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.
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R.S.A.Nos.1185 & 1186 of 2009
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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
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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
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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
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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
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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.
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