MUHAMED and OTHERS v. ULIYATHEL KUNHIMAMU and OTHERS

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S.S. Satheesachandran
Judgment Date: 2013-02-25
Court Decision / Holding: Revision is dismissed.
Final Disposition: Revision dismissed.

Parties to the Case

Appellants / Petitioners

MUHAMED
KHADEEJA
KUNHUSA
ABDUTTY
FATHIMA
SAFIYA
PATHUMMU
MARIYAM BEVI
MUHAMMEDUNNI
AYISUMMU
BASHEER
ARIFA
ASKAR
SAFIYA
SHEHTHAJ BEEGUM
THAJUDHEEN
SHAMSUDHEEN
SIRAJUDHEEN

Respondents

ULIYATHEL KUNHIMAMU
FATHIMA UMMA
IYYATHUMMA
JAMEELA UMMA
SULAIKHA
SHEREEFA
AFSA
SANIYA
ABDUL MAJEED

Legal Representation & Advocates

Counsels for Petitioners

• SRI.P.CHANDRASEKHAR

Counsels for Respondents

• SRI.T.SETHUMADHAVAN
• SRI.PUSHPARAJAN KODOTH
• SRI.JAMSHEED HAFIZ

Case Synopsis & Summary

This Civil Revision Petition challenges an order of the Sub Judge, Tirur, upholding tenancy rights claimed by respondents 1 to 4 (the legal heirs of defendants 9 and 15) over B schedule item No.1 in a partition suit OS 33/1957. The suit declared co-ownership and left B schedule item No.1 for final decree adjudication of tenancy. Subsequently, a compromise decree was recorded without notice to the heirs of D9 and D15, who were already deceased, prompting these heirs to seek review. The trial court allowed the review, and a previous revision (CRP 535/2005) limited reopening to the B schedule item No.1 claim to be decided by the trial court. The petitioners contend that tenancy claims should have been referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, that final decree could determine jenmom rights while tenancy remains to be adjudicated, and that Ext. A1 (registered lease) shows a short lease that may negate tenancy. The respondents argue that tenancy questions can be decided in civil courts and that reference to the Land Tribunal is not mandatory here. The court dismisses the revision, upholding the civil court’s tenancy finding and rejecting the procedural objections.

Provisions of Law Cited

Kerala Land Reforms Act, Section 125(3)Kerala Land Reforms Act, Section 72

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioners contend that tenancy questions arising in a suit should have been referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act; that the mandate of Section 125 has prospective effect and cannot be deferred by final decree; they argue that jenmom rights would vest with the Government under the Act, and that Ext. A1 lease (registered in 1954) shows a one-year term with surrender implied, undermining tenancy claims. They urge that tenancy adjudication should be referred to the Land Tribunal and that final jenmom rights cannot be declared absent tenancy adjudication.

Contentions of Respondents

The respondents submit that the civil court had jurisdiction to decide tenancy questions in suits filed prior to the Act, that Section 125’s mandate is prospective and not retroactive, and that a compromise decree was validly entered. They contend tenancy rights over B schedule item No.1 were legally established in the trial court, and that the revision petition should be dismissed to uphold the compromise and final decree proceedings. They argue the Land Tribunal reference was not necessary for this aspect of the case and that jenmom rights would be determined through the final decree process.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Eapen Chacko v. Provident Investment Company Private Limited	1977 KLT 1	Positive	Cited to support that Section 125(3) of the Kerala Land Reforms Act has prospective effect, as held by the Apex Court, guiding the court’s view that tenancy questions in suits pending before the Act can be adjudicated by civil courts and not prematurely referred to Land Tribunal.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 25TH DAY OF FEBRUARY 2013/6TH PHALGUNA 1934** ## **CRP.No. 94 of 2008 ( )** **----------------------** **AGAINST THE ORDER DATED 21.11.2007 IN I.A.NO.125/2001 IN I.A.NO.418/1990 IN O.S.NO.33/1957 of SUB COURT, TIRUR** **PETITIONERS/ PETITIONERS : ---------------------------** **1. MUHAMED, S/O.PATTARUMADATHIL BAPPU, AGED 76 YEARS, PATTARUMADATHIL HOUSE, (P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **2. KHADEEJA, D/O.PATTARUMAATHIL BAPPU, AGED 68 YEARS, PATTARUMADATHIL HOUSE, (P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **3. KUNHUSA, S/O.PATTARUMADATHIL BAPPU, AGED 66 YEARS, PATTARUMADATHIL, AYIRUR AMSOM DESOM,** - **(P.O) AYIROOR, PONANI TALUK, MALAPURAM DISTRICT.** **4. ABDUTTY, S/O.PAATTARUMADATHIL BAPPU, AGED 62 YEARS, PATTARUMDATHIL, AYIRUR AMSOM DESOM,** - **(P.O) AYIROOR, PONANI TALUK, MALAPURAM DISTRICT.** **5. FATHIMA, D/O.PATTARUMADATHIIL BAPPU, AGED 62 YEARS, PATTARUMADATHIL, AYIRUR AMSOM DESOM,** - **(P.O) AYIROOR, PONANI TALUK, MALAPPURAM DISTRICT.** **6. SAFIYA, D/O.PATTARUMADATHIL BAPPU, AGED 58 YEARS, PATTARUMADATHIL, AYIRUR AMSOM DESOM,** - **(P.O) AYIROOR, PONANI TALUK, MALAPPURAM DISTRICT.** **7. PATHUMMU, W/O.KAPPATTAKATH KONDATH BAVA, AGED 63 YEARS, AYIRUR AMSOM DESOM, (P.O) AYIROOR, PONANI TALUK, MALAPPURAM DISTRICT.** **8. MARIYAM BEVI, D/O. KAPPATTAKATH KONDATH BAVA, AGED 53 YEARS AND WIFE OF UMMER, KANJOLIL HOUSE, AYIROOR, PERUMPADAPU AMSOM DESOM, P.O.PERUMPADAPPU,** **PONANI TALUK.** **9. MUHAMMEDUNNI, S/O.KAPPATTAKATH KONDATH BAVA, AGED 51 YEARS, PERUMPADAPPA AMSOM DESOM, PONANI TALUK (P.O) PERUMPADAPPA, MALAPPURAM DISTRICT.** **10. AYISUMMU, W/O.KRUPPAN VEETTIL MALIYAKKEL ABU PERUMPADAPPU AMSOM DESOM, P.O.PERUMPADAPPU, PONANI TALUK.** **-2-** **-2-** ## **CRP.No. 94 of 2008 ( )** ## **----------------------** **11. BASHEER, S/O.KAPPATTAKATH KONDATH BAVA, AGED 47 YEARS, AYIROOR AMSOM DESOM, (P.O) AYIROOR, PONANI TALUK, MALAPPURAM DISTRICT.** **12. ARIFA, D/O.KAPPATTAKATH KONDATH BAVA, AGED 45 YEARS, AYIROOR AMSOM DESOM, (P.O) AYIROOR, PONANI TALUK, MALAPPURAM DISTRICT.** **13. ASKAR, S/O.KAPPATTAKATH KONDATH BAVA, AGED 43 YEARS, AYIROOR AMSOM DESOM, PONANI TALUK,** - **(P.O) AYIROOR, MALAPPURAM DISTRICT.** **14. SAFIYA, D/O.KAPPATTAKATH KONDATH BAVA, AGED 41 YEARS, W/O.POOLAMTHARAKKAL USMAN, AYIROOR AMSOM DESOM, PONANI TALUK, (P.O) AYIROOR, MALAPPURAM DISTRICT.** **15. SHEHTHAJ BEEGUM, AGED 61 YEARS, W/O.PATTARUMADATHIL SAINUDHEEN, AYIROOR AMSOM DESOM,** - **(P.O) AYIROOR, PONANI TALUK, MALAPPURAM DISTRICT.** **16. THAJUDHEEN, AGED 41 YEARS,** - **S/O.PATTARUMADATHIL SAINUDHEEN, AYIROOR AMSOM DESOM,** - **(P.O) AYIROOR, PONANI TALUK, MALAPPURAM DISTRICT.** **17. SHAMSUDHEEN, AGED 40 YEARS,** - **S/O.PATTARUMADATHIL SAINUDHEEN, AYIROOR AMSOM DESOM,** - **(P.O) AYIROOR, PONANI TALUK, MALAPPURAM DISTRICT.** **18. SIRAJUDHEEN, AGED 37 YEARS,** - **S/O.PATTARUMADATHIL SAINUDHEEN, AYIROOR AMSOM DESOM, (P.O) AYIROOR, PONANI TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.CHANDRASEKHAR** ## **RESPONDENTS/ RESPONDENTS -------------------------** **1. ULIYATHEL KUNHIMAMU, AGED 59 YEARS, S/O.ULIYATHEL POOVA UMMA, ULYATHEL HOUSE, (P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **2. FATHIMA UMMA, 48 YEARS, D/O.ULIYATHEL POOVA LUMMA, ULYATHEL HOUSE, (P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **3. IYYATHUMMA, AGED 47 YEARS, D/O.ULIYATEHEL POOVA UMMA, ULYATHEL HOUSE,** - **(P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **4. JAMEELA UMMA, AGED 44 YEARS, D/O.ULIYATEHEL POOVA UMMA, ULYATHEL HOUSE,** - **(P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK MALAPPURAM DISTRICT.** **-3-** **-3-** ## **CRP.No. 94 of 2008 ( )** **----------------------** **5. SULAIKHA,D/O.AMBALATHU VEETIL MUHAMEDUNI, W/O.CHEKKU MOULAI, AMBALATH VEETIL HOUSE,** - **(P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **6. SHEREEFA, D/O.AMBALATHU VEETIL MUHAMEDUNI, AMBALATH VEETIL HOUSE, (P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **7. AFSA, D/O.AMBALATHU VEETIL MUHAMEDUNNI, AMBALATH VEETIL HOUSE, (P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **8. SANIYA, D/O.AMBALATHU VEETIL MUHAMEDUNNI, AMBALATH VEETIL HOUSE, (P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **9. ABDUL MAJEED, S/O.AMBALATHU VEETIL MUHAMEDUNNI, AMBALATH VEETIL HOUSE, (P.O) AYIROOR, AYIROOR AMSOM DESOM, PONANI TALUK, MALAPPURAM DISTRICT.** **R1 TO R4 BY ADVS. SRI.T.SETHUMADHAVAN** - **SRI.PUSHPARAJAN KODOTH** **R5 TO R9 BY ADV. SRI.JAMSHEED HAFIZ** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RKM** ## **S.S.SATHEESACHANDRAN, J. ---------------------------------------------C.R.P.No.94 of 2008** ## **---------------------------------Dated this the 25[th] day of February, 2013** ## **ORDER** What is under challenge in the revision is an Order passed by the learned Sub Judge, Tirur, upholding the tenancy rights claimed by respondents 1 to 4, who are the legal heirs of defendants 9 and 15 in a suit for partition, over one of the items described as B schedule item No.1. Defendants 9 and 15, spouses, were impleaded, after institution of the suit on the allegation that 15[th] defendant had obtained a registered lease over the aforesaid property and he and his wife continued in possession of such property. A preliminary decree was passed in the suit declaring the rights of parties/co-owners over the suit properties described which were found partible, among which, admittedly, B schedule item No.1 was not included. In respect of B schedule item No.1, a reservation was made that tenancy rights claimed by D9 and D15 over that property can be decided and adjudicated upon in the final decree proceedings, and on finding arrived thereof whether it is partible or not among the co-owners can be decided upon. However, later, legal heirs of the parties in the suit/co-owners having right over the suit properties, in respect of which preliminary decree declaring their rights have been passed, C.R.P.No.94 of 2008 2 entered into a compromise and applied for recording of compromise by the court in terms of the settlement arrived. A compromise decree was passed in the proceedings moved by the parties as aforesaid, of which, no notice was given to the legal heirs of D9 and D15, who then had already passed away. Legal heirs of D9 and D15, respondents 1 to 4 herein, moved an application for review of the compromise decree, and that was allowed by the trial court. Against the order reviewing the decree, challenge was raised by the decree holders before this court filing a revision. That revision, numbered as CRP.No.535 of 2005, was disposed by order dated 26.06.2007 making it clear that the re-opening of the decree shall be confined to the claim raised in respect of B schedule item No.1 by present respondents 1 to 4 alone, and that has to be decided by the trial court within the time limit fixed. Pursuant to the aforesaid orders, the trial court considered the claim of tenancy raised by respondents 1 to 4 over B schedule item No.1 and upheld that claim. That order is challenged in the present revision by the legal heirs of defendants 1 and 4 in the suit. 2. Learned counsel for revision petitioners assailed the order of the court below on several grounds. First ground of C.R.P.No.94 of 2008 3 attack canvassed is that when a claim of tenancy is raised, civil court should have made a reference to the Land Tribunal, complying with the mandate under Section 125(3) of the Kerala Land Reforms Act (for short “the Act”). That having not been done in the present case, adjudication made by the court over the claim of tenancy and finding entered thereof is one without jurisdiction and that finding is non est. The next ground of attack is that irrespective of the claim of tenancy canvassed by respondents 1 to 4, a final decree could have been passed determining the jenmom rights of the parties over B schedule item No.1, leaving the claim of tenancy to be adjudicated before the competent forum. Over and above the two grounds, it was also canvassed before me that, A1 lease deed which was a registered one executed in 1954 covered only a period of one year with direction for surrender of the lease hold after expiry of such period. Original lease deed, Ext.A1 was produced by the legal heirs of the lessee. That according to the counsel is sufficiently indicative that they have collected the original from the jenmi long after surrender of the leasehold. So much so, the claim set up on the lease by the legal heirs of D15, respondents 1 to 4 to claim tenancy was devoid of any merit, and the court below has gone wrong C.R.P.No.94 of 2008 4 in upholding such claim, is the further submission of the counsel. There is no merit in any of the challenges canvased to assail the order of the court below, is the submission of learned counsel for respondents 1 to 4 contending that no interference with such order in exercise of revisional jurisdiction is called for. 3. I do not find any merit in the challenge raised against the order of the court below that the court lacked jurisdiction to determine the question of tenancy. Suit was instituted long before the commencement of the Act, and in such suit if a question of tenancy was raised by one or other parties, the civil court has ample jurisdiction to decide that question, and no reference is called for. The mandate under Section 125 of the Act has got only prospective effect. That has been so held by the Apex Court in **Eapen Chacko v. Provident Investment Company Private Limited (1977 KLT 1)** . Submission of learned counsel for petitioners that the question of tenancy could have been deferred for consideration after passing of a final decree has no merit. Section 72 of the Act is an absolute bar in doing so. On the advent of Act jenmom right over any holding to which tenancy can be claimed as of right, would vest with the Government. C.R.P.No.94 of 2008 5 So much so no jenmom right of previous land holder will continue, and there can be no question of court adjudging or declaring jenmom right of the parties to the suit over such a property without deciding tenancy question, if it is involved. The ground canvassed that there was surrender of the lease hold by the predecessor of respondents 1 to 4 banking upon the production of the original of the registered lease deed to substantiate the claim of tenancy does not have any value. Admittedly D15 had been impleaded in the suit, after its institution, as being the lessee, who continued in possession of B schedule item No.1 property in the suit. Revision is dismissed. Sd/S.S.SATHEESACHANDRAN JUDGE True Copy P.A. to Judge RKM