IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 1023 of 2000(H)
1. KUNJAN MADHAVI
... Petitioner
Vs
1. GOWRI KATHAMMA
... Respondent
For Petitioner :SRI.M.V.MATHEW
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/04/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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C.R.P.No.1023 of 2000
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Dated this the 8th day of April, 2010
O R D E R
Concurrent decision rendered by the Land
Tribunal and the Appellate Authority negativing the
claim of tenancy canvassed by the predecessor of the
revision petitioners viz., one Kannan Kunjan, is
impeached in this revision filed under Section 103 of
the Kerala Land Reforms Act {for short “the Act”}.
2. Short facts necessary for the disposal of
the revision may be summed up thus:
The applicant Kannan Kunjan filed an
application before the Land Tribunal, Alappuzha
seeking assignment of 82 cents of land in Survey
No.94/4B of Mararikulam South Village under Section
72B of the Act. Claim of tenancy was set up not on the
basis of any document, but on oral tenancy from the
landlords, the respondents in that application. After
enquiry, the Land Tribunal upheld the claim of the
applicant by order dated 22.6.1973. A third party viz.,
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Kangan Angan filed an appeal a few years later as
A.A.No.82/79 before the Appellate Authority contending
that he has got tenancy right over 28 cents of land in
the property ordered to be assigned in favour of the
applicant recognising his tenancy right over that
property. The appeal was allowed by the Appellate
Authority and the case was remitted to the Land
Tribunal to consider whether the rival claimant had any
right over the 28 cents of land as claimed by him.
3. The Land Tribunal, on retrial, impleading
the above appellant as a rival claimant, held that he has
not established any right of tenancy, and the
petitioners, the legal representatives of the original
applicant, were in possession of the entire 82 cents.
That order of the Land Tribunal was again challenged
by way of an appeal by the rival claimant. At this
juncture, it has to be taken note that the appeal was
preferred only by the rival claimant, who set up a right
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over 28 cents of land out of the 82 cents ordered to be
assigned in favour of the original applicant Kannan
Kunjan. The finding entered by the Land Tribunal that
possession of the entire property is in favour of the
legal representatives of the original applicant in the
original application and the rival claimant has not
substantiated the claim in respect of the 28 cents of
land as put forward by him as held by the Land Tribunal
was upheld by the Appellate Authority. However, the
Appellate Authority instead of dismissing the appeal,
proceeded to remand the application to the Land
Tribunal for fresh consideration as it was not satisfied
that the additional applicants before the Land Tribunal
had established the relationship of landlord and tenant
between their predecessor and the owner of the land.
4. Though that order of the Appellate
Authority was challenged by the additional applicants
filing an original petition before this court, this court
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declined to interfere with the order and dismissed that
original petition. While the Land Tribunal considered
the matter afresh in the light of the remission ordered
by the Appellate Authority, it ordered for a fresh
enquiry by the Revenue Officer for the purpose of
examining the claim of the rival claimant over the 28
cents as well in the 82 cents of land in respect of which
tenancy claim was canvassed by the additional
applicants. That order was challenged by filing an
original petition by the additional applicants before this
court as O.P.No.1451/95. This court after hearing the
parties disposed of that original petition by judgment
dated 13.10.1995. The order of the Land Tribunal
directing fresh enquiry by the Revenue Inspector was
quashed by this court holding that the Land Tribunal
had no jurisdiction to proceed against the order of the
remand and it has to confine its enquiry within the
limits specified in the remand order. In the remand
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order passed by the Appellate Authority, the only
question that required to be looked into was the claim
of tenancy raised by the predecessor of the additional
applicants Kannan Kunjan and not with respect to any
portion of the land raised by the rival claimant which
had been repelled by the Appellate Authority
concurring with the decision rendered by the Land
Tribunal in its earlier order. This court made it clear
that in view of the remand order, it was not open to the
rival claimant to take up before the Land Tribunal, his
claim regarding the 28 cents which was found against
by the Land Tribunal and confirmed by the Appellate
Authority. In the above judgment rendered in the
original petition this court directed the Land Tribunal
to consider whether the additional applicants in the
original petition have established their claim of tenancy
in respect of 82 cents of land as against the land owner.
In considering that question, it was further observed
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that the claim set up by the rival claimant has no
relevance as the same has been negatived earlier by the
two authorities concurrently. It was made clear that
the rival claimant cannot take up his claim before the
Land Tribunal to resist the claim of tenancy canvassed
by the additional applicants over the property. In other
words, this court commanded the Tribunal to confine its
enquiry on the question whether the additional
applicants, the legal representatives of Kannan Kunjan,
have established their claim of tenancy as against the
owner of the land, in accordance with the directions
given in the remand order by the Appellate Authority.
Strangely enough, in the enquiry conducted by the
Land Tribunal, as seen from the impugned order dated
30.4.1988 passed by that Tribunal, overlooking the
specific directions given by this court in the judgment
referred to above, some observations and findings made
in the judgment rendered by the Appellate Authority at
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the instance i.e. A.A.No.264/79 dated 28.3.1979 were
given too much significance to negative the claim of
tenancy over the land canvassed by the additional
applicants. The entire approach taken by the Land
Tribunal in appreciating the claim of the additional
applicants, it is seen, was against the specific
mandatory directions issued by this court in the
judgment rendered in the original petition referred to
above. It is noticed, the Appellate Authority also fell in
error, as seen from its judgment where it has formed a
conclusion that when this court has turned down the
challenge against the previous judgment of that
authority it has concluded that the applicant has not
proved his tenancy claim. Previously, the Appellate
Authority had disposed the appeal remitting the case
expressing a view that the tenancy has not been proved.
Challenge against that finding was turned down by this
court has been given unmerited consideration by the
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Appellate Authority to negative the claim of tenancy
canvassed by the additional applicants ignoring the fact
that the previous appeal was disposed remitting the
matter for fresh consideration. Whatever be the views
expressed in the previous judgment of the appellate
authority, that tenancy has not been proved, and the
challenge against that finding negatived by this court,
were not material as after remand and fresh decision
entered by the Tribunal, the Appellate Authority was
expected to examine the materials with reference to the
order passed by the Tribunal to enter a finding whether
the additional applicants have succeeded in proving
that their predecessor had tenancy right over the
property. It is interesting to note that the challenge
against the claim of tenancy canvassed by the
additional applicants is resisted not by the landlord, but
by the rival claimant whose claim had already been
negatived by the orders previously passed by the
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authorities and that rejection became final as confirmed
by this court more than once. Without looking into any
of those aspects, it is seen, both the authorities have
negatived the claim of tenancy claimed by the
additional applicants, the revision petitioners. In fact,
some observations of the Appellate Authority in its
previous judgment which could not have been given
much merit were relied upon by the Land Tribunal,
rather than the evidence let in the case, to conclude
that the tenancy claimed was not proved. The enquiry
conducted over the claim canvassed by the additional
applicants was against the specific direction given by
this court and also ignoring the materials produced in
the case. The judgment passed by the appellate
authority is liable to be set aside.
5. Setting aside the judgment of the
Appellate Authority, that authority is directed to
dispose the appeal afresh on its merits considering the
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challenges canvassed against the order of the Land
Tribunal negativing the claim of tenancy claimed by the
additional applicants over the land covered by the
proceedings in accordance with law, taking note of the
observations made by this court in the judgment in
O.P.No.1451/95 dated 13.10.1995 and also in the
present judgment and in accordance with law.
Civil Revision Petition is disposed of as
indicated above.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
sk/-
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