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K.P. Vijayan Vs. P. Damodaran and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1669 of 1979
Judge
Reported inAIR1982Ker173
ActsKerala Land Reforms Act, 1964 - Sections 72F(2), 72F(3), 100E and 101
AppellantK.P. Vijayan
RespondentP. Damodaran and anr.
Appellant Advocate P. Rama Krishna Nair, Adv.
Respondent Advocate Philip Antony Chacko, Adv. and;Govt. Pleader
DispositionRevision allowed
Cases ReferredGrindlays Bank Ltd. v. Central Government Industrial Tribunal
Excerpt:
property - certificate of purchase - section 72 f of kerala land reforms act, 1964 - land tribunal has jurisdiction to correct mistake in matter of issue of certificate of purchase to respondent - respondent was issued certificate of purchase on basis of order passed by land tribunal without notice to interested parties - procedural mistake in not issuing notices to interested parties - publication of notice under section 72 f (3) not sufficient notice to interested parties unless shown that individual notices were attempted - respondent had no case that individual notices were attempted or service of notice had become impracticable - order passed by land tribunal and certificate of purchase issued to respondent not sustainable. - - p5 sale deed of the year 1973. in these..........1. the revision-petitioner obtained a certificate of purchase dt. 19-7-1974 as per orders of the land tribunal, kozhikode dt. 18-2-1974 in o. a. no. 1674 of 1971 for assignment of the right, title and interest of the landlord in respect of 23 cents of garden land in r. s. no. 58/5 of vengeri village under section 72-b of the kerala land reforms act. overlooking the issue of the certificate of purchase to the petitioner the respondent in this revision was also issued a certificate of purchase by the same land tribunal on 5-5-1975 as per its order dt. 27-4-1974 in o. a. no. 1081 of 1973. the revision-petitioner is not a party to o. a. 1081 of 1973; nor was the respondent a party to o. a. 1674 of 1971 filed by the revision-petitioner. realising that in respect of the same property another.....
Judgment:
ORDER

P.C. Balakrishna Menon, J.

1. The revision-petitioner obtained a certificate of purchase dt. 19-7-1974 as per orders of the Land Tribunal, Kozhikode dt. 18-2-1974 in O. A. No. 1674 of 1971 for assignment of the right, title and interest of the landlord in respect of 23 cents of garden land in R. S. No. 58/5 of Vengeri Village Under Section 72-B of the Kerala Land Reforms Act. Overlooking the issue of the certificate of purchase to the petitioner the respondent in this revision was also issued a certificate of purchase by the same Land Tribunal on 5-5-1975 as per its order dt. 27-4-1974 in O. A. No. 1081 of 1973. The revision-petitioner is not a party to O. A. 1081 of 1973; nor was the respondent a party to O. A. 1674 of 1971 filed by the revision-petitioner. Realising that in respect of the same property another certificate of purchase has been issued in favour of the respondent, the revision-petitioner filed an application I.A. 150 of 1975 purporting to be in both O.A. Nos. 1674 of 1'971 and 1081 of 1973 for cancellation of the certificate issued to the respondent on the ground that a certificate has already been issued to the petitioner with necessary parties on record in the proceedings, that the respondent being only a rental occupant of the building in the property was not a necessary party and that he has obtained a certificate of purchase in respect of the same property on the basis of an application without the necessary parties being brought on record. The Land Tribunal on the basis of the documentary evidence adduced in the case allowed the application and ordered cancellation of the certificate of purchase issued to the respondent. In appeal the appellate authority has reversed the decision of the Land Tribunal and has dismissed the application on the ground that the question involved relates to a contest between rival claimants to tenancy and the Tribunal has no jurisdiction to decide such a question. It is against this that the petitioner has come up in revision.

2. A few more facts are necessary for a proper understanding of the case. The respondent and others had kanom rights in the property. They sold the same to one Unni Nair as per Ext. P7 dt. 23-10-1961. The house in the property was entrusted to the respondent who executed Ext. P6, cooly chit, on the same date as of Ext. P7, in favour of Unni Nair. The kanomdar, Unni Nair, filed O.A. 1674 of 1971 before the Land Tribunal, Calicut for assignment of the right, title and interest of the landlord Under Section 72-B of the Land Reforms Act. Unni Nair died duringthe pendency of the proceedings. His legal representative, Malu Amma, assigned the kanom right to the petitioner as per a registered document, Ext. P5 dated 12-11-1973. On the strength of Ext. P5 the petitioner got himself impleaded in O. A. 1674 of 1971 as a supplemental applicant. After due enquiry the Land Tribunal by order dt. 18-2-1974 directed the issue of a certificate of purchase to the petitioner and a certificate dt 19-7-1974 was issued to him. It was during the pendency of these proceedings that the respondent made an application O.A. 1081 of 1973 before the same Land Tribunal Under Section 72-B of the Act for assignment of the right, title and interest of the landlord in respect of the same property. Malu Amma, the sole legal representative of Unni Nair, who had executed Ext. P5 assignment of the landlord's rights in favour of the petitioner, was the only respondent in O. A. 1081 of 1973. Malu Amma having parted with all her rights in favour of the petitioner was apparently not interested in contesting the application filed by the respondent. Neither the petitioner nor the landlord of the property was impleaded as a party to O.A. 1081 of 1973 filed by the respondent. Apparently overlooking the fact that there was already an order for assignment of the right, title and interest of the landlord in the property to the petitioner on 18-2-1974, the Land Tribunal passed an order in O.A. 1081 of 1973 on 27-4-1974 for assignment of the right, title and interest of the landlord to the respondent. In pursuance to this order the respondent also obtained a certificate of purchase dt. 5-5-1975, Ext. P 4, produced in these proceedings, is the certified copy of the decree in O.S. 85 of 1974 on the file of the Munsiffs Court, Kozhikode filed by the petitioner and another against the respondent. Ext. P 4 shows that a decree for permanent injunction is passed against the respondent from entering into and taking the usufructs from the property. It is not disputed that Ext. P4 decree relates to the land involved in the two applications-- O.A. Nos. 1674 of 1971 and 1081 of 1973. From these facts it is clear that the respondent is not a cultivating tenant entitled to apply for and obtain a certificate of purchase Under Section 72-B of the Kerala Land Reforms Act. There is also a decree of the Civil Court, Ext. P4, against him restraining him from entering upon the property. Neither the revision-petitioner nor the landlord are parties to the proceedings for assignmentof the right, title and interest of the landlord instituted by the respondent. He had impleaded only the Kanomdar, who had already assigned her rights to the petitioner as per Ext. P5 sale deed of the year 1973. In these circumstances there can be little doubt that the issue of a certificate of purchase by the Land Tribunal to the respondent was clearly a mistake and overlooking the proceedings which culminated in the issue of a certificate of purchase to the petitioner, The respondent had suppressed material facts such as the execution of Exts. P7 and P8 to which he is a party. In all probability he had deliberately impleaded a person, who has ceased to have any rights in the property and those interested were not impleaded. It was on the basis of such an application that he managed to get a certificate of purchase.

3. On the basis of the decision reportedin Kochu Lakshmi v. Velayudhan (1981 Ker LT 639) it is submitted by learned counsel for the respondent that the Tribunal has no jurisdiction to decide as to who among the rival claimants to tenancy is entitled to the issue of a certificate of purchase. The decision jn Kochu Lakshmi v. Velayudhan (1981 Ker LT 639) did not relate to a contest between rival claimants to tenancy. It was a case where some among the co-owners had obtained a certificate of purchase without the other co-owners having been brought on record in the proceedings before the Land Tribunal. In those circumstances a Division Bench of this Court held that the certificate of purchase issued in favour of the applicants should enure for the benefit also of the others who are found to be co-owners along with the applicants. A subsequent decision of the same Division Bench in C. R. P. No. 2590 of 1979 : (reported in AIR 1982 Ker 38) has clearly held that there is no scope for reading the decision as precluding an enquiry as to whether the applicant for the issue of a certificate of purchase is a cultivating tenant. When the status of the applicant is questioned by other parties on record who contest his claim as a cultivating tenant either denying his title or setting up a title in themselves it becomes necessary for the tribunal to decide as to whether the applicant is a cultivating tenant, or person who contests his claim and sets up a title in himself is the cultivating tenant entitled to a certificate of purchase. This is made clear in the decision of the same Division Bench inC. R. P. 2590 of 1979.

4. There is no dispute that in O. A. 1081 of 1973 filed by the respondent there was no notice issued to the petitioner. It is contended that the publication of a notice as provided for under Sub-section (3) of Section 72-F should be presumed to have been done and such notice shall be deemed to be sufficient notice to all persons interested in the land. The argument is that by virtue of the publication of a notice under Sub-section (3) of Section 72-F the petitioner should be deemed to have notice of the proceedings in O. A. No. 1081 of 1973, the order in the said O. A. for the issue of a certificate of purchase to the respondent is binding on the petitioner and the certificate of purchase issued to the respondent is conclusive of his title to the land. The Division Bench decision of this Court in Kochu Lakshmi v. Velayudhan (1981 Ker LT 639) referred to above has held that Sub-section (3) of Section 72F shall have operation only after it is shown that individual notices contemplated in Section 72-F (2) have become impracticable and that the applicant had taken steps for service of individual notices to the persons concerned. There is nothing on record in this case to show that steps were taken for service of notice on the petitioner nor is there anything to show that service of notice on the petitioner was attempted and failed and such service had become impracticable. It cannot, therefore, be held that the petitioner had even constructive notice of the proceedings of the Land Tribunal in O. A. 1081 of 1973.

5. On the facts of the case it is clear that the respondent is not a cultivating tenant in respect of the land. He is only a rental occupant of the building under Ext. P6-cooly chit executed by him in favour of Unni Nair, the predecessor-in-title of the petitioner. There is also Ext. P4-decree of the civil Court against the respondent from interfering with the petitioner's possession of the land. It was suppressing all these material facts that the respondent applied for and managed to get a certificate of purchase from the Land Tribunal without notice to the persons interested. The Land Tribunal issued the certificate of purchase to the respondent under a mistake and in consequence to the fraud in the suppression of material facts by the respondent in his application O. A. No. 1081 of 1973. In the decision of the Supreme Court reported in State of Gujarat v. Saradarbegam (1976-2 SCWR 404) : (AIR 1976 SC 1695) it is heldthat the Court can and should suo motu correct a patent error due to inadvertence, in exercise of its inherent jurisdiction even after the expiry of the period of limitations for an application for review. The jurisdiction to correct an inadvertent mistake is inherent in every Court or tribunal. The argument of the learned counsel for the respondent that the Land Tribunal has no jurisdiction to review its own order has, therefore, no substance. In the decision reported in Chet Singh v. State of Punjab (1977-2 SCC 499) : (AIR 1977 SC 1494) a contention based on the decision in AIR 1966 SC 641 that the Additional Director, Consolidation, exercising the powers of the State Govt. has no jurisdiction under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, to review his previous order, even in, case of non-compliance to the requirements of the sections was negatived by the Supreme Court for the following reasons (at p. 1495 of AIR) :

'The proviso to Section 42 lays down that notice to interested parties to appear and opportunity to be heard are conditions precedent to passing of an order under Section 42. The fact that the Additional Director was satisfied that the respondent, Gurdev Singh, did not have an opportunity of being heard due to his illness, seems to us to amount to a finding that the proviso could not be complied with so that the previous order could not be held to be an order duly passed Under Section 42 of the Act. It could be ignored as 'non est'. The view taken in Harbhajan Singh's case (1966) 1 SCR 817 : (AIR 1966 SC 641) would not apply to the instant case although Section 42 of the Act does not contain a power of review. Orders which are 'non est' can be ignored at any stage.' In the decision reported in Grindlays Bank Ltd. v. Central Government Industrial Tribunal (1981-1 SCWR 236) : (AIR 1981 SC 606) the Supreme Court stated at page 242 (of SCWR) : (at p. 610 of AIR) .

'The expression 'review' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter Sense that the Court in Narshi Thakershi's case (AIR 1970 SC 1273) held that no re-View lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be correct ex debito justitiae to prevent the abuse of its process, and such power inheres in every Court or Tribunal.'

6. The law is clear that the Land Tribunal has jurisdiction to correct the mistake in the matter of issue of a certificate of purchase to the respondent. As earlier stated, the respondent was issued a certificate of purchase on the basis of an order passed by the Land Tribunal without notice to the interested parties. It is also seen that the respondent is not a cultivating tenant in respect of the land. The documents produced in the case show that the respondent has no right to possession of the land. He is only a rental occupant of the building under Ext. P6-cooly chit. The order in O. A. 1081 of 1973 was obtained by the respondent on suppression of material facts which, if disclosed, no order of assignment of the landlord's right, title and interest would have been passed in his favour. There is also procedural mistake in not having issued notice to interested parties. Publication of a notice Under Section 72-F (3) has been held as not a sufficient notice to the interested parties unless it is shown that individual notices were attempted, but could not be served and that service of individual notices had become impracticable. The respondent had no case that individual notices were attempted or that service of notice had become impracticable. The Order in O.A. 1081 of 1973 and the certificate of purchase issued to the respondent in pursuance to the said order cannot, therefore, be sustained in law.

The result is : I allow this C.R.P., set aside the order of the appellate authority end restore that of the Land Tribunal. The 1st respondent will pay the costs of the revision-petitioner.


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