M.R. Venkitraman v. Kerala Land Reforms Appellate Authority, Thrissur; Land Tribunal, Ottapalam; P. Viswanathan; Balasubramanian

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932** **WP(C).No. 39948 of 2003(E)** **---------------------------------** ## **PETITIONER(S):** - **---------------** **M.R.VENKITARAMAN, S/O.RAMASWAMY, NURANI, MUTHIKULAM, PALAKKAD.** **BY ADVS. MR.T.C.MOHANDAS MR.A.R.GANGADAS** ## **RESPONDENT(S):** **-------------------** **1. THE KERALA LAND REFORMS APPELLATE AUTHORITY, THRISSUR.** ## **2. THE LAND TRIBUNAL, OTTAPALAM.** ## **3. P.S.VISWANATHAN,** - **S/O.P.K.SUNDARAYYAR, MUTHIKULAM DEVASWOM, THUNDIKULAM,NURANI, PALAKKAD.** ## **4. BALASUBRAMANIAN,** - **MUTHIKULAM DEVASWOM, KARYASTHAN, MUTHIKULAM, THUNDIKULAM, NURANI,PALAKKAD.** ## **ADV. MR.P.R.VENKETESH FOR R3 MR. V. MANU – GOVERNMENT PLEADER.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 39948 of 2003** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: COPY OF THE ADANGAL EXTRACT ISSUED BY HEAD QUARTERS DEPUTY TAHSILDAR, PALAKKAD DTD 28/3/93. EXT.P2: COPY OF THE ORDER DTD 15.5.97 OF THE LAND TRIBUNAL OTTAPALAM IN S.M.136/94. EXT.P3: COPY OF THE ORDER DTD 13-12-2003 OF THE APPELLATE AUTHORITY (L.R.) THRISSUR IN AA NO.2 OF 1998.** ## **TRUE COPY** **PA TO JUDGE.** ## **S. SIRI JAGAN, J.** ------------------------------ ## W.P.(C) No.39948 OF 2003 ------------------------------Dated this the 27[th] day of July, 2010 ## **J U D G M E N T** The petitioner claims to be a cultivating tenant of 41 cents of land in T.S.No.1822/3 of Palghat I Village. According to the petitioner, originally the grandfather of the petitioner and, after his death, the father of the petitioner were cultivating tenants of the said land. On the death of the petitioner’s father, the petitioner became cultivating tenant of that land. Recognising the petitioner’s status as a cultivating tenant of the land, the second respondent Land Tribunal initiated suo motu proceedings under Section 72C of the Kerala Land Reforms Act. The landlord of the property was Muthikulam Devaswom. Notice was issued to the Devaswom and the fourth respondent herein claiming to be the ‘Kariasthan’ of the Devaswom, appeared before the Land Tribunal and admitted that the land may be assigned to the petitioner under the Kerala Land Reforms Act. Pursuant thereto, by Ext.P2 order, the land in question was assigned to the petitioner and certificate of purchase was also issued. Later on, W.P.(c)No.39948/03 2 the third respondent filed an appeal before the appellate authority against the order of assignment. The said appeal was entertained by the appellate authority and by Ext.P3 order, the appellate authority set aside Ext.P2 order and remanded the matter to the Land Tribunal for fresh disposal, after affording an opportunity of being heard to both sides. That order is under challenge before me. 2. The petitioner raises only one ground. That is that the appeal was filed by the third respondent P.S. Viswanathan, who was not an aggrieved party, coming within the purview of Section 102 of the Kerala Land Reforms Act and therefore, he could not have validly filed an appeal under Section 102. According to the petitioner, if at all the third respondent wanted to file an appeal, he could have done so only after obtaining leave of the appellate authority to file an appeal, which legal position is well settled and has been reiterated by this Court in _**Vareed Jacob**_ v. _**E.A. Jayakumar**_ **and other** _**s**_ [2010(3) KHC 32]. According to the petitioner, the third respondent filed the appeal without obtaining leave of the appellate authority and therefore, the appeal itself was not maintainable and consequently Ext.P3 order passed in that appeal is liable to be W.P.(c)No.39948/03 3 quashed. 3. The third respondent opposes the writ petition. According to him, the third respondent was the President of the Devaswom and he filed an appeal on behalf of the Devaswom and not in his personal capacity and therefore, since Devaswom was a party to the proceedings before the Land Tribunal, the appeal filed by the third respondent on behalf of the Devaswom was perfectly maintainable even without leave to appeal, is the contention raised. He further submits that as found in Ext.P3 order by the appellate authority, Ext.P2 is the result of collusion between the petitioner on the one part and the fourth respondent herein on the other part, who are brothers. According to the third respondent, the fourth respondent appeared before the Land Tribunal representing himself to be the ‘Kariasthan’ of the Devaswom which he never was. The third respondent would contend that nobody authorized the fourth respondent to contest the case on behalf of the Devaswom. Therefore, the order before the Land Tribunal was a nullity, in so far as the same was obtained by collusion between the petitioner and fourth respondent. He also points out that in Ext.P3 order of the appellate authority, elaborate 4 W.P.(c)No.39948/03 reasons have been given as to why Ext.P2 order could not be sustained which includes the finding that the statement which the fourth respondent purported to have filed before the appellate authority was not even signed by the fourth respondent. Further the appellate authority entered a finding that the vakalath filed by the fourth respondent itself was not signed by him. It is the further contention of the third respondent that the petitioner could never have been a cultivating tenant of the land in question in so far as the land is a temple pond attached to the temple of the Devaswom. A finding to that effect was entered in Ext.P3 and only after findings those facts in issue that the matter was remanded to the Land Tribunal for fresh consideration, after affording an opportunity of being heard to both sides. Therefore, according to the third respondent, Ext.P3 order is perfectly valid and proper and same does not call for interference at the hands of this court. 4. I have heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 and 2 and the learned counsel appearing for the third respondent. The fourth respondent has not chosen to enter 5 W.P.(c)No.39948/03 appearance and contest the matter. 5. As I have stated in the beginning itself, only one contention is raised by the petitioner before me to the effect that the appeal filed before the appellate authority by Sri.P.S. Viswanathan in his personal capacity was not maintainable without a petition for leave to appeal against Ext.P2 order. I am of opinion that perhaps in proceedings before a civil court in a suit such a contention would have held good. Proceedings before the appellate authority under the Kerala Land Reforms Act cannot be straight jacketed within the rigid principles of civil procedure code. Here, Sri. P.S. Viswanathan does not claim any relief for himself. Sri. P.S. Viswanathan has filed the appeal before the appellate authority as the present President of the Muthikulam Devaswom. No personal right of Sri.P.S. Viswanathan has been considered by the appellate authority in Ext.P3 order. Merely because the appeal was filed by Sri.P.S. Viswanathan, I am not inclined to non-suit him and hold that the appeal filed by him is not maintainable. From a reading of Ext.P3 order, it is abundantly clear that Sri.P.S. Viswanathan filed the appeal only as the President of the Muthikulam Devaswom on behalf of the Muthikulam Devaswom. Therefore, W.P.(c)No.39948/03 6 although in the cause title in the appeal before the appellate authority Sri. P.S. Viswanathan was shown to be the appellant, he filed the appeal only as President of the Muthikulam Devaswom on behalf of the Devaswom. This is abundantly clear from the fact that the Devaswom was not made a party to the appeal, which ought to have been done if Sri. P.S. Viswanathan was filing the appeal in his personal capacity. In Ext.P3 what has been considered is only the right of the Devaswom as a landlord and not any right of Sri.P.S.Viswanathan in his personal capacity. I am of opinion that in such cases what the appellate authority and this court has to look into is the substance and not the form. Merely because the appellant was shown as Sri. P.S.Viswanathan that does not become an appeal by Sri. P.S. Viswanathan. Whether it is an appeal by Sri. P.S. Viswanathan or by the Devaswom represented by Sri. P.S. Viswanathan depends on the facts and circumstances of the case. Here, a reading of Ext.P3 order would make it clear beyond any reasonable doubt that Sri. P.S. Viswanathan filed the appeal on behalf of the Devaswom as the President of the Devaswom. The appellate authority has only considered the claim of the Devaswom as the landlord in W.P.(c)No.39948/03 7 respect of the property in question. As rightly pointed out by the learned counsel for the third respondent, the appellate authority has specifically found that the fourth respondent who purported to represent the Devaswom as its ‘kariasthan’ did not sign the vakalath filed before the Land Tribunal. Further the statement claimed to have been filed by the fourth respondent was not signed by him at all. Therefore, the question as to whether there was any collusion between the petitioner and his brother, fourth respondent is a matter which has to be considered by the Land Tribunal on the basis of the evidence to be adduced by the parties. In this regard, it is pertinent to note that the fourth respondent has not chosen to contest this case by controverting the said findings. The fact that the fourth respondent is the brother of the petitioner is also not disputed before me. Further, the appellate authority has found that the property in question is a pond which the Devaswom claims to be the pond used by the devotees coming to the temple, which is attached to the temple. The question as to whether the petitioner can be a cultivating tenant of that pond and whether a pond would come within the purview of Section 3(i)(x) of KLR Act are also questions to be decided by the Land Tribunal on W.P.(c)No.39948/03 8 the basis of the evidence to be adduced by the parties before the Land Tribunal. That only has been directed in Ext.P3 order of remand by the appellate authority. I do not find any infirmity in Ext.P3 order, whatsoever. For the above reasons, the writ petition is dismissed. ## **S. SIRI JAGAN, JUDGE** acd W.P.(c)No.39948/03 9