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1975 DIGILAW 120 (KER)

JOSEPH v. VELAYUDHAN PILLAI

1975-05-28

P.GOVINDA NAIR, V.KHALID

body1975
Judgment :- 1. This is a revision under S.103 of the Kerala Land Reforms Act, 1963, for short, the Act, by respondents 1 and 2 in an application by the 1st counter-petitioner herein under S.15 and 17 of the Act for resumption. The Land Tribunal, Ernakulam after framing seven issues on the contentions raised by the revision petitioners allowed the application and granted resumption of an extent not exceeding one half of the holding. The location and actual extent of the land to be resumed as well as the rent payable by the 1st revision petitioner over the extent of the holding to be retained by him and the value of improvements to be paid if any, were directed to be determined in separate proceedings. The 1st counter-petitioner herein (the applicant) was permitted to take out a commission. Revision petitioners 1 and 2 appealed and contended that the 1st respondent was not a small holder. Revision petitioner 1 also contended that his kudiyirippu extended over the entire holding. The 2nd revision petitioner contended that she has a leasehold right over a portion of 22 cents of the holding. The appellate authority confirmed the findings of the Land Tribunal that the 1st respondent is a small holder and also held that the 2nd revision petitioner has not established that he is a tenant of any portion of the holding. On the other point raised by the 1st revision petitioner while finding that the Ist revision petitioner has kudiyirippu right in the holding, the finding entered by the Land Tribunal that this kudiyirippu will not extend beyond one half of the holding was vacated. It was also noticed that under the amended provision in the Act, the tenant has a right to opt for the portion of the property which he wishes to retain and that the value of improvements had also yet to be determined. The appellate authority therefore felt that the above questions required fresh enquiry by the Land Tribunal. It accordingly left open all these questions, namely the actual extent of the land occupied by the 1st appellant's kudiyirippu, the value of improvements to be paid and the portion of the holding to be retained by the 1st revision petitioner. The appellate authority therefore felt that the above questions required fresh enquiry by the Land Tribunal. It accordingly left open all these questions, namely the actual extent of the land occupied by the 1st appellant's kudiyirippu, the value of improvements to be paid and the portion of the holding to be retained by the 1st revision petitioner. The order concluded in these terms: "In the result, I find thai the 1st respondent is a small holder entitled to resumption under S.17 and 22 of the Land Reforms Act and the question regarding the actual extent of property which he can resume and the value of improvements and other connected rights are left open to be decided by the Land Tribunal The Land Tribunal will decide those questions afresh. This appeal is disposed of accordingly." 2. In this revision petition, the contentions raised are that the 1st respondent is not a small holder, that the authorities went wrong in holding that the land of the applicant alone be taken into account in deciding whether he is a small holder and that the second revision petitioner should have been held to be a lessee in independent right in respect of 22 cents of land in the holding. 3. On behalf of the 1st counter-petitioner in this revision petition his counsel contended that this revision petition is not maintainable as the order sought to be revised is not a final order and so a revision under S.103 of the Act is not permissible. The relevant part of S.103 of the Act is in these terms: "103. Revision by High Court: (1) Any person aggrieved by (i) any final order passed in an appeal against the order of the Land Tribunal; or (ii) may, within such time as may be prescribed, prefer a petition to the High Court against the order on the ground that the appellate authority or the Land Board or the Taluk Land Board as the case may be, has either decided erroneously, or failed to decide, any question of law, or (2) The High Court may, after giving an opportunity to the parties to be heard, pass such orders as it deems fit and the orders of the appellate authority or the Land Board or the Taluk Land Board as the case may be, shall, wherever necessary, be modified accordingly. (3) ... ~~~ ~~~ ~~~ (4) ... (3) ... ~~~ ~~~ ~~~ (4) ... ~~~ ~~~ ~~~~ It is clear from the section that the ground on which revision petitions can be taken is that the decision is erroneous in law or that the decision has failed to decide any question of law and the revision petition can only be against a final order. 4. This Court in CRP. Nos. 28 and 29 of 1967 held that an order of remand passed by the appellate authority setting aside the decision of the Land Tribunal is not a final order and no revision under S.103 (1) of the Act would lie. The same is the view taken in the decision in Kothamma v. Kunjihetti 1973 KLT. 390. We consider that the order sought to be revised is not a final order for the purpose of S.103 of the Act though there are two findings in that order which are conclusive. The appellate authority has concurred with the Land Tribunal that the 1st counter-petitioner is a small holder. It has also found that the 2nd revision petitioner has no independent right in the holding. These findings however do not dispose of the matter and the appellate authority has remitted the question of determination of the extent of the kudiyirippu of the 1st revision petitioner, the decision of the exact portion of the holding sought to be resumed and its extent, and the value of improvements to be paid for, if any, to the Land Tribunal. The 1st revision petitioner has also been given the option to decide which portion of the holding he would like to retain. It is thus clear that the order does not finally dispose of the matter. In that sense the order is not final and though it is conclusive in relation to the decision on two of the issues raised in that case on the wording of S.103 of the Act, the order, we think, cannot be said to be a final order. This view is supportable on the basis of the decisions of the Privy Council in V. M. Abdul Rahman and others v. D. K. Cassim and sons and another AIR. 1933 P. C. 58 and of the Federa Court in Dr. Hari Ram Singh v. Emperor AIR 1939 F. C. 43 and Mohammed Amin Brothers Ltd. and others v. The Dominion of India and others AIR. 1950 F C. 77. 1933 P. C. 58 and of the Federa Court in Dr. Hari Ram Singh v. Emperor AIR 1939 F. C. 43 and Mohammed Amin Brothers Ltd. and others v. The Dominion of India and others AIR. 1950 F C. 77. The Supreme Court in the decision in Prakash Chand Agarwal and others v. M/s Hindustan Steel Ltd. AIR. 1971 S. C. 2319 observed with reference to Art.133 of the Constitution: "It does not contemplate bringing an appeal in a suit which is still a live suit and in which further proceedings are to be taken. This has been the consistent view not only of this court but also of the Privy Council. The leading case from the Privy Council is V. M. Abdul Rahman D.K Cassim and Sons, (1933) 60 Ind. App. 76 (AIR. 1933 PC 58). There is a catena of cases in the High Courts and also in this Court that the judgment, decree or order from which appeal is brought to this Court must put an end to the litigation between the parties. This was reaffirmed in M/s Fethanand and Sons v State of Uttar Pradesh, (1961) 3 SCR 754 AIR 1961 SC 794) approving the view of the Privy Council referred to. Indeed, we could cite on this aspect of the case quite a large number of precedents from various courts in India." The same is the view taken by the Supreme Court in M/s Tarapore and Co., Madras v. M/s V. O. Tractors Export, Moscow and another AIR. 1970 SC. 1168 5. We think the principle of these decisions must apply in the interpretation of S.103 of the Act and that this revision is not maintainable. 6. Apart from the fact that the revision is not maintainable, we must add that even assuming that this is a final order that is sought to be revised, we have to hold that the order sought to be revised is not erroneous in law nor has it omitted or failed to decide any question of law. Whether an applicant is a small holder or not would depend upon the fact whether he satisfies the definition of "small holder" under S.2 (52) of the Act. Whether an applicant is a small holder or not would depend upon the fact whether he satisfies the definition of "small holder" under S.2 (52) of the Act. A glance at S.2(52) of the Act would show that it is the extent of the land in which the applicant has an interest in any of the capacities mentioned in that section that would decide whether the particular applicant is a small holder or not. The Land Tribunal has found that the 1st counter-petitioner in this revision petition has interest only in 71.7 cents of land and that he had actual possession of 74.07 cents It also found that the 1st counter petitioner "has not succeeded" in establishing the applicant's ownership in other properties other than those disclosed in Para.5 of the application supplemented by the statement attached to the petition dated 5th October 1966. This finding has been confirmed by the appellate authority. These findings pertain to a finding on the question of fact and no question of law can arise in regard to this matter But it was contended by counsel for the revision petitioner that the onus bad been wrongly cast, that the evidence furnished by several documents, had not been adverted to or considered by the authorities and that therefore the findings are liable to be interfered in proceedings under S.103 of the Act. We do not think that the onus had been wrongly cast. The applicant has given full details regarding the properties possessed and owned by him and in which he has any interest. His version has been accepted by the two authorities. Nothing clinching by way of evidence or material had been produced by the revision petitioners which would necessitate the rejection of the evidence furnished by the applicant We therefore see no grounds to interfere with the concurrent findings of fact that the 1st counter-petitioner is a small holder. The 2nd revision petitioner has produced no evidence at all to show that he has any independent rights over the 22 cents of the holding. This finding too must therefore stand. 7. The other argument advanced was that the properties held by the 1st counter petitioner's wife and children must also be taken into account in deciding whether the 1st counter-petitioner is a small holder. This finding too must therefore stand. 7. The other argument advanced was that the properties held by the 1st counter petitioner's wife and children must also be taken into account in deciding whether the 1st counter-petitioner is a small holder. An individual can be a a small holder and when an individual is the applicant it is only his properties that had to be taken into account in deciding whether he is a small holder or not. It had not been contended that the revision petitioner was not holding under the 1st counter-petitioner. The appellate authority has observed that "since the tenant holds only under the said person, the landlord, the particular person alone could constitute the landlord and the said person and his properties alone could be taken into consideration in deciding the question whether he is a small bolder or not". We are in agreement with the view expressed by the appellate authority. 8. In the light of the above, we dismiss this petition. There will be no order as to costs. Dismissed.