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M.N. Paul Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 2590 of 1979 F
Judge
Reported inAIR1982Ker38
ActsKerala Land Reforms Act, 1964 - Sections 72B and 102; Evidence Act, 1872 - Sections 43
AppellantM.N. Paul
RespondentState of Kerala and ors.
Appellant Advocate K. Rama Kumar and; B. Satheesh Chandran, Advs.
Respondent Advocate Govt. Pleader and; P. Gopalakrishnan Nair, Adv.
DispositionPetition dismissed
Cases ReferredKochu Lakshmi v. Velayudhan
Excerpt:
- - it is clearly established that the revision petitioner is only an employee of the association and the cultivating tenant is the association......succeeded in showing that the revision petitioner's claim is unsustainable and that he has managed to get the certificate in a suo motu proceeding without notice to the respondent. it follows that the revision petitioner cannot rely oil the certificate said to have been obtained by him from the land tribunal in a suo motu proceeding.6. it is true to say that it is not open tothe appellate authority to direct the landtribunal to cancel the purchase certificateissued in another independent proceeding.but having found that the latter proceeding isinvalid and has no legal effect, to straightenthe record and avoid a future confusionthe appellate authority has only alerted theland tribunal to correct its record by theobservation in the concluding paragraph ofits decision. in that view we do.....
Judgment:

Viswanatha Iyer, J.

1. One of ussitting single when hearing the Civil Revision Petition felt that a clarification is called for of an earlier decision of us reported as Kechu Lakshmi v. Velayudhan (1980 Ker LN 642). That is why this revision petition is referred to a Division Bench. The facts necessary to understand the dispute between the parties are the followings :

2. The second respondent by name Indian Evangelical Lutheran Church Trust Association represented by its Manager filed an application before the Land Tribunal under Section 72-B of the Kerala Land Reforms Act for purchase of the landlord's right. That application was properly notified and the revision petitioner was also given individual notice and he had filed an objection to it, but did not substantiate the same. The Land Tribunal, after enquiry found that the applicant is a cultivating tenant entitled to purchase and therefore directed the issue of the purchase certificate to the Association. Long after the period of limitation to file the appeal was over the revision petitioner filed an appeal and applied to excuse delay stating that he knew about the order of the Land Tribunal only three or four days before the filing of the appeal. Anyhow the delay was excused and the Appellate Authority considered the evidence already on record and also the fresh evidence let in by both the parties to prove their respective claims for getting the purchase certificate. Pending the appeal, under a suo motu proceeding initiated by the Land Tribunal an order was passed to issue a purchase certificate to the revision petitioner. This order of the Land Tribunal was passed without notice to the Trust Association and overlooking the order passed earlier by the Land Tribunal to issue the purchase certificate to the applicant. This order was relied on by the appellant to press his claim before the Appellate Authority. The Appellate Authority held that the appellant was only an employee of the Association and the real tenant is the Association itself. So the appeal was dismissed. It is against that this revision petition has been filed.

3. On the evidence considered by the Appellate Authority there is no scope for arriving at a conclusion different from that of the Appellate Authority. It is clearly established that the revision petitioner is only an employee of the Association and the cultivating tenant is the Association. But the argument of the revision petitioner's counsel is that it was not competent for the Appellate Authority to go into the rivalclaims put forward by the petitioners and the Association and in support of that argument, reference was made to our decision in Kochu Lakshmi v. Velayudhan (1980 Ker LN 642). The passage from that decision relied on in support of the argument finds a place in para 9 of our decision. That reads as follows :--

'Disputes inter se among cultivating tenants is not a matter for determination of the Land Tribunal in an enquiry regarding the vesting of rights of the landlord and the intermediaries in the cultivating tenant by the issue of a purchase certificate to him.' It is wrong to refer to that passage out of its context and then rely on it in support of the revision petitioner's argument. In that case on the death of a tenant his eldest son was in possession of the leasehold. Besides him the deceased had other heirs. Without making them parties this eldest son applied for the issue of a purchase certificate and obtained the same. Subsequently that property was acquired under the Land Acquisition Act. The eldest son claimed exclusive right to the compensation amount and relied on Section 72-K (2) of the Act which reads as follows:--

'72-K. Issue of certificate of purchase -

(1) xx xx xx xx

(2) The certificate of purchase issued under Sub-section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the land owner and the intermediaries, if any, from the holding or portion thereof to which the assignment relates.'

It was in considering that contention the nature of the enquiry contemplated under Section 72-B and the related provisions were considered and the observation quoted above was also made. If the tenancy devolves on more than one person and one of the coheirs applies for the issue of a purchase certificate without disclosing the existence of the rights of other co-heirs it is not necessary to determine the quantum of his share in the tenancy because even if he purchased all the rights of the landlord it will enure to the benefit of the other co-tenants under the principle of quasi trust. That was why it was stated that for the issue of the purchase certificate the inter se rights of the co-tenants need not be gone into to divest the right of the landlord and the intermediaries. How far the benefit of such purchase will devolve on the other co-heirs is not a matter to be gone into by the Land Tribunal. It was in that context the above observation was made. It was not our view at all thatin a proceeding where there are rival claims for the issue of a purchase certificate that question cannot be determined by the Land Tribunal. The Land Tribunal can issue a purchase certificate only to a cultivating tenant. If there are rival claims to that this question will have necessarily to be gone into by the Land Tribunal.

4. In this case the revision petitioner's claim is that he is a cultivating tenant. That is opposed by the Association. The Land Tribunal has found that the Association is entitled to the certificate and when an appeal is filed by the petitioner objecting to the decision of the Land Tribunal the Appellate Authority has necessarily to go into and decide the question.

5. The revision petitioner's counsel next argued that his client has been issued a purchase certificate, no doubt, pending appeal before the Appellate Authority and it is not open to the Appellate Authority to go into its correctness and full effect should have been given to the certificate and anybody aggrieved by it should have been referred to other proceedings to challenge the same. This contention is also without any force. When a proceeding of a Tribunal or a Court is relied on by one party in support of his claim, it is open to the opposite party to show that that proceeding is not either of a competent Tribunal or a Court or that it was obtained by fraud or collusion. Section 44 of the Evidence Act fully supports it. That was what was done by the second respondent when the revision petitioner relied on the purchase certificate in his name. The second respondent has succeeded in showing that the revision petitioner's claim is unsustainable and that he has managed to get the certificate in a suo motu proceeding without notice to the respondent. It follows that the revision petitioner cannot rely oil the certificate said to have been obtained by him from the Land Tribunal in a suo motu proceeding.

6. It is true to say that it is not open tothe Appellate Authority to direct the LandTribunal to cancel the purchase certificateissued in another independent proceeding.But having found that the latter proceeding isinvalid and has no legal effect, to straightenthe record and avoid a future confusionthe Appellate Authority has only alerted theLand Tribunal to correct its record by theobservation in the concluding paragraph ofits decision. In that view we do not thinkany interference is called for in that directionof the Appellate Authority.

In the result the Civil Revision Petitionfails. It is dismissed with costs.


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