VELAYUDHAN and KUNHIKUTTAN (Legal heirs of 1st Defendant) v. SREEDEVI, SASIDHARAN, JALAJA, MURALEEDHARAN, SUDEVAN, GIRIJA, VANAAJA, SUDHEERKUMAR, UNNIKRISHNAN and SREEDEVI @ KOCHUTHAMPURATTY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941** ## **RSA.No.1217 OF 2006** **AGAINST THE JUDGMENT AND DECREE DATED 23/11/2006 IN AS 27/1995 OF SUB COURT, TIRUR** **AGAINST THE JUDGMENT AND DECREE DATED 22/12/1994 IN OS 220/1982 OF MUNSIFF COURT ,PARAPPANANGADI** ## **APPELLANTS/APPELLANTS/LEGAL HEIRS OF 1ST DEFENDANT:** - **1 VELAYUDHAN, S/O.ALINGAL APPUNNI, POST KOTTAKKAL, MALAPPURAM DISTRICT.** - **2 KUNHIKUTTAN, S/O.-DO- -DO-** **BY ADVS. SRI.T.KRISHNANUNNI (SR.)** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 & 3:** - **1 SREEDEVI,D/O.PUTHUKKUDI MADHAVI AMMA, KOTTAKKAL AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** - **2 SASIDHARAN,S/O.PUTHUKKUDI SREEDEVI, KOTTAKAL AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** - **3 JALAJA,D/O.PUTHUKKUDI SREEDEVI, KOTTAKKAL AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** - **4 MURALEEDHARAN,S/O.PUTHUKKUDI SREEDEVI, KOTTAKKAL AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** - **5 SUDEVAN, S/O.PUTHUKKUDI SREEDEVI, KOTTAKKAL AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** **RSA.No.1217 OF 2006** 2 - **6 GIRIJA, D/O.PUTHUKKUDI SREEDEVI, KOTTAKKAL AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** - **7 VANAJA, D/O.PUTHUKKUDI SREEDEVI, KOTTAKKAL AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** - **8 SUDHEERKUMAR, S/O.PUTHUKKUDI SREEDEVI, KOTTAKKAL AMSOM AND DESOM, ERNAD TALUK, MALAPPURAM DISTRICT.** - **9 UNNIKRISHNAN, S/O.PUTHUKKUDI SREEDEVI, P.B.NO.272, MANAMA, BAHRAIN.** - **10 SREEDEVI @ KOCHUTHAMPURATTY, KIZHAKKE KOVILAKATH, CHALAPPURAM AMSOM AND DESOM, KOZHIKODE TALUK.** **BY ADVS. SMT.R.MEERA FOR R1 TO R9 SRI.K.RAMACHANDRAN FOR R1 TO R9** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No.1217 OF 2006** 3 ## **JUDGMENT** In a suit for recovery of possession on the strength of title, both the courts below found title in favour of the plaintiff through their predecessorin-interest Kuttimalu Amma and her daughter Chinnamalu Amma based on a lease arrangement from the jenmee Kottakkal Kizhakke Kovilakam, that too, without a relief sought in that behalf for declaration of title. The defendant in turn disputed their title and contended that they had obtained leasehold right from the senior member of the family one Gopalan Nair in the year 1961 and had obtained purchase certificate from Kottakkal Kizhakke Kovilakam wherein the senior member of the family of the plaintiff was impleaded as the intermediary. But later on, the purchase certificate was set aside by the appellate authority on the finding that it is the plaintiff who is entitled to purchase certificate **RSA.No.1217 OF 2006** 4 over the property. Thereon the Land Tribunal issued a fresh purchase certificate in favour of the plaintiffs. It was again challenged in first appeal before the first appellate authority. The matter is pending consideration before the first appellate authority. 2. Both the courts below rejected the claim of the defendant mainly on the reason that they have not preferred any revision with respect to the finding rendered by the appellate authority by setting aside the purchase certificate issued in favour of the defendant and found that the plaintiffs are entitled to purchase certificate over the property. 3. The legal position was very much settled by the Apex Court in **Mammu v. Hari Mohan (2000 (1) KLT** **835)** , wherein the expression 'final order' as envisaged under Section 103 of the Kerala Land Reforms Act was explained and settled the conflict in the legal position rendered by various high courts. The said legal position was settled only subsequent **RSA.No.1217 OF 2006** 5 to the decision of the appellate authority. 4. In any view of the matter, both the courts below went wrong in appreciating the factual issue involved in the case with the relevant provision of law. There is no substantial prayer in the suit for declaration of title of the plaintiffs over the property. The title of plaintiffs over the property was disputed by the defendant based on a purchase certificate in their favour. What is claimed by the plaintiffs through their predecessor-in-interest is only a leasehold right. They have not opted to obtain any benefit conferred under the provisions of the Kerala Land Reforms Act before any Tribunal constituted for that purpose. It is the defendant who approached the Land Tribunal and obtained a purchase certificate, which would act as title to the property, unless it was set aside or cancelled subsequently. It is on the appeal preferred by the plaintiffs the purchase certificate issued in favour of the plaintiffs was subsequently set aside by the **RSA.No.1217 OF 2006** 6 appellate authority by finding that the plaintiffs are entitled to purchase certificate and the matter was remanded to the Land Tribunal for adjudicating the said question. It is not clear whether the plaintiffs had applied for getting purchase certificate or any suo motu proceedings were initiated in favour of the plaintiffs. The issuance of purchase certificate by the Land Tribunal in favour of the plaintiffs has not attained finality in view of the appeal preferred before the appellate authority and the appeal is pending consideration. It is neither permissible nor advisable for the trial court or the first appellate court to accept the purchase certificate as the document of title of the plaintiffs before the culmination of its proceedings and attainment of finality and conclusiveness. The pendency of an appeal before the competent authority was not properly appreciated by both the courts below. Needless to say that unless there is a reference under Section 125(3) of the Kerala Land **RSA.No.1217 OF 2006** 7 Reforms Act, neither the trial court nor the first appellate court can sit in appeal regarding the adjudication rendered in a parallel proceedings and issuance of purchase certificate, though they can go into the validity of the certificate issued. Exclusive jurisdiction vested with the Land Tribunal and the appellate authority constituted under the Kerala Land Reforms Act to adjudicate the benefit conferred under the Act and as such, both the authorities have jurisdiction and competence to decide the above said issues. Then Section 10 of the Code of Civil Procedure would come into play and the suit or the appeal, as the case may be, pending before the respective courts shall be stayed till the culmination of adjudication of right of parties and entitlement of benefit under the KLR Act, especially when both the parties are claiming title based on the benefit conferred under the said Act and the same would constitute a substantial question of law. Hence the decree and judgment of both the courts **RSA.No.1217 OF 2006** 8 below cannot be sustained. The matter is remanded back to the first appellate court with a direction to stay the proceedings till the culmination of the appeal in A.A.No.177/2000 or any revision thereof under Section 10 C.P.C. and to proceed with the appeal on its culmination. 5. The parties shall appear before the first appellate court on 08/06/2020. The appeal is allowed in part. The decree and judgment of both the trail court and the first appellate court are hereby set aside. The matter is remanded back to the first appellate court. The appeal is allowed in part accordingly. No costs. ## **Sd/-** ## **P.SOMARAJAN** **JUDGE** AJ