Avarangal Rahim v. State of Kerala & Others (CRP(LR) No. 8 of 2014)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN WEDNESDAY, THE 26TH DAY OF NOVEMBER 2014/5TH AGRAHAYANA, 1936 CRP(LR).No. 8 of 2014 ------------------------AGAINST THE ORDER IN CR 2/1973 of TALUK LAND BOARD, TIRUR DATED 19-12-2013) PETITIONER: -------------- AVARANGAL RAHIM S/O.MOHAMMED @ BAVA HAJI, THIRUNAVAYA AMSOM EDAKKULAM DESOM, P.O.THIRUNAVAYA, MALAPPURAM DISTRICT. BY ADVS.SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN RESPONDENTS& STATE: --------------------------- 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE TALUK LAND BOARD, TIRUR REPRESENTED BY ITS CHAIRMAN, TIRUR MALAPPURAM DISTRICT-676 505. 3. THE TAHSILDAR, TIRUR, MALAPPURAM DISTRICT-676 505. ## BY ADV. GOVERNMENT PLEADER SRI. REJI JOSEPH. THIS CRP (LAND REFORMS ACT) HAVING BEEN FINALLY HEARD ON 26-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.BHAVADASAN, J.** **-------------------------------------------------Civil Revision Petition (LR) No.8 OF 2014 -------------------------------------------------Dated this the 26[th] day of November, 2014.** ## **O R D E R** The petitioner challenges the order dated 19.12.2013 of Taluk Land Board, Tirur whereby the Taluk Land Board declined to accept the claim put forward by the petitioner in respect of 48 cents of property comprised in various survey numbers including Resurvey No.327/1. 2. The Taluk Land Board in its proceedings indicated that the property comprised in R.S.No.327/1 in fact belongs to one Moideenkutty and found that he is in possession of excess land and it decided to take over about 1 Acre of excess land from Resurvey No.327/1. That attempt was resisted by the petitioner by filing a petition under Section 85(8) of the Kerala Land Reforms Act staking claim over 48 cents of property which he claimed to have obtained through various documents. According to the petitioner, the said property originally belonged to one Mohammed who had tenancy right over the property since 1959. **C.R.P.(LR) No.8/2014** **2** The lease was renewed in 1965 and later Mohammed purchased the jenm right of the property. The Talk Land Board, stating that one P.K. Moideenkutty was in possession of the properties including the property in R.S.No.327/1, decided to take over an extent of 1 Acre from the said survey number. 3. On an earlier occasion, this Court was approached by the petitioner regarding the same issue and that writ petition namely, W.P.(C) No.34680/2009 was disposed of as follows: “In such circumstances, I dispose of this writ petition with a direction to the Taluk Land Board, Tirur to consider Ext.P1 application filed under Section 85(8) of the Kerala Land Reforms Act and pass orders thereon after notice to and affording the petitioner and the declarant a reasonable opportunity of being heard. Final orders in the matter shall be passed within four months from the date on which the petitioner produces or the Taluk Land Board receives a certified copy of this judgment. The Taluk Land Board shall after orders are passed, communicate a copy thereof to the petitioner. Till such time as orders are passed as directed above and for a period of two weeks from the date of communication of the order to the petitioner, the lands involved in Ext.P1 application namely, the land situated in Resurvey No.327/1 of Thirunavaya **C.R.P.(LR) No.8/2014** **3** Amsom Desom, Tirur Taluk, Malappuram District having an extent of 48 cents shall not be assigned to third parties. It is clarified that nothing contained in this judgment will stand in the way of the State Government from taking steps to assign the lands other than the lands involved in this writ petition to third parties”. 4. The petitioner who was relegated to the Taluk Land Board agitated his claim and pointed out that in order to identify the property, an Advocate Commissioner and Surveyor had to be deputed so that the issue can be finally determined. It seems that the Taluk Land Board was reluctant to do so and it relied on the Revenue Inspector's report. The petitioner again pointed out that it is because of motivated Revenue Inspector's report that the petitioner insisted for issuance of commission for which the Taluk Land Board was not prepared. The Taluk Land Board went on to point out that the Revenue Inspector and the Taluk Surveyor had verified the records and found that the petitioner had no property in R.S.No.327/1. In fact, on the basis of this data, the Taluk Land Board even went to the extent of stating that the petitioner had encroached into the property in **C.R.P.(LR) No.8/2014** **4** R.S.No.327/1 and put up a wall. Holding that the petitioner does not own property in R.S.No.327/1, his claim was rejected. 5. Sri.K.Ramachandran, learned counsel appearing for the petitioner, contended that in spite of the definite prayer made before the Taluk Land Board to have the property identified with the help of a Commissioner and Taluk Surveyor, for reasons best known to the Taluk Land Board, it was not prepared to do so. The petitioner had specifically pointed out that the Revenue Inspector's report cannot be relied on for various reasons and also produced the documents on which he placed reliance for his claim. It is pointed out by the learned counsel that in some of the documents, survey No.327/1 is shown whereas in certain documents, the said survey number is not shown. Under these circumstances, it was absolutely necessary to identify the property covered by the document relied on by the petitioner and to ascertain whether the claim made by him that he has property in R.S.No.327/1 is justified. 6. Learned counsel appearing for the petitioner relied on the decisions in _**A. Narayanan Nair** vs._ _**Moyu**_ (1958 KLT 750), **C.R.P.(LR) No.8/2014** **5** _**Mariyumma** vs._ _**Beepathumma**_ (1988 (2) KLT 384) and in _**Jayasree** vs._ _**State of Kerala**_ (1990 (2) KLT 294) and pointed out that though the Revenue Inspector's report may be relevant, it is only an item of evidence and it cannot be given undue importance. On the other hand, pointing out Section 101 of the Kerala Land Reforms Act and the relevant rule in the Kerala Land Reforms (Tenancy) Rules, it is pointed out that the Taluk Land Board is competent to issue a commission for the purpose of collecting the data and there is no justification as to why the Taluk Land Board should not have exercised that power in the case on hand. Even now, according to the learned counsel, the property which he claims by virtue of a document had not been identified and without identifying the same, it is not possible to understand how the Taluk Land Board has come to the conclusion that the petitioner did not have property in R.S.No.327/1. The observation of the Taluk Land Board that the petitioner might have trespassed into the property is without any basis and in fact in one of the reports it was mentioned that certain extent of property is in possession of the petitioner and that property is **C.R.P.(LR) No.8/2014** **6** having compound wall on its four sides. These vital aspects have been omitted to be noticed by the Taluk Land Board and that has resulted in a wrong order being passed. 7. Learned Government Pleader, on the other hand, pointed out that there is nothing to interfere with the order of the Taluk Land Board since the order is passed based on materials available on record and the Revenue Inspector's report specifically stated that the petitioner holds no land in R.S.No.327/1. It is pointed out that the petitioner was not at all successful in showing that the property obtained by him was comprised in R.S.No.327/1 and therefore the stand taken by the Taluk Land Board based on the materials before it cannot be disturbed. In short, it is pointed out that there is no merit in the petition and it is only to be dismissed. 8. The core issue that arises for consideration is whether the petitioner's claim that he has property in R.S.No.327/1 also is correct or not. It is true that his property spreads over in other survey numbers. The mere fact that the Taluk Land Board has assessed that an extent of 1 Acre of land in survey No.327/1 **C.R.P.(LR) No.8/2014** **7** belongs to one Moideenkutty does not mean that the petitioner cannot hold land in that survey number. It is significant to notice that the petitioner does not claim the entire 1 Acre of land but he claims only a portion of the property in R.S.No.327/1. It may be true that the documents produced by the petitioner may not contain the survey No.327/1. But a property is seldom identified with survey number alone. It is well settled rule that identification of the property is not with reference to its survey number alone. Usually, a property is identified with respect to its boundaries. 9. In the case on hand, the petitioner had specifically pointed out that the Revenue Inspector's report cannot be accepted for various reasons and he had prayed for issuance of commission to prepare plan and report of the property held by him as per various deeds with the help of a Surveyor. As rightly pointed out by the learned counsel for the petitioner, Section 101 of the Kerala Land Reforms Act read with Rule 92 of Kerala Land Reforms (Tenancy) Rules gives ample powers to the Taluk Land Board to issue a commission for any purpose. One cannot **C.R.P.(LR) No.8/2014** **8** understand why that power was not exercised when there was specific demand for the same. All along the petitioner's prayer was to identify the property covered by his documents of title. For reasons best known to Taluk Land Board, it was not prepared to do so and the statement in the impugned order was that Revenue Inspector and the Taluk Surveyor had perused the records and found that there was no property in R.S.No.327/1. The definite stand of the petitioner was that though R.S.No.327/1 was absent in the deed, it takes in property comprised in R.S.No.327/1 and that would be evident if the property obtained by him was identified with respect to its boundaries. 10. It cannot be disputed that the petitioner claims only 48 cents as his property spreads over in three survey numbers. Without identifying that property, it could not have been said that the petitioner holds no property in R.S.No.327/1. 11. One cannot understand the basis on which the Taluk Land Board jumped to the conclusion that the petitioner has forcibly occupied a portion of property in R.S.No.327/1 and put up a compound wall. The issue is regarding the identity of the **9** ## **C.R.P.(LR) No.8/2014** property and whether his property is in any portion of R.S.No.327/1. That issues have not been considered in the proper perspective. In the result, this petition is allowed and the impugned order is set aside and the matter is remanded to the Taluk Land Board for fresh consideration in accordance with law and in the light of what has been stated above. The parties will appear before the Taluk Land Board on 23.12.2014. They will be at liberty to adduce further evidence if they so choose. Sd/- **P.BHAVADASAN JUDGE** smp // True Copy // P.A. To Judge.