Alikunju Mohammed Haneefa v Narayanaru Krishnaru

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE A.K.BASHEER** **TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930** **CRP.No. 1166 of 1996(B)** **----------------------------------** **AGAINST THE ORDER DATED 24/07/1995 IN AA.1694/76 APPELLATE AUTHORITY (LR),ATTINGAL O.A.. NO.522/75 (LT), THIRUVANANTHAPURAM)** **....................** ## **REVN. PETITIONER - APPELLANT - APPELLANT:** **--------------------------------------------------------------** **ALIKUNJU MOHAMMED HANEEFA, THUNDUVILAKATHU VEEDU, SREEKARYAM, CHERUVAKKAL VILLAGE.** **BY ADV. SRI.G.S.REGHUNATH SRI.MOHAN JACOB GEORGE** ## **RESPONDENTS - RESPONDENTS:** **--------------------------------------------** **1. NARAYANARU KRISHNARU, SREEKARYATHU MADAM, PANGAPPARA VILLAGE.** ## **2. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY.** **FIRST RESPONDENT IS DELETED FROM THE ARRAY OF PARTIES VIDE ORDER DATED 15.2.2006 IN CMP 1959 OF 1996** **BY GOVERNMENT PLEADER SHRI AMJETH ALI SRI.M.RAMASWAMY** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/04/2008 ALONG WITH CRP NO. 72 OF 1996 & CRRP NO. 75 OF 1997, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **vsv** ## **A.K.BASHEER, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.Nos.1166, 72 OF 1996 & Crl.R.P.75 OF 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of April 2008 ## **ORDER** Since the issues involved in these three petitions are common and closely inter related, they are being disposed of by this common order. 2. C.R.P.72/96 and C.R.P.1166/96, preferred under Section 103 of the Kerala Land Reforms Act, 1963 (Act I of 1964), are directed against a common order passed by the Appellate Authority (Land Reforms) Attingal. 3. Petitioners had applied before the Land Tribunal, Trivandrum, under Section 72 B of the Act for assignment of the landlords’ right. The applicants in O.A.522/75 claimed tenancy right in respect of 15 cents of land situated in Survey No.139 of Cheruvikkal Village in Thiruvananthapuram district. The applicant in O.A.523/75 also claimed tenancy right over 15 cents in the same survey number and the applicant in O.A.269/75 claimed similar right in respect of 98 cents in the above survey number. These applications were dismissed by the Land Tribunal C.R.P.Nos.1166 & 72 OF 1996 :: 2 :: initially by its separate orders dated November 3, 1975. The above orders were challenged by the applicants before the Appellate Authority (Land Reforms) Attingal in three separate appeals viz. A.A.1694/1976, A.A.1368/1977 and A.A.325/1976. 4. In this context, it is pertinent to note that one N.Chellappan (who is no more and his legal representatives are on record as additional respondents 8 to 16 in C.R.P.72/96) had filed O.A.313/1974 claiming tenancy right over the entire extent of land viz. 2.34 acres in the very same survey number. Admittedly, the Land Tribunal, Trivandrum had allowed the above application by its order dated December 16, 1974. 5. The three applicants referred to above (in O.A.Nos.522, 523 and 269 of 1975) challenged the said order of the Land Tribunal passed in favour of Sri.Chellappan also before the Appellate Authority in A.A.408/1978. Thus four appeals were filed by the applicants along with applications for condonation of delay, (there was more than two years' delay in filing the appeal against the order in favour of Chellappan (A.A.408/1978). It was contended by the applicants that they were not aware of the C.R.P.Nos.1166 & 72 OF 1996 :: 3 :: above order passed in favour of Chellappan till they came to know about the same only during the pendency of the proceedings before the Sessions Court (I will deal with the above proceedings a little later in the judgment). 6. Anyhow, all the four appeals were considered by the Appellate Authority after condoning the delay. The appeals were allowed by the Authority by its common order dated December 23, 1985. The Appellate Authority remitted the four cases to the Land Tribunal after setting aside the grant of purchase certificate in favour of Chellappan and directed the Tribunal to consider the case afresh after affording opportunity to adduce further evidence to the applicants in their applications for purchase of tenancy rights. 7. The said order of remand was challenged by Chellappan before this court in O.P.944/1986. The original petition was disposed of by judgment dated October 16, 1990 with the following direction: “The authority below has not addressed itself to the question of limitation, as it should have. The authority must examine whether on the facts there was delay and C.R.P.Nos.1166 & 72 OF 1996 :: 4 :: whether an application was made for condonation, and also whether there are valid grounds for condonation. Exts.P1 to P4 are quashed and the matter is remitted to the 17[th] respondent for fresh consideration in accordance with law with notice to the parties.” (emphasis supplied) 8. A perusal of the order issued by this court will show that the appellate authority was primarily directed to consider the question of limitation. As mentioned earlier, the applicants had raised a specific contention that they were not aware of issuance of the purchase certificate in favour of Chellappan in respect of the entire extent of 2.34 acres, till it was revealed before the Sessions Court in Crl.R.P.37/1981 which arose from a proceeding under Section 145 of the Code of Criminal Procedure. In the said proceedings, Sri.Chellappan was the A party and one Veluthan Pichan and some of the applicants were arrayed as B parties. The Sub Divisional Magistrate had appointed the Village Officer as Receiver in view of the dispute with regard to the above property. The said order was challenged by Chellappan before the Sessions Court in which he had contended that the Land Tribunal had already issued purchase certificate in his favour C.R.P.Nos.1166 & 72 OF 1996 :: 5 :: respect of that property. The applicants, contended before the Appellate Authority that there was no delay in filing the appeal if the period of limitation was reckoned from the date of knowledge. Therefore, in the agreement referred to above, this court wanted the appellate authority to consider the question of limitation and also to find out whether an application was in fact filed for condonation of delay in A.A.408/1978. 9. The Appellate Authority proceeded to pass an order pursuant to the above direction issued by this court which is under challenge in the two Civil Revision Petitions. The Appellate Authority found that the delay in filing the four appeals was liable to be condoned. Accordingly, the delay was condoned through separate orders dated February 21, 1994. 10. It may at once be noticed that on verification of the lower court records, it is seen that four separate applications were filed by the applicants for condonation of delay in the four appeals in question. In the affidavit in support of the application in A.A.408/1978, the applicants had specifically contended that they came to know about the order passed by the Land Tribunal C.R.P.Nos.1166 & 72 OF 1996 :: 6 :: in favour of Chellappan only from the proceedings pending before the Sessions Court. Anyhow, the Appellate Authority found that the delay in filing the four appeals was liable to be condoned. However, the Appellate Authority after doing so, proceeded to consider the four appeals on merit and held that the applicants were not entitled to purchase the ‘janmam right’ in respect of the holdings, which they claimed were in their possession. Simultaneously, the Appellate Authority also held that the purchase certificate issued in favour of Chellappan, in respect of 2.34 acres, was legal and valid. 11. The short question that arises for consideration is whether the above common order passed by the Appellate Authority is legal and sustainable. 12. It is contended by learned counsel for the revision petitioners/applicants that the Appellate Authority had exceeded its jurisdiction while passing the impugned order. Learned counsel contends that this court had only directed the Appellate Authority to consider the question of limitation while remanding the four appeals. The authority was specifically directed to C.R.P.Nos.1166 & 72 OF 1996 :: 7 :: examine “whether on the facts there was delay and whether an application was made for condonation and also whether there are valid grounds for condonation.” (emphasis supplied). The Appellate Authority, after considering the above question, had found that that there was valid and justifiable reasons to condone the delay. Accordingly, delay was condoned. But according to the learned counsel, the Appellate Authority was not justified in proceeding further and deciding the appeals on merit and that too going at a tangent and on consideration of irrelevant factors and non-existing materials. 13. Per contra, it is contended by Sri.Achuthakurup, learned senior counsel, that the Appellate Authority was perfectly justified in considering the appeals on merit since this court had remitted the matter back to the authority for fresh consideration in accordance with law. It is further contended by the learned senior counsel that the earlier order passed by the appellate authority was not based on the materials available on record and that the said order would not have got revived for the mere reason that in the subsequent order the appellate authority had C.R.P.Nos.1166 & 72 OF 1996 :: 8 :: condoned the delay. 14. I have carefully perused the records of the Tribunal and the Appellate Authority. As mentioned earlier, the specific case of the applicants was that they had not been afforded any reasonable opportunity to adduce evidence in their respective cases by the Land Tribunal. These applications were disposed of within three or four months of their filing. Curiously, the Land Tribunal had passed identically worded orders between August and November 1975 stating that the applicants in the three cases had not produced any evidence or filed any objection to the report of the authorised officer. The Tribunal further observed that it was evident from the report of the authorized officer that there was no tenancy in respect of the holding. On a perusal of the report of the authorized officer dated July 28, 1975 in O.A.269/75, it is seen stated that the entire property of 2.34 acres is in the possession of one Govindan Potti, Sambu potti on Ottikuzhikanam and that the said Sambu Potti had filed an application for purchase of janmam right. It is further stated that about 40 cents of the property is seen to have been planted with C.R.P.Nos.1166 & 72 OF 1996 :: 9 :: tapioca by somebody. In the report submitted by the authorized officer in O.A.522/75 the very same officer had stated that the applicant in that case had been in possession of about 15 cents of land and he had planted tapioca as a trespasser. More curiously, the officer further stated that apart from the applicant in that case several other persons had also been keeping possession of other portions of the same property and that they were in enjoyment of the respective plots. Curiously, the Tribunal relied on these reports, which undoubtedly indicated that some people were found in possession. Even assuming these persons were trespassers, the report definitely indicated that “some persons” were found in possession. Necessarily therefore, the Tribunal ought to have conducted an enquiry and found out whether the claim of tenancy put forth by the applicants was genuine or not or there was any legal basis for the claimants to make such a claim. 15. In this context, it is also necessary to peruse and refer to the relevant file relating to the application submitted by Sri.Chellappan. It is seen from the record that Sri.Chellappan C.R.P.Nos.1166 & 72 OF 1996 :: 10 :: had initially filed an application showing Sambu Potti as the landlord. Later, this application was withdrawn and a fresh application was filed showing Narayanaru Krishnaru as the landlord. In his application Chellappan had specifically mentioned that he had been put in possession on the strength of a 'Pata Cheettu' of the year 1124 of the Malayalam Era. When Chellappan was examined before the Tribunal, he admitted that he did not have the said document with him. According to him, the document was lost in a fire. More significantly, Chellappan did not produce any document like 'Purappad receipt' or such other document issued by the Landlord to him for the payment of any rent for the property. 16. The specific case of Chellappan was that he had been put in possession of the property by Narayanaru Krishnaru in 1124 Malayalam Era. But as mentioned earlier, Chellappan had shown the name of Sambu Potti as the landlord in his application filed initially. In his deposition, Chellappan had further stated that he had been paying Rs.60 as rent every year. But he had not produced any rent receipt. I have referred to these aspects only C.R.P.Nos.1166 & 72 OF 1996 :: 11 :: to indicate that there was no document before the Tribunal to show that Chellappan had been keeping possession of the property as a tenant as claimed by him. 17. It is further contended by the learned Senior counsel that the appeals preferred by the applicants were themselves not competent since they had been filed without obtaining leave as held by this court in **Kerala State Electricity Board v Cyriac Stephen [1981 KLT 804]** . I am afraid the above contention raised by the learned Senior counsel cannot be sustained. A perusal of the provisions contained in Section 102 will make it abundantly clear that any aggrieved party can challenge the order passed by the Tribunal. It is also pointed out by learned Senior counsel that Sambu Potty referred to above had in fact challenged the order passed by the Tribunal in favour of Chellappan. The said appeal was dismissed by the Appellate Authority. Thus, it is contended by the learned Senior counsel that in the order of issue of purchase certificate in favour of Chellappan had become final and conclusive. 18. Having perused the entire materials available on C.R.P.Nos.1166 & 72 OF 1996 :: 12 :: record, I have no hesitation to hold that the entire issue has to be considered afresh by the Tribunal. The claims made by applicants and Chellappan have to be examined afresh as rightly noted by the Appellate Authority in its first order. 19. A perusal of the order of this court in O.P.944/1986 undoubtedly shows that this court had only considered the question of limitation in that case. The orders passed by the Appellate Authority in the four appeals had been set aside and the cases were remitted to the authority for fresh consideration in accordance with law. In my view, the Appellate Authority had only to consider whether there was justification for condonation of delay and that too only if the applicants had filed a proper application for condonation of delay. The records reveal that the applicants had in fact filed a petition for condonation of delay in the appeal challenging the order of issue of purchase certificate in favour of Chellappan (AA 408/78). That being the position,after having found that the delay was liable to be condoned, the appellate authority was not justified in reconsidering the matter on merit. The authority could not have C.R.P.Nos.1166 & 72 OF 1996 :: 13 :: exercised any appellate or revisional power over the order passed by the same authority. 20. Having perused the two orders of the Appellate Authority, I have no hesitation to hold that the order passed by the Appellate Authority initially viz. on December 23, 1985 remitting the cases back to the Tribunal is eminently legal, just and valid. The orders passed by the Appellate Authority which are impugned in this revision petitions cannot be sustained. Therefore, those orders are set aside. 21. The Land Tribunal shall consider the four applications afresh in accordance with law after affording sufficient opportunity to the parties. It is true that the applicants in O.A.523/75 had challenged the order of the Appellate Authority before this court in C.R.P.1292/96. The said petition was dismissed by this court for non prosecution, since the petitioner had failed to take steps to serve notice on the respondents. It is pointed out by learned Senior counsel that the petitioners in that C.R.P. cannot now revive the challenge against the order of the Appellate Authority on the plea that they have filed a composite C.R.P.Nos.1166 & 72 OF 1996 :: 14 :: C.R.P. against the common order passed by the Appellate Authority in the four cases in CRP 72/96. It is pointed out by learned counsel for the applicants that a joint appeal had been filed by the applicants before the Appellate Authority as A.A.408/1978. Since those four appeals were disposed of by the Appellate Authority by a common order, the applicants have preferred a single petition as CRP 72/96 challenging the said order. I do not propose to go into the technicality of the issue since it is on record that after the death of Chellappan his legal representatives had been prosecuting this case before this court in two C.R.Ps. (C.R.P.72/96 and C.R.P.1166/96). 22. The learned Senior counsel has raised a further contention that in C.R.P.72/96, the landlord, namely, Narayanaru Krishnaru is not a party. His name was deleted at the instance of the petitioners and therefore the claim for tenancy right in the absence of the landlord can not be considered. This issue also is being left open at this stage. It will be open to the parties to adduce evidence before the Tribunal. As mentioned earlier, Sri.Chellappan had in fact shown Sambu Potti as the landlord. C.R.P.Nos.1166 & 72 OF 1996 :: 15 :: Later, he had impleaded Narayanaru Krishnaru. The report of the authorized officer had indicated that the Sri.Sambu Potti had been in possession of the entire property in Ottikuzhikanam. 23. Having regard to the entire facts as revealed from the records, I have no hesitation to hold that the Land Tribunal has to necessarily consider the entire matter afresh after issuing notice to all the parties. Ordered accordingly. Crl.R.P.75 OF 1997 24. This Criminal Revision Petition is at the instance of Chellappan who was arraigned as A party in the proceedings before the Sub Divisional Magistrate, Thiruvananthapuram in respect of the property mentioned above having an extent of 3.24 Acres for which Chellappan had obtained purchase certificate from the Land Tribunal. 25. During the pendency of this revision, Chellappan died and his legal representatives have been impleaded. 26. The Sub Divisional Magistrate had initiated the proceedings on October 23, 1976 in respect of the entire extent C.R.P.Nos.1166 & 72 OF 1996 :: 16 :: of 2 acres 34 cents on the basis of the report submitted by the Sub Inspector of Police, Medical College Police Station. An order of attachment under Section 146(1) Code of Criminal Procedure was passed and the Village officer was appointed as Receiver. The Village Officer took possession on November 6, 1976. 27. Late Chellappan had approached the Sub Divisional Magistrate with a prayer to put him in possession of 1.25 Acres, when the civil suit filed by one Pichan in respect of that extent was dismissed. The learned Magistrate passed an order on July 22, 1977 directing that A party (Chellappan) be put in possession of 1.25 cents. 28. The above order was challenged by B party before the Sessions Court in Crl.R.P.109/1977 and 14/1977. The two revision petitions were disposed of by the Sessions Court through a common order dated November 19, 1977. By this order, the learned Sessions Judge directed that 1 acre and 9 cents out of 2.34 cents shall continue in the possession of the receiver. In other words, 1 acre 25 cents of land was allowed to be retained by Chellappan. C.R.P.Nos.1166 & 72 OF 1996 :: 17 :: 29. The said order was challenged before this court in Crl.R.P.352/77 by Chellappan. The revision petition was dismissed by this court by its order dated January 1, 1979 directing that status quo as on that day be maintained till the matter was disposed of by the Sub Divisional Magistrate. 30. Thereafter, when the O.A's filed by the petitioners in the CRP's were dismissed by the Tribunal, Chellappan had moved the Sub Divisional Magistrate again to put him in possession of 1.09 acres also over which the three applicants had claimed tenancy. But the Sub Divisional Magistrate passed an order holding that 1 acre 9 cents shall remain under the Receiver till the disposal of CRP 72/96 pending before this court. In short, an extent of one acre nine cents is still in possession of the Village Officer as Receiver. 31. Since I have already found that the question of tenancy has to be decided by the Land Tribunal afresh, I am of the view that status quo as on today shall continue and the Village Officer shall continue to be in possession of 1 Acre and 9 cents as receiver till final orders are passed. C.R.P.Nos.1166 & 72 OF 1996 :: 18 :: 32. Criminal Revision Petition is disposed of as above. In the result, Civil Revision Petitions and Criminal Revision are disposed of in the above terms. jes **(A.K.BASHEER, JUDGE)**