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Mathevankochu Kunju Vs. Madhavan Chandrasekharan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 4444 of 1976-B
Judge
Reported inAIR1980Ker31
ActsKerala Land Reforms Act, 1964 - Sections 72F(4) and 102; Kerala Land Reforms (Vesting and Assignment) Rules, 1970 - Rule 8
AppellantMathevankochu Kunju
RespondentMadhavan Chandrasekharan and ors.
Appellant Advocate T. Devasia, Adv.
Respondent Advocate C.V. Vasudevan,; K.G. Devarajan,; C.N. Sasidharan, A
DispositionPetition allowed
Cases Referred and Alavi v. Appellate Authority
Excerpt:
- - sub-rule (2) of rule 8 clearly states that when an application is presented before the date prescribed in sub-rule (1), the land tribunal shall implead the applicant as a party to the proceedings before it in respect of the land to which the application relates and thereafter he may be allowed to file a statement duly verified by him setting forth his claims and objection regarding the assignment of the right, title and interest of the land owner and intermediaries in respect of that land to the cultivating tenant or any matter connected therewith......although no objections are seen to have been filed to this application by the respondents, the land tribunal dismissed the application on the ground that there are no special circumstances entitling the petitioner to get himself impleaded. this order was challenged in appeal and the appellate authority (land reforms) alleppey, dismissed the appeal on the ground that the order in question is not appealable under section 102 of the act. it is this order that is challenged in revision.2. the fact that the petitioner is a member of the tarwad to which the property belongs is not disputed and as such he is a person interested in the land which is the subject matter of the proceeding and he is entitled to apply for getting himself impleaded under section 72f (4) of the act. the appellate.....
Judgment:

Kader, J.

1. In a proceeding for assignment of the right, title and interest of the landlord in respect of certain items of properties which admittedly belonged to a tarwad the revision petitioner, one of the members of the said tarwad, filed an application under Section 72-F (4) of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), hereinafter called the Act, to get himself impleaded on the ground that he is interested in the land. Although no objections are seen to have been filed to this application by the respondents, the Land Tribunal dismissed the application on the ground that there are no special circumstances entitling the petitioner to get himself impleaded. This order was challenged in appeal and the Appellate Authority (Land Reforms) Alleppey, dismissed the appeal on the ground that the order in question is not appealable under Section 102 of the Act. It is this order that is challenged in revision.

2. The fact that the petitioner is a member of the tarwad to which the property belongs is not disputed and as such he is a person interested in the land which is the subject matter of the proceeding and he is entitled to apply for getting himself impleaded under Section 72F (4) of the Act. The Appellate Authority also found that he is a member of the jenmi family and that he has a right to get himself impleaded.

3. The only question that arises for consideration therefore, in this revision petition is whether the order dismissing the application filed by the petitioner under Section 72-F (4) is appealable or not. Under Section 102 of the Act the Government or any person aggrieved by any order of the Land Tribunal under Section 72-F of the Act is en-titled to file an appeal against such order, within such time as may be prescribed, to the Appellate Authority. Section 72F deals with determination of the compensation and purchase price in an application filed for assignment of the right, title and interest of the land owner and the intermediaries, if any, in respect of a holding or part of a holding. No doubt the last order under Section 72-F is to be passed under Sub-section (5) of that section. Prior to the passing of this order under Sub-section (5) of Section 72-F, the Tribunal has to pass order under Rules 8, 9 and 10 of the Kerala Land Reforms (Vesting and Assignment) Rules, 1970, Under Rule 8 of the said Rules, an application under Sub-section (4) of Section 72-F shall be in Form F and shall be presented before the date of the order of the Land Tribunal under Sub-section (5) of that section. Sub-rule (2) of Rule 8 clearly states that when an application is presented before the date prescribed in Sub-rule (1), the Land Tribunal shall implead the applicant as a party to the proceedings before it in respect of the land to which the application relates and thereafter he may be allowed to file a statement duly verified by him setting forth his claims and objection regarding the assignment of the right, title and interest of the land owner and intermediaries in respect of that land to the cultivating tenant or any matter connected therewith. Under this rule, it is imperative that a person claiming interest in the land who has applied under Sub-section (4) of Section 72-F be impleaded. In the case on hand, the Land Tribunal after hearing both parties dismissed the application of the petitioner. This order dismissing the application filed by the petitioner has deprived him of a valuable right conferred under Section 72-F (4) to participate and substantiate his claims in the proceedings in question. An order refusing or objecting an application filed under Sub-section (4) of Section 72-F of a person interested in the land is not in the nature of an interlocutory order land is certainly an order which affects the right, title and interest of the per-son.

4. The expression used in Section 102 of the Act is 'any order passed under Section 72F'. Though the words 'any order' appearing in the section are wide, a limited construction has to be put on these words, as it could not have been the intention of the legislature to give a right of appeal against interlocutory orders of merely procedural nature which might result in harassment of parties with endless expenses and delay. The object of Section 102 is only to confer a right of appeal to a party aggrieved by an order which affects his right or liability. An order rejecting an application of a party interested in the land filed under Section 72F (4) of the Act, which affects his right, according to us, is an order passed under Section 72F of the Act which is appealable under Section 102 of the Act

5. The reasoning in this regard finds support in Central Bank of India v. Gokal Chand (AIR 1967 SC 799) and Shankarlal Aggarwala v. Shankarlal Poddar (AIR 1965 SC 507). In the Central Bank of India's case (AIR 1967 SC 799) the question that arose for consideration was whether an order refusing to issue a commission to inspect the suit property and prepare a plan of the same was appealable or not. It was a case which arose under the Delhi Rent Control Act, 1958 (Act 59 of 1958). Under Section 38 of the said Act, an appeal lay from every order of the Controller made under the said Act to the Rent Control Tribunal. In Shankarlal Aggarwala case (AIR 1965 SC 507) the Supreme Court was construing a similar provision appearing in Section 202 of the Indian Companies Act, 1913, Section 202 of the Indian Companies Act conferred a right of appeal 'from any order or decision made or given in the matter of the winding up of a company by the court'. The Supreme Court observed, though the words 'order or decision' occurring in Section 202 of the said Act were wide, would exclude merely procedural orders or those which do not affect the rights and liabilities of parties. Following this decision it was held in Central Bank of India's case that the words 'every order' of the Controller made under the Act used in Section 38(1) of the Delhi Rent Control Act, though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties, that orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question are all interlocutory orders which are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in a pending proceeding and they regulate the procedure only and do not relate to the right or liability of the parties. But it was further held that 'even an interlocutory order passed under Section 37(2) is an order passed under that Act and is subject to appeal under Section 38(1) provided it affects some right or liability of any party'.

6. The counsel for the respondents relied on two decisions of this Court in Paul v. Chakki (1972 Ker LT 437) and Alavi v. Appellate Authority, Land Reforms (1972 Ker LT 648) in support of his contention that the order in question is interlocutory in nature and is not one coming under Section 72F of the Act and is therefore appealable. He also contended that the proper section under which the applicant could have applied is Section 104 of the Act and on that ground also it cannot be said that this is an order under Section 72F of the Act. It is clear from the records available in the case that it was under Section 72F (4) that the petitioner filed an application to get himself impleaded in the proceedings. The respondents had no case before the Land Tribunal that this was not an application under Section 72F (4) on the facts of the present case. In Alavi's case (1972 Ker LT 648) this Court was dealing with an interlocutory order passed under Rule 92 of the Kerala Land Reforms (Tenancy) Rules, 1970, where the question for consideration was whether an order of injunction passed during the pendency of the proceeding was an order passed under Section 72F of the Act and was appealable under Section 102 of the Act. There it was held that in the nature of the procedure laid down in Section 72F and the powers of the land Tribunal conferred, there is no scope to pass an order of injunction under Section 72F of the Act.

In Paul's case (1072 Ker LT 437), what came up for decision was whether an order passed by the Land Tribunal in an application for the purchase of kudikidappu right filed under Section BOB of the Act impleading the husband of the applicant was appealable or not It was contended in that case that the order in question being one passed in an application under Section 80B of the Act, it was appealable under Section 102. The respondent in that application resisted the application contending, inter alia, that the petitioner had no locus standi to file the application in as much as it was the petitioner's husband who had executed the 'cooli charthu' in respect of the property. The Land Tribunal even without receiving any application from any party for the purpose ordered impleadment of the husband of the applicant as an additional party. It was that order that was challenged before the Appellate Authority which dismissed the appeal holding that the appeal was not maintainable. There is no provision similar to Sub-section (4) of Section 72F in Section 80B.

In the result this revision petition is allowed, the orders of the Appellate Authority and the Land Tribunal are set aside, the application filed by the petitioner under Section 72F (4) is allowed and he is impleaded as a party to the proceeding and the case is sent back to the Land Tribunal for disposal afresh in accordance with law. No costs in the circumstances.


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