Margaret (W/o Sebastian) and Lissy Margaret (W/o K.J. Varghese) v. Land Reforms Appellate Authority, Alappuzha; Rosy Margaret; Dainatious; Special Tahasildar (Land Reforms) Land Tribunal, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **MONDAY, THE 27TH DAY OF FEBRUARY 2017/8TH PHALGUNA, 1938** ## **WP(C).No. 16437 of 2015 (D)** **----------------------------** ## **PETITIONER(S) :-** **-----------------** **1. MARGARET, W/O.SEBASTIAN, RESIDING AT PUNNAKEZHATH HOUSE, MULAVUKADU,** - **ERNAKULAM.** **2. LISSY MARGARET, W/O.K.J.VARGHESE RESIDING AT PUTHEZHATH HOUSE, KALOOR, ERNAKULAM.** - **BY ADVS.SRI.K.JAGADEESCHANDRAN NAIR SMT.DIVYA C BALAN** **RESPONDENT(S) :-** - **------------------** **1. LAND REFORMS APPELLATE AUTHORITY, ALAPPUZHA-688 001 REPRESENTED BY ITS CHAIRMAN** **2. ROSY MARGARET, W/O.XAVIER RESIDING AT PUTHEZHATH HOUSE, KALOOR, ERNAKULAM - 682 017.** **3. DAINATIOUS, AGED ABOUT 40 YEARS, S/O.VARUTHUKUTTY CHACKALAKKAL HOUSE, CHITTOOR DESOM, CHERANELLOOR VILLAGE - 682 034.** **4. SPECIAL TAHASILDAR (LAND REFORMS) LAND TRIBUNAL, ERNAKULAM - 682 301.** - **R3 BY ADV. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.THOMAS P.KURUVILLA SRI.P.PRIJITH R2 BY ADV. SRI.V.M.KURIAN R1 & R4 BY GOVERNMENT PLEADER SMT.MABLE C. KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 16437 of 2015 (D)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :-** **-----------------------** **EXT.P1 - TRUE COPY OF THE L R APPEAL MEMORANDUM FILED BEFORE THE 1ST RESPONDENT ON 25/11/2013.** **EXT.P2 - TRUE COPY OF THE DELAY CONDONATION PETITION FILED BEFORE THE 1ST RESPONDENT.** **EXT.P3 - TRUE COPY OF THE PETITION TO RECEIVE ADDITIONAL DOCUMENTS FILED BEFORE THE 1ST RESPONDENT.** **EXT.P4 - TRUE COPY OF THE PETITION FILED UNDER RIGHT TO INFORMATION ACT BEFORE THE VILLAGE OFFICER, CHERANALLOORE VILLAGE DATED 15/10/2013.** **EXT.P4(a) - TRUE COPY OF THE REPLY DATED 30/10/2013 TO EXT.P4.** **EXT.P5 - TRUE COPY OF THE REQUEST DATED 01.11.2013 FILED BY THE 1ST PETITIONER'S HUSBAND BEFORE THE 4TH RESPONDENT.** **EXT.P5(a) - TRUE COPY OF THE REPLY DATED 20.11.2013 TO EXT.P5.** **EXT.P6 - TRUE COPY OF THE REQUEST DATED 04.11.2013 FILED BY THE 1ST PETITIONER'S HUSBAND BEFORE THE REVENUE DIVISIONAL OFFICER.** **EXT.P6(a) - TRUE COPY OF THE REPLY DATED 08.11.2013 TO EXT.P6.** **EXT.P7 - TRUE COPY OF THE APPLICATION DATED 02.09.2013 FILED BY THE 1ST PETITIONER'S HUSBAND BEFORE THE 4TH RESPONDENT.** **EXT.P8 - TRUE COPY OF THE PAPERS ISSUED TO THE 1ST PETITIONER'S HUSBAND ON 10.09.2013 FROM THE OFFICE OF THE 4TH RESPONDENT.** **EXT.P9 - THE AFFIDAVIT OF ADV.C.P.PARAMESWARAN DATED 28.03.2015.** **EXT.P10 - TRUE COPY OF THE PURCHASE CERTIFICATE OBTAINED ON 28.01.1976 IN THE NAME OF PETITIONERS, 2ND RESPONDENT AND THEIR MOTHER AS LEGAL HEIRS.** **RESPONDENT(S)' EXHIBITS :- -----------------------** **EXT.R3(A) :- COPY OF PURCHASE CERTIFICATE No.1336 OF 1976 DATED 18-8-1976.** **WP(C).No. 16437 of 2015 (D) ----------------------------** **EXT.R3(B) :- COPY OF THE APPLICATION DATED 19/4/1974 OBTAINED UNDER R.T.I. ACT.** **EXT.R3(C) :- COPY OF THE NOTICE DATED 14-4-1975 OBTAINED UNDER R.T.I. ACT.** **EXT.R3(D) :- COPY OF THE JUDGMENT IN O.S.No.896/1995 OF THE SUB COURT, ERNAKULAM DATED 25-7-2002.** **EXT.R4(a) :- COPY OF THE APPLICATION SUBMITTED BY THE APPLICANTS IN OA No.271/75 BEFORE THE TRIBUNAL.** **EXT.R4(b) :- COPY OF THE JUDGMENT DATED 8.9.1975 IN OA No.271/75 PASSED BY THE SPECIAL TAHSILDAR, ERNAKULAM.** **EXT.R4(c) :- COPY OF THE OBJECTION PREFERRED BY THE MOTHER OF THE PETITIONERS IN OA No.271/1975.** _//TRUE COPY//_ _P.A. TO JUDGE_ **'CR'** ## DEVAN RAMACHANDRAN, J ---------------------------------------------------W.P(C). No. 16437 of 2015 ---------------------------------------------------Dated this the 27[th] day of February, 2017 ## J U D G M E N T The operational perimeter and jurisdictional confines, which bind the Taluk Land Boards, while exercising the powers prescribed to it under the provisions of Rule 136A of the Kerala Land Reforms (Tenancy) Rules, 1970 presents, in the maze of all the facts involved, to be the one issue, which is the pivot on which any resolution of the disputes in this case would obtain consummation. 2. Before dealing with the issues of law placed by the learned counsel on either side, it would, of course, be necessary to have a quick glance of the facts, a wood cut of which is being shown as under: Petitioners on the one side and the third respondent on the other are staking claim of ownership over certain extent of land comprised in survey No. 726/3 of Cheranellur Village. The petitioners assert their ownership of the said property on the strength of Ext.P10, which is a purchase certificate that has been issued in the name of their father in January, 1976. The 2 _**W.P(c). 16437/15**_ third respondent stakes claim on the same property on the strength of another purchase certificate, which is produced in the writ petition as Ext.P8, which was also issued in the year 1976. 3. The genesis of the controversy is that at the time when Ext.P8 was issued in favour of the father of the third respondent, the property comprised in survey No.726/3 was not included. The petitioners, therefore, say that the property comprised in this survey number was at no time given in ownership to the third respondent or her father and that, therefore, she has no right over the same at all. 4. It appears that subsequently, in the year 1995, the petitioners were constrained to file a suit against certain other persons regarding the ownership and possession of this very same property. That suit was numbered as O.S. No.896 of 1995 on the files of the Sub Court, Ernakulam. It transpires that this suit was decreed as prayed for by the petitioners in the year 2011 and that the property was conveyed by the process of delivery through orders of the court below in favour of the petitioners. The petitioners, thereafter, made applications for transfer of registry of the property in their name, which was objected to by the third respondent by 3 _**W.P(c). 16437/15**_ producing a purchase certificate which included this property also in her name. 5. The interesting aspect of this controversy is that what the third respondent relies upon is the same purchase certificate that is issued to her father in the year 1976, namely Ext.P8 but which was corrected by orders of the Land Tribunal in the year 1996. The petitioners contend and assert that this correction was made fraudulently and by practice of deception since the Land Tribunal had no power to make such corrections and also since these corrections were effected in Ext.P8 without notice to them. The petitioners challenge Ext.P8 as being illegal, unlawful and having been issued without jurisdiction. 6. Heard the learned Senior counsel Mr.K. Jagadeeschandran Nair assisted by Mr. K. Nandakumar appearing for the petitioner, Sri. Martin Jose appearing on behalf of the third respondent, Sri.Thomas P. Kuruvila appearing for the second respondent and the learned Government Pleader appearing for respondents 1 and 4. 7. Even though an application has been filed by a third party for being impleaded as an additional respondent as I.A. No.10562 of 2015 the same has not been allowed and consequently he has not been brought on the array of parties. 4 _**W.P(c). 16437/15**_ This is because, I notice that the impleading petitioner may not be relevant for the purpose of adjudication of the issues in this writ petition. 8. As I have already noticed above, the essential controversy in this case is as regards the alleged correction that has been made in Ext.P8 purchase certificate in favour of the third respondent. It is obvious that when Ext.P8 was originally issued in the year 1976, in the name of the father of the third respondent, the property comprised in survey No.726/3 was not included. The inclusion happened only in the year 1996 by way of a correction that is obtained by the third respondent as if it was a mistake. The Land Tribunal obviously allowed the correction under the provisions of Rule 136A of the Kerala Land Reforms (Tenancy) Rules, 1970, which permits the Tribunal to correct only clerical or arithmetic mistakes. The singular contention of the petitioners is that the non-inclusion of a survey number in a Purchase Certificate cannot be reckoned as being a clerical mistake, since such non-inclusion was because of a conscious quasi-judicial decision and that, therefore, that the Land Tribunal has no jurisdiction, what so ever, to invoke Rule 136A to make entries of new survey numbers in Ext.P8 Purchase Certificate. 5 _**W.P(c). 16437/15**_ 9. Since the assertions of the petitioners are underpinned on the specific provisions of Rule 136A, I deem it appropriate and necessary that it be read. The said provision is as under : “ **136A. Correction of mistakes in orders of Land Tribunal or the Taluk Land Board and land Board** .- Clerical or arithmetical mistakes in orders of the Land Tribunal or the Taluk Land Board or the Land Board or errors arising therein from any accidental slip or omission may at any time be corrected by the Land Tribunal or the Taluk Land Board or the Land Board as the case may be either of its own motion or on the application of any of the parties.” The provision as above concedes to no other power to the Land Tribunal other than to correct mistakes that are exclusively clerical or arithmetical or errors committed through accidental slip or omission. The correction allowed by the learned Tribunal in this case would obtain sanction of law only if the omission to show the survey number in the original Patta was on account of aforementioned mistake or omission. 10. At the first impression, to treat the non-inclusion of a survey number as a clerical or arithmetical mistake would appear to be pushing the boundaries of statutory competence a bit too far. 6 _**W.P(c). 16437/15**_ 11. If the property comprised in Sy.No.726/3 has been omitted to be shown in Exhibit P8, when it was originally issued, in spite of the fact that it was so claimed by the father of the third respondent and if the omission had been on account of an error in incorporating the same in the original patta then, perhaps, the third respondent could have sustained the correction made by the Tribunal under the head clerical error. 12. No different is the case of an error that is claimed to arise from an accidental slip or omission. The slip or omission ought to be seen to be solely at the hands of the Tribunal and not on account of the errors in the claim. A mistake or an error can be obviously said to be clerical or arithmetical or on account of an accidental slip or omission, only if such errors or omissions had occurred on account of the action of the Tribunal without any contribution from the claimant. If the claimant had founded the claim correctly showing all the relevant survey numbers and had the Tribunal still omitted or committed an error in not including such survey numbers in the patta, then it would certainly obtain justification for the Tribunal in causing corrections. 7 _**W.P(c). 16437/15**_ 13. Essentially therefore, what is important to be borne in mind, when a Tribunal exercises powers under Section 136A, is whether the mistake, slip or omission was occasioned on account of the reasons solely attributable to the Tribunal or if the claimant was, in any manner, responsible for such and only if the error or omission was in spite of the claimant having made a proper claim. If otherwise, axiomatically, an error, mistake, slip or omission in the claim made by the claimant would not concede to him any benefit or protection under the processes warranted or mandated by Section 136A. 14. These are questions of facts which will have to be considered by the Tribunal on a case to case basis and powers relating to correction will have to be exercised by it with great caution, care and circumspection and not casually or mechanically. 15. The above having been said, I must say that, I see considerable force in the contentions of the petitioners in this case. I say this because there is no controversy regarding the boundaries of the property. This is more so because the very same property comprised in Survey No.726/3 of Cheranellur Village was delivered to the petitioners' father in the year 1967 when it was purchased by him in a court auction. The same 8 _**W.P(c). 16437/15**_ property was subjected to another process of delivery in the year 2011 when the petitioners were able to get the decree in O.S.No.896/1995 executed against the defendants therein. No disputes regarding the boundaries of the property or its survey numbers were raised by anyone at these times. These facts appear to lend credence to the case of the petitioners. This is only my primary view and not a conclusion since I do not deem it appropriate to state anything further in this regard on account of the directions that I propose in this case. 16. The learned counsel for the third respondent presumably, being alerted my prima facie view as above, asserts that even though delivery was recorded in the name of his client's father in the year 1967, she was continuously in occupation and possession and that the delivery that was effected was only in the nature of recognising her possession over the property. 17. The learned Senior Counsel cites a Bench judgment of this Court reported as **Madhava Kurup Velayudha Kurup and others v. State [1953 KLT 31]** to contend that when delivery of a property has taken place, it operates _in rem_ and not merely _in personam_ and that it binds everybody in the world regarding the question of possession. There is no dispute 9 _**W.P(c). 16437/15**_ as to the proposition and I am in respectful conformity with the statements of law contained in the said judgment. However, these facts are in this case in the realm of disputed ones because the third respondent maintains that possession was never given to the petitioners but that it was being retained by her consistently. Of course I am not sure how the third respondent maintains this claim but I am only recording that this is her assertion. I am not, however, considering these disputes here because there is nothing on record to show the truth of either of these assertions and even it is necessary to do so, it shall be best left to the consideration of an appropriate Authority as I will indicate below. 18. It is true that the third respondent in this writ petition was not a party in any of these proceedings. But that would not be a reason enough for her to make an application for correction before the Land Tribunal if there was no arithmetical or clerical mistake. There cannot be a dispute on the statement of law that the Land Tribunal could obtain competence to correct Purchase Certificates only to the limited extent of rectification of mistakes and not by inclusion of survey numbers, unless such inclusion can be shown to be only account of pure clerical or arithmetical error. Otherwise, the 10 _**W.P(c). 16437/15**_ Land Tribunal is barricaded from reconsidering or entering into an enquiry regarding the validity or otherwise of a Purchase Certificate issued by it earlier. 19. I see that the petitioner has sought that Ext.P8, at least to the extent to which it has been corrected, be set aside by this Court. I am not delving into an examination as to whether this relief be granted by this Court because I see the petitioners have already invoked the appellate remedy available to them under the Kerala Land Reforms Act and the Rules which are evidenced by Exts.P1 appeal and Exhibits P2 and P3 applications for certain orders, which are now stated to be pending before the Appellate Authority. The petitioners say that their appeal was not even numbered and consequently not considered by the Appellate Authority because they did not produce the certified copy of Ext.P8 Purchase Certificate before the said authority. I see that the petitioners have also sought for a relief that those appeals be considered by the Appellate Authority without insisting on the certified copy of Ext.P8 produced by them in such proceedings. 20. Since I see that there are several disputed questions of fact involved, at least facts which are not admitted by the respondents, I do not deem it appropriate that this Court can 11 _**W.P(c). 16437/15**_ exercise discretion to grant the reliefs prayed for by the petitioner to quash Ext.P8 since that would amount to consideration and adjudication of disputed facts, which this Court, acting under Article 226 of the Constitution of India, is proscribed from doing or delving into. I think, therefore, the alternate prayer asked for by the petitioner that the appeal be considered by the Appellate Authority is justified and liable to be granted in the facts of this case. 21. In such circumstances, I order this writ petition directing the first respondent Appellate Authority to take up Ext.P1 appeal along with Exhibits P2 and P3 applications filed by the petitioners and dispose of the same after affording an opportunity of being heard to the petitioners and respondents 2 and 3 herein within the least possible frame of time. Since I see that these issues have been pending between the parties for the last several years, it is only appropriate that the Appellate Authority dispose of the appeal and applications not later than three months from the date of receipt of a copy of this judgment. While considering the appeal, every endevour shall be made to consider it on its worth and not merely on technicalities including issues of delay, since substantial justice or relief can be granted to litigants only if issues are 12 _**W.P(c). 16437/15**_ considered and disposed of on its intrinsic merits and not solely on hyper-technical contentions or super-technical considerations. 22. The Appellate Authority shall also keep in mind the constitutive contention of the petitioners regarding the competence of the Land Tribunal in having made corrections to Ext.P8, within the frame work of the powers granted to it under Rule 136A of the KLR (Tenancy) Rules, 1970 and carefully adverting to the observations about the jurisdictional ambit of this power in this judgment. Such contentions shall be considered by it, if required, as a preliminary issue since it strikes at the root of the jurisdiction. 23. I clarify that my views on facts recorded in this judgment is only a _prima facie_ opinion and is not intended to fetter or trammel the consideration of the appeal by the Appellate Authority in any manner. 24. To enable an expeditious disposal of the appeal and applications by the Appellate Authority, I permit the petitioners to produce a certified copy of the judgment before it along with copies of Ext. P1 appeal and Exhibits P2 and P3 applications, which shall then be considered by the Appellate Authority as having been validly filed and without insisting that the original 13 _**W.P(c). 16437/15**_ of Ext.P8 Purchase Certificate in the name of the third respondent be produced. 25. Since I have already recorded that the issue in the writ petition has been pending for the last several years, I direct the Appellate Authority to treat the directions contained in the judgment as being peremptory and seek no further time in disposal of the appeal more than what has been granted herein. The writ petition is ordered as above. In the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs. Sd/DEVAN RAMACHANDRAN, JUDGE sou.28/2.