Mohammed Ibrahim v. Sulekha Umma — 1991 DIGILAW 446 (KER)

Judgment :- This petition by the defendant No. Inj O.S. No. 173/88 pending in the court of the learned subordinate judge, Palakkad is against the order dated 7-1-1991, on the petitioner's I.A.No.3237/90, whereby the learned subordinate judge held that the question whether Ammukutty Rawther, the father of the plaintiff No.2 was a tenant did not arise in the suit. Therefore, he rejected the aforesaid application in which the petitioner had prayed that the question of tenancy be referred to the Land Tribunal under 8.125(3) of the Kerala Land Reforms Act. 2. Sulekha Umma, the respondent No.l is the plaintiff No. 1. She is the sister of the petitioner/ defendant No.l. The respondent No.2, the husband of respondent No.l is the plaintiff No.2. The respondent No.3 who is a brother of respondent No.2, is the defendant No.2. In this judgment the parties are referred to with reference to their nomenclatures in the suit. 3. Briefly stated facts are these: In a partition evidenced by deed No.1986/1951, the plaintiff No.1, the defendant No.1 and their mother, since deceased, each received 1/3 share of the lands. Upon the death of the mother in 1970, her 1/3 share devolved upon the plaintiff No.l and defendant No.l. Therefore, the plaintiff filed this suit for partition of her mother's property. She claims division between her and defendant No.l in the ratio 1:2. In his written statement the defendant No.l made a counter claim and urged that there is slime more property in the possession of the plaintiff No.l which should also be partitioned. In reply to the counter claim, the plaintiff No.l contended as under: i) the property claimed in the counter claim belonged to the father of the Plaintiff No.2, Ammukutty Rawther, who held the property as tenant. ii) The tenancy was created by the defendant No.l as the intermediary of the Jenmi Meenakshy. iii) It was the defendant No.l who passed receipts for rent in favour of Ammukutty Rawther. iv) Later the Jenmi herself accepted Ammukutty Rawther as her tenant. v) Upon the death of Ammukutty Rawther, the property which is the subject matter of the counterclaim was partitioned between plaintiff No.2 and his brother defendant No.2. Eventually, plaintiff No.2 and defendant No.2 were declared owners under the Kerala Land Reforms Act. They hold purchase certificates O.A.2108/1975 and 2109/1975 from the Land Tribunal No.III, Alathur. v) Upon the death of Ammukutty Rawther, the property which is the subject matter of the counterclaim was partitioned between plaintiff No.2 and his brother defendant No.2. Eventually, plaintiff No.2 and defendant No.2 were declared owners under the Kerala Land Reforms Act. They hold purchase certificates O.A.2108/1975 and 2109/1975 from the Land Tribunal No.III, Alathur. The defendant No.l alleged to be the intermediary was not a party to the proceedings in which purchase certificates were granted. In the meanwhile, the Jenmi Meenakshy Amma filed O.S.No.155/69 for recovery of rent. The defendant No.l was a party to the suit. It is alleged that he admitted that Kammukutty Rawther was the tenant. However, the judgment and pleadings in O.S.No.155/69 in which the defendant No.l is supposed to have admitted the tenancy were not produced in the trial court. 4. The learned Principal Subordinate Judge, Palakkad, held that the question of tenancy of Kammukutty Rawther did not arise. His decision is based on two reasons: a) in O.S. No.155/69 the defendant No.l had admitted the tenancy of Ammukutty Rawther. b) the purchase certificate implied a conclusive finding that Kammukutty Rawther was the tenant. Therefore he dismissed the application. 5. Since the question of tenancy has been raised in the counter-claim, I will consider whether the counter-claim is "a suit or proceeding' within the meaning of 8.125(3) of the Act. The petitioner is not the owner of the land whose tenancy is in question. He is an intermediary. The question of tenancy of Ammukutty does not arise on the plaint„ for, the plaintiffs did not rely upon, the interests of the plaintiff No.2 and defendant No.2 as tenants. It is in answer to the counter claim, that ammukutty' s tenancy and the ownership of plaintiff No.2 and defendant No.2 based on succession to such tenancy, was set up by the plaintiff. In order to attract S.125(3) the question of tenancy must arise "in any suit or other proceeding". In order that such a question should be considered to arise in a suit or other proceeding, that question must be necessary for the final determination of the suit or other proceeding. (Balatovstnan Nair. Radha Amma & others (1987 (1) KLT 195) In this case, the suit commenced by the plaintiff does not give rise to the question of tenancy. But the counter claim does. (Balatovstnan Nair. Radha Amma & others (1987 (1) KLT 195) In this case, the suit commenced by the plaintiff does not give rise to the question of tenancy. But the counter claim does. If the question arises upon a counter claim but not on the plaint, can it be said to arise in the suit or other -proceeding? This calls for a consideration of the nature of the counterclaim and its status under the Code of Civil Procedure. The defendant in a suit may set up a counterclaim in respect of a cause of action accrued to him against the plaintiff. (Rule 6A of Order 8 of the C.P.C.) Such counterclaim has the same effect as a cross suit so as to enable the court to pronounce final judgment in the same suit both on the original claim and the counter claim. (Sub Rule (2) of Rule 6A of Order 8 of the C.P.C.) The counter-claim is treated as a plaint and is governed by the rules applicable to plaints. (Sub rule 4 of Rule 6 A of Order 8 of the CP.C.) If the plaintiff does not put in a reply to the counterclaim, the counterclaim may be decided exparte as if it were a suit. (Rule 6E of Order 8 of C.P.C.) The defendant, upon proof of his counterclaim, is entitled to a decree against the plaintiff. (Rule 6F of Order So the C.P.C.) Even if the plaintiff withdraws the suit the defendant has the right to continue the counterclaim as if it were a suit. 6. In this suit the question whether the property to which the counterclaim relates, should be partitioned, has to be gone into. Since the plaintiffs in their defence raised the question of tenancy of Ammukutty, and of the plaintiff No.2, an issue of tenancy arises out of the counterclaim. Since the counterclaim has, under the Code of Civil Procedure, the status of a cross suit, the question of tenancy arises in the suit or proceeding. The final determination of the suit and counterclaim is not possible without deciding the issue of the tenancy of Ammukutty. Therefore having regard to the status of counterclaim under the Code of Civil Procedure, I am of the opinion that the counterclaim of the defendant is a suit. In any case. It is a proceeding. The final determination of the suit and counterclaim is not possible without deciding the issue of the tenancy of Ammukutty. Therefore having regard to the status of counterclaim under the Code of Civil Procedure, I am of the opinion that the counterclaim of the defendant is a suit. In any case. It is a proceeding. The question of tenancy has been raised in a suitor proceeding within the meaning of S.125(3) of the Act. 7. The plaintiff No.2 and defendant No.2 claim to have inherited the tenancy of Ammukutty. After Kammukutty's death they divided the land. Later they obtained purchase certificates under S.54-59 of the Kerala Land Reforms Act. The certificate of purchase is conclusive proof of the purchase by the tenant of the right, title and interest not only of the land owner but also the intermediary. Such certificate implies that plaintiff No.2 and defendant No.2 were tenants. But admittedly petitioner was an intermediary and was not served notice of the proceeding in which the purchase certificates were granted. In view of this, the question is whether (a) the purchase certificates are conclusive proof against the petitioner-intermediary and (b) is it open to the petitioner to question the conclusiveness of the certificates and the status of petitioner No.2 and defendant No.2 as tenants? 8. The petitioner's status as intermediary is not disputed. The petitioner claims that he was en titled to a notice before the purchase certificates were issued to the plaintiff No.2 and defendant No.2. In order to appreciate this submission the scheme of the Kerala Land Reforms Act in regard to the purchase of landlord's right by cultivating tenants may be briefly analysed. 9. An intermediary is a person who is not a land owner but has an interest in the land and by reason of such interest entitled to the possession of the land but has transferred such possession to any other person (S.2(19). An. intermediary is different from the landlord; the landlord being a person under whom a tenant holds the land (S.2(29)). The landlord includes the owner of the land. The "owner" in relation to the land means a person entitled to the absolute proprietorship including the trustee or a patted or karnam tenant (S.2(40)). It is thus clear that an intermediary, though not the owner of the land, is possessed of interest in the land. 10. The landlord includes the owner of the land. The "owner" in relation to the land means a person entitled to the absolute proprietorship including the trustee or a patted or karnam tenant (S.2(40)). It is thus clear that an intermediary, though not the owner of the land, is possessed of interest in the land. 10. S.53 to 64 of the Act enact provisions for purchase of landlord's rights by cultivating tenants. The question is whether an intermediary who is not the owner of the land, figures in the scheme of the purchase of the landlord's right by tenants. If he does, what are his rights?. This is important because the petitioner, as intermediary, seeks to question the tenancy of the plaintiff No.2 and the defendant No.2 who hold purchase certificates issued to them under the legislative scheme laid down in S.53 to 64 of the Act. A cultivating tenant has a right to purchase the right, title and interest not only of the land owner but also of the intermediary in respect of the land comprised in his holding (S.53 of the act). A cultivating tenant so entitled to purchase the right, title and interest of the land owner and the intermediaries may apply to the land tribunal for enforcement of such right (S.54 of the act). The cultivating tenant is required to pay the price for the purchase of the right, title and interest not only of the land-owner but also of the intermediaries calculated in accordance with S.55 of the Act. The cultivating tenant who is now the purchaser shall pay the purchase price. The price so paid has to be apportioned among the land owner and the intermediaries (S.56 of the act). In other words, the intermediary who loses his interest in the land by the statutory purchase is entitled to receive the price of his interest in the land. The remaining part goes to the land owner. The apportionment of the price between the land owner and the intermediaries is made in proportion to the profits derived by them from the holding (S.56(3) of the act). The profits derived from the holding by the intermediary has been explained by the explanation to be the difference between the rent due to him from his tenant and the rent which the intermediary is liable to pay the landlord. The profits derived from the holding by the intermediary has been explained by the explanation to be the difference between the rent due to him from his tenant and the rent which the intermediary is liable to pay the landlord. The substance of the whole matter is that upon purchase of the land by the cultivating tenant, the intermediary is divested of his interest in the land. The price is determined according to S.55 of the Act. Out of the total price, the intermediary is entitled to receive an amount proportionate to the value of the interest lost to him due to the statutory purchase. 11. There is an established procedure to be followed by the land tribunal for the purpose of granting the purchase certificates to the tenants. After receiving the application under S.54 of the Act, the land tribunal" shall give notice to the land owner, the intermediaries and all other persons interested in the holding", (S.57(1) of the act) calling upon them to prefer claims or objections with regard to the application by the cultivating tenant. The land tribunal is then required to consider the claims and objections received. It is also required to hear any person appearing in pursuance of the notice and finally pass orders but only "after making due enquiries". (S.57(2) of the act). The order allowing the application for purchase of the land is required to set out the purchase price payable by the tenant, the amount due to the land owner and to each of the intermediaries and other matters. (S.57 (4) of the act). Where the application is allowed and purchase price determined, the cultivating tenant is required to deposit the purchase price with the land tribunal in accordance with S.59 of the Act. It is only "on the deposit of purchase price in a lumpsum or of the first instalment of such price", that the land board issues certificate of purchase to the cultivating tenant. (S.59(2) of the act). The consequences of the issue of certificate of purchase are these: i) the right, title and interest of the land owner and the intermediaries, vest in the cultivating tenant free from all encumbrances with effect from the date of application under S.54 of the Act. ii) the land-owner and intermediary are divested of their interest in the land and such interest vests in the tenant free from all encumbrances. ii) the land-owner and intermediary are divested of their interest in the land and such interest vests in the tenant free from all encumbrances. iii) the certificate of purchase so granted, becomes "conclusive proof' of the purchase by the tenant of the right, title and interest of the land owner and the intermediary over the holding comprised therein. iv) the land owner or the intermediary cease to have any right in the land comprised in the holding and all their rights stand extinguished. (S.59(2) of the act). 12. The scheme of the law which divests the intermediary of the property and vests it in the tenant, making the certificate of purchase conclusive of right of the tenant is briefly set out in the foregoing paragraphs. What legal stipulations or preconditions make the purchase certificate conclusive of the purchase by the tenant of the right, title and interest of the intermediary and the owner? Is the conclusiveness of the certificate of purchase contingent upon the fulfillment of the steps leading to the issue of the certificate? The answers to these questions will be attempted in the next paragraph; which will also resolve the two questions referred in paragraph 7 above. 13. Some statutes provide that a fact or document is prima facie, sufficient or conclusive evidence of some other facts or matter. S. 59(2) uses the words "the certificate of purchase shall be conclusive proof in relation to the purchase certificate obtained by the tenants. "Conclusive" means "putting an end to debate or question". It has the quality of irrefutability. When S.59(2) says that the purchase certificate shall be "conclusive proof of the fact of purchase of the right, title and interest of the intermediary, what is meant is that, the certificate is a bar to any evidence being tendered to show that the tenant has not purchased the interest of the intermediary. (Ken vs. John Mottram Ltd. 1940 - 2 All E.R.629). The question is: Can the "conclusive" character or effect of the certificate be challenged by the intermediary? I am of the opinion that if the certificate of purchase, is placed beyond any challenge whatsoever, it will lead to situations which no court can countenance. For instance, if the certificate is issued in circumstances which reveal suppression of facts, concealment of evidence, or deception, its conclusiveness falls open to challenge. I am of the opinion that if the certificate of purchase, is placed beyond any challenge whatsoever, it will lead to situations which no court can countenance. For instance, if the certificate is issued in circumstances which reveal suppression of facts, concealment of evidence, or deception, its conclusiveness falls open to challenge. When the law provides that the certificate issued in accordance with its scheme is conclusive proof of tenant's ownership, it is implied that it is hot conclusive unless issued after following legislative stipulations. Thus adherence to the procedure, and to the steps prescribed, is a precondition, the fulfillment of which clothes the certificate with "conclusiveness". The certificate issued without following the stringent provisions of S.54-59, deliberately enacted - suffers from serious deficiencies in matters of substance. The essence of transfer of ownership to a tenant is the prior divesting of the interest of the intermediary. If the intermediary is not divested of his interest, there nothing that can vest in the tenant. The legislature, aware of the rule of jurisprudence that an owner cannot be deprived of his property without hearing him, has provided for notice to the intermediary; before he is divested of his interest in the property. Again his interest in the land cannot be taken away for being given to the tenant unless the price is deposited. The certificate can be issued only "on the deposit of the purchase price". None of these steps were followed in the case of the petitioner. The fulfillment of these steps meticulously enacted by the Act, are "a necessary precondition to the consequences that follow. The consequences have been summarised in paragraph 11 above. Since the conditions precedent to the creation of ownership in the tenant have not been fulfilled, the conclusive effect of the certificates of purchase does not ensue. In my opinion, the certificate of purchase acquires the conclusive character referred to in S.59(2) of the Act only when it has been issued after following the procedure established bylaw. In the circumstances of this case, the certificates in favour of plaintiff No.2 and defendant No.2 are not conclusive proof of the purchase by them of the right, title and interest of the petitioner. This conclusion of mine finds support from two judgments of this court. (George v. State of Kerala (UFA. In the circumstances of this case, the certificates in favour of plaintiff No.2 and defendant No.2 are not conclusive proof of the purchase by them of the right, title and interest of the petitioner. This conclusion of mine finds support from two judgments of this court. (George v. State of Kerala (UFA. No.596/81 referred to in 1987 (1) KLT S.N. P.50 case No.67) Chandran Nair v. Kunhambu Nair (S.A.875/76 & C.M.P. 14673/81,1981 KLT S.N. Page 83 Case No. 150) 14. It is clear to me that in the circumstances of this case the petitioner has the right to question the conclusiveness of the certificates of purchase. Admittedly, the procedure under S.54-59 of the Act, which is a necessary prerequisite was not followed. The petitioner has not been divested of his interest and it did not vest in the tenant. Therefore, the plaintiff No.2 and defendant No.2 did not become owners under the statutory scheme of purchase of lands. The certificates of ownership acquired without following the law are thus, are empty shells without the substance of ownership. What the plaintiff No.2 and the defendant No.2, therefore, have, is. a mere claim of tenancy based on succession to Ammukutty. Since a decision on Kammukutty's status as tenant, is necessary for determination of the proceedings, the question of tenancy "arises" in these proceedings. 15. But the conclusions summarised above do not end the matter. The petitioner was a defendant in O.S.No.155/69 in which the Jenmi claimed rent from the tenants. The question of tenancy of Kammukutty cannot be said to "arise" if two facts are proved with reference to O.S. No.155/69. In the following cases the question of tenancy of Kammukutty does not arise: (i) If the petitioner admitted that Kammukutty was a tenant, the question of tenancy does not "arise" (ii) If the petitioner as a defendant in O.S. No.155/69, might and ought to have questioned the tenancy of Kammukutty as a ground of defence or attack, or if the issue of tenancy is otherwise barred by principles of Res Judicata, it must be held that the question of tenancy does not "arise". (a) S.108A -Kerala Land Reforms Act. (B) George v. Thekkekara Vareed (AIR 1979 Ker.1) (C) Puthiyottil Kunhava and others v. Kaniathichalil Mammadkutty (AIR 1990 Ker.132) 16. The pleadings, evidence and judgment in O.S. No.155/69 have not been examined by the trial court. Nor were they produced before me. (a) S.108A -Kerala Land Reforms Act. (B) George v. Thekkekara Vareed (AIR 1979 Ker.1) (C) Puthiyottil Kunhava and others v. Kaniathichalil Mammadkutty (AIR 1990 Ker.132) 16. The pleadings, evidence and judgment in O.S. No.155/69 have not been examined by the trial court. Nor were they produced before me. No doubt, a decision on the question of the tenancy of Kammukutty is necessary for the final determination of the suit and counterclaim. Therefore, the question of tenancy "arises". But if the petitioner has admitted the tenancy of Kammukutty in O.S. No.155/1969 or if the issue of such tenancy is barred by principles of Res Judicata, then the question of tenancy of Kammukutty does not arise. 17. For the reasons stated above, I set aside the order dated 7-1-1991 in LA. No.3237/90 made by the subordinate Judge, Palakkad and partly allow the Civil Revision petition. I remand the LA. No.3237/90, to the trial court with these directions: i) The trial court shall decide on or before 10th January, 1992, the following questions: a) Whether in O.S.No. 155/ 69 the petitioner admitted that Kammukutty was a tenant? b) Can it be said that, as a defendant in O.S. No.155/69, the petitioner might and ought to have questioned the tenancy of Kammukutty as a ground of defence or attack? Or can it be said that the issue of tenancy is, otherwise, barred by principles of res Judicata? ii) If both the questions (a) and (b) at (i) above are answered in the negative the learned trial judge shall make a reference to the Land Tribunal under 8.125(3) of the Kerala Land Reforms Act. iii) If the answer to any one of the two questions set out at (i) above is in the affirmative, the trial court shall dismiss the I.A. No.3237/90 and proceed to dispose off the suit.