IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 29144 of 2000(T)
1. MOHAMMED ALIAS KUNHU
... Petitioner
Vs
1. TALUK LAND BOARD
... Respondent
For Petitioner :SRI.BABU KARUKAPADATH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :24/05/2010
O R D E R
S.SIRI JAGAN, J.
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O.P.No. 29144 of 2000
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Dated this the 24th day of May, 2010
J U D G M E N T
The petitioner’s father, late Alavikutty was a declarant under the
ceiling provisions of the Kerala Land Reforms Act. The Taluk Land
Board passed an order directing the said Alavikutty to surrender
excess land. As per the order in CRP 903/1988 the said order was
quashed and the matter was remanded to the Taluk Land Board,
Eranad, for fresh disposal. After remand, the Taluk Land Board passed
Ext.P1 order dated 16.8.1991 determining the area in possession of
the petitioner’s father as 32 acres and 74.5 cents and after excluding
the 15 acres as the ceiling area liable to be retained by the family,
directing the declarant to surrender of 17 acres 74.5 cents as excess
land. The petitioner submits that this 32 acres and 74.5 cents land was
determined taking into account certain properties in possession of the
tenants also, which contention was rejected and those properties were
also included in the total area in possession of the petitioner’s late
father. The legal heirs of late Alavikutty were permitted to opt the land
to be so surrendered. After deducting the area already taken over by
the respondents, 8 acres 14.500 acres were to be further surrendered
by the legal heirs of late Alavikutty, out of which, in respect of 7 acres
19.5 cents they pointed out the properties to that extent in survey
No.292/2, which was found to be in possession of the late Alavikutty.
o.p.29144/2000 2
But, instead, by Ext.P4 the legal heirs were directed to surrender 0.47
acres of land in re-survey no.509, 0.48 acres in re-survey Nos.
298/7A and 508/2 and 7.19.5 acres in resurvey no.297/2. The
petitioner is aggrieved by that direction in Ext.P4 to surrender 7 acres
and 19.5 cents in re-survey no.297/2. According to him, the legal heirs
are bound to surrender 7.19.5 acres as opted by them. The
petitioner’s contention is that the legal heirs are prepared to surrender
7 acres and 19.5 cents of land found to be in possession of late
Alavikutty. The respondents have rejected the contention of late
Alavikutty and the legal heirs stating that certain properties are in
possession of tenants. They cannot refuse to take possession of that
property simply because they are in the possession of tenants. Insofar
as that property is the property found to be in possession of
Alavikutty, the legal heirs of Alavikutty are entitled to opt to surrender
any of the properties in possession of Alavikutty as found in Ext.P4
order and the respondents cannot take the stand that they would take
only other properties, is the contention of the petitioner.
2. The 2nd respondent has filed a counter affidavit seeking to
controvert the contentions of the petitioner. In the same, the
contentions appear to be that the property offered for surrender is in
possession of tenants and therefore the legal heirs are liable to
o.p.29144/2000 3
surrender the property as directed in Ext.P4.
3. I have considered the rival contentions in detail.
4. Admittedly, by Ext.P1 order, the land in possession of late
Alavikutty has been determined. Out of the same, certain land has
been directed to be surrendered. The legal heirs of late Alavikutty are
entitled to opt to surrender any of the properties found to be in
possession as per Ext.P1 and to opt to retain balance 15 acres. As
rightly pointed out by the learned counsel for the petitioner, after
finding that certain properties in the hands of the tenants are also
includable in the total area in possession of the late Alavikutty, later on
the Government cannot take the contention that the land in possession
of the tenants cannot be surrendered and the land in actual possession
of the legal heirs has to be surrendered. The legal heirs of late
Alavikutty are entitled to opt to surrender any of the properties found
to be in possession of late Alavikutty as per Ext.P1 and to retain the
balance. In the above circumstances, insistence in Ext.P4 that the legal
heirs should surrender those properties pointed out by the respondents
cannot be accepted. Whether in the possession of the tenants or not, if
the property is included in the total properties found to be in
possession of late Alavikutty, the legal heirs are entitled to opt to
surrender any of those properties and the respondents cannot insist a
o.p.29144/2000 4
particular portion of the property alone would be taken possession as
excess land. Accordingly, Ext.P4 to that extent is quashed. The
respondents shall take possession of only those properties which are
opted by the legal heirs of late Alavikutty to be surrendered which are
included in the total area covered by Ext.P1.
The original petition is allowed as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
S.SIRI JAGAN, J.
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O.P.No. 29144 of 2000-T
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J U D G M E N T
24th May, 2010