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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