SASI alias SAJEEVAN v. TALUK LAND BOARD, CHITTUR & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 1ST DAY OF NOVEMBER 2012/10TH KARTHIKA 1934** ## **CRP.No. 929 of 2003 ( )** ## **-----------------------** **AGAINST THE ORDER IN CC.610/1973 of TALUK LAND BOARD, CHITTUR** **REVISION PETITIONER: ----------------------** **SASI ALIAS SAJEEVAN, S/O. SIVARAMAKRISHNAN, VADALLAMTHARA, KOTTEKKAD, PALAKKAD DISTRICT** **BY ADVS.SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARISHARMA SRI.T.P.ELDHOSE** **RESPONDENTS:** **--------------** **1. THE TALUK LAND BOARD, CHITTUR, REPRESENTED BY ITS CHAIRMAN** **2. THE TAHSILDAR, CHITTUR** - ***3. M. KESAVAN, S/O. MURUKANKUTTY,** **EDACHIRA, KOLLENGODE, CHITTUR, PALAKKAD DISTRICT (DIED) 4. RUGMINI, W/O. GANGADHARAN, KAVIL HOUSE, SAMPATHCHALA, PATTAMCHERIL VILLEGE, CHITTUR PALAKKAD DISTRICT.** **5. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM** **(* THE 4TH RESPONDENT IS RECORDED AS THE LEGAL HEIR OF THE DECEASED 3RD RESPONDENT AS PER ORDER DT. 5.11.2009 IN CRP NO. 929/2003) R1,2& 5 BY ADV. GOVERNMENT PLEADER SRI. P.S. ABDUL KAREEM** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. VINOD CHANDRAN, J** **- - - - - - - - - - - - -- - - - - - - - - - - - - - - - C.R.P No.929 of 2003** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of, November, 2012** ## **O R D E R** One Kesavan, Edachira was the declarant under the Kerala Land Reforms Act, 1963(hereinafter referred to as the Act) in CC No.610 of 1973. The declarant claimed a partition having been effected in the year 24.1.1970 between himself, his mother and 3 children. The Taluk Land Board as per order dated 10.7.1991 determined the land in possession of the declarant and directed to surrender an extent of 6.87 acres of land comprised in Kizhakkethara and Muthalamada village. The revision petitioner herein having purchased 2.32 ½ acres of land from Rugmini, the daughter of the declarant, approached the Land Board, Chittoor with a petition under Section 85(8) of the Act. The claimant/revision petitioner under Section 85(8) claimed that the partition deed executed in 24.1.1970, though called a partition was in effect, a division of the individual properties of the declarant along with the family properties. Schedule D in the partition deed, was specifically set apart in the name of Rugmini. The land now CRP 929/2003. : 2 : sought to be excluded, from the ceiling limit of the declarant, is a portion of schedule D property. It was his contention that a mere reading of his title deed along with the partition deed would show that the said property was the individual property of the declarant acquired in his personal capacity. In such circumstances, despite the nomenclature of partition, there is a transfer in the name of the daughter by way of gift. Such gifts executed in the name of the son or daughter between 1.1.1970 and 5.11.1974 by a declarant ought to be excluded under sub-section (1A) of Section 84, is the specific contention. 2. The Taluk Land Board, however, held that the claimant obtained the property from Rugmini in the year 1981 by a registered document and Rugmini obtained right over the property as per the partition deed executed in the year 1970. The partition having been effected after the notified date, i.e, 1.1.1970, it was held that the same is invalid and no portion of the property is liable to be excluded from the ceiling limit of the land holder. It was also found that this Court vide judgment in CRP No. 1626 of 1991, dated 28.10.1991 affirmed the right to option of the declarant, which right was exercised CRP 929/2003. : 3 : by him and accepted by the Taluk Land Board, vide order dated 10.11.1997. On this reasoning, the claim under Section 85(8) was rejected. 3. The petitioner is before this Court challenging the said order rejecting claim under Section 85(8). I have heard the learned counsel Sri. Krishnaparasad, appearing for the revision petitioner as also the learned Government Pleader for the State. Sri. Krishnaprasad, canvassed the position that the jurisdiction conferred under Section 85(8) is merely to examine whether the claimant has a prima facie interest in the land. He would urge **Krishnan v. Taluk Land Board(1979 KLT 209)** and **Venkiteswara naidu v. Taluk Land Board (1981 KLT 545)** , to advance his contention. In the instant case, according to him, the Land Board has exceeded its jurisdiction. In so far as the claim set up by the claimant; that would fall for consideration only under an enquiry under sub section (5) or (7) of Section 85. Under Section 85(8) what is to be looked into is whether there is established by the applicant a 'prima facie' interest in the land. With respect to the invalidity of the partition deed found by the Taluk Land Board, the learned counsel would place before me **Ponnu v. Taluk** CRP 929/2003. : 4 : **Land Board(1981 KLT 780)** wherein a learned Single Judge of this Court had interpreted the deed which was described as a partition and found on facts that it was in effect, a gift by the father to the son. If the partition deed of 24.1.1970 executed by the declarant and his family is, in effect, found to be a gift, then, going by the dictum laid down in the decision reported in **Pathumma v. State of Kerala(1991(2)KLT 811)(F.B)** , it is contended that the lands purchased by the petitioner from Rugmini by sale deed dated 9.4.1981 ought to be excluded from the determination of the ceiling limit of the declarant. 4. In **Krishnan's case(supra)** , the claimant under Section 85(8) was not issued with notice at the first instance since his land was not included in the draft statement of the Taluk Land Board. Subsequently, on a modification made in accordance with the order of this Court in revision, the said land was sought to be included. It was thus that the claimant filed an application under Section 85(8) and the Taluk Land Board proceeded to decide his claim as such and rejected it. This Court found that whether the interest that the petitioner's claim is legally valid and whether such interest can save the land from surrender are matters which have to CRP 929/2003. : 5 : be considered in an enquiry under sub-section (5) or (7). Under Section 85(8), it is only the issue of 'prima facie' interest in the land which falls for consideration. Following the said decision, another learned Single Judge in **Venkiteswara naidu's case (supra)** held that lawful title and right in the land need not be established at the stage of proceedings under Section 85(8). It was held that it is sufficient if the claimant says that he has a claim upon or legal concern in the land. 5. In **Ponnu's case (supra)** again, a revision filed under the Kerala Land Reforms Act, 1964 dealt with the contention similar to that raised in the instant case. One of the questions was whether certain lands which were dealt with by a partition deed could be treated as a separate property of the father and though the nomenclature of the deed was partition, whether it could be treated as an allotment of a portion of the fathers land to his son. This Court held on facts, that the son was shown to have no pre-existing right in the property and in view of the clear intention of the father to grant exclusive right in the property to the son; the inference that the partition deed was in effect a transaction of gift is inescapable. CRP 929/2003. : 6 : This, is the contention raised by the revision petitioner herein before the Taluk Land Board and reiterated before this Court. 6. It is pertinent that the interpretation of Section 84 (1A) of the Act also came up for consideration in **Pathumma's case(supra)** . Considering the interpretation of Section 84, an earlier Full Bench held that the transfers effected after 1.1.1970 would only be treated as valid as against 3[rd] parties and would not prevail against the claim of the State Government to enforce the transferor's liability under the Act. The later Full Bench in **Pathumma's case(supra)** found that it was due to the said interpretation given to Section 84 and also considering the fact that such interpretation would lead to discrimination especially of families holding properties under the joint family system an amendment was necessitated. It is to alleviate such hardship that sub-section (1A) of Section 84 was brought in. It was categorically found that by operation of Section 84(1A) any gifts by a declarant between the date specified therein, subject to the conditions stated in the provision, would stand excluded from the ceiling limit of a declarant, to be determined under the Act. The intention was to grant a specific benefit to the donor by excluding that CRP 929/2003. : 7 : extent which has been gifted by him/her to his son or daughter. 7. In such circumstances and the clear position of law laid down, the cursory enquiry made by the Taluk Land Board to reject the claim of the revision petitioner only on the ground that a partition after 1.1.1970 would be invalid under the provisions of the Act, in the opinion of this Court, cannot be sustained. It is also submitted by the learned counsel for the petitioner that the daughter of the donor namely, Rugmini had obtained a purchase certificate bearing number P.L.4962/1976 in O.A 3736/1972. The existence of a purchase certificate pre-supposes that the purchaser who was issued with such certificate was in possession at all material times as has been held in **Lakshmi Bai v. Taluk Land Board (1986KLT 332)** . It is also apposite to refer to **Ahmmed Kutty v. Mariakutty Umma(2000(1) KLT 829),** wherein the Hon'ble Supreme Court held that when a purchase certificate is produced it cannot be lightly dealt with by the Taluk Land Board and rejection of the same or refusal to accept it can only be on grounds of fraud or collusion. This is not to say that the claimant should establish that there is no CRP 929/2003. : 8 : fraud or collusion; it is for the authority to come to such a finding on relevant material and only then, could such purchase certificate be dismissed as irrelevant. However, this Court is not called upon to decide on the claim made by the revision petitioner nor is such purchase certificate available before this Court. An examination of the partition deed to find out whether actually it was a gift also is not possible under the contours of the jurisdiction under Section 103 of the Act. It is trite that only an erroneous finding on law or a refusal to answer a question of law can be the ground to interfere with an order of the Taluk Land Board. In any event, as is noticed earlier, and held by various decisions of this Court, the jurisdiction conferred under Section 85(8) is very limited. 8. As has been held in **Venkiteswara Naidu's case (supra),** the three conditions to be specified are as to whether there is a prima facie interest, then, if the claimant has approached within 60 days of the order and finally whether he was prevented from valid reasons in approaching the Taluk Land Board before the order was passed. In the instant case, the application has been filed on 26.3.1995. Though the order in the ceiling case is passed on 10.7.1991, the impugned order CRP 929/2003. : 9 : would show that there were proceedings before this Court and the option exercised by the declarant was accepted by the Taluk Land Board only by order dated 10.9.1997, long after the application under Section 85(8) was filed. The impugned order also speaks of a delay condonation application. It proceeds to decide the issue on merits. In such circumstances, it has to be inferred that the delay was condoned by the original authority. The delay condonation application having been condoned by the Taluk Land Board, it can also be safely inferred that the Taluk Land Board was satisfied as to the claimant's inability to appear, prior to the passing of the order. In **Krishan v. Venkiteswara Naidu (supra)** it is laid down that in determining the application under Section 85(8), the relevant date would be the date of knowledge of the order. What remains is the prima facie interest under Section 85(8). The title deed produced by the applicant, from one of the parties to the deed of 24.1.1970, would definitely reveal the prima facie interest in the land of the claimant. Considering the fact that the application under Section 85(8) was made in the year 1995 and the present CRP has been pending before this Court from the year 2003, CRP 929/2003. : 10 : following the procedure adopted in **Veniteswara Naidu's case(supra),** this Court finds that the application under Section 85(8) of the Act can be allowed. 9. On the strength of the above findings, this Court orders the setting aside of the final order passed in the ceiling case to the extent of the claims put forward by the claimant; in the application under Section 85(8). This is not to say that this Court has entered into any finding with respect to the actual nature of the deed of 1.1.1970 or the interest of the revision petitioner, which necessarily has to be established in a proceeding/enquiry under Section 85(5) or 85(7). In the circumstances, the petitioners shall appear before the Taluk Land Board on 26.11.2012. The Taluk Land Board shall restore the ceiling case, only to the extent specified hereinabove and decide the claim raised by the revision petitioner/claimant untrammelled by any factual observation made in this judgment; but following the dictum laid down in the decisions cited above and followed by this Court. The Taluk Land Board shall give sufficient opportunity to adduce evidence to the revision petitioner and the matter shall be finally disposed of within a period of six months from the date CRP 929/2003. : 11 : on which the evidence is adduced before the Taluk Land Board. Civil Revision Petition allowed, setting aside the impugned order, and allowing the application under Section 85(8), and directing the Taluk Land Board to restore the ceiling case to the limited extent of deciding the claim raised by the revision petitioner under a proceeding/enquiry under sub-section (5) or (7) of Section 85 of the Act. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma //true copy// P.A to Judge