IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 35 of 2002()
1. MEMA KOCHAPPI, CHARUVILA PUTHEN VEEDU,
... Petitioner
2. MEMA PODICHI, DO. DO.
3. CHANDRAN VELAYUDHAN, DO. DO.
4. SANTHA, W/O. CHELLAPPAN,
5. VALSALAKUMARY, D/O. CHELLAPPAN, DO. DO.
6. SEETHA, D/O. CHELLAPPAN, DO. DO.
7. SATHY, D/O. CHELLAPPAN, DO. DO.
Vs
1. PERUMAL GOPI, KUNNIL VEEDU,
... Respondent
2. KOCHUKURUMBA MEENAKSHI, DO. DO.
For Petitioner :SRI.K.S.HARIHARAPUTHRAN
For Respondent :SRI.SAJU.S.A
The Hon'ble MR. Justice K.T.SANKARAN
Dated :15/02/2008
O R D E R
K.T. SANKARAN, J.
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C.R.P. No. 35 OF 2002
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Dated this the 15th February, 2008
O R D E R
The claim put forward by the petitioners that they are cultivating tenants in
respect of an extent of 32 cents of land was rejected by the Land Tribunal and it was
confirmed by the appellate authority. The revision petitioners challenge in this Revision
the concurrent findings of the authorities below.
2. The property in question belonged to Perumal, father of the first respondent
in the Revision (second respondent before the Land Tribunal). After the death of
Perumal, the property was demised as per an ‘ottikuzhikkanam’ in the year 1958 in
favour of Chandran, late husband of the first petitioner herein. O.S.No.131 of 1988 was
filed by the respondents for redemption of that mortgage against the revision
petitioners. In that suit, it was admitted by the revision petitioners that the transaction is
a redeemable mortgage. The suit was decreed on 24.02.1990 and the decree has
become final. The decree was put in execution and the property was delivered on
07.08.1991.
3. Before the institution of the suit, the proceedings in respect of the present
case were initiated under section 72C of the Kerala Land Reforms Act before the Land
Tribunal, Chirayinkeezhu showing the revision petitioners as cultivating tenants in
respect of the property. The proceedings were dropped on account of default of the
revision petitioners. On 30.03.1990, an application was filed by the petitioners and the
proceedings before the Land Tribunal were revived and restored and it was re-
numbered as S.M.C. 54 of 1992. By that time, the suit was decreed and delivery was
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taken by the respondent.
4. The case of the petitioners is that the Ottikuzhikkanam executed in 1958 is
really a lease and not a mortgage. They contended that the property was demised for
enjoyment and not as a security for loan transaction. Before the civil court, they did not
raise any such contention and it was admitted that the transaction was a mortgage. The
civil court found that the transaction is a mortgage and a decree for redemption of
mortgage was passed. The Land Tribunal rejected the contention raised by the
petitioners that transaction is really a lease. It was held that the decision of the civil
court is binding on the land reforms authorities. After having found that the
transaction is a mortgage and the petitioners having conceded before the civil court
that the transaction is a mortgage, they cannot be heard to contend that it amounts to a
lease and that they are entitled to get the right, title and interest of the landlord assigned
in their favour under the provisions of the Kerala Land Reforms Act. The suit for
redemption could be decreed only on the finding that the defendants therein (revision
petitioners) were mortgagees. The civil court having found that the revision petitioners
herein are mortgagees and having passed a decree for redemption, the revision
petitioners who are bound by the decree of the civil court cannot turn round and
contend that they are cultivating tenants. The petitioners could claim any tenancy right
only if the transaction was a lease and not a mortgage. That the transaction is a
mortgage was finally decided by the civil court and that the decree was executed. After
several years, the Land Tribunal could not, as rightly held by the Land Tribunal, allow
the suo motu proceedings and issue purchase certificate in favour of the petitioners.
The Land Tribunal rightly held that the petitioners are not cultivating tenants entitled to
fixity of tenure. The decision of the Land Tribunal was rightly affirmed by the Appellate
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Authority . The findings of the authorities below are not illegal, improper or without
jurisdiction. The authorities below did not fail to decide any question of law; nor can it
be said that any question of law was wrongly decided by the authorities below. No
grounds are made out for invoking jurisdiction of this court under section 103 of the
Kerala Land Reforms Act.
The Civil Revision Petition fails and it is accordingly dismissed. No order as to
costs.
K.T. SANKARAN,
JUDGE.
lk
C.R.P. No. 35 OF 2002
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K.T. SANKARAN, J.
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C.R.P. No.35 of 2002
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Dated this the 15th February, 2008
O R D E R