Dr. N. Madhusoodanan Nair Nanathu House v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY ,THE 11TH DAY OF FEBRUARY 2019 / 22ND MAGHA, 1940 WA.No. 2329 of 2009 AGAINST THE ORDER/JUDGMENT IN OP 18644/1996 of HIGH COURT OF KERALA DATED 13-08-2009 ## APPELLANT/PETITIONER: - 1 DR.N.MADHUSOODANAN NAIR NANATHU HOUSE, KIDANGANNOOR VILLAGE,, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. (DECEASED) - 2 ADDL. A2 TO A4 IMPLEADAED: GEETHA M. NAIR, NANATHU HOUSE, KIDANGANOOR VILLAGE, KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT. (ADDL.A2 IS IMPLEADED AS PER ORDER DATED 1/2/2018 IN IA 75/18) - 3 RAMJITH KUMAR M., NANATHU HOUSE, KIDANGANNOOR VILLAGE, KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT. - 4 RENJINI M.NAIR, NANATHU HOUSE, KIDANGANNOOR VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. [ADDL. A3 AND A4 ARE IMPLEADED AS PER ORDER DATED 1/2/2018 IN IA 145/2018.] BY ADVS. DR.K.P.SATHEESAN (SR.) SMT.GEETHAKUMARY SRI.ANOOP.V.NAIR SRI.K.K.GOPINATHAN NAIR SRI.K.SUDHINKUMAR SRI.M.R.JAYAPRASAD SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.P.MOHANDAS (ERNAKULAM) SRI.S.K.ADHITHYAN SRI.S.VIBHEESHANAN W.A. No. 2329/2009 -2- ## RESPONDENT/S: - 1 STATE OF KERALA, REPRESENTED BY THE COMMISSIONER AND SECRETARY TO GOVERNMENT,, REVENUE (P) DEPARTMENT, GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM. - 2 THE SECRETARY, BOARD OF REVENUE (LR), THIRUVANANTHAPURAM. - 3 THE SPECIAL TAHSILDAR, SERVICE INAM LANDS (SETTLEMENT OFFICER), THIRUVANANTHAPURAM. - 4 THE DISTRICT COLLECTOR, PATHANAMTHITTA. - 5 NARAYANA PANICKER (DIED) PANIRATHU VEEDU, KIDANGANOOR VILLAGE,, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. - 6 KAMALAKSHY AMMA, W/O. NARAYANA PANICKER, VINOD BHAVAN, KOTTA P.O., MULAKUZHA, CHENGANNUR. - 7 LEELAMONY D/O. NARAYANA PANICKER VINOD BHAVAN, KOTTA P.O., MULAKUZHA, CHENGANNUR. - 8 SIVADAS, S/O. NARAYANA PANICKER, VINOD BHAVAN, KOTTA P.O., MULAKUZHA, CHENGANNUR. - 9 SASIDHARA PANICKER S/O. NARAYANA PANICKER, SREEJA NIVAS, NEW COLONY,PUNNAKKADU PO.,, MALLAPUZHASSERY, PATHANAMTHITTA DISTRICT. - 10 VIJAYAKUMAR S/O. NARAYANA PANICKER 'AISWARYA', NEAR CHETTIKULANGARA TEMPLE,, CHETTIKULANGARA P.O., MAVELIKKARA, ALAPPUZHA DISTRICT. - 11 HARIDAS SO. NARAYANA PANICKER PANEERQTHA VEEDU, KIDANGANOOR P.O.,, KOZHENCHERRY TALUK, PATHANAMTHITTA. BY ADVS. SRI.ABRAHAM GEORGE JACOB SRI.P.R.RAJA SRI.P.R.VENKETESH SPL G.P SRI M.H. HANIL KUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2018, THE COURT ON 11.02.2019 PASSED THE FOLLOWING: W.A. No. 2329/2009 -3- ## **JUDGMENT** ## Annie John, J. This appeal is filed against the judgment in OP. No.18644 of 1996, which was filed challenging Ext.P11 the decision of the first respondent made on reference to them under Section 17 of the Kerala Service Inam Lands (Vesting & Enfranchisement) Act 1981 (for short 'the Act'). The 5[th] respondent expired during the pendency of the Original Petition. 2. The 5[th] respondent in the O.P. claimed assignment under that Act of 42.5 cents of land in Sy. No.11/2B of Kidangannoor Village, which according to the appellant, originally belonged to the appellant. The primary appellate and revisional authorities under the Act did not uphold the claim of the 5[th] respondent. However, the Revisional Authority while holding that there was no doubt as to whether the land in question was Service Inam Land or not, allowed reference to the Government. The impugned order is passed by the Government on that reference. The appellant challenged the above said decision of the Government in the O.P. contending that the land in question does not come within the concept of the Service Inam Land. 3. The 5[th] respondent initiated proceedings under Section 72 of the Kerala Land Reforms Act for purchasing the jenmom right and the said petition was dismissed as per Ext.P3 order dated 30.09.1987. Since W.A. No. 2329/2009 -4- the 5[th] respondent did not obtain any order under the provisions of the Land Reforms Act, he initiated proceedings under the provisions of the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981 (Act 17 of 1981) and accordingly O.A. No.86 was before the Settlement Officer. The Settlement Officer, as per Ext.P4 order dated 17.10.1986, dismissed the said OA holding that the land in question does not come within the purview of the Act. Aggrieved by the same, the 5[th] respondent preferred an appeal before the District Collector, who remanded the matter to the said Settlement Officer. The Settlement Officer, as per Ext.P5 order dated 02.01.1989, dismissed the Original Application reiterating the earlier stand. The 5[th] respondent again filed an appeal before the Collector, who in turn, passed Ext.P6 order dated 27.03.1990 confirming the findings of the Settlement officer in Ext.P5 order. Aggrieved by the same, he approached the Board of Revenue, who as per Ext.P7 order dated 05.02.1992, allowed the revision in part and remitted the matter to the Settlement Officer to refer the matter for the decision of the Government as to whether the land in question was covered by the above Act. It has not entered any finding regarding the nature of the land. The Government, as per Ext.P11 order dated 28.12.1994, held that the land belongs to the temple and thus, it is a 'Service Inam Land' and remanded the matter to the Settlement Officer to issue fresh orders. Thereupon, the Settlement Officer issued Ext.P10 W.A. No. 2329/2009 -5- order dated 06.05.1995 allowing the claim of the 5[th] respondent and ordering assignment of 42 ½ cents of land. Therefore, the appellant approached the Government to re-consider the issue. As per Ext.P13 order dated 01.10.1996, the said petition is dismissed stating that nothing has been brought out to re-consider the matter again. It was also held that the findings of the Government that the 5[th] respondent was in possession of the property in question uninterruptedly since 1961, was factually incorrect and therefore, such finding was expunged from the order. Aggrieved by the same, he approached the District Collector by filing Ext.P14 appeal. While the matter was pending, the appellant filed the writ petition before this Court challenging Exts.P11 and P13 orders of the Government. 4. The learned counsel for the appellant contended that the relevant materials in support of the appellant's case as contained in the Travancore Land Revenue Manual, relevant Royal Proclamations of the erstwhile Travancore state, the relevant rules and details of the transactions between the 5[th] respondent on the one side and the petitioner's father/ petitioner on the other side were submitted before the learned Single Judge and the learned Single Judge, without properly applying mind to the relevant materials, dismissed the OP. He has also contended that the learned Single Judge has failed to appreciate the century back concept of Service Inam Tenure of the erstwhile W.A. No. 2329/2009 -6- Travancore State vis-a-vis the actual transaction between the 5[th] respondent and the appellant and the ambit and effect of the Act of 1981. The authoritative text of Land Tenures in Travancore contained in Travancore Land Revenue Manual Volume III 1936, Section II Land Tenures. Tenures are clarified as 'Jenmom' tenures i.e. tenures created by 'Jenmies' over jenmom land and Sirkar Tenures or Pandara vaka created by Sirkar (para39) “Inam' is one class of Sirkar Tenure (Para 42). Sirkar tenures represent land in respect of which Sirkar is in the position of the landlord (para 46). Inams are of two types (I) personal inams and (ii) service Inams (Para 52). Inams are grant of land at lesser assessment or free of assessment. Personal inams are for services rendered. Such lands are heritable and alienable. Service Inams are for services to be rendered. Such tenures are heritable; but not alienable. Inamdar can hold the same as long as he renders the service. 5. The Revenue Settlement Proclamation 1061 M.E.(1886 A.D.) provides for settlement of Inams. “Karanma' another class of Service Inam coming within the definitions under Section 2(f) is in respect of Service at Sirkar Devaswoms and their lands. The 5[th] respondent's claim will not come under this class as well. The learned Single Judge has misread and misconstrued the definition of Service Inam Lands in Section 2(f) of the Act. In order to constitute Service Inam Land as W.A. No. 2329/2009 -7- contemplated in the concept of Service Inam, the relevant Royal Proclamations, Rules and also the Act, there should be a grant of land under a tenure, the grant shall be for discharging certain obligation to the Sirkar, the obligation shall be analogous to those under service tenure like Viruthi etc., grant shall be on reduced Sirkar assessment or free of assessment. 6. The learned Single Judge erred in accepting the submission of the Government Pleader that the property in question originally belongs to Government and the same was entrusted to the family of the appellant. The land is Pattayam land with Thandaper No.1824 in favour of the appellant, which is evident from Exts.P1 and P2 . In the nature of this case, there is absolutely no need for the appellant to produce his title deed and prove his title which was not at all in dispute. On the aforesaid grounds, the appellant prays for allowing the Writ Appeal setting aside the judgment dated 13.08.2009 in OP. No.18644 of 1996. 7. While according to the learned counsel for the appellant, the 5[th] respondent has no right over the property since the petitioners had obtained Jenmom right over the petition schedule property, the learned Government Pleader contends that the disputed property vests in Government and it is termed as 'Service Inam Land' and the appellant has no right over the property. 8. In the impugned judgment, the learned Single Judge held that W.A. No. 2329/2009 -8- on going through Ext.P1 document, nothing is discernible to hold that the property belongs to the family of the appellant, that the property as mentioned in Ext.P1 belongs to the Government and that appellant's father was also engaged in the Kazhakam Service of the temple like the 5[th] respondent and therefore, it cannot be said that any right is vested upon the appellant's father. The fifth respondent filed two other O.Ps viz., O.P. Nos. 18701 of 1995 and 5589 of 1997. By the impugned judgment, the learned Single Judge dismissed O.P. No. 18701 of 1995 as infructuous and O.P. No. 5589 of 1997 was dismissed as devoid of any merit. No appeal was filed challenging the said order on the finding that the appellant and his father had no right over the property except Kazhakam service right. 9. The case of the petitioner in the said OP.is that he is the Senior member of Nanathu family and in that capacity, he is the Trustee and Manager of the family temple called “Pallimukkathu Siva Kshethram” and the temple has 42.5 cents of land in Survey No.11/2B of Kidanganoor Village. As per his version, the temple is managed by utilising the income derived from this property. It was also the case of the appellant that after the death of his father in the year 1977, he is in-charge of the temple and its properties and thus, he is managing the same as the sole trustee. When he filed the writ petition, he has challenged Exts.P11 and P13 to the extent it declares 42.5 cents of land in Survey No.11/2B of W.A. No. 2329/2009 -9- Kidanganoor Village as Service Inam Land. He has also sought for an order or direction for the 4[th] respondent to consider and dispose of Ext.P14 appeal and also prayed to quash Exts.P11 and P13. Ext.P11 is the order of the Revenue Department issued by the Commissioner and Secretary to Govt. addressed to the District Collector, Pathanamthitta, wherein it is held that the land in question is a “Service Inam Land” as defined in Section 2(f) of the Act. Ext.P13 is the order of the Revenue Department, Thiruvananthapuram dated 01.10.1996 of the Principal Secretary addressed to the District Collector and it was an order on the appeal preferred by the appellant wherein it is ordered to condone the delay in filing the appeal and to dispose the same, at the earliest. According to the petitioner, it is not a Service Inam Land; it is the property of the appellant. According to the appellant, Ext.P1 is an agreement dated 28.06.1961 entered into between the father of the appellant and the 5[th] respondent with regard to the 'Kazhakam' work relating to the temple belonging to the family of the appellant. According to the appellant, during the year 1964, the 5[th] respondent left the place and appellant's father died in the year 1997. Since the appellant is the seniormost member of the family, he became the Manager of the family property. Again during the year 1984, the appellant entered into an agreement vide Ext.P2. According to the appellant, in Ext.P2, the terms and conditions are similar to Ext.P1 except regarding the extent of W.A. No. 2329/2009 -10- property and nomenclature of the document. According to the appellant, since the service of the 5[th] respondent was unsatisfactory, the appellant has removed him from service with effect from 28.10.1985. But, the 5[th] respondent did not vacate the premises. Hence, the appellant preferred OS.No.801/1985 before the Munsiff Court, Pathanamthitta with a prayer for eviction and injunction against the 5[th] respondent. The said suit was allowed as per Ext.P8 judgment against which the 5[th] respondent filed an appeal as AS.No.23/1991 before the District Court, Pathanamthitta. The appellate court has remanded the matter to the Munsiff Court mainly for the purpose of deciding the question as to whether the property involved is a Service Inam Land or not. 10. The sole question to be considered is whether the appellant is entitled to get any right over the property in dispute. According to the learned counsel for the appellant, the findings of the Government as per Exts.P11 and P13 are absolutely incorrect and in direct conflict with the provisions contained in the Act, especially in the legal background and the circumstance under which the new Act came into effect. He has pointed out on the strength of Exts.P1 and P2 that the property in question originally belonged to the petitioner and his family and that the same was in no way connected with the Government and the Government had no right over the property. Therefore, by no stretch of imagination, it can be treated as the Government Property and W.A. No. 2329/2009 -11- therefore, the same shall not come within the meaning of 'Service Inam Land' as contained in Section 2(f) of the Act. Ext.P11 is the order of the Government passed by the Commissioner and Secretary to Government, wherein it was held that the land in question is a Service Inam Land as defined in Section 2(f) of the Act. The relevant portion of Ext.P11 reads thus: “In order to ascertain whether the land is a service Inam land, the point to be looked into is whether the land is attached with some specific service or obligation in the shape of personal labour or supply of provisions. A plain reading of the document (scavenger chit) mentioned above makes it clear that some service is attached to the property in question . Hence it goes without saying that the land is a service Inam Land as defined in Section 2(f) of the Act.” 11. In the statement of objects and reasons to the Bill, it is stated that those lands which belong to certain Devaswoms were granted to the owners thereof for rendering certain specific services in the shape of personal labour or supply of provisions by the holders of the land to the temple on certain specific occasions---it is considered necessary in the public interest to enfranchise these lands and confer full proprietary rights on the holders, abolishing their liability to render the service attached to such lands. In this case, as per the “Thandaper account”, the property belongs to “Siva Temple”. 12. The learned Government Pleader, on the strength of Exts.P1 and P2 agreements and the terms and clauses therein, submitted that the property in question originally belonged to the Government and the W.A. No. 2329/2009 -12- same was entrusted with the family of the appellant and thereafter, at the time when the Act came into force, it was in the possession of the 5[th] respondent and therefore, Exts.P11 and P13 orders are perfectly within the ambit of the Act. In this connection, we have perused Ext.P1 agreement, which would reveal that the property in question was originally given to the father of the appellant for doing the kazhakam service to the temple and that the property in question will come under the definition of Section 2(f) of the Act. Section 2(f) of the Act reads thus: “(f) "Service Inam land" means land held under a tenure to which some specific service or obligation in the shape of personal labour or supply of provisions is attached and includes land held under Viruthi, Oozhiyam, Karanma or Erayili tenure;” 13. The above Act was introduced in 1981 to provide for the vesting and enfranchisement of the Service Inam Lands in the State of Kerala. The Kerala Gazette Supplements, 1980 July contains the Service Inam Lands (Vesting and Enfranchisement) Bill, 1980 together with the statement of objects and reasons, which reads thus: “There are about 2,000 acres of Service Inam lands in the Travancore area of the State held under various tenures such as Viruthi, Oozhiyam, Karanma or Erayili. These lands which belong to certain Devaswoms were granted by the owners thereof for rendering certain specific services in the shape of personal labour or supply of provisions by the holders of the lands to the temples on certain specific occasions. Such holders have no manner of right over the lands except the right to enjoy them so long as they render the services. The land holders have no right to alienate the land by sale, gift, mortgage or otherwise or encumber the same in any W.A. No. 2329/2009 -13- manner. If any of the above conditions are violated, the land is liable to be resumed. 2. It is considered necessary in the public interest to enfranchise these lands and confer full proprietary rights on the holders, abolishing their liability to render the services attached to such lands. It is also proposed to provide for payment of purchase price by the holders of the lands to the Government and for the payment of compensation to the owners by the Government.” In fact, the Act was introduced to liberate the persons, who were holding lands as Service Inam. Section 2(f) of the Act pertains to the land, irrespective of the owner of the land whether Government or private persons etc. If the land held under a tenure to which some specific service or obligation in the shape of personal labour or supply of provision is attached, the same will come under the definition of 'Service Inam Land'. As per the Section 2(f) of the Act, the lands held under Viruthy, Oozhiyam, Karanma or Erayil tenure are also inclusive. Ext.P1 would show that the 5[th] respondent was holding the land under a tenure by which he was bound to perform certain service and obligation in the shape of a particular personal labour and supply of provisions. It was also mentioned that it was the duty of the 5[th] respondent to keep and maintain the property of the temple intact without sustaining any loss and to honour and respect the other party of Ext.P1 and his family members. It is also proved that as per Ext.P1, certain duties and works were assigned to the 5[th] respondent in connection with the worship and W.A. No. 2329/2009 -14- performance in the temple. He is also duty bound to supply required quantity of flowers and other pooja materials to the temple and to clean the vessels and lamps used in the temple. It is also his duty to give rice to the temple after collecting paddy grains and to maintain and take care of the trees in the property of the temple. It is also specifically stated that the 5[th] respondent shall supply flowers and other pooja materials to the temple during the Sivarathri festival. Certain remuneration was also fixed as per Ext.P1 as 'ന�ഴ� ച��റ� ഇടങഴ� നനല�'. Annually, Rs.100/- was fixed being the price for 'ന�ഴ� ച��റ� ഇടങഴ� നനല�'. It is further stated in Ext.P1 thus: “ ഞ�ൻ ച�ത� കഴകക�രൻ എനള ന�ലയ�ൽ അനവർത�കച"�ൾ എന�ക പത�ഫലമ�യ� ദ�വച)ന ത�ങൾ തന നക�ള�നമന )മത�ച�ടള ന�ഴ� ച��റ� ഇടങഴ� നനല� പറ� ര)0ത1 തന നക�ള�വനത�… .......” Further, as per Ext.P2, the amount fixed as Rs.100/- was increased to Rs.500/- per annum. As per Ext.P1, the 5[th] respondent was appointed as 'Kazhakakkaran' of the disputed property and his duties were also specifically fixed. Therefore, it can be very well found that the tenure which is in dispute will come under the definition of Section 2(f) of the Act. As per Ext.P1, the Government has also decided and held that the tenure in dispute is Service Inam Land as defined in Section 2(f) of the Act as the land in dispute is attached with some specific obligation in the shape of personal labour or supply of provisions. The document is mentioned as 'scavenger chit'. The appellant has not produced any W.A. No. 2329/2009 -15- documents or evidence before this Court to show that the property in question is in his absolute ownership and title. From Ext.P1 document, it is very clear that the property in question was in the possession of the 5[th] respondent and the same is originally belonged to the Devaswom and was given in the name of Siva Temple as 1824 by giving a pattayam. The recital in Ext.P1 is as follows: “...... പട�ക വസവ� ട� ശ�വച�തവ� ന�ണതകട�ബത�നല ക�രണവന� ഇച=�ഴനത . ഭരണ�ധ�ക�ര�യമ�യ ത�ങളനട അധ0നതയ�ല� ഭരണത�ല� ഇര�കനത�കന പട�ക വസ ട� ശ�വച�ത� വകക�യ� ട� കട�ബത�ചലക 1824- ന�"റ�യ� പടയ� ക�ട�യ�ടളത�ണ. ഈ വസവ� ട� ശ�വച�തവ� മറ� ഹGനവ��ര പക�ര� ഹദവ�കവ� ആദKത�കവമ�യ1 അനഷ�നങള� . കർമ1മ�ദ�കള� ശ�സ വ�ധ� അന)ര�ച ന�ചതKന ത�ങൾ നടത�ച� നടന� വരനത�കന പസത ച�തവ� )Qതകള� വളനര ക�ലത�ന മ"�ന�നല ത�ങളനട പർവ�കന�ർ ഒര ചദവ)Qമ�യ� ആയത�ൻറ1 ന�ലന�ല�ന� ക�രK നടത�=�ന� ചവൺട� അത�ത ക�ലനത ഭരണകർത�കന�നര ചമതലന=ടത�......” But there is nothing mentioned in Ext.P1 that this property belongs to the family of the appellant. So the appellant has failed to establish his substantive right over the property and therefore, he has no title over the property. In fact, he has not produced any document to substantiate the title over the property in question. From Ext.P1 it is clear that the appellant's father was also engaged in the kazhakam service of the temple like the fifth respondent. If that be so, it cannot be said that any right is vested upon the appellant's father. Relying on the decision in _**Bhaskaran Nair v. Sankaranarayanan Nair**_ [1991 (2) KLJ 144], the learned single Judge dismissed the Original Petition and held that the petitioner has no absolute right over the property in question. W.A. No. 2329/2009 -16- ## Paragraph 7 of the aforesaid decision reads thus: “............... The property is admittedly service inam land belonging to the Devaswom and the tharavad had only possession by way of remuneration for doing kazhakam services. Such possession cannot be adverse to the Devaswom, as held in Kamalu Pujarthi v. Lazminarayan Bhatta (A.I.R.1960 Mysor 185). Govinda Panicker Narayana Panicker v. Kottabhagom NSS Karayogam and another (1962 (1) KLR 398) and Rajagopala Gounder and others v. Maruthamuthu Asari (A.I.R.1933 Madras 668). Holders of service inam lands have absolutely no right over the land except the right to enjoy when the services are continued. Ownership is with the Devaswom and the property could be resumed at any time. Right is nothing more than that of a tenant at will. There is no heritable or transferable right and the karaima holder cannot transfer possession also,which is linked with the services.” 14. After hearing the learned counsel on both sides and on going through the records, we find that there is absolutely no merit in the writ appeal. The learned Single Judge has elaborately considered all the aspects and ultimately found that the appellant has no right or title over the property in question. Therefore, we are not inclined to interfere with the impugned judgment and it is only to be upheld. Accordingly, this writ appeal is dismissed. sd/- **K. SURENDRA MOHAN, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _RKM/Rv_ W.A. No. 2329/2009 -17-