Kannoth Lakshmanan and others v Adichathu Othenan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934** **CRP.No. 289 of 2006 (G/D)** **----------------------AA.54/2002 of APPELLATE AUTHORITY (LR), KANNUR S.M. 3742/75 OF THE LAND TRIBUNAL NO.II, PAYYANNUR** **REVISION PETITIONER(S)/SUPPL.APPELLANTS 2 TO 6:** **----------------------------------------------** **1. KANNOTH LAKSHMANAN, S/O. ADICHATHU KUNHIRAMAN, MALAPPATTAM AMSOM CHOOLIYAD DESOM, TALIPARAMBA TALUK KANNUR DISTRICT.** **2. KANNOTH KRISHNAN, DO.** **3. KANNOTH KUNHIRAMAN, DO.** **4. KANNOTH CHANDRAN, DO.** **5. KANNOTH GOVINDAN, DO.** **(ALL THE PETITIONERS ARE THE LEGAL HEIRS OF SRI.ADICHATHU KUNHIRAMAN WHO WAS ORGINALLY THE APPELLANT BEFORE THE APPELLATE AUTHORITY AND WERE IMPLEADED IN THE APPEAL AFTER HIS DEATH).** **BY ADV. SRI.B.PREMNATH (E)** **RESPONDENT(S)/RESPONDENTS:** - **------------------------1. ADICHATHU OTHENAN, S/O. POKKAN, MALAPPATTAM AMSOM, CHOOLIYAD DESOM TALILPARAMBA TALUK, KANNUR DISTRICT.** *** 2. C.K. UMAPRABHA THAMPURATTY, CHIRAKKAL KOVILAKAM, CHIRAKKAL P.O., KANNUR.(DIED)** **3. GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM.** ***ADDL.R4. RAVINDRA VARMA, CHIRAKKLA KOVILAKAM,** **CHIRAKKAL POST, KANNUR DISTRICT** **IS IMPLEADED AS ADDITIONAL 4TH RESPONDENT AS PER ORDER DATED 27/05/2008 IN I.A. 661/08.** **R1 BY ADV. SRI.M.SASINDRAN** **R3 BY GOVERNMENT PLEADER** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **LSN** ## **K.VINOD CHANDRAN,J -----------------------------------** ## **C.R.P.NO. 289 of 2006** ## **-----------------------------------** **Dated this the 08[th] of November, 2012** ## **O R D E R** The impugned order in the Civil Revision Petition is one passed by the Appellate Authority rejecting the appeal filed by one Adichathu Kunhiraman. Adichathu Kunhiraman, had obtained Purchase Certificate with respect to 3 acres 4 cents in suo-motu proceedings O.A.No. 3591/75 of Land Tribunal, Irikkur. The properties were situated in R.S No. 30/1A of Chooliyad desom. Kunhiraman contended that, though 3 acres 4cents were mentioned in the Purchase Certificate, he had, in his possession, about 5 acres 60 cents. That question does not arise for consideration here nor does the consideration of the Civil Revision Petition turn on this aspect. 2. Kunhiraman's brother, Othenan applied before the Land Tribunal, Payyannur and obtained an order with respect to 1.18 acres in the very same survey number. Kunhiraman was not aware of the same and on coming to know of it, filed an appeal with delay. The delay was condoned and appeal was taken to the files. While the appeal was pending, a compromise was filed C.R.P.NO. 289 of 2006 2 which indicated that Kunhiraman had affixed his thumb impression and Othenan, his signature. The Appellate Authority accepted the compromise and remanded the matter to the Land Tribunal for fresh consideration “in accordance with law” and after issuing notice to the parties. The compromise petition was also sent to the Land Tribunal. 3. Before the Land Tribunal Kunhiraman raised a dispute with respect to the compromise. The learned counsel for the respondent would contend that, the dispute was only with respect to the absence of the signature of the land owner. I am unable to accept such a contention because, the Land Tribunal No. II, Payyannur which considered the issue on remand, noticed that “the contestant respondent no.2 strongly challenge the existence of compromise petition”. However, the Land Tribunal failed to consider the dispute raised by Kunhiraman and the specific prayer to ignore the terms of the compromise. On the mere statement that there was no reason to distrust the compromise petition, the Land Tribunal refused to consider the challenge against the compromise. C.R.P.NO. 289 of 2006 3 4. I have heard Sri B Premnath, the learned counsel appearing for the revision petitioner and learned counsel Sri. M Sasindran for the first respondent. 5. It is contended by the learned counsel for the revision petitioner that the only provision which enables a compromise as per the Kerala Land Reforms Act, 1963 (hereinafter referred to as “the ACT”) is Section 72MM. The procedure for recording a compromise as provided in the Civil Procedure Code are not applicable. Section 101 of the KLR Act specifically confers the powers of a Civil Court under the CPC only in respect of the specified matters therein. The power of a court to record the compromise being not specified, the power under CPC cannot be exercised in the matter of recording of compromise either by the Land Tribunal or by the Appellate Authority, is the contention of the learned counsel. The learned counsel also places before me, two decisions of this court reported in _**Thommy Ouseph v. Iype Paily & others,**_ **1973 KLT 133** and _**State of Kerala v. Joseph Abraham,**_ **1988 (1)KLT 81,** to buttress his contention. C.R.P.NO. 289 of 2006 4 6. The learned counsel for the respondent however, would contend that Section 102(3) of the KLR Act provides for the Appellate Authority to exercise all powers which a court has under the Code of Civil Procedure. Hence, the Appellate Authority ought to be understood as having the powers under the Civil Procedure Code, with specific reference to Order 23 Rule 3. That is to say, it could record the compromise filed by the parties. It is also contended that there is no challenge to the first order of the Appellate Authority wherein the compromise was recorded, and hence the revision petitioner is estopped in raising any contention against the compromise. 7. At the outset, the contention of the respondent with respect to no challenge having been raised against the Appellate Authority's order dated 03/04/1993 has to be considered. On a plain reading of the order it can be seen that on the filing of the compromise the matter was remanded to the Land Tribunal for fresh consideration in accordance with law, after issuing notice to the parties. The original of the compromise petition was also directed to be sent to the Land Tribunal for necessary action. It C.R.P.NO. 289 of 2006 5 cannot at all be said that the Appellate Authority had accepted the compromise. Before the Land Tribunal as noticed earlier, the second respondent i.e., Kunhiraman specifically disputed the existence of the compromise. Even going by the provisions of O.23 R.3, especially the proviso to Rule 3; when a dispute is raised with respect to the compromise that necessarily has to be adjudicated by the Court which is called upon to record the compromise. That is not to say that O. 23 R. 3 is applicable to the proceedings under the KLR Act. 8. The issue whether the provisions of the Civil Procedure Code is applicable to the proceedings under the Kerala Land Reforms Act, 1963 was considered by a Single Judge of this Court in _**Thommy Ouseph v. Iype Paily & others**_ **, 1973 KLT 133.** There the question was whether, on the filing of an appeal under the provisions of the Act, a cross-objection could be maintained under Rule 22 of Order 41 of the Civil Procedure Code. The specific contention raised therein was relying on Sub section (3) of Sec.102 which was argued to be clothing the Appellate Authority with all powers under the Civil Procedure Code. This C.R.P.NO. 289 of 2006 6 Court having considered a number of decisions coming under the Provincial Insolvency Act, Money Lenders Act etc, found that in all the said cases the provisions of the Civil Procedure Code were made applicable to the proceedings under the enactments. The clear distinction between the enactments which were dealt with in the decisions and the provisions in the KLR Act was highlighted. Section 101 specified the powers that could be exercised by a Land Board or a Land Tribunal; under the Civil Procedure Code. It was categorically held that the Civil Procedure Code was not made applicable as such for the proceedings under the KLR Act. 9. _**State of Kerala v. Joseph Abraham**_ **, 1988(1) KLT 81,** again deals with the provisions of Sec.102(3), of the KLR Act. It was held that there is no provision in the KLR Act that the Civil Procedure Code would govern the proceedings under the Act, as in suits and appeals before Civil Courts. Sec.102(3) was held to confer on the Appellate Authority, only the right to exercise the power and follow the procedure in deciding the appeals against the decrees under the Civil Procedure Code and that was only in the nature of a direction, rather than a C.R.P.NO. 289 of 2006 7 conferment of a right. 10. Going by the provisions of Sec.101, it cannot be said that the Land Tribunal has the powers to record a compromise as provided under the Civil Procedure Code. The specific matters for which powers of the Civil Court was conferred on a Land Tribunal does not deal with recording of a compromise. However, it is to be noticed that, any dispute before any forum could always be settled by agreement between the parties to the dispute unless the same is in a representative capacity. The law makers were astute in enacting Sec. 72MM wherein an assignment could be granted by mutual agreement. The agreement contemplated there in, could be between the cultivating tenant, the land owner or the intermediaries if any. In the facts of this case, the land owner, and two persons raising conflicting claims of tenancy were before the tribunal. For one, the compromise was not signed by the land owner and in any event it was disputed that the compromise itself was not in existence. 11. It cannot at all be said that, two conflicting tenants can settle the disputes between themselves and deprive the C.R.P.NO. 289 of 2006 8 landlord of the lands in his possession. Sub.section (3) of Sec.72MM also provides for an enquiry before an order is passed. Sub sec.(4) mandates that before such an order is passed under Sub.sec (3), the Land Tribunal shall follow the procedure laid down in Sub section 1,2, 3A, 4 and 5 of Sec.72F. This reflects the anxiety of the law makers, in permitting acceptance of a compromise without an enquiry and without notice to the concerned parties. There cannot be any acceptance of a compromise merely on the filing of the same. Even looking at the provisions of the Civil Procedure Code, though not as such powers are not conferred under the KLR Act; but as a rule of guidance, it cannot be said that a compromise can be accepted on the mere filing of the same, disregarding any dispute raised. 12. It is fairly pointed out by the learned counsel for the revision petitioner that a decision of this Court reported in _**Devaki Amma v. State of Kerala**_ **, 1988(2) KLT 1037** ,found that an Appellate Authority has the power to record a valid compromise between the parties. There a compromise petition filed before the Appellate Authority was rejected for the reason of C.R.P.NO. 289 of 2006 9 there being no power. This Court relied upon the powers conferred under the Civil Procedure Code to hold that a valid compromise between the parties can be recorded by the Appellate Authority. The decision rendered by a learned Single Judge is without noticing the two binding precedents cited above. It is also to be noticed that, what was clearly found in the above decision was that a “valid” compromise could be recorded. 13. In the instance case, it cannot be said that there is a valid compromise in so far as the land owner is not a signatory and more so in the teeth of the dispute raised by the party who is alleged to have put his thumb impression. Regarding the contention raised under sub-sec.102, when such power of recording of compromise is not available in the Land Tribunal by the specific provisions of sub-sec (1) of Sec.101, it would be absurd to hold that the Appellate Authority would have such powers going by sub-sec.(3) of Sec 102. The Appellate Authority necessarily has all the powers conferred on the lower authority and could exercise it even in the absence of a specific provision, but as a proposition of law, it cannot at all be said that, the C.R.P.NO. 289 of 2006 10 Appellate Authority would be conferred with powers which are not available to the lower authority. 14. The impugned orders in so far as it fails to consider the dispute raised on the compromise allegedly entered into between two of the parties; cannot be upheld. It can also not be held that the Appellate Authority in the earlier round has recorded the compromise and decided the case in terms of the compromise. There was a specific remand and it was incumbent upon the Land Tribunal to treat the compromise as a petition under Sec.72MM and follow the procedure therein. If it is found by the Land Tribunal that the compromise would come within the contours of Sec.72MM then necessarily the dispute would have to be considered. For that reason also, the impugned orders cannot be sustained. In the circumstances, the order of the Land Tribunal No. II, Payyannur as confirmed by the Appellate Authority is set aside. The case is remanded back to the Land Tribunal for fresh consideration. The parties shall be free to make any application under Sec 72MM, if they so desire but the compromise as filed, cannot be acted upon. The Land Tribunal C.R.P.NO. 289 of 2006 11 shall consider the matter afresh in accordance with law and in accordance the provisions of the KLR Act and the parties shall appear before the Land Tribunal, having jurisdiction on 06/12/2012. The Land Tribunal shall issue notice if any to the parties who have not appeared. The case shall be considered and disposed of at any rate within six months from the date of appearance of the parties. ## **K.VINOD CHANDRAN JUDGE** _LSN_