T.P. Padmanabhan v Ethurkkara Sreemathy and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934** **CRP.No. 1331 of 2003 (C) ------------------------** **AA.47/1995 of APPELLATE AUTHORITY (LR), THRISSUR SM.252/1980 of LAND TRIBUNAL, PATTAMBI.** **REVISION PETITIONER(S):(APPELLANT/NON-PARTY)** **-------------------------------------------** **T.P.PADMANABHAN, S/O THADATHIL PALLIYALIL KUNHIKRISHNAN, MUTHUTHALA AMSOM, KODUMUNDA DESOM, OTTAPPALAM TALUK.** **BY ADV. SRI.T.SETHUMADHAVAN** ## **RESPONDENT(S):RESPONDENTS/RENANT AND LAND OWNER:-** **------------------------------------------------** **1. ETHURKKARA SREEMATHY, W/O KRISHNAN, MUTHUTHALA AMSOM, KODUMUNDA DESOM, OTTAPPALAM TALUK.** **2. METHRUKOVIL DEVASWOM MANAGER, (DIED), CHEKUR MANAKKAL VASUDEVAN NAMBOODIRIPAD, MUTHUTHALA AMSOM, KODUMUNDA DESOM, OTTAPPALAM TALUK.** **3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM.** - **ADDITIONAL RESPONDENT 4 IMPLEADED** - **C.M.NEELAKANDAN BHATTATHIRIPAD, S/O SANKARAN BHATTATHIRIPAD, P.O, KODUMUNDA, (VIA) PATTAMBI, PALAKKAD DISTRICT.** - **IMPLEADED AS ADDITIONAL RESPONDENT NO.4 IN PLACE OF DECEASED SECOND RESPONDENT AS PER ORDER DATED 12-6-2008 IN I.A.NO.3705/2006.** **R1 BY ADV. SRI.SANTHEEP ANKARATH R3 BY GOVERNMENT PLEADER SRI.P.S ABDUL KAREEM. ADDL.R4 BY ADVS. SRI.MVS.NAMBOOTHIRY SRI.K.N.KUMARASWAMY SARMA** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **amk** ## **K.VINOD CHANDRAN, J** **--------------------------------------------------** ## **C.R.P.No.1331 OF 2003** **--------------------------------------------------Dated this the 29[th] day of November, 2012.** **O R D E R** The dispute is with respect to 10 cents of property in Survey No.54A/1(Part) of Muthuthala Village, Kodumunda Desom. The Land Tribunal _suo moto_ numbered as by Proceedings S.M.No.252/1980, based on the report of the Special Revenue Inspector, ordered assignment of the 10 cents to the first respondent herein by order dated 7-8-1980. The jenm of the property was with Methrukovil Devaswom. 2. The property so assigned to the first respondent was within a larger area covered by a purchase certificate dated 13.7.1978 issued by the Special Land Tribunal (Ottappalam) in O.A.No.4186/1977 to the predecessor in interest of the revision petitioner herein. On the alleged attempt to trespass, the revision petitioner herein filed a suit O.S.No.62/1993 against the first respondent and her children. In the plaint, 'A' schedule was the entire properties covered by the purchase certificate issued in O.A.No.4186/1977 and 'B' schedule was the residence of the first ## **C.R.P.No.1331 OF 2003 2** respondent and 'C' schedule was the area wherein attempt to trespass was alleged. 3. The case of the revision petitioner was that the predecessor in interest had purchased the said properties from the mother-in-law of the first respondent and when the Kerala Land Reforms Act 1963, (hereinafter referred to as 'the Act') came into force, they had initiated proceedings for obtaining purchase certificate under the Act. Since the jenm was with the Devaswom, they had approached the Special Land Tribunal, Ottappalam which was specifically notified under the provisions of the Act for granting assignment of lands in which the jenm was with the Devaswom. After enquiry they were also granted assignment. 4. The first respondent appeared in the suit and filed written statement claiming purchase of jenm from the Devaswom. It was the claim of the plaintiff that the first respondent was merely allowed to reside in a shed in the property. The suit for injunction simplicitor was decreed on the finding that the defendant had not established their title or the lease hold rights. The appeal filed by the defendants also stood ## **C.R.P.No.1331 OF 2003 3** rejected. In the meanwhile, the revision petitioner enquired about the claim of jenm raised by the first respondent and chanced upon the order of the Land Tribunal in S.M.No.252/1980 dated 7-8-1980. This was the circumstance which led to the filing of an appeal before the Appellate Authority, Land Tribunal, Thrissur. 5. The appellate authority however going into the issues involved in the case found that the appellant has not produced any document to show that he is in possession of the property, as alleged in the appeal memorandum. It is submitted on behalf of the revision petitioner that in fact the purchase certificate and the judgment in the civil suit were produced before the Appellate Authority. The appellate authority also found that since the Methrukovil Devaswom has not filed any annuity application before the Land Board, the contentions of the appellants are not sustainable. It is not clear as to how the appellate authority entered into such a finding without any material available before it. One other contention that weighed with the appellate authority was with respect to the acquisition of land by the Railways and the award having been passed in the name of the first respondent. ## **C.R.P.No.1331 OF 2003 4** On a cryptic finding that the evidence available in the case would substantiate the contention of the first respondent and without looking into whether the land covered by the purchase certificate issued to the first respondent was in fact lands comprised in the purchase certificate issued to the revision petitioner; the appeal was rejected. It is also pertinent that the award passed in favour of the first respondent was successfully challenged by the revision petitioner and it was specifically found in the Land Acquisition Reference No.17 **/** 2003 that the revision petitioner is entitled to the award amount and since it has already been withdrawn by the first respondent, it was for the revision petitioner to take appropriate proceedings, however subject to the result of the above C.R.P. 6. What assumes relevance in the above case is that the later purchase certificate issued to the first respondent was with respect to the land which was comprised in the purchase certificate issued to the revision petitioner in an earlier proceedings before the Special Land Tribunal, Ottappalam. It cannot be disputed that the Deveswom properties could be assigned only by the Special Tribunal constituted ## **C.R.P.No.1331 OF 2003 5** under the Act. In the order dated 7-8-1980 in the _suo moto_ proceedings, it is evident that the first respondent has not produced any document to prove tenancy in the land. In any event it is a moot question as to whether any purchase certificate could have been issued to the first respondent when already there was a purchase certificate issued by the competent authority; with respect to the very same lands. 7. The conclusiveness of a purchase certificate issued under Section 72-K of the Act was examined by the Hon'ble Supreme Court in _**A.I.R 2008 (S.C) 1456, Patinhare Purayil Nabeesumma v.**_ . _**Miniyatan Zacharias & Anr**_ “A certificate issued under Section 72K of the Act is conclusive. Once the same is found to be conclusive, the same cannot be refused to be taken into consideration for any purpose whatsoever. The only issue which, therefore, should have been raised by the High Court was as to who was entitled thereto, keeping in view the fact that the Land Tribunal had granted certificates of assignment to both the parties. In view of the statutory scheme, both the parties could not have been given the certificates of assignment. The certificate in favour of the appellant, even otherwise, having been granted earlier and the same having not been set aside on the ground of fraud or illegality, it was conclusive even as against the Land Tribunal. The Land Tribunal, therefore, had no jurisdiction to issue a second certificate”. (Paragraph 32) ## **C.R.P.No.1331 OF 2003 6** 8. The said decision was followed by this Court in _**2012(3) K.L.T 420, Rajammal v. Hajira**_ , C.R.P.(L.R) No.288 of 2012, in which also there was an issue of two purchase certificates and this court remanded the matter to the Land Tribunal for a deeper probe as to which would prevail. It would also be apposite to refer to the Full Bench decision of this Court reported in _**1993(1) K.L.T 227 (F.B), Muhammad Haji v. Kunhunni Nair.**_ 9. In the instant case, the revision petitioner or his predecessor in interest were not parties before the Land Tribunal. The civil courts had held in favour of the revision petitioner on the basis of the purchase certificate obtained by his predecessor in interest, treating it as conclusive proof under Section 72-K of the K.L.R Act. Ordinarily, this Court would have treated the second purchase certificate issued as a nullity as has been done in the Full Bench decision of this Court, cited supra. However, since the lie of the property also has to be examined, to ascertain whether it is covered by the purchase certificate of the revision petitioner; necessarily it is for the fact finding authority to do so after calling for appropriate report from the Authorised ## **C.R.P.No.1331 OF 2003 7** Officer. In the circumstance, the order of the appellate authority impugned in this revision is set aside. The matter is remanded back to the Land Tribunal for denovo consideration, in accordance with law and keeping in mind the principles laid down in the above cited decisions. The parties shall appear before the Land Tribunal on 15-01-2013. The Land Tribunal, Pattambi or the Land Tribunal having jurisdiction shall restore the _suo moto_ proceedings S.M.No.252/1980 to its files and renumber it, if necessary. The revision petitioner herein would stand _suo moto_ impleaded in the proceedings as 'B' party No.2. The Land Tribunal shall dispose of the matter finally after giving an opportunity to the 'A' party and 'B' party to produce necessary evidence before the Tribunal and after hearing them; within a period of four months from the date of appearance of the parties. 10. The learned counsel submits that the documents produced along with I.A.Nos.1283/2010, 2891/2012 and 2348/2008 are all certified copies. Since final orders are passed in the C.R.P remanding the matter to the Land Tribunal, these I.As are closed as unnecessary. Since the documents produced in the I.A's are certified copies, the ## **C.R.P.No.1331 OF 2003 8** counsel prays that the same may be returned. The Registry shall return the documents produced in the above I.A's on the counsel making an application for the same. This shall be done expeditiously, since the matter is posted on 15-01-2013 for appearance of the parties before the Land Tribunal. The said interlocutory applications have been closed by this Court today since final orders are passed in the C.R.P. In the circumstance, the Registry is directed to return the documents produced along with the interlocutory applications to the counsel, on his making an application. The same shall be done expeditiously. The records shall be retransmitted to the jurisdictional Land Tribunal. C.R.P allowed as above. **K.VINOD CHANDRAN, JUDGE.** amk