GOPINATHA MENON C v. CHINNAMMA AMMU, ANANDAVALLI and GOVERNMENT OF KERALA

``` CRP NO. 1449 OF 2000 ``` 1 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 ``` ``` CRP NO. 1449 OF 2000 ``` ``` AGAINST THE ORDER/JUDGMENT IN A.A.NO.45/1993 OF A.A. ``` ## **`(LR),THRISSUR`** ``` OA 354/1976 OF LAND TRIBUNAL, THRISSUR ``` ## **`REVISION PETITIONER/S:`** ``` GOPINATHA MENON C, SON OF SAROJINI AMMA, THATTATT HOUSE, MADAKKATHARA VILLAGE, THRISSUR TALUK BY ADVS. ``` ``` SRI.GEORGE VARGHESEPERUMPALLIKUTTIYIL SRI.K.S.SREEKUMAR ``` ## **`RESPONDENT/S:`** ``` 1. CHINNAMMA AMMU, D/O VELLAYIKKAL KOVILAKATH KUNHIKALI AMMA, KIZHAKKUMPATTUKARA, THRISSUR (DIED) 2. ANANDAVALLI, D/O.NADUVATH RAMAKRISHNAN EZHUTHASSAN, MADAKKATHARA, THRISSUR ``` ``` 3. GOVERNMENT OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM ``` ``` IMPLEADMENT OF THE LEGAL HEIRS OF THE 1ST RESPONDENT IS DISPENSED WITH AT THE RISK OF THE PETITIONER VIDE ORDER DT.10.01.2012 IN CRP 1449/00 BY ADVS. ``` ``` SMT.MINI JOHN PAREMALIL SRI.P.VIJAYA BHANU SMT.S.L.SYLAJA, GP ``` ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ``` ``` ADMISSION ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRP NO. 1449 OF 2000 ``` 2 ## **ORDER** Challenging the common order in AA No.45/1993 of the Appellate Authority (LR), Thrissur and the order in OA Nos.354/1976 and 688/1975 of the Land Tribunal, Thrissur, the applicant in OA No.354/1976 and the respondent in O.A.No.688/1975, has filed this revision petition. The respondents 1 and 2 in the revision petition were the respondents in OA No.354/1976 and the applicants in OA No.688/1975. 2. The facts leading to the revision petition, in a narrow compass, are: the property in question in OA Nos.354/1976 and 688/1975 of the Land Tribunal, Thrissur was originally leased to the maternal grand father of the revision petitioner on 21.03.1107ME from the family of the 1[st] respondent. The lease hold right devolved on the widow and children of the maternal grand father were partitioned in 1957 and 1974 by ``` CRP NO. 1449 OF 2000 ``` 3 document No.415/1974. The property was transferred to the revision petitioner. Thus, the revision petitioner, following his predecessors, is a cultivating tenant entitled to assignment of right, title and interest of the landowner in terms of Section 72 of the Kerala Land Reforms Act. Nonetheless, without the junction of the revision petitioner, the 2[nd] respondent – maternal aunty of the revision petitioner filed O.A.No.688/1975 and obtained an order of assignment of the property alleging to be in possession of the land. O.A.No.354/1976 filed by the revision petitioner was dismissed relying on the order in O.A.No.688/1975. The revision petitioner challenged the orders passed in O.A.Nos.354/1976 and 688/1975. The appeals were allowed and the matter was remitted back for reconsideration. Then, O.A.No.354/1976 was allowed in favour of the revision petitioner. The 2[nd] respondent unsuccessfully challenged the order in appeal. However, this Court in a revision petition remanded the matter ``` CRP NO. 1449 OF 2000 ``` 4 back for fresh consideration. The Land Tribunal, after remand, without adverting to the relevant facts and materials had erroneously directed the certificate of purchase to be issued in favour of the 2[nd] respondent. The revision petitioner challenged the order before the Court of the Appellate Authoirty (LR), Thrissur in AA No.45/1993. The Appellate Authority without appreciating the grounds or arguments dismissed the appeal. The decisions of the Appellate Authority and the Land Tribunal in the orders impugned are irregular, improper and illegal. Hence, the revision petition. 3. Heard; Sri.George Varghese Perumpallikuttiyil, the learned counsel appearing for the revision petitioner. 4. The question is whether there is any impropriety or irregularity in the impugned orders. 5. The records reveal that the Court of the Additional Munsiff, Thrissur by judgment dated 17.12.1996 in ``` CRP NO. 1449 OF 2000 ``` 5 O.S.No.348/1975, i.e., in a suit filed by the revision petitioner against the 2[nd] respondent and the legal representatives of the deceased 1[st] respondent has categorically declared that the revision petitioner is entitled to the possession of the plaint schedule property to the extent of 26.20 cents comprised in Sy.No.872 of Madakkathara Village on the strength of title and is entitled to a decree of permanent prohibitory injunction against the defendants from interfering with the peaceful possession. 6. The 2[nd] respondent and one of the legal representatives of the deceased 1[st] respondent challenged the judgment and decree before the Court of the District Judge, Thrissur by filing A.S.No.149/1997. The learned District Judge by judgment dated 23.08.2001 confirmed the judgment and decree in O.S.No.348/1976 and held that the revision petitioner has title over the property and is entitled for possession of the same. ``` CRP NO. 1449 OF 2000 ``` 6 7. Again, the 2[nd] respondent challenged the concurrent findings in O.S.No.348/1976 and A.S.No.149/1976 before this Court in S.A.No.328/2002. However, the said second appeal was dismissed on 19.12.2016. Thus, as matters stand today, the judgment and decree in O.S.No.348/1976 has attained finality holding that the revision petitioner is in possession of the plaint schedule property and he is entitled for a permanent prohibitory injunction against the 2[nd] respondent and the legal representatives of the deceased 1[st] respondent. 8. The Honourable Supreme Court in **Patinhare Purayil Nabeesumma v. Miniyatan Zacharias and another** [2008 (5) SCC 25] has held as follows: **“29. In any event, the civil Court was the final Court of fact. Before it oral or documentary evidence had been adduced. It was not bound by the observations made by the Tribunal either in regard to title or possession of the property.** The Tribunal moreover failed to consider that a tenancy can be created orally ``` CRP NO. 1449 OF 2000 ``` 7 upon delivery of possession and/or upon grant of rent receipt. Rent receipt indisputably evidences possession. What was relevant for the purpose of determination of the issue was who was in possession of the properties in question when S.72B of the Act came into force. As the Tribunal itself had issued two certificates, the jurisdiction to determine the right, title and interest as also possession of the suit properties was only with the Civil Courts. It is, therefore, not correct to contend that as on the basis of the purported report, the Tribunal had found possession over the plot in question”. 9. In the light of the clear exposition of law by the Honourable Supreme Court and the concurrent findings of the civil courts in O.S.No.348/1976 and A.S.No.149/1997 which was confirmed by this Court, it is established beyond any pale of doubt that it is the revision petitioner who is in possession of the plaint schedule property. Therefore, it is the revision petitioner who is entitled for certificate of purchase and not the 2[nd] respondent as held by the Land Tribunal, in the common order in OA.Nos.354/1976 and 688/1975 and the Appellate Authority in AA No.45/1993. ``` CRP NO. 1449 OF 2000 ``` 8 10. In view of the finding rendered above, I hold that the common order passed by the Land Tribunal and the common order passed by the Appellate Authority suffers from irregularity, impropriety and illegality and are liable to be set aside. In the result in exercise of the revisional powers of this Court under Section 115 of the Code of Civil Procedure, I allow the revision petition as follows: (i) The common order in O.A.No.354/1976 in O.S.No.688/1975 is set aside. (ii) The common order in AA 45/1993 of the Appellate Authority (LR), Thrissur is set aside. (iii) O.A.No.354/1976 of the Land Tribunal, Thrissur is allowed by directing the Land Tribunal, Thrissur to issue the certificate of purchase in favour of the revision petitioner. (iv) O.S.No.688/1975 of the Land Tribunal, Thrissur is ``` CRP NO. 1449 OF 2000 ``` 9 ## dismissed. - (v) The parties shall suffer their respective costs. sd/- **C.S.DIAS JUDGE** rkc/15.11.22