have been made by the Special Tahsildar. A report of the Revenue Inspector also has been produced as Exhibit A3. At the first instance, the order issued by the Land Tribunal cannot RSA Nos.975/2003 & - 8 - 976/2003 be corrected by the Special Tahsildar, even if the notification under Section 99 of the Act notifies the Special Tahsildar to be the Land Tribunal for an area. Rule 104 of the Tenancy Rules provide for a seal of office for the Land Tribunal. The orders passed by the Land Tribunal and the Purchase Certificates issued in pursuance thereof should be under the seal of office of the Land Tribunal. Any correction or modification made, even if power is available under the provisions, can only be made by the Land Tribunal under its seal of office. The learned counsel points out that the only provision available for making corrections is Rule 136A of the Tenancy Rules. That power stands on a very narrow premise and confines the power to correction of arithmetical or clerical mistakes. The correction of boundaries as such cannot be an authority conferred under Rule 136A; which, this Court and the Hon'ble Supreme Court have consistently held to be akin to Section 152 of the Code of Civil Procedure.
10. Sri. Krishnan, learned counsel appearing for the respondents, would, however, contend that the title of the plaintiffs are seen to be established from the evidence of the defendants itself. The case of the 1st defendant, the father of Joseph, is that RSA Nos.975/2003 & - 9 - 976/2003 he had acquired 9 acres and 26 cents by way of oral lease from Moideen Haji. 2 acres and 26 cents from it was given to one of his sons, Thomas, and another 2 acres each to Joseph (plaintiff in O.S.No.66 of 1996) and Xavier, and the remaining 3 acres was kept with himself and now gifted to another son, John (the 2nd defendant). On a reading of the evidence of D.W.1, it is the contention, that, so much is clear and D.W.1 himself admits that he had granted 2 acres from the lease he obtained from Moideen Haji to the plaintiff in O.S.No.65 of 1996. The identification of the property is also possible from a reading of the evidence of D.W.1 and looking at the sketch prepared by the Commissioner. No explanation is offered with respect to the corrections made in the order in the suo motu proceedings and the Purchase Certificates issued by the Land Tribunal. It is the case of the plaintiffs that the case set up by the defendants establish their claim.
11. On a perusal of the records, it is seen that earlier the ad interim injunction was refused by the trial Court, by order dated 29.09.1997. The specific contention raised in the suit and which still subsists, is that the plaintiff had obtained lease from Moideen Haji. As early as at the stage of consideration of the ad RSA Nos.975/2003 & - 10 - 976/2003 interim injunction, the defendants had produced the extract of admission register (Exhibit B6) of Devarcoil West L.P.School, which showed the date of birth of the plaintiff to be 21.09.1948. Then the plaintiff could have been only a boy of 12 years in the year 1960; when he claims to have obtained the oral lease. The death certificate of Sri.Moideen Haji was also produced to show that he passed away on 12.8.1957 (Exhibit B11). This definitely belied the plaint averment that the plaintiff in O.S.No.65 of 1996 had obtained an oral lease from Moideen Haji in the year 1960. Long after, i.e., even after Joseph was examined as P.W.1 on 13.9.2001; an application was filed to amend the plaint and correct the claim of oral lease from Moideen Haji, to "oral leases of two plots each extending to two acres separately in 1960 from Alikutty and others, the children of Moideen Haji ....". The Court below, by order dated 26.9.2001, rejected the said I.A., numbered as I.A.No.1678 of 2001.
12. While before this Court it is argued that the plaintiffs' title is proved by the 1st defendant's admissions as D.W.1, the plaintiff as P.W.1 denied that his father was in possession of 9.26 acres and even that his father had conveyed 2 RSA Nos.975/2003 & - 11 - 976/2003 acres to him. He stuck to his earlier stand of having taken on oral lease the 4 acres in 1960. Though P.W.1 denies that he was 12 in 1960, Exhibit B1 deed of 1972, which is an assignment in his favour, shows his age as 23 in tandem with the admission register Exhibit B6. The age disclosed by P.W.1 himself; in the various documents, by which he assigned properties to his wife, son and daughter, also tallies with Exhibit B6. S.M.C.No.1586 of 1977 covers only 2 acres. It is the case of P.W.1 that 1.46 acres was given to his son and the balance 1 acre to his wife; the latter of which is scheduled in O.S.No.65/1996. There is no explanation for the excess 46 cents. While P.W.1 claims that the Purchase Certificates were the basis of the documents created by him in favour of his wife and children, viz., Exhibits B2 to B5 of 1995 and 1996, the corrections in Exhibits A6 and A7 were only made in the year 2000, on an Interlocutory Application of 1998; allegedly. The inconsistent stand of the plaintiffs is very evident from this.
13. The bulwark of the plaintiffs' contentions before this Court is with respect to the specific case of D.W.1, as deposed before the trial Court, and the identification in accordance with such deposition by reference to Exhibit C2 RSA Nos.975/2003 & - 12 - 976/2003 sketch. The Commissioner had filed a report and sketch, marked as Exhibit C2 and C1 respectively, dated 25.3.1998. In the sketch, Exhibit C1, the Commissioner has marked 4 properties, respectively as K, L, M and N, lying contiguously, north-south. It is contended that the property marked as "M" is claimed in O.S.No.65 of 1996 and the property marked as "K" is claimed in O.S.No.66 of 1996. The property lying south of "K", i.e., "L", was the subject matter of O.S.No.30 of 1997 and item No."N" was the property allegedly gifted to the son of the plaintiffs, Jomon. On a reading of the Commission report, it is seen that the Commissioner has not identified the properties with reference to any documents or even with reference to the plaint schedule. The Commissioner only says that the properties were pointed out by the plaintiffs and they were identified and indicated with the alphabets as per the plaintiffs' statements. The claims made to the respective properties by both the parties were also noticed in the report. At that point of time, it is very pertinent that neither the orders in the suo motu proceedings or the Purchase Certificates were part of the records of the suit. The Commission report was dated 25.3.1998 and the corrections in the order is indicated to be RSA Nos.975/2003 & - 13 - 976/2003 dated 3.8.2000 on an application, I.A.No.2/1998.
14. This Court also looked at the endorsements made by the Head Ministerial Officer, L.R. No.I, Vadakara with respect to the issuance of the certified copies of the orders in the suo motu proceedings marked as Exhibits A1 and A2. While the corrections are authenticated to have been made "as per I.A.No.2/1998 dated 3.8.200" (sic) (this must be 2000), the date of calling for additional stamp papers for issuance of the order applied by application No.CA 165/2000 is also shown as 3.8.2000. It is a very relevant fact, casting an ominous dark shadow on the Purchase Certificates, as it stood corrected, that; a correction was made by the Special Tahsildar on 3.8.2000, on which date, it is seen that the office of the Land Tribunal called for the papers for issuing certified copy of the corrected orders. The corrections made on the Purchase Certificate issued as per Exhibit A6 is dated 3.8.2000 and that made in Exhibit A7 is undated. It is these Purchase Certificates which have been meekly swallowed by the Courts below in finding the title of the plaintiffs having been established; on the premise of disability under Section 72K.
RSA Nos.975/2003 & - 14 - 976/2003
15. The evidence of D.W.1 only goes to show that two acres of property have been granted to his son Joseph. Joseph, in the plaint, claims having obtained lease of 4 acres of property. He claims gift of 1 acre each to his daughter and wife and more than one acre to his son. The Commission report, as has been noticed, specifically states that the properties have been drawn out in the sketch as pointed out by the plaintiff. It does not speak of having even referred to the plaint schedules to identify the properties. The plaint schedule interestingly tallies with the correction in the Purchase Certificates made in the year 2000. Definitely the plaint schedule property could not have been drawn out with reference to the Purchase Certificates, since they were produced, with corrections, only later, i.e., after 2000. Though the photo copies of the Purchase Certificates were produced earlier, the Commissioner did not attempt to identify the properties with reference to the boundary shown therein. Nor did the plaintiffs seek such identification.
16. The contention of the appellants/defendants before this Court is that the correction could have been made only under Rule 136A of the Tenancy Rules. The corrections having RSA Nos.975/2003 & - 15 - 976/2003 materially altered the boundaries and the same being beyond the scope of Rule 136A, is challenged as disabling the plaintiffs from making any claims for title based on the Purchase Certificates, since the same cannot be one issued legally under the KLR Act. The power available under Rule 136A has been held to be of a limited application and confined to cases of clerical or arithmetical mistakes in Michael Job v. Special Tahsildar & Others, 1981 KLT SN 48 (Case No.90). In Rachael Jacob v. V.Krishnan Namboodiri, 1987 (2) KLT SN 33 (Case No.46), Rule 136A, was held to provide a summary remedy to correct mistakes or errors arising out of or occurring from an accidental slip or omission. It is to be noticed that the Form-I, appended to the order in the suo motu proceedings, is a statement required to accompany the order under sub-section (5) of Section 72F. The boundaries thereon were as deciphered from Form 'A' & 'B'. Form 'A' is an application filed by the claimant, i.e., the plaintiff in O.S.No.66 of 1996. It is the case of both the plaintiffs that the said properties were mortgaged to financial institutions and Joseph had taken loans on such mortgage. Joseph, though there is evidence to belie it; claims to be in possession of the 4 acres of property from RSA Nos.975/2003 & - 16 - 976/2003 1960 onwards. Joseph also has dealt with the properties covered by the Purchase Certificates, evidenced by the deeds in favour of his wife and children, even before the alleged I.A.2 of 1998.
17. The very limited jurisdiction conferred by Rule 136A of the Tenancy Rules has been held to be akin to Section 152 of the Code of Civil Procedure; in Michael Job (supra). Considering the scope of Section 152 CPC, the Supreme Court has held that this power contemplates a correction of mistakes by the Court, of its ministerial actions; in State of Punjab v. Darshan Singh, (2004) 1 SCC 328. In Jayalakshmi Coelho v. Oswald Joseph Coelho, (2001) 4 SCC 181, it has been held that non-incorporation in a decree of contents of a petition or plaint could not be considered as an arithmetical or clerical error or accidental slip amenable for correction under Section 152.
18. It is very pertinent that the Special Tahsildar (LR), Vadakara seems to have called for a report from the Special Revenue Inspector. That is produced as Exhibit A3. There also corrections have been made, which is endorsed by the Special Tahsildar, LR, Vadakara. The report does not disclose a date. What is more pertinent is, going by the precedents cited above, a RSA Nos.975/2003 & - 17 - 976/2003 correction or rectification of an obvious mistake or omission in the ministerial actions of an adjudicatory authority does not call for a report from a lower officer. That correction should emanate and be clear and evident from the records available with the authority. The discussions on Rule 136A was only on the learned counsel for the appellants pointing out the said provision. The invocation of Rule 136A is not one evident from the records. Having gone through the KLR Act and the Rules referred to above, I too, confess, that, I am unable to find any other provision which enables the Land Tribunal to make correction in the Purchase Certificates issued by it. The respondents also do not give any explanation for such corrections. They rest contend with the production of the Purchase Certificates and the orders in the suo motu proceedings.
19. It is trite that the plaintiff has to stand on its own feet and has to establish title for recovery of possession and with respect to a claim for injunction, the title or at least possession. This Court has in Parukutty v. Province of Madras, 1961 KLT 846 (FB), held that the plaintiff has to establish and prove his case and cannot depend upon the weakness of the defendant's RSA Nos.975/2003 & - 18 - 976/2003 case, especially when title and possession are in issue. It was the contention of the State, the plaintiff therein, that the issue was framed in such a manner casting the burden on the defendant. It was held that the framing of the issue cannot affect the "burden of proof on the pleadings". The weakness of the defence case is of no avail to allow the plaint claim. In Narayana Iyer v. Vella, 1988 (1) KLT SN 10 (Case No.20), it was held that a suit based on title can succeed only if title is established. The learned counsel for the respondent would rely on Vasudeva Kurup v. Ammini Amma, 1964 KLT 468, to say that payment of tax would evidence possession. In the said case, tax receipts were not put in Court. The 1st defendant, Karanavan of the joint family, was sailing along with the plaintiff, his daughter, who claimed possession of certain properties. Admittedly the tax was paid in the name of the Karanavan and that was held by the Court as significant to show that the possession was not with the plaintiff. Apart from the fact that in the instant case no such findings on facts have been entered into by the lower Courts; the facts herein are clearly distinguishable. Further, the plaintiffs before the Court below conceded the possession of the defendants, allegedly by RSA Nos.975/2003 & - 19 - 976/2003 trespass.
20. The Courts below relied on Section 72K of the KLR Act to restrain itself from examining the validity of the Purchase Certificates. The Hon'ble Supreme Court has, in Mathew & Others v. Taluk Land Board, 1979 KLT 601, held that though the Certificate of Purchase issued under sub-section (1) of Section 72K is conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder; that only means that no contra evidence shall be effective to displace it, unless the so called conclusive evidence is inaccurate on its face or fraud can be shown. This decision was relied on by the Hon'ble Supreme Court in Ahmmed Kutty v. Mariakutty Umma, 2000 (1) KLT 829 (SC). The conclusiveness of an order passed under Section 72K came to be considered by a Full Bench of this Court in Muhammed Haji v. Kunhunni Nair, 1993 (1) KLT 227 (FB). Bereft of the entire facts, in the said case the plaintiffs were before Court claiming redemption of mortgage. The defendant raised a claim of tenancy under the Act. The matter was referred to the Land Tribunal and the Tribunal, by its order dated 31.12.1976, answered the reference holding that the defendant is RSA Nos.975/2003 & - 20 - 976/2003 not a tenant. While the matter was pending before the Land Tribunal, the defendant assigned his rights to other persons. These assignees filed an application before the Land Tribunal, which was allowed by order dated 17.10.1977. The plea raised before the Court was that the latter order of 17.10.1977 would prevail and the civil court could not have gone into the issue on grounds of principles of res judicata. Per contra, it was argued that in view of the earlier order dated 31.12.1976, the latter order was a nullity and cannot operate as res judicata. On facts, it was found:
"We perused through the order of the Land Tribunal in O.A.No.17732 of 1976 dated 17.10.1977. The order states that the notices contemplated by S.72F of the Act were published and issued to the interested parties and the application and the written statement and evidence adduced during the enquiry were perused. There is not even a formal recital that the procedure contemplated by S.72F(3A) and (3B) were followed. There is also no formal recital even, that the report, if any, of the officer under S.105A of the Act was obtained. As to whether any further enquiry was made is not clear. The order passed under S.72F does not even mention whether the advice was received from the village committee contemplated by S.72F (3B) of the Act. We are constrained to hold that the order RSA Nos.975/2003 & - 21 - 976/2003 passed by the Land Tribunal, in the circumstances, is perfunctory and it is obvious that the provisions of the Act and the Rules have not been complied with. The fundamental principles of judicial procedure, as required by the Act, were totally contravened. In such cases, the jurisdiction of the civil court is not excluded, as stated by the Privy Council in Secretary of State v. Mask & Co. (AIR 1940 PC 105 at p.110) and Ram Swarup's case (AIR 1966 SC 893 para 17). This is another fundamental infirmity in the later decision rendered by the Land Tribunal, rendering it a nullity" (para 22).
It was also held:-
"We have held that the order passed by the Land Tribunal under S.72F of the Act in O.,A.No.17732 of 1976 is illegal, without jurisdiction and a nullity. It is only in consequence of a valid order passed under S.72F of the act, wherein the determination of the purchase price is made, the Land Tribunal shall issue a certificate of purchase to the cultivating tenant. Existence of a valid order under S.72F of the Act is a prerequisite or a sine qua non, for passing the consequential order under S.72K of the Act, whereby a certificate of purchase is issued. We have held that the order passed under S.72F of the Act is without jurisdiction and a nullity and so of no legal effect. In the result, the consequential order passed under S.72K of the Act should also share the same fate. We hold so".
RSA Nos.975/2003 & - 22 - 976/2003
21. Here, the Purchase Certificates evidently were corrected in the year 2000. Joseph, the plaintiff in O.S.No.65 of 1996, in whose name the Purchase Certificates were issued, was the best person to have explained as to under what provision the corrections were made. It is the specific contention of the plaintiffs that the uncorrected Purchase Certificates were mortgaged for the purpose of availing loan. It is also the contention of the plaintiffs that before such corrections were made in 2000, assignment deeds were executed by Joseph, conveying more than 3 acres out of the 4 acres covered by Exhibits A6 and A7 Purchase Certificates. There is no explanation as to how the enjoyment of the properties and the numerous assignments were possible if the boundaries were not correct.
22. In the context of the material alterations made in Exhibits A6 and A7, the questions of law regarding the reliance placed by the Courts below on the documents to conclude the establishment of title is found to be erroneous in law and on facts. Whether the Purchase Certificates covered by Exhibits A6 and A7 are liable to be set aside on the ground of fraud or collusion is not a question arising from the orders of the Court below, since there RSA Nos.975/2003 & - 23 - 976/2003 is no challenge to the same. Sub-section (2) of Section 72K of the KLR Act mandates that "the certificate of purchase issued under sub-section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries, if any, over the holding or portion thereof to which the assignment relates". The shackles on a civil Court, disabling it from examining the conclusiveness of a Purchase Certificate, fall apart when it is not one issued under sub-section (1) of Section 72K. The description of the property in such Purchase Certificate provides the form and substance of the 'holding' to which the assignment relates. The Purchase certificates without the corrections, was one issued under sub-section (1) of Section 72K. The correction of the boundaries changes the very form and substance of the holding. Civil Courts cannot be mute spectators to such material alterations made; without power or authority and with abject impunity. The corrected Purchase Certificates are inaccurate on its face and are issued in violation of the provisions of the Act and Rules. With respect to the question as to whether a challenge on the validity of the Purchase Certificates could be maintained in a civil Court under Section 72K, this Court has no RSA Nos.975/2003 & - 24 - 976/2003 hesitation to find that Section 72K applies only to valid Purchase Certificates issued by the Land Tribunals, respectfully following the Full Bench cited supra. Material irregularities have been found in the Purchase Certificates. Corrections have been made thereon without the seal of authority conferred under the KLR Act and the Rules framed thereunder; and substantially altering the boundaries, which, forms the essence of identification of the 'holding' as specified under the Act.
23. On the strength of the findings above and the answers to the questions of law raised in the Second Appeal, this Court is of the opinion that the judgment of the trial Court as confirmed by the first appellate Court, is erroneous. The decree granted in the suit on the strength of the conclusion with respect to the title of the plaintiffs is not one emanating from the evidence on record and is based on totally irrelevant considerations.
In the result, the Second Appeals stand allowed, reversing the decree and judgments of the Courts below and dismissing the suits, with costs throughout.
Sd/-
K. Vinod Chandran,
vku/- Judge
(true copy)