Patinhare
Purayil Nabeesumma Vs. Miniyatan Zacharias and Another [2008] Insc 177 (12 February 2008)
S.B.
Sinha & V.S. Sirpurkar S.B. Sinha, J.
1.
Leave granted.
2.
Plaintiff in a suit for declaration of title and possession is before us,
aggrieved by and dissatisfied with the judgment and decree dated 25th January,
2007 passed by a learned Single Judge of the Kerala High Court in Second Appeal
No. 643 of 1994, whereby and where under the judgment and order of the first
appellate court dated 13th January, 1994 as also that of the trial court dated
27th February, 1993 respectively, decreeing the suit of the appellant, were set
aside.
3. In
this appeal we are concerned only with Item No.2 of the properties described in
Schedule 'B' of the plaint, which reads as under :-
Schedule
B Item No.
Revised
Survey No.
Measurement
1 90/7 21 cents B 2 90/3 26 cents A 3 90/8 13.5 cents F
4.
Husband of the appellant was an agriculturist. He was in cultivating possession
of five items of properties as a tenant under one Jenmi Palkodan Kunhmina Ayissa.
Appellant contended that her husband had been in possession of the suit land
from the date of settlement which took place in the year 1943; and in support
thereof, Revenue Tax Receipts since 1955 were filed.
5. The
Legislature of the State of Kerala enacted
Kerala Land Reforms Act, 1963 (the Act for short) with a view to enact a
comprehensive legislation relating to land reforms in the State.
6.
Section 13 of the Act provides for rights of tenants for fixity of tenure in respect
of the land holding. Section 27 of the Act provides for determination of a fair
rent which a tenant is liable to pay to the landlord.
Section
53 confers upon a cultivating tenant who is entitled to fixity of tenure, a
right to purchase the right, title, interest and ownership of the land by
moving an application before the Land Tribunal constituted under the Act upon
payment of purchase price as may be determined in the manner laid down under
Section 55 thereof. Section 72 of the Act, which was inserted in the year 1969,
provides for vesting of the landlords' rights in the State as regards holdings
held by cultivating tenants entitled to fixity of tenure and in respect of
which certificate of purchase has not been issued under sub- section (2) of Section
59.
7.
Whereas Section 72 provides for cultivating tenant's right to assignment of the
land which he had been holding, Section 72-F provides that where an application
under Section 72-B is moved before the Land Tribunal, it upon issuing a notice
to the landlord and other intermediaries, if any, may determine the quantum of
compensation and purchase price payable therefor.
8. A
certificate of purchase issued by the Land Tribunal to the cultivating tenant
under sub-clause (2) of Section 72-K is conclusive proof of assignment to the
tenant of the right, title and interest of the landowner and the
intermediaries, if any, over the holding or portion thereof to which the
assignment relates.
9.
Indisputably the husband of the appellant applied for and has been granted a
certificate of purchase by the Land Tribunal in the year 1976.
10.
Respondents also applied for and were granted such a certificate by the Land
Tribunal of the same land in 1977. Two certificates, therefore, came to be
issued in respect of the same land.
11.
Inter alia on the premise that she may be dispossessed the appellant filed a
suit for permanent injunction and for recovery of possession of the immovable
properties described in Schedules A and B of the plaint. In their written
statement, the defendants did not raise any contention with regard to the plots
of land described in Schedule A of the plaint. However, the right, title and
possession of the appellant in regard to the plots of land mentioned in
Schedule B were questioned.
12. Several
issues were framed by the learned trial Judge, the relevant one being Issue
Nos.1, 2, 4 and 5, which read as under :-
"1.
Whether the plaintiff is in possession of the plaint properties?
2.
Whether the plaintiff is entitled to the injunction prayed for? 4 Whether the
plaintiff has title to the plaint schedule property?
5.
Whether the plaintiff is entitled to recovery of possession of any portion of
the plaint schedule property?"
13. On
25th March, 1988 the learned trial Judge decreed the
suit of the plaintiff appellant for all the items of the suit land, except for
Item No.1 of Schedule B.
14. On
appeals preferred by the appellant as well as the respondents, the learned
Subordinate Judge, Thalassery, passed the following order on 18th December, 1990.
"10.
In view of the foregoing discussions, I hold that the finding of the trial
Court with regard to items 2 and 3 in the plaint A schedule is liable to be
confirmed. So also the finding of the trial Court in favour to the plaintiff
for recovery of possession of item No.3 in the plaint B schedule is also to be
confirmed. The finding of the lower Court with regard to item No.1 in the
plaint B schedule that the same belongs to the defendants is also to be
confirmed. But, the finding on item No.2 in the plaint B schedule is liable to
be set aside and the question of tenancy over this item (R.S. 90/3) has to be
remanded to the lower court for referring the matter to the Land Tribunal for a
fresh adjudication. The point is answered accordingly."
15.
The learned Munsif, in view of the aforementioned, as also the two conflicting
certificates, referred the matter to the Land Tribunal.
16. In
its order dated 15th October, 1992, the Land Tribunal, in regard to the
possession of the parties, opined :- "Except the receipts referred to
above and Ex.A2 purchase certificate, the plaintiff has not produced any other
title deeds evidencing tenancy or of creation of tenancy in favour of
plaintiff's predecessors by the land owner."
It was
held :- "The respondent did not produce any jenmam deed to prove
conclusive that Shri Palakodan Moideen is the actual jenmi of the suit property
The case is that the Ist respondent (defendant) does not possess any title
deeds or valid documents evidencing tenancy except some land revenue receipts
towards payment of assessment since the year 1976-77, the manuscript rent
receipts available in the case records as Ex.B1 to B1(f) have not been proved
and as such the receipts have no evidentiary value. The mere production of land
tax receipts cannot be taken as a conclusive evidence to prove the title to the
property. The 1st respondent (defendant) has no title deeds, whatsoever, to
establish creation of tenancy in his favour on or before 1.4.1964. But the 1st
respondent has obtained purchase certificate in SM 6343/77 dt. 31.10.1977
(Ex.B3) by filing J form statement whereas the plaintiffs predecessor had
obtained purchase certificate previously for the same property as per SM
6324/75 dated 7.6.76 by filing J form statement. It is evident that one of the
purchase certificate has been obtained by fraud or collusion, but none of the
aggrieved parties did not approach this tribunal for remedy under section 72MM
(7) of the KLR Act.
On a
consideration of the facts and circumstances of the case and the report of the
authorized officer I am satisfied that the respondents (A party in SM 6343/77)
is in possession of the property but he does not possess any valid title deeds
evidencing tenancy. No valid records have been produced by the respondent
(defendant) (A party in SM 6343/77) to establish creation of tenancy in his favour
by the land owner on or before 1.4.1964. As a result, I hold that the
respondents/defendant in OS 105/85 are having no tenancy right over the said
property."
17.
Before the trial court, the parties adduced oral as well as documentary
evidence. Keeping in view the fact that the plaintiff has been able to prove
his possession by producing tax receipts from 1955 onwards; whereas the
defendants were paying tax from 1977 onwards, the learned trial Judge in his
judgment dated 27th February, 1993 held :- "On a proper appraisal of the
evidence adduced in this case it may be safely concluded that the property
comprised in R.S. No. 90/3 the predecessor in interest of the plaintiff, Bavu Valappil
Mammad had title over these property. This right has been subsequently
developed on the plaintiff. In the light of discussions made this court is
satisfied that the plaintiff has title to item No.2 in the B schedule property
and she is entitled to recover possession of the same as it is evident that the
defendant is in possession of the same."
As
regards the contention of the defendants that they had acquired title by
adverse possession, it was held that the same has not been proved.
18.
The first appellate court, by its judgment dated 13th January, 1994, affirmed the said findings of the learned trial court
holding that the purchase certificate was granted by the Tribunal upon service
of notice upon Ayisumma, who was the original landlord. It was held :-
"There is also no satisfactory or reliable evidence to prove that the
appellants have been in possession of item No.2 of B schedule at any point of
time. If really the first appellant had been in possession of the property eversince
1959 atleast he would have paid the assessment in respect of the plaint
schedule property. But for the first time the assessment was paid by the
respondent in 1974. This is just prior to the initiation of proceedings before
the Land Tribunal. From the evidence available in this case I find that the
Land Tribunal and the lower correct correctly came to the conclusion that the
respondent is the tenant of the disputed property and item No.2 of B schedule
belongs to her. So this point is answered in favour of the respondent."
Plea
of the respondents in regard to his claim of adverse possession was also
negated.
19.
The High Court in the second appeal filed by the respondents framed the
following substantial question of law :- "Whether the courts below were
justified in holding that the plaintiff has title to be granted a decree for
recovery of possession of B schedule item No.2 from the defendants, after the
Land Tribunal had found that the plaintiff does not have valid title deeds
evidencing tenancy?"
20.
The High Court proceeded on the basis that as both the parties failed to prove
their title over the property, the defendant-respondent being in prior
possession over item No.2 of Schedule B of the suit property, the suit should
have been dismissed to that extent.
21.
Mr. T.V. George, learned counsel appearing on behalf of the appellant in
support of the appeal would submit :-
1) The
High Court committed a serious error in interfering with the concurrent finding
of fact arrived at by the courts below in regard to possession of the
appellant.
2)
Keeping in view the underlying principle governing the Act, the fact that was
required to be determined was whether respondent No.1, having failed to prove
that he was a tenant within the meaning of Section 13 of the Act, could have
been granted a certificate of assignment.
22.
Mr. H.V. Hameed, learned counsel appearing on behalf of the first respondent,
on the other hand, urged that the learned trial court as also the court of
appeal proceeded to determine the issue only on the premise that the defendant
being a sub-tenant under the plaintiff-appellant, the High Court cannot be said
to have committed any error in applying the correct legal principle, namely
that if the parties have not been able to prove their title, the respondent who
was in prior possession, should be allowed to continue to do so.
23. We
have noticed hereinbefore the relevant provisions of the Act.
24. In
respect of four items of the properties, the plaintiff-appellant has been able
to prove her title as also the possession. The fact that her husband was the
cultivating tenant in respect of the suit property is not in dispute.
The
tax receipts filed by her also go to show that the entire suit land was the
subject matter of grant of tenancy by the landlord and if not from a date, tax
has been paid by the appellant-plaintiff atleast from 1955 onwards. In view of
Section 110 of the Indian Evidence Act a presumption can be raised in regard
possession both backward and forward.
25.
Section 72 of the Act was inserted in the year 1969. If prior to coming into
force of 1969 amendment Act, a tenant had purchased the right, title and
interest of the landlord, the matter might have been different.
Section
72-B of the Act empowers the Tribunal to entertain an application for assignment
of the right, title and interest of the landlord in favour of the tenant on
payment of a price to be determined in the manner envisaged thereunder.
26.
The jurisdiction of the Tribunal, therefore, was restricted. Before arriving at
a conclusion that the applicant was entitled to a certificate of assignment, a
finding was required to be arrived at that he was a cultivating tenant within
the meaning of Section 13 of the Act. The properties of the erstwhile landlord
or intermediates having vested in the State, they were conferred a limited
right, namely, the right to receive the sale proceeds.
27.
Once a certificate of assignment had been granted in favour of the husband of
the appellant, no other certificate could have been issued unless a finding of
fact was arrived at that the first certificate was obtained by fraud as was the
case in Hamza Haji vs. State of Kerala and another : 2006 (8) SCALE 75 and A.A.
Gopalakrishnan vs. Cochin Devaswom Board and others : 2007 (10) SCALE 572.
28.
The Land Tribunal on the reference made by a Civil Court was required to arrive at the conclusion one way or the
other as to whether the plaintiff or the defendant was the cultivating tenant
within the meaning of Section 13 of the Act. It could not have, on the basis of
a stray statement made by a co-villager, arrived at a finding that the
defendant had been in possession. The said purported finding on the basis of a
statement made before the Revenue Inspector, CR, Payyannur could not have been
acted upon.
29. In
any event, the Civil
Court was the final
court of fact. Before it oral or documentary evidence had been adduced. It was
not bound by the observations made by the Tribunal either in regard to title or
possession of the property. The Tribunal moreover failed to consider that a
tenancy can be created orally upon delivery of possession and/or upon grant of
rent receipt.
Rent
receipt indisputably evidences possession. What was relevant for the purpose of
determination of the issue was who was in possession of the properties in
question when Section 72-B of the Act came into force. As the Tribunal itself
had issued two certificates, the jurisdiction to determine the right, title and
interest as also possession of the suit properties was only with the Civil
Courts. It is, therefore, not correct to contend that as on the basis of the
purported report, the Tribunal had found possession over the plot in question.
30.
The approach of the High Court, with respect, was not correct. The right to
obtain a certificate of assignment is dependent upon one's right as a tenant in
terms of Section 13 of the Act and not otherwise. The High Court could not have
held that the appellant was an intermediatory and as such his estate had also
vested with the respondents. No contention was raised by the appellant that the
respondent was the sub-tenant of the appellant. The same, in our opinion, was
irrelevant.
31.
The High Court proceeded only on the basis of the findings of the Tribunal. It
failed to notice that for all intent and purport the said findings was over
turned by the Civil
Court, wherefor it
had the requisite jurisdiction.
32. A
certificate issued under Section 72-K of the Act is conclusive.
Once
the same is found to be conclusive, the same cannot be refused to be taken into
consideration for any purpose whatsoever. The only issue which, therefore,
should have been raised by the High Court was as to who was entitled thereto,
keeping in view the fact that the Land Tribunal had granted certificates of
assignment to both the parties. In view of the statutory scheme, both the
parties could not have been given the certificates of assignment. The
certificate in favour of the appellant, even otherwise, having been granted
earlier and the same having not been set aside on the ground of fraud or
illegality, it was conclusive even as against the Land Tribunal. The Land
Tribunal, therefore, had no jurisdiction to issue a second certificate.
33.
For the reasons aforementioned the impugned judgment of the High Court is
unsustainable which is set aside accordingly. The appeal is allowed. However,
in the facts and circumstances of the case, there shall be no order as to
costs.
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