C.R.P. Nos. 1764, 1943 & 2180 of 2000

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 CRP.No. 1764 of 2000(C) ----------------------AGAINST THE ORDER DATED 17/11/1999 IN I.A.NO.133/92 IN AA.170/92 OF THE APPELLATE AUTHORITY (LAND REFORMS), KANNUR S.M.NO.402/82 OF THE LAND TRIBUNAL, TALIPARAMBA. .................... REVN. PETITIONER(S): APPELLANTS – B PARTY : ------------------------------------------------------------------ 1. MAKERIYAM NAL.C.K.THANKAM THAMBURATTI, D/O.GODAVARMA RAJA JAYA MAHAL, P.O.CHIRAKKAL, KANNUR-11. 2. UTHRADAM NAL.C.K.RAVI VARMA RAJA S/O.THANKAM THAMPURATTY, -DO- 3. KARTHIKA NAL C.K. RAJA RAJA VARMA S/O.THANKAM THAMPURATTY, -DO- 4. PUNARTHAM NAL.C.K.KERALA VARMA RAJA S/O.THANKAM THAMPURATTY, STATE BANK OF INDIA, JAYA MAHAL, P.O. CHIRAKKAL KANNUR – 11. - BY ADV. SRI.K.RAMAKUMAR - SRI.T.RAMPRASAD UNNI - SRI.M.K.SUMOD RESPONDENT(S): RESPONDENTS – A PARTY -------------------------------------------------------- 1. POOVATHUMCHAL RAGHAVAN KANNAPURATH AMSOM DESOM P.O.KEEZHARA. 2. C.K.RAVI VARMA RAJA, CHIRAKKAL, KANNUR. 3. STATE OF KERALA, REPRESENTED BY THE - CHIEF SECRETARY, TRIVANDRUM. GOVERNMENT PLEADER FOR R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/01/2008, ALONG WITH CRP NO. 1943 OF 2000 AND CRP NO. 2180 OF 2000, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** ## **-------------------------------------------C.R.P. NOS.1764, 1943 & 2180 OF 2000 -------------------------------------------Dated this the 21st January, 2008** ## **O R D E R** A common question arises in these Civil Revision Petitions. The revision petitioners in these Revisions are the same. The contesting respondents in these Revisions, though different, are claiming tenancy right in respect of the land which is claimed by the petitioners. Therefore, all these Revisions are heard together and are being disposed of by this common order. 2. The revision petitioners in these Revisions are hereinafter referred to as the petitioners and the respondents are referred to as the tenants. 3. S.M.Nos.401 of 1982, 402 of 1982 and 404 of 1982 were initiated in favour of the tenants under Section 72C of the Kerala Land Reforms Act. The Land Tribunal passed orders in their favour holding that they are cultivating tenants. The tenant in S.M.No.401 of 1982 was held entitled to get assignment of an extent of 2.58 acres of land. The tenant in S.M.No.402 of 1982 was held entitled to assignment of an extent of six acres of land and the tenant in S.M.No.404 of 1982 was found to be entitled to get assignment of five acres of land. The petitioners herein ## C.R.P.No.1764, 1943 AND 2180 OF 2000 :: 2 :: were not made parties to the proceedings before the Land Tribunal. According to the petitioners, they were not aware of the proceedings before the Land Tribunal. 4. The petitioners filed O.S.No.295 of 1992, on the file of the Munsiff's Court, Kannur, against the tenants and others. The suit was filed originally for permanent prohibitory injunction. Later, a prayer for declaration of title and possession was also incorporated. It is an admitted case that the properties originally belonged to Chirakkal Kovilakam. The petitioners are members of Chirakkal Kovilakam. The case of the petitioners is that the properties claimed by the tenants were allotted to the petitioners as per the partition deed No.1392 of 1956, executed among the members of the Kovilakam. The properties are scheduled in schedule No.36 of the partition deed. According to the petitioners, they are in direct possession of the properties. In the suit, a written statement was filed on 27.10.1992, stating that the tenants have obtained purchase certificate from the Land Tribunal as per the orders in the three suo motu proceedings mentioned above. 5. The petitioners filed A.A.Nos.181 of 1992, 170 of 1992 and 171 of 1992, on the file of the Appellate Authority (Land Reforms), Kannur, challenging the orders passed by the Land Tribunal. There was delay in C.R.P.No.1764, 1943 AND 2180 OF 2000 :: 3 :: filing the appeals. Applications were filed by the petitioners for condoning the delay. In the applications, the petitioners contended that only when written statement in O.S.No.295 of 1992 was filed, they came to know about the proceedings before the Land Tribunal. On the same date they applied for certified copy of the orders of the Land Tribunal. Certified copies were received on 14.11.1992 and the appeals were filed on 21.12.1992. 6. The petitioners contended before the Appellate Authority that O.S.No.295 of 1992 was decreed in their favour by the civil court as per the judgment dated 23.8.1993. Though A.S.No.195 of 1993 was filed by one of the tenants, that appeal was dismissed on 12.7.1994. 7. The Appellate Authority held that the delay in filing the appeals is not liable to be condoned. Accordingly, the applications for condoning the delay in filing the appeals were dismissed and consequently, by the same judgment, the appeals were also dismissed. The petitioners challenge in these Revisions the judgment passed by the Appellate Authority. 8. The Appellate Authority mainly considered the merits of the appeals. With reference to the judgment of the civil court, the Appellate C.R.P.No.1764, 1943 AND 2180 OF 2000 :: 4 :: Authority held as follows: “Even though the present appellants have got certain lands in Re-survey No.47/1A and 47/1B etc. as per partition deed and also the decrees of the Munsiff Court and Sub Court are in favour of them they don't have any physical possession over the land in question. ..... Regarding the Munsiff Court order and Sub Court order, it can be seen that the tenancy matter was not discussed in the above decrees. The O.S filed by the appellant before the Munsiff Court is only for declaration and permanent injunction and not against the tenancy.” 9. The civil court considered the probative value of the certificates of purchase obtained by the tenants and held thus: “18. In this respect the decision reported in 1993 (1) KLJ at page No.1 is much relevant. It is a Full Bench decision. It deals extensively the finen points and the nuances of the filing of application for obtaining the order for fixity of tenure from the land tribunal and issuance of purchase certificate in pursuance to that. In that decision it is also clearly laid down if the civil court is satisfied that the purchase certificate issued and the order passed by the land tribunal on the basis of it, appears to be obtained by fraud and collusion, it is empowered to ignore those certificate of purchase and order by the Land tribunal. Yet another decision direct to the point on issue is the one reported in 1979 KLT at page No.412. It also deals with the powers of the civil court in ignoring the impact of the production of purchase certificate if it appears to the court that the order of the land tribunal was obtained by fraud or collusion. As already pointed out the oral lease set up by the defendant completely smack of fraud and further that the plaintiffs are not arraigned as respondents in the application for assignment of the landlord's right. Therefore, this court is of the definite and clear view that no value can be attached to the certificate of purchase and the orders of the land tribunal assigning the rights in relation to the parties of the properties to the plaint schedule.” C.R.P.No.1764, 1943 AND 2180 OF 2000 :: 5 :: The civil court also found that the plaintiffs have title and that they are in direct possession of the plaint schedule properties. The prayer for declaration of title and possession was granted by the civil court. The civil court also restrained the defendants by a permanent prohibitory injunction from interfering with the peaceful possession of the petitioners. In view of the categoric finding of the civil court, the Appellate Authority was not justified in ignoring the same. It is true that the authorities under the Kerala Land Reforms Act have exclusive jurisdiction to try and dispose of the claim in respect of tenancy rights. The Land Tribunal has also the jurisdiction to decide the question of tenancy in a matter referred to it by the civil court under Section 125(3) of the Kerala Land Reforms Act. In a suit in which the question of tenancy arises, the civil court has no jurisdiction to deal with the question of tenancy as the jurisdiction of the civil court is barred under Section 125 of the Act. But the jurisdiction of the civil court to decide the question whether a purchase certificate was obtained by fraud and/or collusion is not barred by Section 125 of the Kerala Land Reforms Act. In **Velappan** v. **Thomas** (1979 KLT 412) it was held that the civil court can go into the question of validity of the order of the Land Tribunal when it is proved that the order was got by fraud or collusion. It was held that the ouster of jurisdiction under Section 125 of the Kerala Land Reforms Act is limited to matters which are by or under C.R.P.No.1764, 1943 AND 2180 OF 2000 :: 6 :: the Act required to be settled, decided or dealt with by the Land Tribunal and that a dispute which cannot be decided by the statutory authorities constituted under the Land Reforms Act can be decided by the civil court under Section 9 of the Code of Civil Procedure. In _**Velappan's case**_ it was held thus: “Now to wind up my discussion, the conclusion that I arrive at is that the ouster of jurisdiction of civil Courts contained in S.125(1) and (2) of the Act, does not extend to questions relating to fraud and collusion. To re-iterate what has been said before, most solemn proceedings can be vitiated if fraud and collusion are present. Both statutory and judicial recognition are available to this principle. To say that a Tribunal or statutory authority can hear a case involving fraud, to which fraud the authority itself is a party, is shocking to judicial conscience. To say that an order based on fraud or collusion cannot be challenged in civil Court is to shake the foundation of our legal system. The Kerala Land Reforms Act cannot be deemed to lay down any such wide jurisdiction on the Land Tribunals. If the contention of the appellants counsel is to be accepted one will have to hold that orders of Land Tribunals upholding tenancy even vitiated by fraud and collusion and orders by which purchase certificates are issued, be it in the most unwholesome manner, are even above Article 141 of the Constitution of India. My considered opinion is that S.44 of the Evidence Act contains in-built safeguards to salvage orders obtained by fraud and collusion.” 10. The decision in _**Velappan's case**_ was followed by Justice M.P.Menon in **Sree Karikad Devaswom** v. **Wandoor Jupiter Chits (P)** **Ltd** . (1980 KLT 760), wherein it was held that _**Velappan's case**_ (1979 KLT 412) is an authority for the proposition that a court could declare invalid the order of a Tribunal or the purchase certificate issued by it. C.R.P.No.1764, 1943 AND 2180 OF 2000 :: 7 :: 11. The Appellate Authority was not justified in bypassing the specific findings rendered by the civil court. The civil court has jurisdiction to pass a decree declaring title and possession. Before the civil court, the defendants put forward a defence that they have obtained purchase certificates from the Land Tribunal. With reference to the purchase certificates, the civil court held that the tenants obtained the same by fraud. That finding is binding on the authorities under the Land Reforms Act. When an appeal was filed before the Appellate Authority against the decision of the Land Tribunal and where the civil court held that the purchase certificate was obtained by fraud, the Appellate Authority was bound to follow the decision of the civil court and pass appropriate orders. The Appellate Authority was not justified in circumventing the binding decision of the civil court by holding that the tenants were in possession of the property. All the questions in respect of title and possession were considered by the civil court and it was held that the landlord had established title and possession and that the tenants obtained the purchase certificates by fraud. 12. In these circumstances, the judgments of the Appellate Authority are liable to be set aside. The applications filed by the petitioners for condoning the delay in filing the appeals are allowed. The C.R.P.No.1764, 1943 AND 2180 OF 2000 **==> picture [32 x 9] intentionally omitted <==** Appellate Authority shall dispose of the appeals afresh after affording an opportunity of being heard to the parties and in the light of the observations contained hereinabove. All the Civil Revision Petitions are allowed as indicated above. **(K.T.SANKARAN) Judge** ahz/ ## **K.T.SANKARAN, J.** **-------------------------------------------** **------------------------------------------C.R.P.NOs. 1764, 1943 & 2180 of 2000 O R D E R** **21[st] January, 2008 -------------------------------------------**