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Kerala High Court · body

1979 DIGILAW 264 (KER)

MAHADEVA IYER v. BHAGAVATHY AMMAL

1979-11-21

G.VISWANATHA.IYER

body1979
Judgment :- 1. In respect of certain properties belonging to the Anchal Brahmana Samooham suo motu proceedings for assignment of right, title and interest of the Samooham were taken by the Land Tribunal on the basis of a report filed by the Village Officer and the Revenue Inspector. SMP. 107 of 1974 was taken in respect of 71 cents of dry land in Sy. No. 89/6, Anchal Village. SMP. 109 of 1974 was taken in respect of 1 acre and 6 cents of wet land and 21 cents of Panappurayidom in Sy. No, 48/2A, 2B. 442/1 and 38/13C of the same Village. SMP. 67/75 was taken in respect of 54 cents of double crop land in Sy. No. 552/1 AB, Arakkal Village and SMP. 68/75 was taken in respect of 80 cents of double crop wet land in Sy. No. 552/1A and 553/ 7 of the same Village. The Land Tribunal after enquiry found that the occupants of the above lands are not tenants within the meaning of the Kerala Land Reforms Act and therefore refused to order assignment of the lands to them. A. A. No. 333 of 1976 was filed against the order in SMP. 107/ 74, A. A. 263 of 1975 was filed against SMP. 109 of 1974, A. A. 697 of 1975 was filed against the decision in SMP. 67/75 and A. A. No. 961/75 was filed against the decision in SMP. 68/75. All the four appeals were heard together by the Appellate Authority and all of them were allowed. The appellants were found to be tenants entitled to fixity and assignment. For implementing this conclusion by fixing the purchase price and passing a formal order allowing purchase the cases are directed to be sent back to the Land Tribunal. It is against this that these four revision petitions are filed. 2. A preliminary objection is raised by the respondents' counsel against the maintainability of these revision petitions. According to him the orders challenged in these revision petitions are not final orders within the meaning of S.103 of the Kerala Land Reforms Act. The Appellate Authority has not finally disposed of the Land Tribunal Proceedings, but only remanded the matter after adjudicating on certain issues that arose for decision. According to him the orders challenged in these revision petitions are not final orders within the meaning of S.103 of the Kerala Land Reforms Act. The Appellate Authority has not finally disposed of the Land Tribunal Proceedings, but only remanded the matter after adjudicating on certain issues that arose for decision. Such an order, it is said, is not a final order within the meaning of S.103 of the Act According to me S.103 does not warrant such an interpretation. That section reads as follows: "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) any final order passed by the Land Board under this act; or (iii) any final order of the Taluk Land Board under this Act; 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, (1A) In any petition for revision preferred under sub-section (1), the Government shall be made a party. (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) The High Court may, for the purpose of satisfying itself that an order made by the Land Tribunal under S.26 in case where the amount of arrears of rent claimed does not exceed five hundred rupees was according to law, call for the records and pass such order with respect thereto as it thinks fit. (4) The power of the High Court under this section may be exercised by a Bench consisting of a Single Judge of the High Court." A literal understanding of Sub-section (1)(i) quoted above only means that there must be an appeal from an order of the Land Tribunal and the appellate order should be a final one as distinguished from an inter-locutory order The final order must dispose of the appeal. The words "final order in appeal" mean only that and this is all that is contemplated by the Legislature will be clear from the nature of the appeals provided for under S.102 of the Act to the Appellate Authority. An appeal will lie from any order passed by the Land Tribunal under the various sections enumerated in S.102. Such orders may be either orders of final disposal of the proceeding taken before the Land Tribunal or may be only preliminary orders which conclusively determine the status of the parties and direct incidental enquires leading to a final order by the Land Tribunal closing the proceedings. Such being the character of the orders against which appeals can be filed before the Appellate Authority "final order passed in an appeal against the order of the Land Tribunal" in S.103(1)(i) can only mean a final disposal of the appeal. The order cannot be understood to take in only an order finally disposing of the proceedings initiated before the Land Tribunal. Finality must relate to the appeal only and not to the Land Tribunal proceedings. To understand or to interpret the section to mean final order disposing of the Land Reform proceedings on appeal will be recasting the section which is not allowed. With respect 1 do not find an analogy between this provision and the provision in Art.133(1) of the Constitution or S.109 CPC. These provisions refer to "any final order in a civil proceeding of a High Court" and they have been interpreted by the Privy Council, Federal Court and the Supreme Court to mean an order adjudicating finally the rights and obligations of the parties in relation to the matter in dispute in the proceeding. In Tarapore & Co., Madras v. Tractors Export, Mascow (AIR. 1970 Supreme Court 1168) an application for interim injunction was finally disposed of by the High Court dismissing it. In an appeal filed before the Supreme Court on a certificate of appeal granted by the High Court their Lordships had occasion to explain the meaning of the expression "final order in a civil proceeding" contained in Art.133(1) of the Constitution and S.109 CPC. In an appeal filed before the Supreme Court on a certificate of appeal granted by the High Court their Lordships had occasion to explain the meaning of the expression "final order in a civil proceeding" contained in Art.133(1) of the Constitution and S.109 CPC. After referring to the decisions of the Privy Council and the Federal Court and the Supreme Court the principle is stated thus in Para.11 "In our judgment an order passed by the High Court in appeal which does not finally dispose of a suit or proceeding and leaves the right and obligations of the parties for determination in the suit or proceeding from which appeal has arisen, in not final within the meaning of Art.133(1)(a) and (b). The order refusing to grant an interim injunction did not determine the rights and obligations of the parties in relation I to the matter in dispute in the suit. We are unable to hold that because the plaintiff's suit as a result of the order of the High Court may become infructuous as framed, and the plaintiffs may have to seek amendment of the plaint to get effective relief, an order which is essentially an interlocutory order may be deemed final for the purpose of Art.133 (1) of the Constitution." This decision was followed in Prakash Chand v. Hindustan Steel (AIR. 1971 Supreme Court 2319). This principle was applied in a Division Bench decision of this Court in Joseph v. Velayudhan Pillia (1976 KLT. 870). There the scope of S.103 came up for consideration. It was held that the principle mentioned by the Supreme Court in the above case must apply in interpreting S.103 of the Act. With great respect this interpretation does not follow on the language of S.103 (1) (0 quoted above. 3. But in this case it is not necessary to go against the interpretation adopted in the above case and hence I am not adjourning the case for decision by a larger Bench. As per the interpretation put on S.103 in the above decision the order in appeal should finally dispose of the rights of parties and the finality should be determined in relation to the proceeding initiated before the Land Tribunal. That test is satisfied by the order under challenge. The Appellate Authority has found that the appellants are tenants. As per the interpretation put on S.103 in the above decision the order in appeal should finally dispose of the rights of parties and the finality should be determined in relation to the proceeding initiated before the Land Tribunal. That test is satisfied by the order under challenge. The Appellate Authority has found that the appellants are tenants. They are also found entitled to fixity and to an assignment of the landlord's rights. By the order the matter is sent back to the Land Tribunal only for implementing the rights adjudicated upon and what remains to be done is more or less mechanical. There remains only the calculation of the purchase price applying the formula given in the Act and to pass a formal order specifying the details given in S.72F of the Act. This does not make the order under challenge any the less final in the sense of final disposal of the rights of the parties in relation to the proceeding I am supported in this approach by the view expressed by the Supreme Court in Gurdwara Parbandhak Committee v Shiv Rattan Dev (AIR. 1955 Supreme Court 576) followed by Subba Rao C.J. in Venkayya v. P. Venkatarama Rao (AIR. 1956 Andhra 126) and in Savitri Devi v. Rajul Devi (AIR. 1961 Allahabad 245) and Shatrunji v. Azmat Azim Khan (AIR 1967 Allahabad 51 (F.B.) ). In Gurdwara Prabadhak Committee v. Shiv Rattan Dev (1955 SC. 576) the appeal before the Supreme Court was directed against an order of remand. The preliminary objection as to the maintainability of the appeal is dealt with as follows: "The question raised is that since all that the High Court did was to remand the suit to the trial Court for proceeding in accordance with law, there it no final order within the meaning of the above provisions against which a certificate could be granted by the High Court. The learned judges have considered the matter and have pointed out that though the order purports to be by way of a remand they did in fact finally decide the matter. The learned judges have considered the matter and have pointed out that though the order purports to be by way of a remand they did in fact finally decide the matter. They say as follows: (in the order granting certificate) "It was finally decided that the building in dispute was merely a private property and it was neither a Gurdwara nor a Sikh Gurdwara and that no claim could be made by the 56 worshippers merely because it was a Gurdwara and that the notification of 1929 was inconsistent with the notification under S.3 of 1927. The decision on these three points finally determines the rights of the parties in regard to the ownership of the property. If it is private property, as it has been held by this Court, then a declaration must be given as prayed for by the plaintiff and as a consequence the injunction will follow". This view of the High Court as to what remains to be done in the trial court after demand was affirmed by the Supreme Court and they observed thus: "On the facts of this case the judgment of the High Court appealed against does amount to a final order". This Supreme Court case was interpreted in a Full Bench decision of the Allahabad High Court in Savitri Devi v. Rajul Devi (AIR. 196) Allahabad 245). After referring to the facts of Shiromani Gurdwara Prabhandhak Committee AIR. 1955 SC 575 (supra), it was observed as follows: "All that can be said is that, according to this case it is not strictly necessary that the suit should terminate altogether. It is enough if all the substantive rights and liabilities of the parties have been finally decided by the High Court. This principle is not in conflict with any of the four propositions of law laid down by the Privy Council in Abdul Rahmans' case AIR. 1933 PC. 58. Even if the suit was left alive, there was no right and liabilities to be determined in the trial court, as all the substantive rights and liabilities were already determined in the High Court. 1933 PC. 58. Even if the suit was left alive, there was no right and liabilities to be determined in the trial court, as all the substantive rights and liabilities were already determined in the High Court. The suit remained alive not for the purpose of determining any rights and liabilities left undetermined by the High Court, but only for the purpose of implementing the rights and liabilities already determined by the High Court by doing the formal act of making a declaration to the effect and granting the consequential relief of injunction which necessarily followed from their adjudication by the High Court." In Shantrunji v. Azmat Azitn Khan (AIR. 1967 Allahabad 51 (F. B.) ) referring to a similar order of remand at page 56 their Lordships stated thus: "Further, the learned Counsel for the opposite party No 1 did not point out anything in the contents of his application under S.4 of the U.P. Zamindars' Debt Reduction Act (XV of 1953) or in the pleadings of the case before the Special Judge in his counter-affidavit which would indicate that any other question, except the applicability of the U.P. Zamindars' Debt Reduction Act (XV of 1953) to the present case, was raised on behalf of the opposite parties No.1 and 2. No doubt, the actual work of calculation of the amount by which the decree passed under S.14 of the U.P. Encumbered Estate Act is to be reduced would be done by the Court of the Special Judge. That, however, is merely a matter of arithmetical calculation according to the provisions of S.4 (2) of the said Act all that the Special Judge would have to do is to calculate the amount due on the 1st day of July 1952, and then reduce it "in accordance with the formula given in the schedule". The decree passed under S.14 of the Encumbered Estates Act gives the principal amount as well as the interest. The calculation of the amount due on the first day of July 1952 has to be in accordance with the said decree and is merely a matter of arithmetical calculation. Similarly, its reduction, according to the formula given in the schedule is also done by a mere mechanical process. The calculation of the amount due on the first day of July 1952 has to be in accordance with the said decree and is merely a matter of arithmetical calculation. Similarly, its reduction, according to the formula given in the schedule is also done by a mere mechanical process. It would, therefore, appear that the principle finally determining the substantive rights of the parties has been laid down in the order of the High Court, and the mere fact that its implementation is to be done by the Special Judge in a routine fashion does not militate against the finality of the order passed by this Court." In Venkayya v. P. Venkatarama Rao (AIR. 1956 Andhra 126) also Subba Rao C.J. has taken a similar view regarding the nature of the finality of the order. Adopting these principles to the facts of the case it is clear that the order under challenge is a final order. The preliminary objection hence fails. 4. CRP. 1134 of 1977 which arises out of S.M.P. 109/74 requires separate and detailed consideration whereas the other three revision petitions, namely 1135, 1136 and 1137 can be disposed of quickly. CRP. Nos. 1135 and 1136 arise out of S.M.P. 67 and 68 of 1975 referred to earlier. The properties in these two cases were demised in the year 1122 under a registered lease deed executed by the Secretary of the Samooham. The Land Tribunal refused to recognise the lease arrangement only because the executant of the lease deed, namely, the Secretary of the Samooham was not competent to represent it. The fact that the properties were outstanding on lease and the lessees were in possession from the date of the lease are not matters in dispute. So the occupants are tenants under S.7B of the Land Reforms Act. The Appellate Authority also found that the Secretary is competent to execute the lease deed as he is the authorised person to represent the Samooham under the registered Udam-pady of 1088 which was treated as to be in force at the time of lease. So the occupants are tenants under S.7B of the Land Reforms Act. The Appellate Authority also found that the Secretary is competent to execute the lease deed as he is the authorised person to represent the Samooham under the registered Udam-pady of 1088 which was treated as to be in force at the time of lease. Though the learned counsel for the petitioners tried to question the competency of the Secretary to represent the Samooham, even if he is, for argument sake, not competent, in the light of S.7B of the Land Reforms Act the occupants in these two cases will be deemed tenants entitled to assignment of the right, title and interest of the landlord. So the Appellate Authority is right in its conclusion that the properties in S.M.Ps.67 and 68 of 1975 have to be ordered to be assigned to the occupants of the properties concerned in these proceedings. These two Civil Revision Petitions-CRPs. 1135 and 1136 will have to be dismissed. 5. CRP. 1137 arises out of S.M.P. 107 of 1974 and relates to 71 cents of dry land. The persons in possession are seen to be in possession from the year 1111 long before the present Secretary took charge and as found by the Appellate Authority the Secretary being competent to lease out the property, the Appellate Authority is right in holding that the person in possession of 71 cents involved in S. MP. 107 of 1974 is entitled to assignment under the Land Reforms Act. 6. But the position is different in respect of the subject matter of dispute in CRP. 1134 of 1977 In this case I acre 6 cents and 21 cents of Panap-purayidom are involved. Though respondents 1 and 2 claim to be lessees there is no lease deed in support of it and the persons claiming the leasehold right are none other than the wife and son of the Secretary of the Samooham. The Secretary supports their case also. But the Land Tribunal and the Appellate Authority found that Exts. P-1 to P-11 receipt said to have been issued to the first respondent are not acceptable as they are signed by the Secretary who is in charge of the blank printed receipts of the Samooham and at any time these receipts can be created. Though Exts. But the Land Tribunal and the Appellate Authority found that Exts. P-1 to P-11 receipt said to have been issued to the first respondent are not acceptable as they are signed by the Secretary who is in charge of the blank printed receipts of the Samooham and at any time these receipts can be created. Though Exts. P-I2 to P-24 are levy notices said to have been received by the first respondent there is no record to show that any paddy was measured as per these notices and no accounts of the Samooham are produced by the Secretary who supports them and who has been examined in the case. The Secretary himself was a Village Officer who was either removed or dismissed for official irregularities and his testimony that the property was leased out to his wife, a typical house-wife not accustomed to get out of the house for any cultivation pur-' poses, cannot be believed. Even she has not been examined in the case and her son the second respondent has given evidence in the case in her favour. The Land Tribunal was correct in not acting on the testimony of the witnesses who support the lease arrangement in favour of the first respondent. The Appellate Authority has placed reliance on an agenda for a meeting of the Samooham on 24-12-1972 and the resolution passed at that meeting. In the agenda there is a statement that all the lands of the Samooham are outstanding on lease The resolution was to sell away all the lands except those which can be conveniently enjoyed or looked after by the Samooham One of the items involved in the case is 21 cents of burial ground of the Samooham. It is very unlikely that that would have been leased out and the members of the Samooham would have ever agreed to lease it out. Same is the case with the other land involved in the case which was taken charge of by the Secretary when he assumed office as such. It is very unlikely that that would have been leased out and the members of the Samooham would have ever agreed to lease it out. Same is the case with the other land involved in the case which was taken charge of by the Secretary when he assumed office as such. The agenda itself is in the handwriting of the Secretary and from the conduct of the Secretary it will be seen that he had an idea to make these lands also his own The wording in the agenda cannot be given much importance in the absence of other evidence in support of it and the resolution passed would indicate that some of the lands are in the possession of the Samooham and the Samooham decided to retain the same. The rest alone were resolved to be disposed of. The entry in the minutes book produced in the case were also referred to by the petitioner's counsel. There are no entries in it to show that these properties are outstanding on lease with the first respondent Admittedly no budget or statement of accounts are seen produced by the Secretary before a meeting of the Samooham after 1127. The alleged lease in favour of the first respondent is only in 1959 and there are no records to support her independent possession. The possession appears to be always with the third respondent Secretary. The Appellate Authority has not appreciated the evidence in this case properly and has come to a conclusion contrary to all probabilities and evidence in the case. The conclusion is erroneous in law. The Appellate Authority has erroneously decided that the first respondent is a lessee, Therefore that decision calls for interference. 7. Before concluding I have to observe that on the evidence of this case the conduct of the Secretary who is supposed to protest the interest of the Samooham is highly reprehensible It is clear that he is in possession as secretary but has set up a lease putting forward the name of his wife as the lessee to grap at the properties of the Samooham. He is in the position of a trustee and he is trying to take advantage of his own breach of trust to claim title to the property In these circumstances it is strange that the Samooham has not so far taken steps to remove the third respondent from the Secretaryship and secure the properties of the Samooham. 8. I therefore allow the Civil Revision Petition and set aside the decision of the Appellate Authority in so far as the lands involved in this case are concerned In the result CRP. 1134 of 1977 is allowed, CRPs.1135,1136 and 1137 of 1977 are dismissed. The petitioners in CRP. 1134 of 1977 are entitled to their costs from the respondents in that case. In the other cases there will be no order as to costs.