Pallipath Kunhamina Umma and Others v. Taluk Land Board, Thalassery; State of Kerala; The Tahsildar, Thalassery

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH TUESDAY, THE 25TH DAY OF NOVEMBER 2014/4TH AGRAHAYANA, 1936 CRP.No. 421 of 2004 ( ) -----------------------AGAINST THE ORDER IN TLB 1316/1973/TLY of TALUK LAND BOARD, THALASSERY DATED 05-02-2004 REVISION PETITIONERS: --------------------------- 1. SMT.PALLIPATH KUNHAMINA UMMA, - S/O.LATE NARIYAN MAMMAD HAJI, IRIKKUR, TALIPARAMBA TALUK. 2. SHRI.PALLIPATH ABDULLA, - S/O.NARIYAN MAMMAD HAJI, IRIKKUR, TALIPARAMBA TALUK. 3. PALLIPATH MOIDEEN HAJI, T.V.HOUSE, NEAR C.N.PLYWOODS, AZHIKODE NORTH. 4. PALLIPATH ASSAINAR, S/O.NARIYAN MAMMAD HAJI, IRIKKUR, THALIPARAMBA TALUK. 5. PALLIPATH MUHAMMED ASHRAF, - S/O.NARIYAN MAMMAD HAJI, IRIKKUR, THALIPARAMBA TALUK. 6. PALLIPATH HUSSAIN, S/O.NARIYAN MAMMAD HAJI, IRIKKUR, THALIPARAMBA TALUK. BY ADVS.SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS: - ------------------ 1. THE TALUK LAND BOARD, THALASSERY, REPRESENTED BY ITS CHAIRMAN, TALUK LAND BOARD, THALASSERY. 2. STATE OF KERALA - REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE TAHSILDAR, THALASSERY. R,R1 TO 3 BY SPL.GOVERNMENT PLEADER (REVENUE) SMT.SUSHEELA.R.BHAT THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.CHITAMBARESH, J. --------------------C.R.P.No.421 of 2004 --------------------Dated this the 25[th] day of November, 2014 **==> picture [84 x 15] intentionally omitted <==** This is the fifth round of litigation after the disposal of CRP.Nos.1484/78, 1106/1985, 2210/1992 and 2276/2000 on the same subject matter. The issue now boils down to the question as to whether 76.71 acres of land included in the account of the declarant is liable to be exempted as a rubber plantation. The first petitioner in this Civil Revision Petition is the widow and petitioners 2 to 6 are her sons to whom the property is allotted under Ext.P22 partition deed dated 31.5.1975 (Document No.875/1975, SRO, Irikkur). The first petitioner is reportedly dead and the other petitioners who are allotees are in possession of the land who could be proceeded against [See State of Kerala v. Varkey Mathew (1998 (1) KLT 749 (SC))]. This Civil Revision Petition has been pending for over 10 years and the daughters of the first petitioner have not been impleaded despite several opportunities granted. Moreover, the first petitioner has not been allotted the property involved in this Civil Revision Petition under the partition deed dated 31.5.1975. The CRP.No.421/2004 2 ceiling case was remanded to the Taluk Land Board on the previous four occasions to enable the parties to establish whether the property was a rubber plantation as on 1.4.1964. It will be inequitable to remand the matter further and hence I proceed to finally dispose of the Civil Revision Petition on the basis of the evidence on record. 2. The first question to be considered is as to whether rubber was cultivated in any part of the property of extent 76.71 acres. There was a suit for injunction in O.S.No.114/1970 on the file of the court of the Munsiff of Koothuparamba against the first petitioner. An Advocate Commissioner was deputed in the suit who filed a report dated 6.3.1971 as follows:- There is a name board marked in the plan by a blue dot viz., Kunhamina Estate. It is seen that plants are about 13-15 feet in height and might have planted 13 or 14 years back. New pits are constructed throughout R.S.No.17 for planting rubber plants and whenever plants are destroyed by fire and missing, new pits are again dug. The Advocate Commissioner (by name A.K.Gopala Kurup) has been examined as a witness before the Taluk Land CRP.No.421/2004 3 Board also. There are more than one report of the authorised officer deputed under Section 105A of the Kerala Land Reforms Act, 1963 ('the Act' for short). Ext.C10 report of the authorised officer dated 3.7.1982 also shows that rubber was planted atleast over a portion of the property involved in the ceiling case. Exts.P6 and P9 rubber purchase notes dated 6.4.1963 and 4.1.1960 respectively indicate that rubber was cultivated in the property. Exts.P7 and P8 land revenue receipts dated 16.11.1963 and 17.12.1969 also advance the case of the petitioners that rubber plantation was done in the property. Exts.P10 to P19 are the rubber purchase bills for having sold rubber sheets during the period from 1960 to 1964. All these conclusively proves that rubber was planted at least over a portion of the property involved in the ceiling case entitling the petitioners for exemption under Section 81(1)(e) of the Act. 3. The further question to be considered is as to the extent of land for which rubber plantation was done as on 1.4.1964 for the purpose of exemption. Exts.P1, P2 and P3 rent deeds dated 18.6.1945, 30.12.1956 and 4.4.1961 are relied on by the CRP.No.421/2004 4 petitioners to establish the extent. Exts.P4 and P5 agreements dated 4.1.1966 and 12.8.1969 are relied on by the petitioners to contend that there was slaughter tapping of the rubber trees over the entirety of the land involved in the ceiling case. Neither the rent deeds nor the agreements referred to above are registered and the same are also not attested by any witnesses. The mere ipsi dixit of one of the petitioners (whose father was allegedly a party to these deeds) is insufficient and does inspire confidence in this Court. A meticulous analysis of these documents can be seen in the order of the Taluk Land Board dated 29.3.1984 even though the same was set aside on a technical reason in CRP.No.1106/1985. One has to decide the extent of the property by the preponderance of probability as has been held in the earlier order in CRP.No.2276/2000. 4. The report of the Advocate Commissioner in O.S.No.114/1970 on the file of the court of the Munsiff of Koothuparamba reflects the extent of land as 35.50 acres. The petitioners have evidently obtained registration from the Rubber Board (Registration No.1798/82/TLY) in respect of Kunhamina Estate which is CRP.No.421/2004 5 the subject matter of this Civil Revision Petition. The letter issued by the Regional Office of the Rubber Board at Thalassery dated 13.4.1982 indicates that the registration is in respect of 16.56 hectares. The survey numbers of the property are 7/1, 7/2, 17, 6/4, 5 and 10/1 in Kolari Village totalling to 16.56 hectares (40.90 acres). The petitioners would have obtained registration from the Rubber Board for the entirety of 76.71 acres if really rubber cultivation was done for the whole area. The fact that registration from the Rubber Board was obtained only for the extent of 40.90 acres speaks volumes about the extent of rubber cultivation. A presumption under Section 114(d) of the Evidence Act could safely be drawn to hold that the rubber plantation of the same extent existed as on 1.4.1964 also. A reference to the following excerpt from the decision in Ambika Prasad Thakur and others etc. v. Ram Ekbal Rai and others [AIR 1966 SC 605] is apposite: “ 15. .......The question is whether such an inference should be drawn. Now, if a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards CRP.No.421/2004 6 and backwards may sometimes be drawn. The presumption of future continuance is noticed in Illustration (d) to S.114 of the Indian Evidence Act, 1872. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn nder this section, though on this point the section does not give a separate illustration.” 5. An additional extent of 2.10 acres of land can also be exempted as necessary for the protection and efficient management of the cultivation under Section 2(44)(c) of the Act. Thus it is reasonable to hold that an extent of 43 acres out of the total extent of 76.71 acres are liable to be excluded as rubber plantation as on 1.4.1964. Resultantly the petitioners are liable to surrender a further extent of 33.71 acres in satisfaction of their liability. The petitioners shall file an option statement within a period of one month from today indicating the choice of the lands to be surrendered of extent 33.71 acres. The Taluk Land Board shall hear the petitioners or their representatives and pass final orders. Every endeavour shall be made to take the proceedings to a logical end CRP.No.421/2004 7 within a period of three months. The Civil Revision Petition is disposed of. No costs. Sd/V.CHITAMBARESH, Judge. nj.