The President, Nellickavu Devaswom Committee, Calicut v. T.K. Balakrishnan and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST DAY OF JANUARY 2013/11TH POUSHA 1934 CRP.No. 440 of 2008 (G) ----------------------AA.9/2006 of APPELLATE AUTHORITY(LR), KANNUR IA NOS.15 & 16/2000 IN OA.796/1990 of LAND TRIBUNAL, KOZHIKODE REVISION PETITIONER(S)/RESPONDENT/RESPONDENT:: --------------------------------------------- THE PRESIDENT, NELLIKAVU DEVASWOM COMMITTEE, CALICUT, REPRESENTED BY O.HARIDASAN NAIR, S/O.LATE P.DAMODARAN NAIR, KACHERI VILLAGE, KOZHIKODE. BY ADV. SRI.K.P.BALASUBRAMANYAN RESPONDENT(S)/APPELLANT/PETITIONER & STATE:: -------------------------------------------- 1. T.K.BALAKRISHNAN, S/O.SHANKUNNI MENON, VAZHAKKALA BILATHIKULAM, ERANHIPALAM P.O., KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI.A.C.VENUGOPAL R1 BY ADV.SMT.VIDHYA. A.C R2 BY ADV. GOVERNMENT PLEADER SMT LILLY K.T. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------C.R.P.No.440 of 2008 -------------------------------------Dated this the 1[st] day of January, 2013.** ## **ORDER** The civil revision is in challenge of the order dated 17.04.2008 in A.A.No.9 of 2006 of the Appellate Authority (Land Reforms) Kannur (for short, “the Appellate Authority”) allowing the appeal, setting aside the order of assignment in favour of the petitioner and remitting O.A.No.796 of 1990 to the Land Tribunal, Kozhikode (for short, “the Tribunal”) for fresh enquiry and disposal. 2. According to the petitioner who claimed to be a cultivating tenant, the property involved was acquired by the karanavan of the tarwad of the 1[st] respondent. He entrusted the property to the petitioner. In the year, 1990, petitioner and the then seniormost member of the tarwad filed joint application before the Tribunal concerned in the J Form. Pursuant to that joint application, the Tribunal passed order in favour of the petitioner and that was followed by issue of purchase certificate. In the year, 2000, the 1[st] respondent filed O.S.No.243 of 2000 in the Munsiff's Court, Kozhikode for a declaration that the purchase certificate issued to the petitioner was obtained behind back of the respondents and others, fraudulently and in collusion with the seniormost member of the tarwad and for other reliefs. Pending that suit, the respondents filed I.A.No.16 of 2000 in the Tribunal (accompanied by I.A.No.15 of 2000 to 2 CRP No.440/2008 condone the delay) to set aside the assignment order and the purchase certificate. The Tribunal, by order dated 09.12.2005 dismissed those applications. Challenging those orders the respondents filed A.A.No.9 of 2006 before the Appellate Authority. That Authority by the impugned order allowed the appeal, set aside the orders on I.A.Nos.15 and 16 of 2000 and remitted O.A.No.796 of 1990 to the Tribunal for decision as aforesaid. The said order is under challenge in this civil revision. 3. It is contended by the learned counsel for the petitioner that the Appellate Authority was not right in condoning the delay of about ten years in filing I.A.No.16 of 2000. The respondents have not shown sufficient cause for the huge delay. It is also argued that even if the delay is condoned, the Appellate Authority was not right in allowing I.A.No.16 of 2000 and setting aside the assignment order and the purchase certificate in favour of the petitioner. Learned counsel submits that O.S.No.243 of 2000 filed by the 1[st] respondent where similar contentions were raised to set aside the purchase certificate and the assignment order ended in a dismissal as per judgment dated 24.05.2004. That judgment and decree were confirmed in A.S.No.295 of 2004. Against that judgment and decree, the 1[st] respondent filed R.S.A.No.926 of 2008 which this Court dismissed in limine on 20.10.2008. Thus the challenge to the assignment order and purchase certificate on the same grounds urged in I.A.No.16 of 2000 having concluded, the Appellate Authority was not right in interfering in the matter allowing A.A.No.9 of 2006. 3 CRP No.440/2008 4. The learned counsel for the 1[st] respondent has contended that there was no evidence before the Tribunal to show that the petitioner was in possession of the property as a cultivating tenant and that the person who along with the petitioner signed the J Form was the seniormost member of the tarwad competent to represent that tarwad. It is also contended by the learned counsel that there is no evidence to show that notice on O.A.No.796 of 1990 was given to any other seniormost member of the tarwad. The learned counsel would invite my attention to Sec.104 of the Kerala Land Reforms Act (for short, “the Act”). It is argued that the Appellate Authority has rightly allowed I.A.No.15 of 2000 and condoned the delay. It is pointed out that the 1[st] respondent learnt about the purchase certificate only from the contention raised by the petitioner in O.S.No.243 of 2000 and immediately thereafter he filed I.A.Nos.15 and 16 of 2000. 5. The first question for consideration is whether the Appellate Authority was right in condoning the delay of almost ten years in filing I.A.No.16 of 2000? It is not disputed that the assignment order and the purchase certificate following the J Form were issued in the year, 1990. It is also not disputed that the 1[st] respondent filed application to set aside the purchase certificate and the assignment order only in the year, 2000. The said application having been preferred beyond the prescribed period of 90 days, it was hopelessly barred by limitation. 4 CRP No.440/2008 6. What is stated by the 1[st] respondent in I.A.No.15 of 2000 to condone the delay is that he learnt about the order of the Tribunal and issue of purchase certificate only from the contention raised by the petitioner in O.S.No.243 of 2000. Apart from pleading so, the 1[st] respondent has not adduced any evidence in that line. It is difficult to think that if the 1[st] respondent who claims to be in enjoyment and possession of the property was unaware that in respect of that property, the Tribunal had issued purchase certificate in favour of the petitioner in the year, 1990. At any rate, in support of the reason stated for the delay, the 1[st] respondent did not adduce evidence. The Supreme Court in ## **Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development** **Corporation - (2010) 5 SCC 459** ) has pointed out that when the delay involved is inordinate, stricter must be the approach of the court. It is seen that without proof of any sufficient cause the Appellate Authority has allowed I.A.No.15 of 2000. Having regard to the facts and circumstances of the case, I am inclined to think that the 1[st] respondent has not shown sufficient cause for the huge delay. 7. Assuming that the order of the Appellate Authority condoning the delay is to be upheld, the next question is whether the order of the Appellate Authority reversing the order of the Tribunal in I.A.No.16 of 2000 is sustainable? In I.A.No.16 of 2000, the grounds stated by the 1[st] respondent to attack the purchase certificate and the assignment order are that the same were obtained fraudulently, behind the back of the 1[st] respondent and without notice to any 5 CRP No.440/2008 other senior member of the tarwad. It is in this connection that the learned counsel for the 1[st] respondent has placed reliance on Sec.104 of the Act and the decision referred supra. 8. The earlier part of Sec.104 of the Act deals with joint family. The latter part of Sub-sec.(1) of Sec.104 of the Act says that in the case of a marumakkathayam or aliyasanthana family, notice has to be given to the karanavan or yajaman of each tavazhi or kavaru, but any other member of the family shall have the right to get himself impleaded as a party. It is not disputed that the property in this case belonged to a marumakkathayam tarwad. Therefore, the mandatory requirement was to implead the yajaman or karanavan of the tarwad. In this case, the karanavan (according to the petitioner) was impleaded as a party. No doubt, the 1[st] respondent has a contention that the person impleaded as the karanavan was not competent to represent the tarwad. I will advert to that contention later. In the light of the above, the contention based on Sec.104 of the Act and the decision cited above cannot stand. 9. The next question is whether the person impleaded in O.A.No.796 of 1990 and who signed the J Form along with the petitioner was the karanavan of the tarwad and competent to represent the tarwad? The Appellate Authority observed that there is no evidence to hold so. 6 CRP No.440/2008 10. It is admitted that challenging the assignment order and the purchase certificate the 1[st] respondent had filed O.S.No.243 of 2000 against the petitioner in the Munsiff's Court, Kozhikode. The learned counsel for the petitioner has given me a copy of the judgment in A.S.No.295 of 2004 which confirmed the judgment and decree in O.S.No.243 of 2000. It is seen from paragraph 47 of that judgment that it was contended therein that the person who represented the tarwad in O.A.No.796 of 1990 had no authority to do so, but, that contention was found against. Therefore, it is not open to the 1[st] respondent to contend that the person who represented the tarwad in O.A.No.796 of 1990 was neither the karanavan nor competent to represent the tarwad. That contention is no more available to the 1[st] respondent. 11. Yet another contention advanced is that the petitioner was never in possession and enjoyment of the property. That contention also does not arise for a decision since as per J Form signed by the petitioner and the then seniormost member of the tarwad, purchase certificate was issued to the petitioner. Moreover, it is seen that in O.S.No.243 of 2000 a similar contention was raised by the 1[st] respondent but found against. In the judgment in O.S.No. 243 of 2000 in paragraph 70 reference is made to that contention. It is pointed out by the learned District Judge while disposing of A.S.No.295 of 2004 that the evidence adduced by the parties revealed that the petitioner was in possession of the property and that the petitioner was paying revenue for the said property. It is further observed that the evidence revealed that the 1[st] respondent or his 7 CRP No.440/2008 erstwhile tavazhi had no possession of the property for several decades. In the circumstances the contention that petitioner had no possession of the property also has to fail. 12. In the light of the decision in O.S.No.243 of 2000 as confirmed in A.S.No.295 of 2004 and R.S.A.No. 926 of 2008 the contentions raised by the 1[st] respondent in I.A.No.16 of 2000 are no more available to him. Therefore also, the Appellate Authority was not right in allowing I.A.No.16 of 2000. 13. It is seen from the order of the Appellate Authority which is under challenge in the civil revision that it is without reference to the above aspects it found that the assignment order and the purchase certificate are liable to be set aside and the matter remitted to the Tribunal for fresh enquiry. In the light of what I have stated above, the purchase certificate and the assignment order issued in favour of the petitioner should and would stand. Consequently, the impugned order of the Appellate Authority is liable to be set aside and I do so. Resultantly, the civil revision is allowed as under: i. The order dated 17.04.2008 in A.A.No.9 of 2006 of the Appellate Authority (Land Reforms), Kannur is set aside. 8 CRP No.440/2008 ii. The orders of the Appellate Authority allowing I.A.Nos.15 of 2000 and 16 of 2000 in O.A.No.796 of 1990 of the Land Tribunal, Kozhikode are also set aside. iii. The dismissal of I.A.Nos.15 of 2000 and 16 of 2000 in O.A.No.796 of 1990 by the Land Tribunal, Kozhikode as per order dated 09.12.2005 is restored. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**