Kerala High Court
Vareed Jacob vs E.A. Jayakumar on 7 June, 2010
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 754 of 2006()
1. VAREED JACOB, PALAPARAMBIL HOUSE,
... Petitioner
2. JOSEPHEENA JACOB, W/O. LATE JACOB,
3. MARY LONAPPAN, D/O.LATE JACOB,
4. LEELAMMA KUNJAPPAN @ ELIZABATH,
5. TRESSA FREDDY, D/O. LATE JACOB,
6. ANTONY P.V., S/O. LATE JACOB,,
7. JEMMA JOY, D/O.LATE JACOB,
8. SILVI GEORGE, D/O.LATE JACOB,
Vs
1. E.A. JAYAKUMAR, S/O. AYYAPPAN PILLAI,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
3. JOSEPH P.J., S/O.LATE JACOB,
4. P.C. FRANCIS, S/O. LATE CHANDY,
5. P.C. CLEETUS, S/O. LATE CHANDY,
6. KUNJAMMA, S/O. LATE CHANDY,
7. ESTHER, C/O. LATE CHANDY, AGED 50,
8. ELSY, D/O. LATE CHANDY, AGED 50,
9. GOVINDAN NAMBOOTHIRIPAD,
10. DEVAKI ANTHARJANAM,
11. NARAYANAN NAMBOOTHIRIPAD,
12. GOVINDAN NAMBOOTHIRIPAD,
13. NEELAKANDAN NAMBOOTHIRIPAD,
For Petitioner :SRI.SHIJU VARGHEESE
For Respondent :SRI.R.DIVAKARAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :07/06/2010
O R D E R
S.S.SATHEESACHANDRAN, JJ.
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C.R.P.NO.754 of 2006
& W.P.(C)No.11921 of 2007
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Dated this the 7th day of June, 2010
O R D E R
In both the revision and the writ petition, which emanate from two different
proceedings, subject matter involved and also the questions emerging for consideration are the same. The revision is filed by some of the respondents in A.A.No.90/05 on the file of the Appellate Authority (Land Reforms) Alappuzha, challenging the judgment dated 1.9.2006 of that authority setting aside the order of the Land Tribunal, Palluruthy assigning the right, title and interest over a property in favour of the 1st respondent in the appeal. The writ petition is filed by the plaintiffs in O.S.No.1581/05 on the file of the Munsiff Court, Ernakulam, who are legal representatives of the above said 1st respondent in the appeal before the appellate authority, challenging Ext.P10 order passed by the learned Munsiff referring the question of C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 2 ::
tenancy raised by some of the defendants (defendants 13 to 19) in the suit to the Land Tribunal for determination.
2. Subject matter covered by the appeal before the appellate authority and also the suit, O.S.No.1581/05 before the Munsiff's Court, Ernakulam are one and the same viz., 1.22 acres of land in Survey No.87/5B of Edappally North Village.
3. Short facts necessary for disposal of both the above cases can be summed up thus:
The Land Tribunal, Palluruthy, on an application under J-Form, viz., O.A.No.3024 of 1970 moved by the land owner and the tenant-(first respondent in A.A.No.90/05), after enquiry, assigned the title, right and interest over 1.22 acres of land in Survey No.87/5B of Edappally North Village, in favour of the tenant recognising his status as a cultivating tenant over that property. That order was C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 3 ::
challenged 34 years after the issue of the purchase certificate by a third party, the first respondent in the revision, who claimed of obtaining jenmom right and possession under a registered sale deed in 2005 from the jenmi of the land. The appeal was preferred impeaching the purchase certificate issued to the first respondent by the Land Tribunal impleading that respondent alone in the party array. The first respondent had already passed way, admittedly, even before the presentation of the appeal. Though an application for condonation of delay was moved by the appellant it was not considered, and no enquiry thereof was conducted. However, later, the legal representatives of the first respondent (the revision petitioners), some members of the jenmi family including the landowner - executant of the sale deed in favour of the appellant, and also some others who also claimed interest over C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 4 ::
the property canvassing rival tenancy rights were brought in the appeal as additional respondents. The appellate authority, after hearing both sides, allowed the appeal, setting aside the order passed by the Land Tribunal granting purchase certificate in favour of the first respondent with a direction to that Tribunal to consider and dispose another proceeding relating to the subject matter, S.M.P.No.172/02, which was initiated by some of the respondents, claiming interest over the land as cultivating tenants seeking assignment of the right, title and interest over the property in their favour. Propriety and correctness of that decision is challenged in the revision.
4. The judgment of the appellate authority is assailed in revision by the legal representatives of the first respondent in the appeal, who had been impleaded as additional respondents 2 to 9 in the appeal. C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 5 ::
5. The writ petition emerges from an order passed by the learned Munsiff, Ernakulam in O.S.No.1581/05 directing a reference to the Land Tribunal, Palluruthy to determine the claim of tenancy canvassed by some of the defendants in the suit. The above suit had been instituted by the revision petitioners as plaintiffs. They are the wife and children of the tenant viz., late Vareed Jacob, in whose favour the Land Tribunal had previously issued purchase certificate over the subject matter recognising his status as a cultivating tenant. Suit was one for cancellation of a deed and in the alternative for recovery of possession and also for a prohibitory injunction against the defendants from trespassing upon the property and interfering with the possession and enjoyment of the plaintiffs in any manner. Suit claim was based on the purchase certificate issued in favour of late Vareed Jacob, the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 6 ::
predecessor of the plaintiffs over the subject matter, impeaching the sale deed executed by the jenmi in favour of a stranger (first defendant) and also to restrain and thwart the alleged attempts made by the legal heirs of a brother of late Vareed Jacob, who have set up a rival claim contending that their predecessor too had leasehold right over the property and, therefore, they are entitled to the tenancy right over the same. The claim for tenancy canvassed by the rival claimants, according to the plaintiffs, had been negatived by the Land Tribunal previously by dismissing their application. The learned Munsiff, however, after examining the pleadings of the parties, particularly, the contentions raised by the rival claimants setting forth a claim of tenancy over the subject matter and also the pendency of an application at their instance claiming tenancy right over the property before the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 7 ::
Tribunal, passed an order under Section 125(3) of the Kerala Land Reforms Act {for short "the Act"} referring the question of tenancy canvassed by the rival claimants for determination by the Land Tribunal, staying further proceedings of the suit. Challenge in the writ petition is against the legality and correctness of the order of reference so made by the Civil Court.
6. Before proceeding with the enquiry on the disputed questions posed for consideration on the rival case canvassed by the parties, some of the pertinent facts involved in the case deserve to be taken notice of. Over the common subject matter involved in both the proceedings, that is, 1.22 acres of land, the Land Tribunal had issued a purchase certificate in favour of Vareed Jacob, the predecessor of the plaintiffs (who are the revision petitioners C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 8 ::
as well) on a joint application filed by the landowner and the tenant under Section 72MM of the Act. That application was allowed by the Land Tribunal on 16.1.1970, and later, a purchase certificate was issued directing the tenant to pay the land value fixed in instalments. That order remained unimpeached for more than three decades. Validity of that purchase certificate was assailed by a third party, the appellant in A.A.No.90/05, who claimed to have purchased Jenmom right over the property under a registered sale deed executed by the prior jenmi, who had joined the tenant in moving the J-Form application before the Tribunal. After the registration of the sale deed in his favour and when steps were taken for mutation over the land in his favour, the issuing of the purchase certificate came to his knowledge, was the case of the appellant. The certificate issued is vitiated by fraud and, C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 9 ::
further, the order of the Land Tribunal is patently illegal, was his case for preferring the appeal impeaching the correctness of the order of the Tribunal. The appeal was preferred against the sole respondent, the tenant viz., Vareed Jacob, in whose favour the purchase certificate was issued. Long before the presentation of the appeal, the tenant had passed away. A petition moved with the appeal for condonation of delay in challenging the order issuing the purchase certificate was not enquired into nor disposed on merits before entertaining the appeal. Subsequently, the legal representatives of the tenant, the revision petitioners, were brought on record with some others, the legal heirs of one of the brothers of the tenant, who have set up a rival claim of tenancy moving an application, which was then pending consideration before the Land Tribunal, and also some members of the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 10 ::
landowner's family. The appellate authority, after hearing the parties, decided the appeal on merits, without deciding the entertainability of the appeal preferred against a dead person as the sole respondent, and also whether justifiable ground had been made out for condoning the inordinate delay in challenging the orders of the Land Tribunal.
7. The learned counsel for the revision petitioners assailed the order of the appellate authority as illegal and unsustainable under law. The maintainability of the appeal against a dead person as the sole respondent and nonconsideration of entertaining an appeal without examining whether the delay in challenging the order of the Land Tribunal, after a span of more than 34 years, was highlighted by the learned counsel to urge that the appellate authority abused its jurisdiction C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 11 ::
in deciding the appeal on merits and that its judgment is not only perverse, but, illegal. The appellant in the appeal as an assignee is claiming right over the land in respect of which a purchase certificate had been issued prior to the assignment is banked upon by the learned counsel to contend that after the vesting of the land in the Government on the advent of the Act, any transaction over such land by the prior Jenmi or any member of his family would not confer any title on the assignee and on the basis of such assignment, he could not claim any interest over the land, nor maintain an appeal to challenge the orders passed by the statutory authority, the Land Tribunal ordering issue of purchase certificates to the cultivating tenant in possession and enjoyment of such land. Pointing out that the issue of purchase certificate was based on a joint application moved with the landowner, it is C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 12 ::
contented by the counsel that neither the landowner nor any member of his family till this date has assailed the issue of purchase certificate in favour of the tenant by the Land Tribunal. The appellant has no title, interest or possession over the land and the assignment obtained by him from the prior Jenmi is a fraudulent transaction as the transferor had no right over the land after the commencement of the Act, is stressed upon by the learned counsel to contend that an appeal at the instance of the assignee, the appellant, to impeach the correctness of the purchase certificate issued in favour of the predecessor of the revision petitioners, the first respondent in the appeal, deserved only to be rejected at the threshold. Referring to the judgment rendered by the appellate authority, running to 47 pages, it is contended that the appeal was finally heard on 31.8.2006 and the judgment was rendered the very C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 13 ::
next day, which, on the face of it, according to the counsel, smacks of something fishy and unpalatable in the disposal of the case by the statutory authority - appellate authority constituted under the Act. Statements made in the judgment by the appellate authority while disposing the appeal on merits that the delay in preferring the appeal is condonable, that too, without conducting any enquiry over the inordinate delay in entertaining such appeal, according to the counsel, have no value or merit and, at any rate, it would not infuse life into that appeal, which without condonation of delay, could never be treated as an appeal under law. The appeal was preferred by a third party who could never be considered as an 'aggrieved person' competent to challenge the order of the Land Tribunal over the issue of purchase certificate is also stressed by the counsel to contend that the judgment rendered by the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 14 ::
appellate authority is liable to be set aside and the appeal struck off as not entertainable.
8. Per contra, the learned Senior counsel appearing for the appellant contended that the revision challenging the judgment of the appellate authority, setting aside the purchase certificate issued in favour of the predecessor of the revision petitioners is not worthy of any merit. Inviting attention to the reasonings given by the appellate authority, as spelt out in its judgment, to hold that the issue of purchase certificate was vitiated by fraud, and also the noncompliance of the mandatory provisions in the publication of notice, it is submitted, no reference with the judgment is called for. The property belonged to a Nambudiri family, governed by the Kerala Nambudiri Act, 1958, and a Karanavan of the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 15 ::
family had no authority to alienate the Illam property, except for consideration and for Illam necessity, and that too, with written permission from the majority of the members, according to the learned counsel. The joint application moved by the Karanavan, with the predecessor of the revision petitioners before the Land Tribunal for assignment of the land and issue of purchase certificate in favour of the latter is violative of the statutory provision as the Karanavan was incompetent to prefer such joint application, according to the counsel. Procedural formalities in the publication of the notice, which are mandatory, have not been complied with and there was no proper enquiry before the Land Tribunal before passing an order assigning the land in favour of the predecessor of the revision petitioners, is the further submission of the counsel. Since the order so passed for issue of the purchase certificate is vitiated by fraud, C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 16 ::
it cannot operate against the land owner, according to the counsel. Since the members of the Illam had not been given individual notice of the proceedings, it is the submission of the counsel that the Land Tribunal had acted without jurisdiction, and in such a case, the right of an affected party, as in the present case, the appellant, is to prefer an appeal and that alone was done in the present case. When the very order issued by the Land Tribunal is vitiated by fraud, technical pleas that the appeal was preferred against a dead person and the revision petitioners were impleaded only later, and there was some delay in challenging the order of the Land Tribunal, according to the counsel, cannot be given much significance. Where the order from the very inception is vitiated by fraud it is non est and the delay in questioning such order is of no moment, contends the counsel. It is further argued that the order of the Land C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 17 ::
Tribunal based on the joint application of the Karanavan and the predecessor of the revision petitioners was void, and, that being so, challenge against such order before the competent authority - appellate authority - by way of an appeal, as provided by the statute, is perfectly maintainable. The order of the Land Tribunal is per se illegal and unsustainable under law, according to the counsel. The appellate authority did not have an enquiry before proceeding with the consideration of the appeal on merits, according to the counsel, has to be viewed in the back drop of the direction issued by this court stipulating a time limit for disposal of the appeal. In a writ petition filed by one among the revision petitioners, this court had directed for disposal of the appeal within a period of three months and thus, pressed with the command of this court, a speedy disposal was effected under the judgment by the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 18 ::
appellate authority, according to the counsel. The revision against the judgment of the appellate authority is, therefore, liable to be dismissed, according to the counsel.
9. The respective counsel appearing for respondents 4 to 8 and respondents 9 to 13 supported the arguments advanced as above by the first respondent contending that the revision is meritless.
10. So far as the merit of the judgment rendered by the appellate authority, which is challenged in the revision, the most significant question to be considered is whether the appellate authority was justified in deciding the appeal on merits, before examining whether the appeal was entertainable without condoning the delay, and also the competency of the appellant, the assignee, who had purchased the land covered by a purchase certificate under a sale deed executed by the prior Jenmies of the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 19 ::
land to file the appeal. The appeal was preferred as against the sole respondent, who, on the date of presentation, had already expired, also require to be examined whether there was a proper and competent appeal entertainable under Section 102 of the Act. The defence projected by the contesting first respondent, who, in fact, is supported by the other respondents as well to sustain the decision of the appellate authority entered on merits, without any enquiry on the vital questions touching upon the entertainability of the appeal under law, was that this court, in a previous writ petition, had ordered for a time bound disposal of the appeal. In view of the time limit fixed for disposal, it was not practicable nor feasible to conduct the enquiry on the delay involved and the question of delay was considered by the appellate authority when it rendered the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 20 ::
decision on merits, as reflected in its judgment, is the case of the appellant. It was also argued that as the order of the Land Tribunal for issue of purchase certificate in favour of the first respondent had been found to be vitiated by fraud and unsustainable under law it was non est from inception and that being so, the delay in challenging that order, or absence of enquiry on that question, is of least value and significance. There is no merit in any of the propositions canvassed as aforesaid to salvage and thereby to sustain the decision rendered by the appellate authority in disposing the appeal on merits without examining the question of condonation of delay and also the entertainability of the appeal under law. An appeal under Section 102 of the Act is entertainable if only it is presented within such time as may be prescribed, or the delay in such presentation is condoned. Sub section (2) C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 21 ::
of Section 102 empowers the appellate authority to admit an appeal after expiration of the period prescribed, if it is satisfied the appellant has sufficient cause for presenting it after such period. Indisputably the appeal in the present case against an order of the Land Tribunal ordering issue of a purchase certificate was challenged three decades after the passing of such order. Before entertaining such an appeal whether there was any justifiable cause for condoning delay in presenting such appeal has necessarily to be examined and appropriate orders passed thereof. Even a statement in the appeal memorandum explaining the reasons for presentation of the appeal beyond time cannot be looked into as there is no competent appeal when it was presented after the time prescribed. A separate petition to condone delay must accompany the appeal filed beyond time stating sufficient cause, if any, for the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 22 ::
delay in its presentation of the appeal. (See Thambayi v. Janardhanan Nambiar {1988 (2) KLT 1030}). Before the appeal is admitted and taken on file, when it is presented beyond time, the appellate authority is bound to issue notice on the delay petition to the opposite party and then decide the question whether sufficient cause has been made out for admitting the time barred appeal. The appeal can be received on the file of the court only if the delay is condoned. In a case where an appeal has been presented beyond the period prescribed, the appeal is "still born" and the appellate authority has no jurisdiction to admit the appeal without condoning the delay. Any decision rendered by the appellate authority on merits in a time barred appeal presented after the prescribed period, without condoning the delay in presenting such appeal has to be treated as having been passed without jurisdiction. A time C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 23 ::
limit has been fixed by a superior forum for disposal of the appeal would not infuse life into a "still born appeal", which was not entertainable and admitted to file without condoning the delay. The appellate authority in its judgment has adverted to the question of delay and made some observations that the delay, in the given facts, is condonable in no way infuse life into an incompetent appeal presented after the prescribed period as there was no appeal under law without a decision being rendered in favour of the appellant condoning the delay for entertaining the time barred appeal. So, in the present case on the aforesaid circumstance disclosed it goes without saying the judgment rendered by the appellate authority challenged in the revision is liable to be set aside as the appellate authority had no jurisdiction to decide the appeal on merits without considering the question of delay and C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 24 ::
passing appropriate orders as to whether the time barred appeal presented before that authority was entertainable after condoning the delay.
11. The appeal was admittedly preferred against the sole respondent, the tenant after he had passed away. The appeal, as on the date of its presentation, was against a dead person. The legal representatives of that tenant had been brought on record subsequently after the appeal had been taken on file by the appellate authority could not in any way show that the appeal was entertainable under law. When an appeal is filed against a dead person there is no valid appeal recognised under law. In such an appeal, where there was no respondent other than the dead person the question of bringing on record the legal representatives of the dead person by correcting the cause title can be permitted only if such C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 25 ::
application is moved within the time to move an appeal against the legal representatives of the respondent (dead). In case the appeal to be preferred against the legal representatives has been barred by efflux of time, then, necessarily, the appellant has to file appeal afresh, applying for condonation of delay in filing such appeal against such legal representatives (See Mohammed Ibrahim & Ors. v. Chellammal {AIR 1991 Madras 309}). There is no valid appeal when the appeal has been filed against a dead person as the sole respondent. Correcting the cause title and impleading of the legal representatives of the respondent (dead), where the dead person alone was arrayed as a respondent, can be permitted only if the appeal as against such legal representatives as on the date of the application for impleadment has not been barred. It must be remembered that in so far as the legal representatives of the dead C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 26 ::
respondent shown in the appeal are concerned, condonation of delay has to be pleaded and proved showing sufficient cause thereof till the date of filing of the appeal against them, and not with respect to the presentation of the appeal against the dead person. In the present case, the appeal was presented against a sole respondent (tenant) - a dead person - on 30.11.2005. The application for impleading his legal representatives were moved on 24.2.2006.
Not even a petition was filed to condone the delay in impleading the legal representatives of the sole respondent. Objections raised by them against their impleadment as barred by time were not considered by the appellate authority. In short, the impleadment of the legal representatives of the first respondent, without condoning the delay in entertaining a time barred appeal against them, was patently illegal and unsustainable under law.
C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 27 ::
12. The judicial pronouncements over a decree/order passed against a dead person is well settled. Any such decree or order against or in favour of a dead person will be null and void. Even in a case the legal representatives brought in participated in the suit or proceeding, which had already abated against their predecessor, with no substitution made within the time prescribed by law, the Apex Court has held that it would not disentitle the legal representatives from raising the plea in the first appellate court that the proceeding or suit had already abated (See Shankar Lal and another v. Sakil Ahmed and others ((2001) 9 SCC
342). Nonraising of objection before the trial court by the legal representatives substituted in the place of a defendant, after the death of defendant, without setting aside such abatement, it has been held 'would not amount to waiver, or acquiescence or condonation of default committed C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 28 ::
by the plaintiffs'. When such be the position of law, in respect of abatement of a suit or proceeding as against a party on his death in a pending suit or proceeding, in the case of an appeal filed against a dead person as the sole respondent, that too, three decades after the passing of the order challenged, substitution of the legal representatives of the deceased respondent in such time barred appeal without giving them notice and having an enquiry as to whether any substitution is permissible would vitiate the entire proceedings of the appeal and any decision rendered in the appeal on merits without considering the legality or correctness of the substitution of the legal representatives cannot be sustained under law.
13. The learned counsel for the appellant - first respondent in the revision - after addressing persuasive arguments to sustain the judgment rendered by the appellate authority C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 29 ::
has urged that in case the substitution of the legal representatives of the first respondent in the appeal was found to be not proper and sustainable, an opportunity be extended to the appellant for a reconsideration of the matter ordering fresh disposal of the appeal by the appellate authority. The appellate authority has found that the purchase certificate issued is vitiated by fraud is banked upon by the counsel to persuade me to provide further opportunity to have a fresh disposal of the appeal. In the given facts of the case, I find, the competency of the appellant to prefer an appeal to challenge the purchase certificate issued in favour of the predecessor of the revision petitioners has to be taken into account in examining the plea canvassed for a remand and disposal of the appeal afresh. The appellant is an assignee who claimed to have purchased the property covered by the purchase C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 30 ::
certificate issued by the Land Tribunal, three and a half decades after the issue of that certificate. How far he is competent to challenge the purchase certificate on the basis of the assignment made in his favour by the landowner is a serious question that cannot be ignored. None of the members of the Jenmi's family has questioned the validity of the purchase certificate so far. True that some of them brought in as respondents have supported the case of the appellant in impeaching the merit of the purchase certificate issued. That is of no value. The first thing to be noticed is that the appellant, being a third party to the proceedings before the Land Tribunal, whatever be the right claimed by him by virtue of a sale deed executed more than three decades after the issue of the purchase certificate, cannot maintain an appeal without preferring an application seeking leave of the appellate C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 31 ::
authority to entertain his appeal. He must prima facie show that he is an aggrieved party by the issue of the purchase certificate as he being a third party to the proceedings. The leave applied, if any, by him has to be considered with notice to the parties interested, the legal representatives of the tenant in whose favour the certificate was issued by the Land Tribunal. No such leave was applied for by the appellant, and the appellate authority also did not examine that question before entertaining the appeal preferred by the appellant - a third party. The general rule is that only parties to the proceedings are bound and affected by the decision of a court or tribunal and he has a right to challenge the adverse order, if so provided by law. But the entertainability of the appeal depends upon the question whether he is really aggrieved by the decision rendered by the appellate court. C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 32 ::
Though Section 72(K)(2) of the Act casts a statutory presumption that the certificate of purchase is conclusive proof of title and possession of the party in whose favour it has been issued it is open to a third party to challenge such order showing that he is an aggrieved party. Such a third party has necessarily to seek the leave of the appellate authority showing the ground substantiating in what way he is aggrieved by the order of the Tribunal, to entertain his appeal. The appeal preferred in the present case, without applying for leave before the appellate authority, on that solitary ground itself, was not at all entertainable.
14. The purchase certificate challenged in the appeal was issued in J-Form proceedings initiated under Section 72MM of the Act. No appeal is provided against such an order under the provisions of Section 102 of the Act (See C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 33 ::
Gangadharan Nambiar v. Land Tribunal, Kasaragod {1982 KLT 623}. When that be the case, the appellant, a third party to the proceedings, has no right of appeal at all. Section 72MM (8) of the Act provides the remedy to a person who is not a party to the J-Form proceedings. So, an appeal, not being provided by Section 102 of the Act, but, an alternate remedy provided to the affected party to approach the Tribunal itself under Section 72MM (8) of the Act, no question of reconsideration by the appellate authority, in any view of the matter, is called for in the present case.
15. It is interesting to note in the memorandum of appeal impeaching the purchase certificate issued in favour of the predecessor of the revision petitioners, namely, Vareed Jacob, the appellant had no case that the issue of the purchase certificate is vitiated by fraud for any reason whatsoever. Setting forth a C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 34 ::
ground that Vareed Jacob was not a tenant and that he did not produce any piece of evidence before the Land Tribunal to substantiate his claim of tenancy, the appellant set up the challenge in the appeal that the Land Tribunal, without conducting a proper enquiry, issued the purchase certificate in his favour. Thirty four years after the issue of the purchase certificate on a J-Form proceedings, on a joint application moved by the landowner (Narayanan Namboodiripadu) with the tenant (Vareed Jacob), the appellant after getting a sale deed from the landowner, who had signed the J-Form with the tenant, impeached the certificate issued by the Land Tribunal to the tenant. The only reason set out even in the petition to condone delay in preferring the time barred appeal, which itself was not entertainable, since the issue of the purchase certificate was in J-Form proceedings, was that he came to know of the purchase C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 35 ::
certificate only after the sale deed in his favour. Even before the issue of the purchase certificate, the land had vested with the Government on the commencement of the Land Reforms Act, and it was only an assignment of such title, right and interest in favour of the tenant by issue of the purchase certificate. So much so, the appellant under the sale deed executed by the prior jenmi could not gain any right over the land irrespective of the issue of the purchase certificate in favour of the tenant. This assumes more significance in the context that vesting of the land covered by the proceedings in the Government, which was the subject matter of the J-Form proceedings with the jenmi and the tenant, was never impeached nor questioned by the jenmi or any member of his family. The argument canvassed by the learned counsel for the appellant that there was noncompliance of the procedural irregularity in C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 36 ::
issuing notice to the individual member of the jenmi family deserve to be taken note of only for its rejection where the appellant himself set forth a claim on the basis of a sale purported to have been made by the prior jenmi excluding the members of the family as if he had absolute right over the property. It is also noticed that the appellant had not produced his title deed before the appellate authority whatever be the worth of it. Sale deed obtained by the appellant from the landowner, who was a party to the J-Form proceedings with the tenant, in which the purchase certificate was issued in favour of the tenant Vareed Jacob, would not confer on him any right over the property, the title of which had already vested with the Government on the commencement of the Land Reforms Act, and the appeal preferred by him on the basis of such sale deed impeaching the purchase certificate issued in favour of the C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 37 ::
tenant, that too, more than three decades after the issue of the purchase certificate, whatever be the grounds thereof, was totally unworthy of any merit and deserved only to be thrown out at the threshold.
16. The judgment rendered by the appellate authority is liable to be set aside as it is wholly unsustainable under law.
17. In the writ petition, the challenge is against the order passed by the learned Munsiff in O.S.No.1581 of 2005 on the file of the Munsiff Court, Ernakulam allowing an application moved by some of the defendants in the suit (respondents 13 to 19) by which the tenancy claim raised by them was referred to the Land Tribunal for determination under Section 125 (3) of the Act staying the trial of the suit. The plaintiffs in the suit are the wife and children of Vareed Jacob in whose favour the Land Tribunal had issued a purchase certificate C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 38 ::
recognising his entitlement of fixity of tenure of the land as a cultivating tenant in enjoyment of the property on the commencement of the Land Reforms Act. Purchase certificate issued in favour of Vareed Jacob, as already stated, was in a J-Form proceeding moved by the landowner and the tenant together. The plaintiffs, legal heirs of the tenant, filed the above suit seeking a declaration of their title and recovery of possession setting aside a document obtained by the 1st defendant from the prior jenmi, and, in the alternative, for recovery of possession from the defendants 13 to 19, the legal heirs of a brother of late Vareed Jacob, who had set up rival claim of tenancy over the land. The claim of tenancy set up by the defendants 13 to 19, moving an application before the Land Tribunal earlier, which is not disputed, had been turned down by dismissing their application. However, an application C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 39 ::
moved by them later, it is stated, is still pending for consideration before the Land Tribunal. Whatever that be, indisputably, over the suit property of 1.22 acres of land, a purchase certificate had been issued by the Land Tribunal in favour of the predecessor of the plaintiffs, late Vareed Jacob. The learned Munsiff, it is seen, without noticing the value and merit of the purchase certificate already issued and the incompetency of the Land Tribunal to sit in judgment over that purchase certificate issued earlier, had ordered for a reference to the Land Tribunal for determination of the tenancy claim raised by the defendants 13 to 19 for the reason that already a proceeding in respect of the claim raised by them is pending for consideration before the Land Tribunal. Ext.P10 order indicate that the learned Munsiff was persuaded to accede the request of defendants 13 to 19 to order a C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 40 ::
reference to the Land Tribunal of their claim of tenancy for the reason that while disposing an application for injunction moved by the plaintiffs it has been found that they have suppressed the pendency of a proceedings before the Land Tribunal, and, further, in view of the pendency of the above proceedings S.M.P.No.172/04 regarding tenancy or kudikidappu rights, the proceedings of the suit have to be stayed under Section 125 (3) of the Act. The learned Munsiff has not considered whether any question or matter to be settled, decided or dealt with by the authority under the Land Reforms Act, in fact, arose for consideration in the suit. On a mere plea of tenancy raised by a party, the court is not expected to refer, and stay the proceedings, and, for that, a question of tenancy for determination of the Land Tribunal must arise. If only a question of tenancy raised by the defendants arise for C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 41 ::
consideration, then alone the reference is to be made (See Kerala State H. W. Co-operative Society Ltd. v. Vadakke Madom Bhahmaswom {1996 (1) KLT 282}, Thomas Antony v. Varkey {2000 (1) KLT 12 (SC)} and Madhavi Amma v. Kesavan {2008 (1) KLT SN 49 (C.No.50)}. If the question of tenancy does not legally arise or the claim so raised is barred by res judicata, the civil court cannot make a reference. It has to look into the question whether the claim is false, mala fide or illegal especially when a reference is resisted by the other party contending that there is already a concluded decision by issue of a purchase certificate by the Land Tribunal, recognising the opposite party as a cultivating tenant entitled to fixity of tenure. On a mere plea of setting forth a claim of tenancy, it cannot be stated a question of tenancy for determination by the Land Tribunal arose for consideration. From the undisputed facts it is C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 42 ::
shown that the claim of tenancy so set up will not arise for consideration for the reason that the claim is prima facie not sustainable or it is barred under law the question of tenancy canvassed need not and in fact not to be referred to the Land Tribunal for determination. In the context, it is to be noticed that once a purchase certificate has been issued by the Land Tribunal over a land in favour of a party recognising his status as a cultivating tenant entitled to fixity of tenure, the Land Tribunal has no authority in a separate proceeding at the instance of another party to sit in judgment on the merit and value of that certificate. So far as the Tribunal is concerned, it is also bound by the conclusive nature of the purchase certificate already issued unless and until it is set aside under any mode or procedure known by law. Section 72(K)(2) of the Act cast an irrefutable presumption of law that a C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 43 ::
certificate of purchase issued by the Land Tribunal to the cultivating tenant shall be conclusive proof of assignment to the tenant of the right, title and interest of the landowner and the intermediaries over the land to which the assignment relates. The defendants 13 to 19, who have set up a rival claim of tenancy over the land and applied for reference to the Land Tribunal for determination of their claim of tenancy, have no case that they have impeached the purchase certificate issued in favour of the predecessor of the plaintiffs, late Vareed Jacob by the Land Tribunal. The Tribunal, having already issued a purchase certificate, is bound by the certificate issued earlier as mandated under Section 72(K)(2) of the Act. The apex court and also this Court have held that the above direction under the Statute is a rule of substantive law (See Chettiam Veettil Ammad and another v. Taluk C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 44 ::
Land Board and others {AIR 1979 SC 1573} and K.T.Gopalan Nambiar v. The Taluk Land Board & Others {1987 KLJ 154}). Such being the position of law, Ext.P10 order passed by the learned Munsiff referring the claim of tenancy canvassed by defendants 13 to 19, without examining the question whether any question or matter to be determined by the Tribunal arose for consideration in the suit, cannot be sustained. The reasons stated for making the reference are no reasons at all, and the court below has to examine the question afresh whether any reference to the Land Tribunal is called for in the present case.
18. In the result, the judgment rendered by the Appellate Authority (Land Reforms), Alappuzha in A.A.No.90 of 2005 is set aside, and the revision is allowed. The above appeal preferred by the 1st respondent, which, from inception, was not entertainable, nor C.R.P.NO.754 of 2006 & W.P.(C)No.11921 of 2007 :: 45 ::
receivable on the file of the Appellate Authority, shall stand rejected.
The Writ Petition is allowed setting aside Ext.P10 order passed by the learned Munsiff, Ernakulam. The court below shall examine whether any issue over the claim of tenancy canvassed by defendants 13 to 19 is to be settled in the suit for adjudication, and if so, a reference is called for under Section 125 (3) of the Act, taking note of the observations made above and in accordance with law.
Sd/-
(S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy//