Theresammal Sarafi v. Sukumaran Vijayan Thoppil and Saraswathi C. Letha Thottathuvilakathu Mele Puthen Veedu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY ,THE 07TH DAY OF DECEMBER 2018 / 16TH AGRAHAYANA, 1940** ## **SA.No. 128 of 1999** **AGAINST THE JUDGMENT AND DECREE DATED 20.01.1998 IN AS NO.184/1994 OF THE SUB COURT,NEYYATTINKARA** **AGAINST THE JUDGMENT AND DECREE IN OS NO.796/1984 DATED 22-07-1987 OF THE PRL.MUNSIFF COURT,NEYYATTINKARA** ## **APPELLANT/APPELLANT/1ST PLAINTIFF** **THERESAMMAL SARAFI RESIDING AT EPPAYIKUDI PURAYIDOM,VIZHINJAM DESOM,KOTTUKAL VILLAGE.** **BY ADVS. SRI.G.S.REGHUNATH SRI.MOHAN JACOB GEORGE** ## **RESPONDENTS/RESPONDENTS/DEFENDANT AND 2ND PLAINTIFF:** **1 SUKUMARAN VIJAYAN THOPPIL VEEDU, KADAKKULAM DESOM, KOTTUKAL VILLAGE. 2 SARASWATHI C.LETHA THOTTATHUVILAKATHU MELE PUTHEN VEEDU, KADAKKULAM DESOM.** **R1 BY ADVS. SRI.K.VINODKUMAR SRI.MURALI PURUSHOTHAMAN** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **SA.No. 128 of 1999** ## **J U D G M E N T** The first plaintiff in the suit is the appellant. The suit was one for declaration of title, possession, prohibitory injunction and in the alternative, for recovery of possession. The plaint B and C schedule properties are portions of the plaint A schedule property. The plaint B schedule Item No.1 is the building in the plaint B schedule property and the plaint C schedule Item No. 1 is the building in the plaint C schedule property. The plaint A schedule property belonged to one Chakrapani as obtained by him in terms of Ext.A3 assignment deed. On 01/04/1982, Chakrapani transferred the plaint B schedule portion of the plaint A schedule property to the first plaintiff and her husband in terms of Ext.A1 assignment deed. On the same day, Chakrapani gifted the remaining portion of the plaint A schedule property to the second plaintiff, his daughter in terms of Ext.A2 gift deed. Chakrapani had a brother called Sukumaran. The defendant is the son of Sukumaran. The case set out by the plaintiffs in the plaint is that the defendant who has no right whatsoever in the plaint B and C schedule properties has chased the second plaintiff and her parents out of the building in the plaint C schedule property. It is 3 **SA.No. 128 of 1999** also their case that the defendant is attempting to trespass into the plaint B schedule property. The plaintiffs, therefore, claimed a decree declaring their title and possession over the plaint B and C schedule properties. Alternatively, the plaintiffs sought a decree for recovery of possession of the plaint B and C schedule properties also from the defendant. 2. The defendant contested the suit by delivering a written statement. The essence of the contentions raised by the defendant in the written statement was that his father Sukumaran was the Kudikidappukaran in respect of the building in the plaint B schedule property; that the said Kudikidappu right devolved on his legal representatives including the defendant on his death and that the legal representatives of Sukumaran have accordingly obtained a purchase certificate from the Land Tribunal concerned in respect of the plaint A schedule property under section 80B of the Kerala Land Reforms Act (the Act). According to the defendant, in the light of the purchase certificate obtained by the defendant and others, the plaintiffs are not entitled to the reliefs claimed in the suit. 3. Ext.B1 is the application preferred by Sukumaran before the Land Tribunal as OA No.88 of 1982 for purchase of his Kudikidapu. Ext.B5 is the purchase certificate issued by the Land 4 **SA.No. 128 of 1999** Tribunal in the joint names of the defendant and his mother, Narayani Chellamma. The trial court found that in the light of Ext.B5 purchase certificate, the plaintiffs have no subsisting right in the plaint schedule properties. In the light of the said finding, the trial court dismissed the suit. The first plaintiff alone challenged the decision of the trial court in appeal. The appellate court, on a re-appraisal of the materials on record, affirmed the decision of the trial court. The first plaintiff who is aggrieved by the concurrent decisions of the courts below has come up in this second appeal. 4. Heard the learned counsel for the appellant as also the learned counsel for the respondents. 5. Ext.A6 is the order passed by the Land Tribunal in OA No.88 of 1982 on 27/02/1985 by which the legal representatives of Sukumaran were held to be entitled to purchase the plaint A schedule property by way of kudikidappu. Ext.B5 purchase certificate has been issued pursuant to Ext.A6 order on 10/05/1985. Along with the second appeal, the appellant preferred IA No.1233 of 2011 invoking Rule 27 of Order 41 of the Code of Civil Procedure seeking orders to accept a few additional documents in evidence in the suit. Among the said documents, the first one was the order passed by the Land Tribunal in OA No.88 of 5 **SA.No. 128 of 1999** 1982 on 24/10/1984. In terms of the said order, the Land Tribunal dropped the proceedings initiated as OA No. 88 of 1982 based on the report of the Revenue Inspector that the property covered by the application is one notified for acquisition. The stand taken by the first plaintiff in the memorandum of second appeal was that the document produced along with the above interlocutory application is the order passed in OA No.88 of 1982 and not Ext.A6. In view of the confusion created as to the genuineness of Ext.A6 and in the light of the order produced along with IA No. 1233 of 2011, this court called for the records of the Land Tribunal in OA No.88 of 1982 and permitted the counsel on either side to peruse the same. The counsel on either side made their submissions thereafter. 6. The learned counsel for the appellant, with all vehements at his command, contended that Ext.B5 purchase certificate can be regarded only as one obtained by playing fraud. Placing reliance on the order sheet in OA No.88 of 1982 before the Land Tribunal, the learned counsel submitted that the order dated 24.10.1984 produced by the appellant along with IA No.1233 of 2011 is the final order passed in OA No. 88 of 1982. It was pointed out by the learned counsel that the defendant has preferred an application before the Land Tribunal thereafter seeking review of 6 **SA.No. 128 of 1999** the order dated 24/10/1984 and on the said application, the Land Tribunal reviewed the order dated 24.10.1984 and issued Ext.A6 order without notice to the respondent in the proceedings. According to the learned counsel, Ext.A6 order is a nullity and not binding on the plaintiffs as the Land Tribunal has no authority to review the final orders once made and as Ext.A6 was one issued without notice to Chakrapani who is the respondent in OA No. 88 of 1982. Per contra, the learned counsel for the defendant contended that in so far as the first plaintiff has not challenged Ext.A6 order in a process known to law, the same is binding on her and she is not entitled to challenge or attack the same in a collateral proceedings like the present suit. 7. The fact that the plaint A schedule property was one obtained by Chakrapani in terms of Ext.A3 assignment deed on 07/01/1124 ME is not in dispute. Similarly, the fact that Chakrapani sold the plaint B schedule property and the building therein to the first plaintiff and her husband in terms of Ext.A1 sale deed and the fact that Chakrapani gifted the plaint C schedule property and the building therein to the second plaintiff in terms of Ext.A2 gift deed are not in dispute. Ext.B5 purchase certificate is one issued by the Land Tribunal pursuant to Ext.A6 order. The contention of the appellant in the second appeal is that Ext.A6 7 **SA.No. 128 of 1999** order is a nullity and hence not binding on her predecessor Chakrapani, for the Land Tribunal had no jurisdiction to review the order dated 24.10.1984 passed in OA No.88 of 1982, at any rate, without notice to Chakrapani. The following is the substantial question of law arising for consideration in the context of this second appeal preferred by the first plaintiff : Is Ext.A6 order a nullity and if so, is the first plaintiff entitled to the decree sought for in the suit _?_ 8. As noted, Ext.A6 order passed by the Land Tribunal in OA No. 88 of 1982 is attacked in the appeal on two grounds. The first ground is that the same is vitiated by inherent lack of jurisdiction as the Land Tribunal has no power to review and recall the final order passed in a proceedings before it. The second ground is that even if it is found that the Land Tribunal has the power to recall the final order passed in a proceedings before it, the same cannot be done without notice to the respondent in the proceedings and in so far as Ext.A6 order was passed without notice to the respondent in the proceedings namely, Chakrapani, the same is not binding on his successors namely, the plaintiffs. I have perused meticulously the records of the Land Tribunal which have been called for in terms of the interim order dated 8 **SA.No. 128 of 1999** 13/08/2018. The records reveal that OA No. 88 of 1982 was disposed of finally by the Land Tribunal in terms of the order dated 24/10/1984 produced along with IA No.1233 of 2011 based on the report of the Revenue Inspector attached to the Land Tribunal dated 29/08/1984 to the effect that the plaint A schedule property is included in a notification issued for acquisition for Vizhinjam Fishing Harbour Project. The records also reveal that after passing the order dated 24/10/1984, the legal representatives of Sukumaran preferred an application for reviewing the order dated 24/10/1984. The records do not indicate that notice has been issued by the Tribunal to the respondent in the review petition nor any proceedings has been issued on the review petition. However, it is seen that after the entry relating to the proceedings dated 24/10/1984 in the order sheet, a one word entry namely “reviewed” was added without any date. The next entry in the order sheet is the entry against the date 17/12/1984. The said entry is to the effect that there was no sitting on that day. The next entry in the order sheet is the entry against the date 02/01/1985. The same is not readable. The next entry in the order sheet is the entry against the date 31/01/1985 which is again to the effect that there was no sitting on that day. The next entry in the order sheet is the entry against the date 04/02/1985. The entry 9 **SA.No. 128 of 1999** therein is “evidence has been taken” and the last entry is the entry against the date 27/02/1985. The said entry is “OA is allowed”. It is, therefore, clear that Ext.A6 is an order passed without notice to the predecessor of the plaintiffs. If Ext.A6 is an order obtained behind the predecessor of the plaintiffs, the same would not bind the plaintiffs. Further there is no provision in the Kerala Land Reforms Act conferring power on the Land Tribunal to review and recall the final order passed in a proceedings before the Land Tribunal. True, Rule 136A of the Kerala Land Reforms (Tenancy) Rules, 1970 confers power on the Land Tribunal to correct clerical or arithmetical mistakes in the orders or errors arising therein from accidental slips or omissions. The said power cannot be invoked, according to me, to recall the final order passed in a proceedings under Section 80B of the Kerala Land Reforms Act [See **Chandrasekharan** v. **Jennat** (1981 KLT 912)]. If the Land Tribunal has no power to review the order dated 24/10/1984, Ext.A6 is an order vitiated by inherent lack of jurisdiction and hence nonest in the eye of law [See **Chandrabhai K. Bhoir and Others v. Krishna Arjun Bhoir and Others** [(2009) 2 SCC 315]. If that be so, Ext.B5 purchase certificate is also nonest in the eye of law. 10 **SA.No. 128 of 1999** In the result, the second appeal is allowed, the impugned decisions of the courts below are set aside and the suit in so far as it relates to the plaint B schedule property and the building therein is decreed as prayed for. **Sd/P.B.SURESH KUMAR** **JUDGE** PV