A. Santha Kumari v. State of Kerala and Others (CRP No. 517 of 2010)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934 CRP.No. 517 of 2010 ( ) ----------------------AA.44/2008 of APPELLATE AUTHORITY, KANNUR REVISION PETITIONER(S)/3RD APPELLANT: ----------------------------- A.SANTHA KUMARI, AGED 75 YEARS, D/O.MADHAVI AMMA @ UCHIRIAMMA, P.O.PATTANNUR, CHOLA THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.MAHESH V RAMAKRISHNAN RESPONDENT(S)/STATE AND RESPONDENT 2 & 3/APPELLANT 1 &: ------------------- 1. STATE OF KERALA, - REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. DEPUTY COLLECTOR, LAND TRIBUNAL, KANNUR. 3. THE VILLAGE OFFICER, KANNAPURAM VILLAGE OFFICE, KANNUR TALUK KANNUR DISTRICT. - 4. KOUVATHILE KIZHAKKEVEETTIL JANAKI, D/O.LAKSHMI AMMA (LATE), KANNAPURAM AMSOM - P.O.MOTTUMMAL, VIA CHERUKUNNU, KANNUR DISTRICT - 673 019 - 5. KOUVATHILE KIZHAKKEVEETTIL KUNHIKRISHNAN S/O.LAKSHMI AMMA (LATE), KANNAPURAM AMSOM P.O.MOTTUMMAL, VIA CHERUKUNNU, KANNUR DISTRICT - 673 019 (THE WORD 'DEAD' SHOWN TOWARDS THE NAME OF 4TH AND 5TH RESPONDENTS IS CORRECTED AS 'LATE' AS PER ORDER DATED 22.12.2010 IN I.A.NO.3189/2010) - 6. A.BALAGOPALAN NAIR, AGED 78 YEARS, S/O.MADHAVI AMMA @ UCHIRIAMMA, NADUVALOOR AMSOM NADUVALOOR DESOM, MANANTHAVADI TALUK WAYANAD DISTRICT C.R.P.NO.517 OF 2010 : 2 : - 7. A.RAMACHANDRAN NAIR, S/O.MADHAVI AMMA, AGED 70 YEARS, THALIPARAMBA AMSOM THALIPARAMBA TALUK, P.O.KUTTIKOL, KANNUR DISTRICT. (R6 AND R7 ARE REMOVED FROM THE ARRAY OF PARTIES AT THE RISK OF THE PETITIONER AS PER ORDER DATED 13.12.2010 IN I.A.NO.3037/10) BY ADV. SRI.V.RAJENDRAN (R4 & R5) BY ADV. SRI.P.SAMSUDIN (R4 & R5) BY ADV. SRI.T.SETHUMADHAVAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.CHITAMBARESH, J.** ------------------------------- **C.R.P.No. 517 of 2010** ------------------------------- ------------------------------- ## **Dated this the 5[th] day of June, 2012** ## **O R D E R** An order refusing to condone the delay in filing an appeal before the Appellate Authority under the Kerala Land Reforms Act is under challenge. 2. The predecessor-in-interest of the petitioner by name Uchiramma @ Madhavi Amma was issued a certificate of purchase by the Land Tribunal, Kannur. The same was in O.A.No.13207 of 1976 and the purchase certificate bears the number 304/1977 in relation to 2.42 Acres in R.S.No.71/4 (Old Survey No.69) of Kannapuram Village in Kannur Taluk. It is stated that this item of property forms part of Item No.2 of the plaint schedule in a suit for partition as O.S.No.47 of 1989 on the file of the court of the Subordinate Judge of Thalassery. 3. The predecessor-in-interest of respondents 4 and 5 by name Lakshmi Amma obtained a certificate of purchase in respect of 1 acre of land in the same survey number C.R.P.NO. 517 OF 2010 2 (R.S.No.71/4) of Kannapuram Village in Kannur Taluk. This was in suo motu proceedings initiated and the purchase certificate was issued in S.M.198 of 1989 of the same Land Tribunal. The petitioner on coming to know that the predecessor-in-interest of respondents 4 and 5 has obtained a purchase certificate in respect of one and the same land filed an appeal under Section 102 of the Kerala Land Reforms Act. The contention in her affidavit accompanying the application for condonation of delay was that she knew about the certificate of purchase in S.M.98 of 1989 only when she went to the village office to remit basic tax. The appellate authority refused to condone the delay and dismissed the appeal without entering into the merits on the ground that each day's delay has not been explained. ## 3. The Supreme Court has in **Patinhare Purayil** ## **Nabeesumma v. Miniyatan Zacharias and Another** (AIR 2008 SC 1456) has held in paragraph 32 as follows:- 32. A certificate issued under S.72K of the Act is conclusive. Once the same is found to be conclusive, the same cannot be refused to be taken into consideration for any purpose whatsoever. The only issue which, C.R.P.NO. 517 OF 2010 3 therefore, should have been raised by the High Court was as to who was entitled thereto, keeping in view the fact that the Land Tribunal had granted certificates of assignment to both the parties. In view of the statutory scheme, both the parties could not have been given the certificates of assignment. The certificate in favour of the appellant, even otherwise, having been granted earlier and the same having not been set aside on the ground of fraud or illegality, it was conclusive even as against the Land Tribunal. The Land Tribunal, therefore, had no jurisdiction to issue a second certificate. There cannot be two certificates of purchase in favour of two different persons in relation to the same land. The predecessorin-interest of the petitioner had allegedly obtained a purchase certificate as early as in the year 1977 whereas the predecessor- in-interest of respondents 4 and 5 had obtained the purchase certificate only in the year 1990. As to which purchase certificate will prevail is a matter to be considered by the Appellate Authority after hearing both the parties in extenso. This assumes importance especially when the property is said to be included in a suit for partition in O.S.No. 47 of 1989 in which respondents 4 and 5 are not parties. C.R.P.NO. 517 OF 2010 4 4. Further question to be considered is whether the property claimed by the parties is one and the same since respondents 4 and 5 have a contention that the total extent in R.S.No.71/4 is 21 acres. The contention of the petitioner that she came to know about the rival purchase certificate only when she went to the Village Office to remit tax cannot altogether be brused aside. Every endeavour should made to have the lis disposed of on merits rather than non-suiting a party on the ground of delay. There is ofcourse some laches on the part of the petitioner in not filing an appeal against the order in S.M.198 of 1989 earlier. Such laches can be compensated and the delay condoned by directing the petitioner to pay costs to respondents 4 and 5. 5. The order impugned is set aside and I.A.No.140 of 2008 is allowed on condition that the petitioner pays a sum of Rs.10,000/- to the counsel for respondents 4 and 5 in the Civil Revision Petition within a period of one month from today. The Appellate Authority (Land Reforms, Kannur) shall thereafter dispose of A.A.No.44 of 2008 on merits after calling for the C.R.P.NO. 517 OF 2010 5 records from the Land Tribunal, Kannur in S.M.No.198 of 1989. The order impugned will remain intact in case the petitioner omits to pay the costs as directed above. The Civil Revision Petition is allowed as above. No costs. **V.CHITAMBARESH, Judge.** nj. Certified that the Revision Petitioner tendered to pay an amount of ` 10,000/- as costs to the respondents 4 and 5 which they refused to accept and that the direction to pay cost has been deemed to be complied within time by the Revision Petitioner and C.R.P. treated as having been allowed, as per order dated 12/07/2012 in C.R.P. 517 of 2010. Sd/Registrar (Judicial) ## **V.CHITAMBARESH, J.** -------------------------------------- C.R.P.No. 517 of 2010 ## **O R D E R** Dated:- 5[th] June, 2012 --------------------------------------