High Court of KeralaSingle Judge2015-06-17Dismissed

G. Chandranmohan v. Deenamma @ Elikkutty and Others (Review Petition No. 372 of 2015 in CRP 657/2007)

Case / Petition Number:RP No. 372 of 2015; CRP 657/2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2015-06-17
Court Decision / Holding: This review petition is without merits and is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

G. Chandranmohan (in CRP wrongly shown as K. Chandran) 'NABBAS'

Respondents

Deenamma @ Elikutty
Mable Dennis
Anitha Dennis
Jose Dennis
Clement Antony
Marykutty D/o Plassy
Thresyamma D/o Plassy
Sobha B D/o Plassy
State of Kerala
Saradha W/o Kolappan Asari
Viswamma D/o Kuttan Achari
Prema D/o Kuttan Achari
Ambika D/o Kuttan Achari
Girija D/o Kuttan Achari
Rajan s/o Kuttan Achari
Murali s/o Kolappan Achari
Ramachandran s/o Kolappan Achari
Sivdas s/o Kolappan Achari

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. Krishnan Unni (Sr.)
• Sri. Saiiby Jose Kidangoor

Counsels for Respondents

• Sri L. Mohanan
• Sri Nair Ajay Krishnan
• Sri R. T. Pradeep
• Sri G. Sudheer
• Government Pleader SMT. Lilly Leslie

Case Synopsis & Summary

This is a review petition filed by G. Chandranmohan challenging an order passed on 17 October 2014 in Civil Revision Petition No. 657 of 2007, under the Kerala Land Reforms Act. The central legal dispute concerns fixity of tenure under Section 13 and the eligibility to claim assignment under Section 72B for cultivating tenants. The petitioner contends that only cultivating tenants are entitled to assignment under Section 72B, and that the lower authorities wrongly found that Thankamma had actual possession of portions of the land. It is argued that the possession findings, being factual, should have been left undisturbed unless demonstrably perverse, and that Exts. A16 and A17 (photostat copies) were improperly received as evidence. Respondents rely on a line of authorities—Mammu v. Hari Mohan and Baby v. Travancore Devaswom Board—to contend that the High Court has wide revisional power under Section 103 to interfere with findings of fact when they are erroneous or prejudicial, and also invoke Narayanan Nair v. Kerala State Electricity Board to justify admissibility of additional documents. The High Court, after considering the authorities cited, concludes that there is no valid ground to review the 2014 order and dismisses the petition as having no merit.

Provisions of Law Cited

Section 2(7) Kerala Land Reforms ActSection 2(8)Section 2(57)Section 13Section 72BSection 103

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that under Section 72B only a cultivating tenant is entitled to an assignment; though a tenant can have fixity of tenure under Section 13, such fixation does not automatically qualify under Section 72B unless he is a cultivating tenant. It is argued that findings regarding Thankamma’s possession were factual and not amenable to substitution by the revisional court under Section 103 unless demonstrably perverse; Exts. A16 and A17 were introduced as secondary evidence and should not dictate the outcome. Reliance is placed on Mammu v. Hari Mohan and Baby v. Travancore Devaswom Board to support a broader revisional power, and on Narayanan Nair v. Kerala State Electricity Board to justify admission of additional documents. The petitioner also submits that the court should evaluate the entire chain of events, including the redemptive and equity considerations, as they relate to fixity of tenure and possession.

Contentions of Respondents

The respondents contend that the High Court’s power under Section 103 is wide enough to review findings of fact when they are perverse or contrary to the record, and that subsequent authorities support interference where the findings are erroneous. They rely on Mammu v. Hari Mohan and Baby v. Travancore Devaswom Board to argue that the High Court can go beyond the factual findings to correct erroneous conclusions. They also cite Narayanan Nair v. Kerala State Electricity Board to justify the admissibility of additional documents and to support the procedure followed in the court below, including allowing photostat copies Exts. A16 and A17 if necessary. The respondents maintain that Thankamma could not have possessed the property outright and that the partition/equity consequences must be assessed within the framework of fixity of tenure and cultivation rights under the Land Reforms Act.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Mammu v. Hari Mohan	2000 (1) KLT 835 (SC)	Positive	The court cites Mammu v. Hari Mohan to support its conclusion that the High Court may interfere in revisional proceedings where questions of fact have been erroneously decided, indicating wide revisional power.
Baby v. Travancore Devaswom Board	1999 (1) KLT SC SN 1(C.No.1)	Positive	Cited to reinforce the principle that the High Court can exercise wide revisional powers, including consideration of Article 227 grounds when appropriate.
Travancore Devaswom Board	1999 (1) KLT SC SN 1(C.No.1)	Positive	Used in connection with the general doctrine of revisional power and Article 227 applicability, supporting the court’s approach to review.
Narayanan Nair v. Kerala State Electricity Board	2013 (3) KLT 688	Positive	Supported the admissibility of additional documents and reliance on documents supplementary to the record in revisional scrutiny.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN WEDNESDAY, THE 17TH DAY OF JUNE 2015/27TH JYAISHTA, 1937 RP.No. 372 of 2015 IN CRP.657/2007 -------------------------------------------AGAINST THE ORDER CRP 657/2015 of HIGH COURT OF KERALA DATED 17.10.2014 REVIEW PETITIONER/RESPONDENT No.12: ------------------------------------------------ G.CHANDRANMOHAN ( IN CRP WRONGLY SHOWN AS K. CHANDRAN) 'NABBAS', NEAR CHITRA NAGAR THALIYIL KARAMANA P.O THIRUVANANTHAPURAM PRESENTLY RESIDING AT TC 21/1990/1, PREMSHREE ARASUMMOODU, THALIYAL, KARAMANA P.O, VAVACAUD VILLAGE, THIRUVANANTHAPURAM 695 002. BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.SAIBY JOSE KIDANGOOR RESPONDENTS/REVISION PETITIONERS 1 TO 11/RESPONDENTS IN CRP 657/2007: --------------------------------------------------------------------------------- 1. DEENAMMA @ ELIKUTTY RESIDING AT TC.11/812, MANCHADIVILAYIL NANTHANCODE KOWDIAR VILLAGE THIRUVANANTHAPURAM - 695 037. 2. MABLE DENNIS TC 12/1296, VIKAS LANE, KUNNUKUZHI THIRUVANANTHAPURAM - 695 037. 3. ANITHA DENNIS TC 12/1296, VIKAS LANE, KUNNUKUZHI THIRUVANANTHAPURAM - 695 037. 4. JOSE DENNIS TC 12/1296, VIKAS LANE, KUNNUKUZHI THIRUVANANTHAPURAM - 695 037. 5. CLEMENT ANTONY TC 11/312, MANCHADIVILAYIL NANTHANCODE KOWDIAR VILLAGE THIRUVANANTHAPURAM - 695 037. RP.No. 372 of 2015 6. MARYKUTTY - D/O.PLASSY, TC 11/312, MANCHADIVILAYIL NANTHANCODE KOWDIAR VILLAGE THIRUVANANTHAPURAM - 695 037. 7. THRESYAMMA - D/O.PLASSY, TC 11/312, MANCHADIVILAYIL NANTHANCODE KOWDIAR VILLAGE THIRUVANANTHAPURAM - 695 037. 8. SOBHA B - D/O.PLASSY, TC 11/312, MANCHADIVILAYIL NANTHANCODE KOWDIAR VILLAGE THIRUVANANTHAPURAM - 695 037. 9. STATE OF KERALA- 695 001. 10. SARADHA W/O.KOLAPPAN ASARI, VARUVILAKATHU VEEDU, NANTHANCODE - KOWDIAR VILLAGE, THIRUVANANTHAPURAM - 695 037. 11. VISWAMMA D/O.KUTTAN ACHARI, VARUVILAKATHU VEEDU, NANTHANCODE KOWDIAR VILLAGE, THIRUVANANTHAPURAM - 695 037. 12. PREMA D/O.KUTTAN ACHARI, VARUVILAKATHU VEEDU, NANTHANCODE KOWDIAR VILLAGE, THIRUVANANTHAPURAM - 695 037. 13. AMBIKA D/O.KUTTAN ACHARI, VARUVILAKATHU VEEDU, NANTHANCODE KOWDIAR VILLAGE, THIRUVANANTHAPURAM - 695 037. 14. GIRIJA D/O.KUTTAN ACHARI, VARUVILAKATHU VEEDU, NANTHANCODE KOWDIAR VILLAGE, THIRUVANANTHAPURAM - 695 037. 15. RAJAN S/O.KUTTAN ACHARI, VARUVILAKATHU VEEDU, NANTHANCODE KOWDIAR VILLAGE, THIRUVANANTHAPURAM - 695 037. 16. MURALI S/O.KOLAPPAN ACHARI, VARUVILAKATHU VEEDU, NANTHANCODE, - KOWDIAR VILLAGE, THIRUVANANTHAPURAM - 695 037. 17. RAMACHANDRAN S/O.KOLAPPAN ACHARI, VARUVILAKATHU VEEDU, NANTHANCODE - KOWDIAR VILLAGE, THIRUVANANTHAPURAM - 695 037. RP.No. 372 of 2015 18. SIVDAS - S/O.KOLAPPAN ACHARI, VARUVILAKATHU VEEDU, NANTHANCODE KOWDIAR VILLAGE, THIRUVANANTHAPURAM - 695 037. BY ADVS. SRI.L.MOHANAN BY SRI.NAIR AJAY KRISHNAN BY SRI.R.T.PRADEEP BY SRI.G.SUDHEER R9 BY GOVERNMENT PLEADER SMT. LILLY LESLIE THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17-06-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **P.BHAVADASAN, J.** **------------------------------------------------Review Petition No.372 OF 2015 IN Civil Revision Petition No.657 OF 2007 ------------------------------------------------Dated this the 17[th] day of June, 2015.** ## **O R D E R** Relying on the definitions contained in the Kerala Land Reforms Act as stated in Sections 2(7), 2(8), 2(57) and Section 13 regarding fixity of tenure and also Sections 72B and 103, learned Senior Counsel appearing for the review petitioner contended that only a cultivating tenant is entitled to assignment as per Section 72B of the Land Reforms Act. Though a tenant may be entitled to fixity of tenure under Section 13, it is not necessary that a tenant who has fixity of tenure under Section 13 can be an applicant under Section 72B unless he is a cultivating tenant. Further contention is that two of the authorities below did find that Thankamma was in actual possession of 11 and odd cents of land and that being essentially a question on fact, interference under Section 103 of Kerala Land Reforms Act is not warranted since that provision permits the High Court to interfere **R.P.No.372/2015** **2** with orders of authorities only in a matter in which question of law has been wrongly decided. Section 103 of Kerala Land Reforms Act does not warrant interference with findings on fact. Supplementing the above argument, learned counsel also pointed out that Exts.A16 and A17 which were marked by this Court under Order 41 Rule 27 of the Code of Civil Procedure were only photostat copies and they could not have been received in evidence. 2. Replying to the above contentions, learned counsel appearing for the respondents relied on the decision in _**Mammu** vs._ _**Hari Mohan**_ (2000 (1) KLT 835(SC)) wherein it was held that the jurisdiction of this Court exercising its power under Section 103 of Kerala Land Reforms Act is very wide and can in appropriate cases interfere with the findings of fact also. It was therefore contended that if it is found that the findings on fact are either perverse or contrary to the evidence on record, it will not preclude this Court from interfering under Section 103 of Kerala Land Reforms Act. Support was drawn for the above proposition from the decision in _**Baby** vs._ _**Travancore**_ **R.P.No.372/2015** **3** _**Devaswom Board**_ (1999 (1) KLT SC SN 1(C.No.1)). Therein the Apex Court held that even if the power under Section 103 is restricted, nothing prevents the court from exercising its power under Article 227 of the Constitution of India. Replying to the contentions based on Order 41 Rule 27 CPC, learned counsel relied on the decision in _**Narayanan Nair** vs._ _**Kerala State Electricity Board**_ (2013 (3) KLT 688) and contended that there was nothing wrong in this Court having received documents as additional documents and entered into a finding on the basis of those documents. 3. To begin with, it was not Exts.A16 and A17 which were produced before this Court which weighed with this Court. There were many other facts also. It may be recalled that before Thankamma filed a suit for partition, there was a suit for redemption by two of the mortgagors without making other mortgagors as parties and that the very same mortgagees pointed out that they are entitled to fixity of tenure which was accepted by the court and suit was dismissed. Obviously all the mortgagors are bound by the said decision. It is in that context **R.P.No.372/2015** **4** the claim of Thankamma that she obtained possession by the partition suit will have to be considered. Obviously Thankamma had only equity of redemption. Any right which she get from partition suit can only be with reference to her share in equity of redemption. This is fortified by the fact that there was a land acquisition proceedings in which Thankamma received amount on behalf of the mortgagors and she never received any single pai as a person in actual possession of the property. If that be so, it is clear that the claim that in the partition suit delivery was given to her share cannot be accepted. Those were the main factors which persuaded this Court to come to the conclusion that Thankamma could not have been in possession of the property. 4. True, this Court also directed the petitioners to produce photostat copies of two documents which were marked as Exts.A16 and A17. Of course, they are secondary evidence which are admissible only under certain circumstances. For example, when a person who is in possession of the original document has been given notice and sought production and if he has not produced the same, then only secondary evidence can be **R.P.No.372/2015** **5** accepted. By seeking production of certain additional documents, the attempt of the court was to see what is the correct state of affairs. The contention in that regard therefore fails. The contention that Order 41 Rule 27 CPC cannot be applied may not be correct. It is clear from a reading of Section 102 of the Kerala Land Reforms Act that the appellate authority has to follow the same procedure which the court follows in deciding appeals against a decree under the Code of Civil Procedure. The contention that under Section 103 of the Kerala Land Reforms Act, High Court cannot follow the provision of the Code of Civil Procedure may not be acceptable. 5. In the light of the decision in _**Mammu** vs._ _**Hari Mohan**_ (2000 (1) KLT 835(SC)) and in _**Baby** vs._ _**Travancore Devaswom Board**_ (1999 (1) KLT SC SN 1(C.No.1)) which are heavily relied on by the learned counsel for the respondents, it is clear that the High Court can go far beyond what is contemplated under Section 103 and if it is satisfied that issues of fact have been erroneously decided to the prejudice of one of the parties, the court may be justified in interfering with the decision of the **R.P.No.372/2015** **6** authorities below exercising its revisional jurisdiction. For the above reasons, this Court finds no reason to review the order dated 17.10.2014 in CRP No.657/2007. This review petition is without merits and it is liable to be dismissed. I do so. Sd/- **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.