IN THE HIGH COURT OF KERALA AT ERNAKULAM
LA.App..No. 2106 of 2008()
1. K.K.JAYAKESAN, S/O.LATE KALARIKKALVEETTI
... Petitioner
2. K.K.RAJU, S/O.LATE KALARIKKALVEETTIL
Vs
1. SAROJAM, W/O.RATNAKUMAR, 45, R/AT.THAIKK
... Respondent
2. STATE OF KERALA, REP. BY SPECIAL
For Petitioner :SRI.A.BALAGOPALAN
For Respondent :SRI.M.A.ABDUL HAKHIM
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :01/12/2009
O R D E R
M.N. KRISHNAN, J.
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L.A.A.Nos.2106 & 2291 OF 2008
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Dated this the 1st day of December, 2009
J U D G M E N T
These appeals are preferred by the rival claimants in
LAR.No.184/2000. The short point that arises for
determination by the court is to find out who is the title
holder of the property. Smt. Sarojam is respondent No.2 in
the land tribunal reference and applicants therein are
Sri.K.K. Jayakesan and Sri.K.K. Raju. The rival contentions
of the parties are that 1 acre and 28 cents of land
comprised in Sy.No.650/5 of Mulavukad village was taken on
lease by Kunjan from Kottram Pappootty and on his death, the
property had devolved upon the applicants before the land
tribunal reference and therefore,they are claiming exclusive
right over 1 acre and 28 cents of property as lessees.
2. On the other hand, respondent No.2 namely Smt.
Sarojam would contend that she had purchased the property
by virtue of a registered instrument- Ext.B1 dated 16.7.1965.
According to her, she is in possession of the property on the
strength of that document and therefore, she is the
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exclusive title holder of the property.
3. I am made to understand that the applicants before
the land tribunal, who are the legal heirs of Kunjan, are
claiming tenancy right under one Kottram Pappootty and not
under anybody else. Whereas, Smt.Sarojam is claiming right
to the property by virtue of a registered instrument – Ext.B1.
In order to have a resolution regarding the tenancy
dispute, unless the landlord is in the party array, one cannot
decide the question of tenancy. A question of reference to
the land tribunal arises when there is a dispute regarding
the tenancy. For example, when a plaintiff claims tenancy
under the defendant or the defendant claims tenancy under
the plaintiff, then by virtue of the provisions of the Land
Reforms Act, especially under Section 125, the civil court
jurisdiction is barred and the matter has to be referred to the
land tribunal for a proper adjudication on that issue.
Therefore unless there is a dispute regarding the landlord
and the tenant in a proceedings, really the question of
tenancy does not arise for determination in such a case.
Suppose A is claiming tenancy under B and the defendant in
the suit namely C is claiming an independent right over the
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property, consideration of that has to be done by the court
as to whether A has got title to the property or C has got
title to the property and for that purpose, there is no point in
referring the matter to the land tribunal to adjudicate the
tenancy right of A under B for the reason that, B is not a
party to the proceedings at all. Therefore, in this case really
the scheme and scope of consideration is whether as legal
heirs of Kunjan, Sri.K.K. Jayakesan and Sri.K.K.Raju are
having title to the property or whether Smt. Sarojam is
having title to the property as per Ext.B1. For that purpose,
the land acquisition court can permit the parties to adduce
evidence and then consider the question of title between
the two and arrive at a decision that who is having a better
title to the property and that will govern the field.
Therefore, a reference to the land tribunal was totally
uncalled for. If there is any certificate of purchase issued,
that may be the relevant piece of evidence. The binding
nature of which would depend upon various factors. I am
conscious of the fact that when a certificate of purchase is
issued under Section 72 K of the Kerala Land Reforms Act, it
is a conclusive proof of tenancy. Similarly there is a well
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settled decision that when a certificate of purchase is
obtained without proper issuance of notice as contemplated
under Section 72 F (3) of the Kerala Land Reforms Act, since
it is not a notice in person, it will not have any binding
effect.
4. So, these are all matters which the civil court may
have to consider in order to appreciate the rival titles of the
parties. Therefore, the award passed is set aside and the
matter is remitted back to the land acquisition court with a
direction to consider the question of rival title set up by
Sri.K.K Jayakesan and Sri. K.K.Raju as well as Smt. Sarojam
with the materials available and also by permitting the parties
to adduce evidence on that regard and then decide the
matter in accordance with law. The parties are directed to
appear before the land acquisition court on 8.01.2010.
Disposed of accordingly.
M.N. KRISHNAN, JUDGE
cl
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