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P.D. Palakattumala Devaswom, Represented by the Secy. Travancore Devaswom Board and ors. Vs. Ulahannan Pylee, Kanjirakkuzhiyil Alapuram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberUnnumbered Appeal from LAR and Etc.
Judge
Reported inAIR1970Ker30
ActsLand Acquisition Act, 1894 - Sections 11, 18, 26(2), 30 and 54; Kerala Civil Courts Act, 1957 - Sections 12 and 13; Kerala Land Acquisition Act, 1962 - Sections 20, 32 and 60; Travancore Land Acquisition Act, 1089 - Sections 18 and 27; Code of Civil Procedure (CPC) , 1908 - Sections 2(2), 11, 26 and 96 - Order 41, Rules 1 and 23
AppellantP.D. Palakattumala Devaswom, Represented by the Secy. Travancore Devaswom Board and ors.
RespondentUlahannan Pylee, Kanjirakkuzhiyil Alapuram and ors.
Advocates: P. Karunakaran Nair,; P. Sukumaran Nair,; C.K. Sivasanka
Cases ReferredQuilandy v. Viswanathan
Excerpt:
.....act would not apply to give it one -the appeal would lie to the high court, section 11 of the kerala civil courts act speaks of 'original suits and proceedings of a civil nature' clearly recognizing that there are proceedings of a civil nature which are not suits within the meaning of that statute, that statute is, by its very nature, a supplement to the civil procedure code, and, in particular, by sections 12 and 13. prescribes the forum for an appeal under section 96 of the code; 9. we are not forgetting that sub-section (2) of section 28 of the kerala act, like sub-section (2) of section 26 of the central act, says that an award shall be deemed to be a decree within the meaning of the civil procedure code--there is no such provision in the travancore-act -and that section 60 of..........we have come to the conclusion that, having regard to the provisions of sections 12 and 13 of the kerala civil courts act, 1957 (which were not considered in 1965 ker lt 616), irrespective of the value, irrespective of whether the decision is on a reference under section 18 or one under section 30 of the central act (sections 18 and 27 respectively of the travancore act, and sections 20 and 32 of the kerala act) and irrespective of whether the dispute relates to the amount of the compensation, or to the title to receive it (in other words, the title to the land acquired -- apportionment when there is more than one person entitled is also a question of title, the question being the extent of the title or interest of each of the persons entitled), or to both, all appeals from decisions of.....
Judgment:

Raman Nayar, J.

1. These are appeals brought against decisions of 'the Court' (in each case, a Subordinate Judge) in land acquisition proceedings, five of them under the provisions of the Kerala Land Acquisition Act, 1961 which we shall hereafter call the Kerala Act, and the remaining five under the provisions of the (Travancore) Land Acquisition Act, 1089 which we shall hereafter call the Travancore Act. (With the exception of one provision, namely, Section 60 of the Kerala Act, the provisions of these two statutes are, so far as we are here concerned, the same as the provisions of the Central Act, namely, the Land Acquisition Act, 1894, and, in discussing matters covered by identical provisions of the three statutes, we shall refer to the older, better known, and more widely and more authoritatively construed provisions of the Central Act). In all the ten cases, the value of the subject-matter of the proceeding is (or is assumed to be) not over Rs. 10,000/-. The appeals have not been registered pending decision of the question whether, in the light of the Division Bench ruling in Thomas v. Viswanathan Pillai, 1965 Ker LT 616 they lie to this court and ought not to have been instituted in the concerned District Court. This question, referred by a single Judge to a Division Bench, and, in turn, by the Division Bench to a Full Bench, in the view that the decision just referred to might require reconsideration, is the question before us.

2. We have come to the conclusion that, having regard to the provisions of Sections 12 and 13 of the Kerala Civil Courts Act, 1957 (which were not considered in 1965 Ker LT 616), irrespective of the value, irrespective of whether the decision is on a reference under Section 18 or one under Section 30 of the Central Act (Sections 18 and 27 respectively of the Travancore Act, and Sections 20 and 32 of the Kerala Act) and irrespective of whether the dispute relates to the amount of the compensation, or to the title to receive it (in other words, the title to the land acquired -- apportionment when there is more than one person entitled is also a question of title, the question being the extent of the title or interest of each of the persons entitled), or to both, all appeals from decisions of Subordinate Judges -- we express no opinion as to appeals from decisions of a Land Acquisition Court established under Section 58 of the Kerala Act; none has yet been established -- lie to the High Court.

And this we think is as it should be. For, apart from that disputes regarding the amount of the compensation generally involve much larger stakes than the subject-matter of the particular proceeding, any attempt to divide the work between the High Court and the District Courts on the basis of the value of the subject-matter is fraught with difficulties of valuation, and, therefore, with uncertainty. And, so far as disputes as to title are concerned, there is no difference whatsoever between a dispute referred under Section 18 and a dispute referred under Section 30 of the Central Act. Yet, if the value of the subject-matter be the basis, it might well happen that, although the value be the same, an appeal from a decision regarding title on a reference under Section 30 lies to the District Court while one on a reference under Section 18 lies to the High Court if the latter be regarded as an award. Or, if it be not so regarded, that, in the case of a composite reference under Section 18, the appeal from the decision on the question of title lies to the District Court, while the appeal from the decision on the question of the amount of the compensation lies to the High Court. We have had the assistance of the learned Advocate General, and, of course, of counsel for the appellants --notice has not gone to the respondents--and gain assurance for our conclusion from the circumstance that they have all argued for the position that all appeals lie to the High Court, and are all agreed that that is as it ought to be.

3. Section 11 of the Central Act requires the Collector to

'make an award under his hand of--

(i) the true area of the land;

(ii) the compensation which in his opinion should be allowed for the land; and

(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him.' The third requirement necessarily involves a determination by him as to which among several rival claimants is entitled to the compensation. But, in case of dispute, Section 30 (which though appearing in a different part of the Act is really in the nature of a proviso to Section 11, just as Section 29 is supplemental to it) enables the Collector, if he is so minded, to reserve this question for the decision of the Court and to complete the award so far as he is concerned -- in that event he would deposit the amount of the compensation in the Court as required by Sub-section (2) of Section 31. When that happens, the proceeding in the Court is, as pointed out by the Judicial Committee in Ramachandra Rao v. Ramachandra Rao, ILR 45 Mad 320 = (AIR 1922 PC 80), not different from an ordinary suit (an interpleader suit) regarding title to the property acquired -- that the property has been converted into money does not, in any way, alter the position. And as their Lordships were anxious to establish, It is only proper that the decision of the Court should be subject to the same appeals and to the same forums as in an ordinary title suit relating to property of the same value.

This led their Lordships to distinguish between an adjudication regarding title, which they held was a decree within the meaning of the Civil Procedure Code and therefore subject to the appeals provided by Sections 96, 100 and 109 of the Code, on the one hand, and, on the other, a determination of the amount of the compensation which being in the nature of an arbitral award was not a decree and was, therefore, as held by their Lordships in Rangoon Botatoung Co. Ltd. v. Collector, Rangoon, (1913) ILR 40 Cal 21 (PC), subject only to such appeals as were expressly provided by the statute (namely, the Central Act, Section 54), the Civil Procedure Code making no provision in this behalf.

4. It must now be regarded as well settled that appeals lie under the provisions of the Civil Procedure Code from a decision by the court on a reference under Section 30 of the Central Act, the decision being a decree within the meaning of the Code, the forum being determined, so far as first appeals are concerned, by the provisions of the relevant Civil Courts Act. There are numerous decisions of the several High Courts to this effect, but, for our purposes, it is sufficient to refer to the full bench decisions in Chikkana v. Perumal, AIR 1940 Mad 474 (FB) and K. Raman v. Special Tahsildar, for Land Acquisition, Kozhikode, 1967 Ker LT 126 = (AIR 1967 Ker 205) (FB). This highly satisfactory result has been reached by an application of the principle laid down in ILR 45 Mad 320 = (AIR 1922 PC 80), but, it must be confessed, not without slurring over the requirement in the definition of a decree in Section 2(2) of the Code that the adjudication must be in a suit, and the requirement in Section 26 that 'every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed' so that a proceeding instituted by a mere reference can hardly be a suit within the meaning of the Code.

'As may be prescribed', of course means prescribed by the rules in the First Schedule of the Code -- see Clauses (16) and (18) of Section 2 thereof -- and this is forgotten by decisions which depend on these words to give the word, 'suit' the wider ambit given to it by Sir Barnes Peacock in Burro Chunder Roy Chowdhry v. Shoorodhones Debia, (1856) 9 Suth WR 402, as including 'any proceeding in a Court of Justice to enforce a demand', at a time when the Code contained no provision like Section 26. And by presenting a Nelson's eye to the circumstance that the decisions which Secretary of State v. C. Rama Rao, AIR 1916 PC 21 and ILR 45 Mad 320 = (AIR 1922 PC 80), said were decrees within the meaning of the Code were decisions in appeal rendered at a time when, by definition, a decision in appeal was a decree within the meaning of the Code whether In a suit or not. (In this connection reference may profitably be made to Rajagopala v. Hindu Rel. End. Board, Madras AIR 1934 Mad 103 (2) (FB) and Krishnamoorthy v. Spl. Deputy Collector of Land Acquisition Kumbakonam, AIR 1936 Mad 514). Also by assuming that in merely recapitulating what had been decided in ILR 45 Mad 320 = (AIR 1922 PC 80), Mt. Bhagwati v. Ram Kali, AIR 1939 PC 133, asserted that the change in the definition of, 'decree' necessitating that the adjudication must be in a suit, did not alter the position.

There is the further difficulty that a Subordinate Judge appointed to perform the functions of the Court under Section 3(d) of the Central Act or under Section 3 (c-2) of the Travancore Act (as amended by the Kerala Civil Courts Act, 1957) does not decide land acquisition cases as a Subordinate Judge's Court or as a Subordinate Judge so as to attract the provisions of Sections 12 and 13 of the Kerala Civil Courts Act, or, in Madras, Section 13 of the Madras Civil Courts Act. (Under the Kerala Act Section 58 Sub-section (4), it Is the Subordinate Judge's Court that has been invested with jurisdiction so that unless a Land Acquisition Court is established under Sub-section (1) of the Section this particular difficulty might not arise).

5. But justice obviously requires that In such cases there should be appeals as in an ordinary suit on title; the legislative intent to vouchsafe such appeals is manifest from the opening words of Section 54 of the Central Act and Section 38 of the Travancore Act, 'Subject to the provisions of the Code of Civil Procedure applicable to appeals from original decrees' and seems to us implicit in Sections 28 and 60 of the Kerala Act; and, with great respect, we think the courts rightly brushed aside the difficulties created by lapses in draftsmanship.

6. An adjudication on title on a reference under Section 18 of the Central Act stands on the very same footing as such an adjudication on a reference under Section 30 or on a deposit under Sub-section (2) of Section 31 unaccompanied by a reference. If such an adjudication is of its own force, and without resort to the fiction in Sub-section (2) of Section 26, a decree within the meaning of the Civil Procedure Code and is not an award within the meaning of Section 54 of the Central Act, then the forum of appeal would depend, just as in an ordinary suit on title, on the value of the subject-matter. But, if it is an award within the meaning of Section 54, an appeal would lie only to the High Court. The conventional view reached by an application of the principle laid down in ILR 45 Mad 320 = (AIR 1922 PC 80) seems to be that such an adjudication, whether or not it is accompanied by an adiudication regarding the amount of the compensation (the reference under Section 18 being a composite reference), is only a decree as defined by Section 2(2) of the Civil Procedure Code and is not an award within the meaning of the Central Act

As we have indicated, the result might well be the obviously unsatisfactory result that, in a given case, the appeal in respect of that part of the adjudication that relates to title lies to the District Court whereas the appeal with regard to the part that relates to the amount of the compensation lies to the High Court. For ourselves, we see little difficulty in reading Sub-section (1) of Section 26 of the Central Act as requiring the award to specify the amount awarded to each of the claimants under each of the clauses of Sub-section (1) of Section 23 having regard to the fact that the adjudication of the court on a composite reference under Section 18 has, in addition to determining the amount to be awarded as compensation, to determine to whom the compensation is to be awarded. If that be so, the adjudication regarding title would also be an award to which Section 54 would apply; and, we might mention that, after observing that so far as appeals to the Privy Council were concerned, the distinction drawn between an award and a decree in ILR 45 Mad 320 = (AIR 1922 PC 80) had become academic in view o[ the amendment of Section 54 of the Central Act which provides for such appeals in the case of awards, AIR 1939 PC 133 went on to recognise that Sub-section (2) of Section 26 inferentially provides for a determination by the award of a dispute as to the persons interested. However that might be, as we shall presently show, having regard to the provisions of Sections 12 and 13 of the Kerala Civil Courts Act, it makes no difference for our purposes whether an adjudication regarding title on a reference under Section 18 of the Central Act (Section 20 of the Kerala Act and Section 18 of the Travancore Act) amounts to an award or la only a decree.

7. Section 26, Sub-section (2) of the Central Act (Section 28 (2) of the Kerala Act) says that every award made thereunder shall be deemed to be a decree within the meaning of Section 2, Clause (2) of the Civil Procedure Code. Had nothing more been said this would have sufficed to attract the provisions for appeals in Sections 96, 100 and 109 of the Code to an award. But the forum for a first appeal is specified not by Section 96 of the Code which only says that the appeal shall lie to the court authorised to hear appeals from the decisions of the court which passed the decree, but by the concerned Civil Courts Act And, under those Acts, the value of the subject-matter would determine whether an appeal from a decision of a Subordinate Judge lies to the District Court or to the High Court. As a matter of policy, it was thought that all appeals from awards determining the amount of the compensation as distinguished from mere decrees adjudicating only the question of title should lie to the High Court, and, therefore, Section 54 of the Central Act provides that, subject to the provisions of the Civil Procedure Code with regard to appeals from original decrees, and notwithstanding anything to the contrary In any enactment for the time being in force, an appeal from an award shall only lie to the High Court.

The Kerala Act apparently did not appreciate the difference between adjudications that arc awards and those which are mere decrees when it provided by Section 60 (quite unnecessarily in view of Sub-section (2) of Section 28) that appeals shall lie from the award as if the award were a decree made by a civil court under the provisions of the Civil Procedure Code. And under the Travancore Act before its amendment by the Kerala Civil Courts Act appeals could lie only to the High Court since references were heard only by District Courts -- Section 38 thereof accordingly provides for an appeal to the High Court from an award leaving appeals from mere decrees to be governed by the Civil Procedure Code. Thus it is clear that under the Central and Travancore Acts, appeals from awards lie only to the High Court whatever be the value of the subject-matter. The question regarding the forum arises only in respect of decrees and awards under the Kerala Act and decrees that are not awards under the Central and Travancore Acts. This question has to be answered with reference to the provisions of Sections 12 and 13 of the Kerala Civil Courts Act

8. Sections 12 and 13 of the Kerala Civil Courts Act run as follows :

'12. Appeals from, decrees and orders of District Court or Subordinate Judge's Court:-- Save as provided in Section 13, regular and special appeals shall, when such appeals are allowed by law, lie from the decrees or orders of a District Court or a Subordinate Judge's Court to the High Court.

'13. Appellate jurisdiction of District Court and Subordinate Judge's Court --Appeals from the decrees and orders of a Munsiff's Court and where the amount or value of the subject-matter of the suit does not exceed ten thousand rupees, from the original decrees and orders of a Subordinate Judge's Court shall, when such appeals are allowed by law, lie to the District Court: XX XX XX'

This means that appeals from the decrees or orders of a Subordinate Judge's Court lie (when such appeals arc allowed by law) to the High Court excepting that where the amount or value of the subject-matter of the suit does not exceed Rupees 10,000/- the appeal shall lie to the District Court. For Section 13 to apply so as to make the forum of appeal the District Court instead of the High Court, the appeal must be from a decree or order in a suit, for, it is only when the amount or value of the subject-matter of the suit does not exceed Rs. 10,000/- that it comes into play. When the appeal is from a decree or order in a proceeding which is not a suit, Section 12 alone applies, and, irrespective of the value of the subject-matter -- in most such proceedings the subject matter would have no money value and the Suits Valuation Act would not apply to give it one -- the appeal would lie to the High Court, Section 11 of the Kerala Civil Courts Act speaks of 'original suits and proceedings of a civil nature' clearly recognizing that there are proceedings of a civil nature which are not suits within the meaning of that statute, that statute is, by its very nature, a supplement to the Civil Procedure Code, and, in particular, by Sections 12 and 13. prescribes the forum for an appeal under Section 96 of the Code; and it is obvious that it uses the word, 'suit' to mean a suit within the meaning of the Code, namely, a proceeding 'instituted by the presentation of a plaint or in such other manner as may be prescribed.' A proceeding in 'the Court' under the land acquisition statutes is not instituted by the presentation of a plaint or in such other manner as may be prescribed by the rules in the First Schedule to the Code, and it follows that, though the proceeding is a proceeding of a civil nature, it is not a suit in the sense in which that word is used in Section 13 of the Kerala Civil Courts Act Therefore, appeals from the decrees or orders of a Subordinate Judge's Court in such proceedings lie to the High Court under Section 12 of the Kerala Civil Courts Act irrespective of the value of the subject-matter; and, in no circumstances, can Section 13 apply so as to make an appeal maintainable in the District Court.

9. We are not forgetting that Sub-section (2) of Section 28 of the Kerala Act, like Sub-section (2) of Section 26 of the Central Act, says that an award shall be deemed to be a decree within the meaning of the Civil Procedure Code--there is no such provision in the Travancore-Act -- and that Section 60 of the Kerala Act says that an appeal lies from an award as if the award were a decree passed under the Civil Procedure Code. But the fiction attaches only to the award; it says no more than that the award shall be deemed to be a decree; there is no fiction enacted in respect of the proceeding in which the award is made; and it does not follow that, because the award is to be deemed to be a decree, the proceeding in which the award is made is to be deemed to be a suit because under the definition in Section 2 Clause (2) of the Code a decree is made in a suit, any more than it follows that because under Section 26 of the Code a suit is instituted by the presentation of a plaint, a reference by the Collector is a plaint and therefore exigible to court fee as such.

On the contrary, it is precisely because a proceeding in 'the Court' under the land acquisition statutes is not a suit that the fiction has had to be enacted, and, it was to limit its operation to the award and the proceedings pursuant thereto, and exclude it from proceedings prior to the award that it was, in fact, enacted only in respect of the award -- else it could have been said that the proceeding in 'the Court' shall be deemed to be a suit.

10. True, a fiction must be given full rein within the limits set for its operation; our imagination must not boggle at the consequences -- see Venkatachalam, v. Bombay Dyeing & Mfg. Co. Ltd, AIR 1958 SC 875, but, beyond those limits, it Is to be rigidly excluded,

11. We hold that under the provisions of the Kerala Civil Courts Act, all appeals from the decisions of a Subordinate Judge under the provisions of the Central Act, or the Kerala Act or the Travancore Act, lie to the High Court irrespective of the value of the subject-matter and that, to the extent that it held otherwise. 1965 Ker LT 616 was wrongly decided,

12. It is brought to our notice by the learned Advocate-General that, following 1965 Ker LT 616 which was a case of an appeal from a decree, and misapplying it to awards, appeals have, in fact, been instituted in District Courts and decided by them not merely from decrees but also, despite Section 38 of the Travancore Act, from awards under that Act The result of our decision, might, perhaps, be to render the decisions in those appeals void. This is a problem beyond our province but is, we think, capable of ready solution by the Legislature. A provision in the Kerala Act to the effect that a decision of the Court as to the amount of the compensation or the title to receive it (including the apportionment thereto) shall be deemed to be a decree, along with a provision, in place of the present Section 60, to the effect that, notwithstanding anything to the contrary in any enactment for the time being in force, an appeal from a decree of the Court shall lie only to the High Court would make the position clear both for purposes of execution and for purposes of appeal whether 'the Court' be a Land Acquisition Court or a civil court invested with the jurisdiction of a Land Acquisition Court.

And a retrospective provision In the Kerala Civil Courts (similar to that in Section 54 of the Kerala Court-Fees and Suits Valuation Act 1959) to the effect that no decision in appeal shall be regarded as defective merely because the appeal ought to have been instituted in the High Court instead of in the District Court, or in the District Court instead of in the High Court, although that may be a ground for interference in appeal or revision where objection has been taken at the earliest possible opportunity and the error has resulted in a failure of justice, would provide for all appeals, not merely appeals in land acquisition proceedings, brought mistakenly though in good faith in the High Court instead of in the District Court, or, vice versa,

13. In three of these cases, namely, C. F. A. 1871/68, C. F. A. 3327/68 and C. F. A. 3332/68, appeals were, in the first instance, instituted in this Court and they were registered as A. S. No. 530 of 1968, A. S. No. 91 of 1963 and A. S. No. 92 of 1963 respectively. All of them arose from references under Section 27 of the Travancore Act (Section 30 of the Central Act), and, after hearing both sides, this court held that the appeals lay to the District Court and ordered the return of the memoranda of appeal--in fact that much was conceded by counsel having regard to the decision in 1965 Ker LT 616. On the appeals being presented in the District Court that court purporting to follow the decision in Tahsildar, Quilandy v. Viswanathan, 1968 Ker LT 64 (which was a case of a dispute regarding the amount of the compensation referred to the Court under Section 20 of the Kerala Act) held that the appeals lay to the High Court and not to the District Court

Accordingly, it ordered the return of the memoranda of appeal for presentation to the proper court and they have once again been presented here. It is needless to point out that, so long as the decision of this court, a decision made after hearing both sides, stands, that decision is binding on the parties and that there can be no question of the appeals being re-entertained by this court. To say the least, the learned District Judge was guilty of grave impropriety in holding that he had no jurisdiction in the face of the decision of the High Court in the very case on hand -- possibly he lost sight of the fact that the decision was in the very case before him and seems to have thought that it was a matter of choice between two conflicting precedents.

14. The District Judge's order returning these cases is being taken up in revision suo motu, and, pending orders in revision, the papers will be retained here.

15. In the remaining seven cases the appeals will be registered and numbered.


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