Kumaran Kuttappan v. Hussain Yaffi and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 21ST DAY OF MARCH 2014/30TH PHALGUNA, 1935** ## **CRP.No. 219 of 2011 ( )** **-----------------------I.A. NO.49/2008 IN AA. NO.36/2008 OF APPELLATE AUTHORITY (LR), ALAPPUZHA.** **.........** ## **REVISION PETITIONER/2ND RESPONDENT:** **----------------------------------------------------------------** **KUMARAN KUTTAPPAN, S/O.KUMARAN, AGED 61 YEARS, RESIDING AT 'ANIZHAM' FROM VATTAVELIYIL, VANDANAM P.O., ALAPPUZHA.** **BY ADV. SMT.C.G.BINDU.** ## **RESPONDENTS/APPELLANT & 3RD RESPONDENT:** **--------------------------------------------------------------------------** **1. HUSSAIN YAFFI, S/O.MOHAMMED YAFFI, THAZHAKATH PUTHEN VEEDU, ZACHARIA VARD, ALAPPUZHA-688 001.** ## **2. ADMINISTRATOR, THIRUMALA DEVASWOM,** - **(T.D) MEDICAL COLLEGE, NOW ALAPPUZHA MEDICAL COLLEGE, VANDANAM P.O, ALAPPUZHA-688 001.** **3. STATE OF KERALA,** - **REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM-695 001.** **R1 BY ADV. SRI.G.S.REGHUNATH. R3 BY GOVT. PLEADER SMT.K.T. LILLY.** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 219 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of March, 2014 ## **O R D E R** Under challenge is the order of the Appellate Authority (Land Reforms), Alappuzha whereby, the appellate authority, while dealing with I.A.No. 49/2008 in A.A.No.36/2008, allowed the appeal and remanded the matter to the land tribunal for fresh consideration of the issue regarding grant of purchase certificate to the petitioner herein. 2. The facts absolutely necessary for the disposal of the revision petition are as follows: It is not in dispute before this Court that the property in question belonged to Muhammed Yafi of Kadappurathu Bunglow. His wife was Iysha Beevi. According to the petitioner, they had a son Hussan Koya. After the death of Muhammed Yafi, Iysha Beevi married one M.K. Unni. It is pointed out that Muhammed Yafi had obtained the property involved in the suit along with other items of property. After **C.R.P. No. 219 of 2011** **-2-** the death of Mohammed Yafi, the claim made by the revision petitioner is that his properties devolved on his wife and his son Hussan Koya. They assigned few items of property including the property involved in this proceeding to the Thirumala Devaswom Medical College as per documents of the year 03.03.1965. 3. Petitioners says that one Raman Govindan was a tenant under the family of Mohammed Yafi and he continued to be the tenant even after the execution of the partition deed by which Mohammed Yafi got the property and also after the execution of document in favour of the T.D. Medical College. Consequent on the death of Raman Govindan, the properties devolved on the petitioner and his mother Mani Meenakshi and they inherited the tenancy. 4. They filed O.A.2559/1975 before the land tribunal concerned for the assignment under Section 72B of the Kerala Land Reforms Act in respect of 88 cents of property which now they say is comprised in survey No.48/3A. **C.R.P. No. 219 of 2011** **-3-** According to the petitioner, after due enquiry and following the necessary procedures, purchase certificate was issued to them since they were found to be in possession of the property ever since the death of Raman Govindan in 1969. 5. While things stood so, in the year 2008 i.e., after the expiry of almost 31 years of granting the purchase certificate, a person by name Hussain Yafi styling himself as the son of Mohammed Yafi comes with the petition that fraud has been played on the land tribunal and that property which was assigned to the T.D. Medical College was not the property of which now purchase certificate is granted in favour of the petitioner and also that Muhammed Yafi had no son by name Hussan Koya. 6. After issuing notice to the parties concerned, the appellate authority allowed the appeal filed by the said Hussain Yafi who claimed to be the son of Muhammed Yafi and set aside the purchase certificate and remanded the matter to the land tribunal for fresh consideration. It is the **C.R.P. No. 219 of 2011** **-4-** said order that is assailed in this revision. 7. The learned counsel appearing for the revision petitioner contended that the appellate authority has failed to discharge the duty in accordance with the statutory provisions and it has simply accepted the version given by the appellant before the authority below that he is the son of Muhammed Yafi. No documents whatsoever establishing that he is the son of Muhammed yafi was either produced or a copy of any document was given to the petitioner herein. It is also pointed out by the learned counsel for the revision petitioner that true, there was an error in the original application wherein the property was comprised in survey No. 48/1. However, a petition was filed before the authority concerned pointing out that there was an inadvertent mistake committed at the time of filing the application. The actual survey number in respect of which purchase certificate is claimed of 88 cents comprised in Survey Number 48/3A and not 48/1. The learned counsel pointed **C.R.P. No. 219 of 2011** **-5-** out that it was after verification, the purchase certificate was issued in respect of property comprised in survey No.48/3A. It is significant to notice, according to the learned counsel, that the Administrative Council of Thirumala Devaswom Medical College who was a party to the proceedings even though contested the matter was unable to dislodge the claim made by the petitioner and the purchase certificate was issued. 8. The learned counsel has produced before this Court the document by which Iysha Beevi and Hussan Koya had transferred the property to the T.D. Medical College and contended that it can be seen from the said document that the property assigned to the Thirumala Devaswom Medical College is in survey No. 48/3A. Therefore, it could not be said that any deliberate fraud was played on the Tribunal. Even otherwise, the procedures necessary for issuing a purchase certificate have been scrupulously followed by the land tribunal and no objection from anybody except the T.D. ## **C.R.P. No. 219 of 2011** **-6-** Medical College was filed before the land tribunal and therefore the belated claim now made by the so called Hussain Yafi ought not to have entertained. At any rate, according to the learned counsel, going by Section 102(3) of the Kerala Land Reforms Act, while disposing of an appeal, the appellate authority is obliged to follow the procedures contemplated in the C.P.C. for the disposal of a appeal. If that be so, those principles have not been followed and the order impugned cannot stand. 9. Sri. G.S. Reghunath, the learned counsel appearing for the respondents on the other hand contended that on a total evaluation of the materials available before the court, it could be seen that even though there may be though not conceding that there was any infirmities in the approach made and procedure followed by the appellate authority, it can be seen that the proceedings as well as purchase certificate issued to the petitioner is open to serious doubt on various grounds. The learned counsel drew ## **C.R.P. No. 219 of 2011** **-7-** attention of this Court to the fact that even though the petitioner claims to have filed a petition before the land tribunal for correction of survey number, even as on today, the application shows the survey No. as 48/1. Thus according to the learned counsel, the purchase certificate now granted is not in tune with the application and the survey number differs. The learned counsel also drew attention of this Court to the fact that no evidence as such seems to have taken before the land tribunal and the land tribunal seems to have been acted mechanically. Referring to the document of assignment in favour of the T.D. Medical College and the application for purchase certificate said to have been filed by the petitioner, the learned counsel pointed out that the boundaries do not tally and that those aspects also have been omitted to be noticed by the land tribunal. It is also contended that there is nothing to show that the petitioner or his mother are the legal heir of Raman Govindan who admittedly even according to the petitioner is **C.R.P. No. 219 of 2011** **-8-** the original tenant. It is also pointed out that the petitioner cannot be heard to say that merely because notice has to be published as required as under Section 72F of the Kerala Land Reforms Act, the respondent herein should be deemed to have knowledge about the proceedings. According to the learned counsel, the application which was published was in respect of property in survey No. 48/1 in which the respondent had no interest, he did not have to respond. It is pointed out by the learned counsel that all that the lower appellate court has now done is to order a fresh enquiry and that cannot prejudice the petitioner at all. The appellate authority had not gone into the merits of the case at all since it was found that there is prima facie material to show that the appellant before the said appellate authority, is the son of Muhammed Yafi. 10. If that be true, according to the learned counsel, the entire proceedings had to be set aside. By order of remand, it could not on fact be said that rights of petitioner ## **C.R.P. No. 219 of 2011** **-9-** are affected. The appellate authority has ordered only a fresh enquiry when the petitioner too will get opportunity to adduce evidence in support of his case. 11. There is much to be said on either side. Of course, Section 102(3) of the Kerala Land Reforms Act, the appellate authority is to follow the procedures enumerated in Order XL1 in disposing of an appeal. That obviously seems to have not been followed. But should that be a ground to send back the matter to the appellate authority when there are other serious infirmities pointed out by the learned counsel for the respondent in issuing the purchase certificate. 12. Before going further, one contention raised by the learned counsel for the revision petitioner needs to be taken note of. The learned counsel pointed out that the respondent was not a party to the proceedings and therefore an appeal by him without leave is incompetent and for the said proposition, the learned counsel relied on the decision reported in **Vareed Jacob** v. **Jayakumar** [2010 (3) KLT ## **C.R.P. No. 219 of 2011** **-10-** 389]. 13. The wording of Section 102 of the Kerala Land Reforms Act is that any aggrieved person can file an appeal. These words have come up for consideration on numerous occasions before this Court. It is sufficient to refer to **Govinda Pillai** v. **Madhavan Pillai** [1988 (2) KLT 522] wherein it was held as follows: “S.102(1) gives an aggrieved person the right to file an appeal against the order which is likely to affect his rights prejudicially. Subs.2 provides that the Appellate Authority may admit an appeal presented after the expiration of the period prescribed under sub-s. 1 if it is satisfied that the appellant had sufficient cause for not presenting it within the prescribed period. The plain and unambiguous language employed in these two sub-sections make it clear that the legislature intended that a person even if he is not a party to the proceeding but nevertheless aggrieved by an order passed by the authority under any of the provisions made mention of in sub-s. 1 of S.102, has a right to file an appeal against the said order.” **-11-** ## **C.R.P. No. 219 of 2011** ## 14. There is also a decision in **Bhaskaran** v. **Aisabi** [1987 2 KLT 213], wherein it was held as follows: “The right, title and interest of the landowners and intermediaries in respect of a holding vested in the Government under S.72 will be assigned to the cultivating tenant whether the assignment is as a result of an order passed in a proceeding’ initiated under S.72B, 72BB or 72C. In short the object in initiating proceedings under S.72C is identical with the object with which proceedings under S.72B and 72BB are initialed. The ultimate order that will be passed in these proceedings is the same, namely, the order directing assignment of the right, title and interest of the landowner vested in the Government in respect of the holdings, to the cultivating tenant on his paying the compensation as determined by the Land Tribunal. S.102 states that the Government or any person aggrieved by any order of the Land Tribunal (leaving out unnecessary parts of the Section) under S.72F, may appeal against such order within such time as may be prescribed, to the Appellate Authority. The order of the Land Tribunal falling under S.72(F) thus is an appealable order. The order disposing of the suo motu proceedings under S.72C is also an **C.R.P. No. 219 of 2011** **-12-** order that falls under S.72F. If that be so that order is also an appealable order.” 15. It is significant to notice that in the decision reported in **Vareed Jacob** v. **Jayakumar** [2010 (3) KLT 389], **Govinda Pillai** v. **Madhavan Pillai** [1988 (2) KLT 522] and **Bhaskaran** v. **Aisabi** [1987 (2) KLT 213] have not been referred to at all. Considering this anomalous position, another bench of this Court had occasion to consider the issue. In CRP No. 503/2012, disposed of by order dated 22.01.2013, the learned Judge had occasion to hold that the the decision reported in **Vareed Jacob** 's case (cited supra) has to be taken only as _per incuriam_ . Apart from the above aspect, on the very wording of the Section itself, it does not appear that any embargo has been placed regarding the filing of the appeal except that the person should be an aggrieved person. If as a matter of fact, as claimed by the appellant before the court below, he is the son of Muhammed Yafi, obviously, he is an aggrieved person. ## **C.R.P. No. 219 of 2011** **-13-** 16. The learned counsel appearing for the revision petitioner pointed out that it was without any enquiry that the lower appellate court has set aside the purchase certificate and remanded the matter to the land tribunal. From a reading of the order, it can be seen that the respondent herein had produced his passport, identity card etc., to show that he is the son of Muhammed Yafi. As already noticed, the procedure for disposal is like an appeal under the Code of Civil Procedure may not have been followed. But merely for the purpose of following the procedural formalities, it may not be appropriate to send back the case to the appellate authority for fresh consideration. There appears to be some other legal infirmities in the order granting purchase certificate. 17. The revision petitioner lays claims through Raman Govindan. As rightly pointed out by the learned counsel for the respondent, nowhere in the application, it is mentioned that they claim through Raman Govindan. It would appear **C.R.P. No. 219 of 2011** **-14-** from the application that it is an independent tenancy that is being set up by the petitioner. It was filed by the revision petitioner herein initially. On a report by the authorized inspector, his mother was also impleaded as a tenant and the purchase certificate stands in the joint names of the petitioner and his mother. Significantly enough, as rightly pointed out by the learned counsel for respondent, in the original application the survey number still stands as 48/1 whereas the purchase certificate has been issued in respect of survey No. 48/3A. Of course, it appears from the documents produced before this Court that assignment of the land made in favour of the T.D. Medical College by the so called legal heirs of Mohammed Yafi that the property assigned to the T.D. Medical College also comes under the survey No. 48/3A. 18. It is true that three decades have elapsed since the issuance of purchase certificate. But as per the purchase certificate as it now stands, the property cannot be **C.R.P. No. 219 of 2011** **-15-** identified because it does not contain the boundaries at all. The fact that the T.D. Medical College was shown as the land lord and purchase certificate issued thereafter may not be a ground as of now to uphold issuance of purchase certificate if it is established that the persons who assigned the property to T.D. Medical College had no authority to do so. 19. The issue now that is being agitated is that Hussan Koya who along with Iysha Beevi assigned the property to the T.D. Medical College had nothing to do with the property and he is not the son of Mohammed Yafi. The appellate authority seems to have been prima facie impressed by the documents produced before it and that persuaded the appellate authority to set aside the order of purchase. As already noticed, there are various other aspects which have to be gone into. But in the light of the fact that all that the appellate authority has done is only to remand the matter to land tribunal for fresh consideration thereby enabling the petitioner and also to fill up the lacuna if any, it is felt that it **-16-** ## **C.R.P. No. 219 of 2011** will not be appropriate to interfere with the impugned order. For the above reasons, this Court finds no reason to interfere with the findings of the lower appellate court. The order stands confirmed. However, the land tribunal is directed to dispose of the matter within six months from the date of receipt of copy of this order after affording opportunities to both sides to adduce evidence in the case. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge