N.M.KRISHNAKUMARI Vs THALAKKAL ASSIYA & ORS.
Bench: V. GOPALA GOWDA,R. BANUMATHI
Case number: C.A. No.-001942-001943 / 2015
Diary number: 24239 / 2009
Advocates: T. G. NARAYANAN NAIR Vs
LAWYER S KNIT & CO
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NON REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.1942-1943 OF 2015 (Arising out of S.L.P (C) Nos.26832-26833 of 2009)
N.M.KRISHNAKUMARI & ORS. ….APPELLANTS Vs.
THALAKKAL ASSIYA & ORS. …RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
Leave granted.
2. These appeals have been filed by the appellants
against the impugned judgment and order dated
23.03.2009 passed by the High Court of Kerala, at
Ernakulam, in Civil Revision Petition Nos. 1172 and
1173 of 1997(D), whereby the High Court allowed the
Civil Revision Petitions filed by the respondents and
upheld the common judgment and order of the Land
Tribunal, Nileshwar, dated 16.10.1991 passed in
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O.A.No.51 of 1986 and I.A.No.61 of 1986 in
S.M.P.No.1474 of 1976 and set aside the common judgment
and order of the Appellate Authority (Land Reforms),
Kannur, dated 20.03.1997 passed in A.A.No.221 of 1991
and A.A.No.233 of 1991.
3. For the purpose of considering the rival legal
contentions urged on behalf of the parties in these
appeals, with a view to find out whether this Court is
required to interfere with the impugned judgment and
order of the High Court, the necessary facts are
briefly stated hereunder:
It is an admitted fact that the petition schedule
property originally belonged to Vaddakke Kovilakam of
Nileshwar. It is the case of the respondents that
Aboobacker Haji, who is now deceased had obtained an
oral Kuzhikanam in the year 1957 and while doing so,
the members of the aforesaid Vadakke Kovilakam entered
into a partition in the year 1959 and the petition
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schedule property along with other extent was allotted
to Smt.V.C.Mahaprabha Thamburatti and her children as
per schedule ‘D’ in the partition deed and the
deceased Aboobacker Haji had been paying purappad to
jenmi Kovilakam. The members of the Kovilakam, entered
into another partition in the year 1974 and as per the
same, the petition schedule property is allotted to
Smt. V.C.Mahaprabha Thamburatti and her female
children as per schedule ‘A’ in the partition deed.
4. The appellants are the legal heirs of the deceased
V.C. Rama Varma Raja (Jr.), the 2nd respondent in
O.A.No.51 of 1986 and the respondents are the legal
heirs of the deceased Aboobacker Haji, the original
applicant in O.A.No.51 of 1986 on the file of the Land
Tribunal. A joint application (J Form) i.e. O.A.No.51
of 1986, was filed by the deceased Aboobacker Haji
along with the 1st respondent in O.A. 51 of 1986,
Kerala Varma Raja, who was also shown as the land
owner by the deceased Aboobacker Haji, before the Land
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Tribunal for the purchase of Jenm right in respect of
0.12 Cents of land in Re.Sy.435/2B, under the
provisions of Section 72MM(1) of the Kerala Land
Reforms Act, 1963, (in short “the Act”) as amended by
the Act 17 of 1972. The predecessor of the appellants
i.e. deceased V.C. Rama Varma Raja (Jr.), got himself
impleaded as the additional 2nd respondent in the
proceedings before the Land Tribunal and disputed the
tenancy of the deceased Aboobacker Haji. The deceased
V.C. Rama Varma Raja (Jr.) has further contended in
the proceedings that he is the tenant of the
properties and that he has already obtained an order
for the purchase of the Jenm right in respect of the land in question as per the order in S.M.P.No.1474 of
1976 of the Land Tribunal.
5. The deceased Aboobacker Haji filed I.A.No.61 of
1986 under Section 72MM(7) of the Act, seeking to set
aside the order passed in S.M.P.No.1474 of 1976, by
the Land Tribunal. The Land Tribunal by its judgment
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and order allowed the application of the deceased
Aboobacker Haji without any liability and held that he
is the cultivating tenant of the schedule property.
Aggrieved by the same, the legal heirs of the deceased
V.C. Rama Varma Raja (Jr.) filed an appeal before the
Appellate Authority, questioning the correctness of
the order of the Land Tribunal on various grounds. The
Appellate Authority has set aside the judgment and
order of the Land Tribunal and upheld the order passed
in S.M.P.No.1474 of 1976 obtained by the predecessor
of the appellants earlier. Aggrieved by the same, the
respondents filed a Civil Revision Petitions before
the High Court, by its order dated 23.03.2009, allowed
the same by holding that the reasons stated by the
Appellate Authority in its judgment for reversing a
well considered order passed by the Land Tribunal is
unsustainable in law. It has further held that the
transaction put forward by the deceased V.C. Rama
Varma Raja (Jr.) with respect to the land in question
is hit by Section 74 of the Act and hence, the same is
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invalid. Therefore, the High Court has restored the
order of the Land Tribunal in favour of the
respondents. Hence, these appeals have been filed by
the appellants, challenging the judgment and order of
the High Court, urging a number of grounds and has
prayed before this Court inter alia contending that
the High Court has exceeded its jurisdiction under
Section 103 of the Act and has erroneously reversed
the findings of fact recorded by the Appellate
Authority in its judgment and order and therefore
prayed for setting aside the same.
6. It is the contention of the learned counsel on
behalf of the appellants that Smt. Mahaprabha
Thamburatty had executed a registered marupattam
No.3990/64 dated 30.10.1964 and had leased out the
property in favour of the deceased V.C. Rama Varma
Raja (Jr.), the predecessor of the appellants herein.
It has been further stated by him that the deceased
V.C. Rama Varma Raja (Jr.) was in possession of the
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property three months prior to the said lease deed
dated 30.10.1964 and therefore, he is in absolute
possession and enjoyment of the property and he has
purchased the jenm right of the schedule property as
per the order passed in S.M.P.No.1474 of 1976 before
the Land Tribunal, Nileshwar and has further contended
that the deceased Aboobacker Haji had no right or
possession over the property as he is not the
cultivating tenant and thus, he could not have applied for the purchase of Jenm right.
7. On the other hand, it has been contended by the
learned counsel on behalf of the respondents that
their predecessor, deceased Aboobacker Haji had
obtained the schedule property by oral Kuzhikanam
lease in the year 1957 from Kovilakam and thus, he is
the cultivating tenant of the schedule property. He
has further contended that the deceased V.C. Rama
Varma Raja (Jr.) had obtained the order in
S.M.P.No.1474 of 1976 in his favour by foul play,
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misrepresentation and fraud, as he has never been in
possession of the property. It has been further
contended by him that the Marupatt deed dated
30.10.1964, produced by the appellants is a fabricated
document and further, the deceased V.C. Rama Varma
Raja (Jr.) has been in the habit of fabricating
documents, which has also been deposed by Smt.
Mahaprabha Thampuratti and her daughters, who had
filed a counter in S.M.P.No.1474 of 1976, denying the
tenancy of the deceased V.C. Rama Varma Raja (Jr.) and
have also disputed their signature in the ‘J’ Form.
8. It has been further contended by the learned
counsel on behalf of the respondents that the Act,
which came into force on 01.04.1964, stipulates the
eligibility of the cultivating tenant to purchase jenm
rights, thus, the appellants are ineligible under the
Act to get the possession of the property, even if
they had the alleged possession of the property three
months prior to 30.10.1964.
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9. We have heard both the parties. On the basis of
the aforesaid rival legal contentions urged on behalf
of the parties and the evidence on record, we have to
examine the following:
• Whether the divergent findings recorded by the High Court against the appellants are legal and valid; and
• Whether the High Court has exceeded in its jurisdiction under Section 103 of the Act in re-examining the case and holding that the findings of the Appellate Authority are not only erroneous but also error in law?
10. It has been deposed by the deceased Aboobacker
Haji, PW1, before the Land Tribunal, in the
proceedings held by it that he had paid varam to the
Jenmi Kovilakam regularly. To substantiate his claim
for the same, deceased Aboobacker Haji had produced
Ext.A1 to A5 documents wherein Exts.A1(a),(b)and(c)
were produced as purappad receipts and PW2 and PW3
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were examined as witnesses before the Land Tribunal
to prove his claim. The contention of the appellants
before the High Court as well as this Court that the
said documents are not genuine, as they do not
contain the actual survey number, extent and fixed
varam, cannot be accepted by us in view of the
decision of the Land Tribunal as well as the High
Court which have rightly held that the same are valid
and legal on proper appreciation of the legal
evidence on record, as nothing had been brought out
by the counsel on behalf of the appellants in the
cross examination of PW1, before the Land Tribunal
with regard to the genuineness of the said receipts.
Further, PW3, who is an independent witness before
the Land Tribunal had categorically deposed that the
deceased Aboobacker Haji is the cultivating tenant of
the land involved in the claim as he has been taking
usufructs from the schedule property.
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11. Further, the son of Mahaprabha Thamburatti, who is the 1st respondent in O.A.No.51/86 has also
categorically stated before the Land Tribunal that the
deceased V.C. Rama Varma Raja (Jr.) has never been in
possession and enjoyment of the schedule property. He
has further deposed that the deceased V.C. Rama Varma
Raja (Jr.) has been in the habit of fabricating
documents. He has testified the same before the
Munsiff Court, in the original suit between himself
and the deceased V.C. Rama Varma Raja (Jr.) in
O.S.331/84 on the file of the Munsiff’s Court,
Hosdurg, wherein the said court had found that the
deceased V.C. Rama Varma Raja (Jr.) had fabricated the
documents. This relevant and important fact has not
been considered by the Appellate Authority while
reversing the findings of the Land Tribunal while
giving its reasons on the contentious issue in its
judgment and order and the same has been rightly
reversed by the High Court in exercise of its
revisional jurisdiction. The Land Tribunal has come to
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the right conclusion on the basis of the facts pleaded
and the evidence adduced by both the parties and held
that the respondent’s predecessor, deceased Aboobacker
Haji is the cultivating tenant in respect of the land
in question after proper appreciation of the evidence
on hand and therefore, it has recorded that the
finding on the order which was obtained by the
deceased V.C. Rama Varma Raja (Jr.) in S.M.P.1474 of
1976 is an act of fraud and foul play and thus, the
Land Tribunal has rightly set aside the same, which
finding has been concurred by the High Court stating
that the reversal of the finding of fact by the
Appellate Authority are not only erroneous but also
error in law.
12. The Exbt.B1 brought as evidence before the Land
Tribunal is not genuine as the same has been brought
into existence by committing fraud and foul play as
Ext.B1 covers 5 items of property including the
petition schedule property and it has also been
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deposed by the deceased V.C. Rama Varma Raja (Jr.),
DW1 before the Land Tribunal that except the area defined in the schedule property, the other properties
were allotted in schedule ‘G’ in the 1959 partition
and the said schedule ‘G’ is allotted for family
viniyogas. Thus, as per the partition deed
Smt.Mahaprabha Thamburatti has no right over the
properties coming under schedule ‘G’ and the deceased
V.C. Rama Varma Raja (Jr.) has no right to alienate
the property and thus the documents brought on record
as evidence by the predecessor of the appellants
before the Land Tribunal are not genuine. The finding
of fact of the Land Tribunal has been rightly
concurred by the High Court which has held that the
finding of fact by the Appellate Authority in this
regard is erroneous as there is non consideration of
positive evidence on record in favour of the
respondents. Further, the documents Exts.B1 to B5(d)
produced before the Land Tribunal by the predecessor
of the appellants as evidence in justification of the
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claim of the appellants, do not contain the survey
number, extent of the land, etc. Additionally, the
genuineness of the signature of Smt. Mahaprabha
Thamburatti has not been established by them, as the
deceased V.C. Rama Varma Raja (Jr.) himself could not
identify her signature before the Land Tribunal. This
Court cannot overlook the fact that Smt. Mahaprabha
Thamburatti had filed a counter in I.A. 61 of 1986 to
the effect that the order in S.M.P.1474 of 1976 was
obtained by forging the signatures of the Jenmis.
Further, even the Karyasthan of the Kovilakam did not
support the case of the appellants before the Land
Tribunal.
13. Even if we accept the contention of the learned
counsel on behalf of the appellants that their
predecessor had the possession of the property three
months prior to 30.10.1964, which is the date of the
lease deed, the appellants would still be ineligible
under the provisions of the Act to get the cultivating
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rights upon the land in question in view of the fact
that the deceased V.C. Rama Varma Raja (Jr.) had
allegedly got the possession of the schedule property
only after 1.04.1964, after the Act came into force
and thus, he could not have claimed the right of
cultivating tenant as provided under the provisions of
Section 74 of the Act. Thus, the contention of the
appellants that the property was leased out to the
predecessors of the appellants as per the Marupat deed
dated 30.10.1964 is not maintainable in law. Further,
the deceased V.C. Rama Varma Raja (Jr.) was also
ineligible for the purchase of Jenm right from the
Land Tribunal under the provisions of the Act. Being a
person who allegedly came in possession of the
property subsequent to 1.04.1964, he cannot claim
tenancy rights. Thus, the Land Tribunal as well as the
High Court have come to the right conclusion based on
the fact and evidence on record in holding that the
respondents have proved their tenancy right. The
respondents’ claim is further supported by the
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testimonies of the landlords, who have testified that
the property belonging to Vadakke Kovilakam was
obtained by the deceased Aboobacker Haji in the year
1957 from the Kovilakam. The said fact has also been
reiterated by Kerala Varma Raja, who is examined as
PW2 before the Land Tribunal. Thus, the respondents
have rightly filed an application before the Land
Tribunal after the Act came into force under Section
75 of the Act, as they had been in possession of the
property on and before 1.04.1964. The Land Tribunal
and the High Court have come to the correct conclusion
and have rightly recorded the finding of fact that the
deceased V.C. Rama Varma Raja (Jr.) had created
fabricated documents with respect to the property in
question and therefore, his claim for the purchase of
Jenm right for the schedule property is illegal and
not supported by evidence.
14. The Appellate Authority has completely ignored the
undisputed pleadings and material documents on record
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in favour of the respondents and the said finding of
the Appellate Authority is erroneous in law and
patently perverse as it has ignored the correct
findings of the Land Tribunal, on the relevant
contentious issues which have been rightly questioned
before the High Court by the respondents under Section
103 of the Act.
15. The High Court has rightly reversed the decision
of the Appellate Authority after careful examination
of the divergent findings of fact recorded by it as
the same are contrary to both the documentary and oral
evidence on record, particularly Ext.B1. Thus, in the
light of all the material evidence on record and the
statutory provisions under Sections 74 and 75 of the
Act, the relevant and glaring error on fact and in law
committed by the Appellate Authority has been rightly
interfered with by the High Court, after it had
satisfied itself that the divergent findings of the
Appellate Authority are not only erroneous but also
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error in law and it has exercised its revisional
jurisdiction and set aside the divergent findings of
the Appellate Authority. Reliance has been placed upon
the decision of this Court in Mammu v. Hari Mohan1,
which reads thus:-
“13……it is manifest that the power of revision vested in the High Court is wide and it is not limited only to the question of law or jurisdiction. It hardly needs to be emphasised that the revisional power to disturb findings of fact or law recorded by the Land Tribunal or the Land Board or the Taluk Land Board as the case may be, (sic) only in appropriate cases in which the Court is satisfied that such interference is necessary in the interest of justice and for proper adjudication of the dispute raised by the parties. In the case on hand, the High Court, as the impugned order shows, has taken note of the exception to the order of the Land Tribunal on the ground that it failed to take note of relevant factors like the facts and circumstances under which the structure was allowed to be constructed……”
1 (2000) 2 SCC 32
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16. Thus, we are of the considered view that the power
exercised by the High Court under Section 103 of the
Act has been rightly exercised by it in setting aside
the judgment and order of the Appellate Authority, as
the same is not only erroneous but also error in law
for the aforesaid reasons. The appeals are dismissed.
……………………………………………………………J. [V. GOPALA GOWDA] …………………………………………………………J.
[R. BANUMATHI] New Delhi, February 17, 2015