IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 126 of 2001(F)
1. PANAKKADAN VEETTIL KRISHNAN NAMBIAR
... Petitioner
Vs
1. KAKKOTAKATH MEETHALE PURAYIL IBRAHIM
... Respondent
For Petitioner :SRI.T.A.RAMADASAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.T.SANKARAN
Dated :18/12/2007
O R D E R
K.T. SANKARAN, J.
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C.R.P. No. 126 OF 2001
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Dated this the 18th December, 2007
O R D E R
S.M.P.No.347 of 1987 on the file of the Land Tribunal, Taliparamba was initiated
showing Krishnan Nambiar as the cultivating tenant (A party) and Narayanan
Namboodiripad as the land owner ( B party). The Land Tribunal passed an order
dated 23.12.1987 ordering assignment of the right, title and interest of the landowner
in favour of the cultivating tenant in respect of one acre of land in R.S.No. 116/1A1 of
Chuzhali amsom and desom.
2. Challenging the order of the Land Tribunal, the first respondent herein,
namely, Ibrahim filed A.A.No. 548 of 1997 before the Appellate Authority. Before the
Appellate Authority, it was contended by Ibrahim that himself and his brother Hamza
had obtained purchase certificate in respect of an extent of 2 acres of land in R.S.No.
116/1A1 as per the order in S.M.P.No.295 of 1986 on the file of the Land Tribunal,
Taliparamba. Therefore, according to Ibrahim, the order in favour of Krishnan
Nambiar in S.M.P.No. 347 of 1987 was not legal and proper.
3. Since there was no contest before the Land Tribunal, the Land Tribunal did
not pass an order considering the merits of the contentions put forward by the
cultivating tenant. When a third party files an appeal against such an order, and there
is serious contest between the parties in respect of title and possession, normally, the
Appellate Authority would remit the matter to the Land Tribunal affording an
opportunity to both the parties to adduce evidence. Instead of doing so, the Appellate
Authority held that after the assignment of an extent of 2 acres in favour of Ibrahim and
C.R.P. No. 126 OF 2001
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Hamza , the petitioner in the S.M.P., namely, Krishnan Nambiar, who is said to be the
manager of Jenmi, fraudulently obtained an order in his favour. This finding is
unsustainable. Without considering the evidence and without ascertaining the actual
possession and identity of the land, the Appellate Authority was not justified in holding
that Ibrahim and Hamza are the real cultivating tenants in respect of the land in
question, only on the basis that they had obtained purchase certificate earlier. This is
a dispute which is to be considered on the merits, after affording opportunity to both the
parties to produce documents and to adduce evidence. This is also a matter for
proper verification by the authorized officer. Payment of revenue and payment of rent to
the Jenmi and other facts and circumstances of the case, are all matters to be
considered in a case of rival claims by two sets of persons. Only on the basis that
Ibrahim and Hamza got purchase certificate earlier, the Appellate Authority was not
justified in holding that Krishnan Nambiar was not entitled to assignment and that the
Land Tribunal passed the order erroneously. In the judgment passed by the Appellate
Authority, it is stated thus:
“Another point to be noted is that the present respondent has not filed
any appeal against the Ext.A1 order so far and that means the
assignment of the land in favour of the appellants is admitted by the first
respondent.”
4. It is submitted by the learned counsel for the petitioner that Krishnan
Nambiar filed an appeal against the order in S.M.P.No. 295 of 1986 with an application
for condonation of delay. The appellate authority had allowed that application.
Challenging that order, the legal representatives of Ibrahim filed Writ Petition (C)No.
15957 of 2006. That Writ Petition was dismissed on 23.01.2007. That means the order
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in S.M.P.No. 295 of 1986 has not become final and the appeal filed against that order
is pending before the Appellate Authority. Even otherwise, the order in S.M.P.No. 295
of 1986 is not binding on Krishnan Nambiar, as he is not a party to that proceeding.
5. In the facts and circumstances of the case, I am of the view that the Appeal
against S.M.P.No. 347 of 1987 also should be considered by the Appellate Authority
on the merits afresh , after affording an opportunity to both the parties to adduce
evidence and to produce documents. I am not remanding the case to the Land Tribunal
since several Land Tribunals have been abolished and it would be difficult for the
parties to appear before the Land Tribunal in these circumstances. The Appellate
Authority having all the powers of the Land Tribunal, shall afford an opportunity to both
the parties to adduce evidence and to produce documents. If the Appeal against the
order in S.M.P.No. 295 of 1986 is pending before the Appellate Authority, A.A.No. 548
of 1997 and the appeal arising out of S.M.P. No. 295 of 1986 shall be disposed of
together by the Appellate Auhority.
The Civil Revision Petition is accordingly allowed . The judgment of the
Appellate Authority is set aside, The matter is remanded to the Appellate Authority for
fresh disposal in the manner indicated above. No order as to costs.
K.T. SANKARAN,
JUDGE.
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