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Thankamany And Others vs Appukuttan And Others on 25 November, 2009

Kerala High Court
Thankamany And Others vs Appukuttan And Others on 25 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 1185 of 2009()



1. THANKAMANY AND OTHERS
                      ...  Petitioner

                        Vs

1. APPUKUTTAN AND OTHERS
                       ...       Respondent

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :25/11/2009

 O R D E R
                             THOMAS P. JOSEPH, J.
                            --------------------------------------
                        R.S.A.Nos.1185 & 1186 of 2009
                            --------------------------------------
                  Dated this the 25th day of November, 2009.

                                      JUDGMENT

These Regular Second Appeals arise from common judgment and decree

of learned Additional District Judge-I, Thrissur in A.S.Nos.184 of 1999 and 183 of

1999, respectively which arose from common judgment and decree of learned

Munsiff, Wadakkanchery in O.S.Nos.192 of 1985 and 209 of 1985, respectively.

O.S.No.192 of 1985 is a suit for injunction against trespass into the suit

properties while O.S.No.209 of 1985 is a suit for partition instituted by the

defendants in O.S.No.192 of 1985. Parties are referred to as plaintiff and

defendants as in O.S.No.192 of 1985 for convenience.

2. According to the plaintiff (in O.S.No.192 of 1985) suit property

belonged to Kanjangattu tharwad wherefrom he obtained a lease. Ext.A1 is

copy of the pattachit dated 26.8.1975 which plaintiff claimed to have executed in

favour of the jenmi. Following that, plaintiff obtained purchase certificates from

the Land Tribunal in S.M. Nos.653 of 1997 and 654 of 1997, improved the

property, constructed building and is in possession and enjoyment of the said

property. Alleging that defendants are attempting to trespass into the property,

he sought for reliefs as first above stated. Defendants (plaintiffs in O.S.No.209

of 1985) contended that the lease was taken by their father, Sankunni who

constructed building in the property. On the death of the father, lease hold

RSA Nos.1185 & 1186/2009

2

right devolved on plaintiff and defendants and the plaintiff (in O.S.No.192 of

1985) was managing the properties on behalf of all the legal heirs. They stated

that it was on behalf of all of them that purchase certificates were obtained by

the plaintiff. They resisted the prayer for injunction in O.S.No.192 of 1985

claiming that they are also co-owners and at the same time sought partition and

separate possession of their share, in O.S.No.209 of 1985. On the very same

allegations plaintiff (in O.S.No.192 of 1985) defended the prayer for partition in

O.S.No.209 of 1985. While the suit was pending in the trial court, on the

request of defendants (in O.S.No.192 of 1985 and plaintiffs in O.S.No.209 of

1985) issue regarding tenancy was referred to the Land Tribunal. Land Tribunal

found that the property was taken on oral lease by Sankunni, predecessor-in-

interest of the plaintiff and defendants. Reference was answered accordingly and

the matter was sent back to the trial court which accepted the finding, dismissed

O.S.No.192 of 1985 and granted preliminary decree in O.S.No.209 of 1985.

First appellate court considered the appeals preferred at the instance of plaintiff

in O.S.No.192 of 1985, concurred with the finding of the Land Tribunal and

dismissed the appeals. Hence these Second Appeals. It is contended by

learned counsel for plaintiff (in O.S.No.192 of 1985 and defendant in

O.S.No.209 of 1985) that in the absence of any challenge to the purchase

certificates issued in the name of the plaintiff on the ground of any fraud, a

second reference to the Land Tribunal was not permissible since the Land

Tribunal had already found that plaintiff (in O.S.No.192 of 1985) is the cultivating

tenant. According to the learned counsel the reference suffered from

RSA Nos.1185 & 1186/2009

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jurisdictional error which went to the root of the decision of the courts below.

Learned counsel for plaintiff therefore submits that courts below ought to have

accepted the purchase certificates issued by the Land Tribunal so far as they

are not challenged before the appropriate forum by defendants (in O.S.No.192

of 1985 and plaintiffs in O.S.No.209 of 1985)

3. Ext.A1, I stated is the copy of pattachit which the plaintiff in

O.S.No.192 of 1985 is claimed to have executed in favour of jenmi. Exts.A2 and

A3 are copy of purchase certificates issued in favour of the plaintiff in

O.S.No.192 of 1985. Exts.A4 and A5 are copy of the proceedings of the Land

Tribunal. Plaintiff has also produced documents to prove that he has been

paying revenue for the suit property and residing in the building in the suit

property.

4. I have gone through the order of Land Tribunal on reference. Land

Tribunal came to the conclusion that there was much irregularity in the matter of

issue of purchase certificates to the plaintiff in O.S.No.192 of 1985 as per

proceedings before it. It also found on evidence let in by the parties that

Sankunni, predecessor-in-interest of plaintiff and defendants was the cultivating

tenant of the property he having acquired lease from the jenmi. A further fact

that has come in evidence is that at the time of death of Sankunni, plaintiff in

O.S.No.192 of 1985 was aged only ten years. Therefore there was no possibility

of plaintiff taking any lease prior to the death of Sankunni and also there is no

case in that line. Going by the averments in the plaint in O.S.No.192 of 1985

RSA Nos.1185 & 1186/2009

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and written statement in O.S.No.209 of 1985 plaintiff claims tenancy only on the

strength of Ext.A1, copy of pattachit dated 26.8.1975. Having gone through the

plaint in O.S.No.192 of 1985 and written statement in O.S.No.209 of 1985 I do

not find any contention on behalf of the plaintiff that prior to Ext.A1 dated

26.8.1975, he had any leasehold right in the suit property. Under Section 74 of

the Kerala Land Reforms Act, no tenancy could be created in respect of any land

after the commencement of that Act (ie. 1.4.1964). In the light of that specific

bar tenancy if any created as per Ext.A1 dated 26.8.1975 is something which is

forbidden by law and which cannot be recognized by any court of law or Tribunal.

Therefore purchase certificates issued by the Land Tribunal in favour of plaintiff

in O.S.No.192 of 1985 are void and do not have the sanction of law. Exts.A2

and A3, copy of purchase certificates. and Exts.A4 and A5, copy of the

proceedings of the Land Tribunal pursuant to which those certificates are issued

need only be ignored.

5. A further fact to be noted is that there is no case for the plaintiff in

O.S.No.192 of 1985 (defendant in O.S.No.209 of 1985) that he obtained the

purchase certificate being a legal heir of Sankunni in whose favour the lease-

hold right was created and for and on behalf of all the legal heirs of Sankunni.

There is no case that in the proceedings which culminated in Exts.A2 to A5 any

notice was given to other legal heirs of Sankunni. It is settled position of law

that purchase certificate will not bind a party to whom individual notice is not

given (See K.C.Nair v. E.K.Nair (AIR 1982 Kerala 232) and George v.

State of Kerala (1987 (1) KLT SN 67). In the light of the above factual

RSA Nos.1185 & 1186/2009

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and legal position, learned Munsiff was justified in ignoring Exts.A2 to A5 and

referring the issue regarding tenancy which arose between the parties to the

Land Tribunal for decision.

6. So far as the finding of Land Tribunal on tenancy is concerned it is

based on evidence on record which the first appellate court has also considered

and confirmed. Since that is a finding of fact based on evidence and so far as

the finding cannot be said to be perverse, no substantial question of law is

involved in that regard.

7. The decision in the above suits flows from the finding regarding

tenancy. It is accordingly that O.S.No.192 of 1985 was dismissed and

preliminary decree was passed in O.S.No.209 of 1985. On going through the

judgment under challenge, the order of the Land Tribunal on reference and also

hearing learned counsel I do not find any substantial question of law involved in

these appeals requiring its admission and issue of notice to

defendants/respondents.

Second Appeals are accordingly dismissed in limine.

I.A.No.2697 of 2009 in R.S.A. No.1185 of 2009 and I.A.No.2698 of 2009

in R.S.A.No.1186 of 2009 will stand dismissed.

THOMAS P.JOSEPH,
Judge.

cks

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