LAA No. 1347 of 2003 (B)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 4TH DAY OF JANUARY 2012/14TH POUSHA 1933** ## **LAA.No. 1347 of 2003 (B)** **====================** ## **LAR.75/1991 of PRINCIPAL SUB COURT,KOLLAM -----------------------------------** - **APPELLANT(S)/CLAIMANTS 1 TO 3 =============================** - **1.* NARAYANI AMMA ESERI AMMA, (DIED) ELAMGALLOOR VEEDU, PERUMON EAST CHERI** **2. SHYAMALA DEVI, ELAMGALLOOR VEEDU, PERUMON EAST CHERI** **3. SUSHAMA DEVI, ELAMGALLOOR VEEDU, PERUMON EAST CHERI** - **ADDITIONAL APPELLANTS 4 TO 9 IMPLEADED** **4. R.VASU PILLAI, AGED 95 YEARS, ELANGALLU VILA, PERUMAN P.O.,PERINAD, KOLLAM – 691 601 - HUSBAND** **5. SARASWATHY AMMA E. AGED 64 YEARS, ASWATHY, H.NO.707, GOWREESA PATTOM, - DAUGHTER PATTOM P.O., THIRUVANANTHAPURAM** **6. SUSEELA DEVI E.V., AGED 61 YEARS, LAVANYA, NJARAKKAL, PERINAD P.O.,KOLLAM. -DAUGHTER** **7. SUJATHA DEVI E.V., AGED 52 YEARS, SURYASREE, 1/162 A, K.R.BALACHANDRAN ROAD, THIRUVANGULLAM, CHOTTANIKARA, ERNAKULAM. - DAUGHTER** **8. SURESH KUMAR E.V. AGED 49 YEARS, ELANGALLU VILA, PERUMAN P.O., PERINAD, - SON KOLLAM – 691 601** **NK** **LAA.No. 1347 of 2003 (B) ===================** - **9 SAJEEV KUMAR E.V., AGED 47 YEARS, ELANGALLU VILA, PERUMAN P.O., PERINAD, - SON KOLLAM – 691 001** **ADDITIONAL APPELLANTS 4 TO 9 ARE IMPLEADED, BEING THE LEGAL REPRESENTATIVES OF DECEASED APPELLANT NO.1 VIDE ORDER DATED 15.12.11 IN I.A.4023/11 IN LAA 1347/03.** ## **BY ADV.SRI.S.RADHAKRISHNAN** ## **RESPONDENT(S)/ADDITIONAL CLAIMANTS 4 TO 12 ===========================================** - **1 PADMANABHA PILLAI KUNJIPILLAI, MURALI SADANAM, VELLIMON (DIED)** - **2. MADHAVAN PILLAI RAMAN PILLAI, PADMAVILASAM VEEDU, VELLIMON CHERI, PERINADU (DIED)** - **3. MADAVAN PILLAI BALAKRISHNA PILLAI, MANALIKKARA VEEDU, CHERUMOODU CHERI.** - **4. NARAYANI AMMA SAROJINI AMMA, MANALIKKARA VEEDU, CHERUMOODU CHERI** - **5.** MADHAVAN PILLAI SIVASANKARAN PILLAI, THEKKE VILA VEEDU, VELLIMON CHERI (DIED)** - **6. CHELLAMMA AMMA PADMAVATHI AMMA, PADMAVILASAM VEEDU, VELLIMON CHERI, PERINADU** **7. D.AMBUJAKSHY AMMA, MURALI SADANAM, VELLIMON WEST P.O., CHERUMOODU CHERI** **8. K.MURALEEDHARAN PILLAI, MURALI SADANAM, VELLIMON WEST P.O., CHERUMOODU CHERI, PERINAD VILLAGE** **9. K.SOMAN PILLAI, SANGEETHA BHAVAN, VELLIMON WEST P.O., CHERUMOODU CHERI, PERINAD VILLAGE** **NK** ## **LAA.No. 1347 of 2003 (B) ===================** ## **** ADDITIONAL RESPONDENTS 10 TO 13 IMPLEADED ==========================================** - **10 ANITHA KUMARI, AGED 38 YEARS, D/O.THE LATE MR.MADHAVAN PILLAI SIVASANKARAN PILLAI, MURALI SADANAM, VELLIMON P.O.** - **11 ANILKUMAR, AGED 36 YEARS, S/O.THE LATE MR.MADHAVAN PILLAI SIVASANKARAN PILLAI, MURALISADANAM, VELLIMON P.O.** - **12 AJITHKUMAR, AGED 34 YEARS, S/O.THE LATE MR.MADHAVAN PILLAI SIVASANKARAN PILLAI, MURALISADANAM, VELLIMON P.O.** - **13 ARUNKUMAR, AGED 27 YEARS, S/O.THE LATE MR.MADHAVAN PILLAI SIVASANKARAN PILLAI, MURALISADANAM, VELLIMON P.O.** ## **ADDITIONAL R10 TO R13 ARE IMPLEADED AS THE Lrs OF THE DECEASED R5 AS PER ORDER DATED 23.01.04 IN IA 63/2004** - **BY ADVS. SMT.V.P.SEEMANDINI (SR.) SRI.M.S.UNNIKRISHNAN SMT.GAYATHRI VIJAYAN SMT.KARTHIKA** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 04-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NK** ## **PIUS C.KURIAKOSE & C.K.ABDUL RHIM, JJ.** **=====================** L.A.A. NO. 1347 OF 2003 **=====================** Dated this the 4[th] day of January 2012 ## JUDGMENT ## **Pius C.Kuriakose,J.** Claimants 1 to 3 before the Reference court in a reference under Section 31(2) of the Land Acquisition Act are the appellants. The properties under acquisition were three items. One item extending to 33 cents was kept as the family serpent grove as per Schedule 8 of Ext.A2 partition deed of the year 1948(1117M.E). The other two items extending to a total of 26.5 cents were allotted to the share of the first appellant towards his absolute share. In Ext.A2 there is a recital that the physical control and management over the serpent grove extending 33 cents is entrusted with the first appellant as the same is situated close to the properties allottedtowards absolute share. It appears that since Ext.A2, the first appellant herself continued to manage and physically control the serpent grove. But a careful reading of the recital of Ext.A2 to show that the ownership over the serpent grove is kept in common amongst all the members of the family. It appears that the first LAA 1347/2003 -2- appellant facilitated initiation of suo motu proceedings under Section 72 of the Land Acquisition Act and obtained certificate of purchase in respect of the entire extent of 59.5 cents. The properties were acquired for the purposes of Perumon Refractories. A total compensation of Rs.2,12,530.40 was determined by the Land Acquisition Officer as compensation and awarded in common to all the parties. In view of the dispute regarding apportionment, the Land Acquisition Officer facilitated a reference under Section 31(2) which has resulted in the impugned award. 2. Under the impugned amount award, the learned Subordinate Judge has found that the entire property under acquisition was the common property belonging to the parties. As regards the certificate of purchase, the learned Subordinate Judge has taken the view that obtainment of a certificate of purchase by one of the co-owners can only be in trust for the other co-owners also and will enure to the benefit of the coowners. Accordingly, the entire compensation amount has been ordered to be apportioned equally between the six co-owners, LAA 1347/2003 -3- viz. Appellants and the respondents. The impugned award is challenged in this appeal on various grounds. 3. We have heard Shri S.Radhakrishnan, learned counsel for the appellants and Smt.S.Karthika, learned counsel for the respondents. Mr. Radhakrishnan referred to Section 72 K of the Kerala Land Acquisition Act as well as the decision of the Supreme Court in **C.Veettil Ammad v. Taluk Land Board [A.I.R.1979 S.C.1573]** and submitted that a certificate of purchase issued under the provisions of the Land Reforms Act is to be treated as conferring exclusive title in respect of the properties covered by the certificate on the holder of the certificate. Mr. Radhakrishnan highlighted that the certificate of purchase was issued in favour of the first appellant not behind the back of the respondent. Instead it was issued to the first appellant by the Land Tribunal in an enquiry to which the respondents were also parties. According to Mr. Radhakrishnan in any event there is no justification for the learned Subordinate Judge not awarding the compensation proportionately due in respect of 26.5 cents allotted to the absolute share of the first LAA 1347/2003 -4- appellant in Ext.A2 to the first appellant. 4. Smt.S. Karthika, learned counsel appearing for the respondents would oppose all the submissions of Mr.Radhakrishnan. According to Smt.Karthika, it is clear from the recitals in Ext.A2 that the serpent grove extending to 33 cents shall always remain the common property of all members of the family, even though there are recital to the effect that the possession and management of the serpent grove will be the first appellant. There are further recitals that notwithstanding such possession and management, ownership shall always remain with all the members of the family. In the teeth of such recitals, the first appellant and for that of other appellants cannot contend that the first appellant has become the absolute owner of the serpent grove portion by virtue of the certificate of purchase. Smt. Karthika would however fairly concede that the direction in the impugned award that even the compensation due in respect of 26 cents allotted towards the absolute share of the first appellant under Ext.A2 partition deed appears to be not correct. LAA 1347/2003 -5- 5. In reply to Mr.Radhakrishnan submitted that the learned Subordinate Judge has not placed any reliance on the certificate of purchase for the reason that the certificate of purchase is not produced. As a matter of fact, the certificate of purchase was a part of the record as it was produced before the Land Acquisition Officer. Another reason stated by the learned Subordinate Judge for discarding the claim based on the certificate of purchase is that the subsequent partition deed is executed between the appellants inter se, it is not the number of the certificate of purchase that is mentioned, but it is the number of the suo motu proceedings in which the certificate of purchase was issued. These two reasons, at any rate, are silly, according to Mr. Radhakrishnan. 6. We have given our anxious considerations to the rival submissions addressed at the Bar. There is no material on record to accept the submission of Mr.Radhakrishnan that the certificate of purchase in question was issued to the appellants on the basis of an enquiry conducted with notice to the LAA 1347/2003 -6- respondents. Even if it was with notice to the respondents that the certificate of purchase was issued to the first appellant then also in view of the clear recital in Ext.A2 that ownership over the serpent grove area shall always remain with the members of the family notwithstanding the entrustment of possession and management of the same with the first appellant, the issuance of such certificate can only be on behalf of all the co-owners. In that view of the matter, we conclude that the appellants can aspire for only 1/6[th] share out of the compensation which is due in respect of the serpent grove area. 7. But we find considerable force in the submissions of Mr. Radhakrishnan that the court below went wrong in directing apportionment of the compensation due in respect of 26.5 cents of land allotted absolutely to the share of the first appellant under Ext.A2. We hold that the first appellant herself is entitled for that amount for the entire compensation due in respect of the above portion of 26.5 cents, which we find to be Rs. 95,461/-. LAA 1347/2003 -7- 8. The first appellant is no more. As already indicated, the appellants have 1/6[th] share over the serpent grove area and for that reason they are entitled for 1/6[th] of the compensation payable in respect of the serpent grove area. Totally the appellants are entitled for Rs.1,14,973/- from out of the total compensation amount under deposit. The above amount together with interest which accrued thereon will be released to the appellants. The balance amount with interest should be released to the respondents. The appeal is allowed to the above extent. The parties are directed to suffer their respective costs. ## **Sd/PIUS C.KURIAKOSE,JUDGE** **Sd/C.K.ABDUL REHIM, JUDGE** **ks.** ## **True copy** **P.S.To Judge** LAA 1347/2003 -8-