Chandramohanan Nair v. Board of Revenue — 1997 DIGILAW 428 (KER)

Judgment :- P.K. Balasubramanyan, J. This Original Petition has come up before me as per the order of the Hon'ble Chief Justice in view of the difference of opinion between Mr. Justice T.V. Ramakrishnan and Mr. Justice B.N. Patnaik who heard the original petition at the first stage. 2. One Kumara Pillai Sankara Pillai the fattier of the respondent No. 4 and Kumara Pillai Velayudhan Pillai, the predecessor-in-interest of the petitioners, were brothers. Kumara Pillai Sankara Pillai was the elder. An extent of 1.64 acres of land was held by the family of these brothers on' Viruthi'. In a deed Of partition in the family dated. 29.7.1097 M.E., it was provided that the elder brother Kumara Pillai Sankara Pillai be in possession and enjoyment of the property as the senior most male member of the tharwad. The property was obtained from the Government for the performance of 'Oozhiyam'. Kumara Pillai Sankara Pillai died on 7.2.1971 and in terms of the arrangement, Kumara Pillai Velayudhan Pillai was entitled to possession. Respondent No. 4, the son of Kumara Pillai Sankara Pillai, attempted to raise claims over the property. Kumara Pillai Velayudhan Pillai therefore, filed a suit O.S.400 of 1971 for declaration of his title and possession as against respondent No. 4 the son of Kumara Pillai Sankara Pillai and in the alternative, for recovery of possession. Respondent No. 4 resisted that suit. According to him, he was a tenant let into possession by his father and entitled to fixity of tenure under the Kerala Land Reforms Act and Kumara Pillai Velayudhan Pillai was not entitled to recover possession of the property. There was a reference of the question of tenancy raised by respondent No. 4 to the concerned Land Tribunal under S.125(3) of the Kerala Land Reforms Act. That reference was answered against respondent No. 4 by the Land Tribunal by finding that respondent No. 4 was not a tenant entitled to fixity of tenure. Accepting that finding the Trial Court held on an interpretation of the deed of partition entered into in the family and to which Kumara Pillai Sankara Pillai was also a party, that the property was service Inam and Kumara Pillai Velayudhan Pillai was the person entitled to be in possession and perform the Oozhiyam on the death of Kumara Pillai Sankara Pillai. The trial court declared the title of Kumara Pillai Velayudhan Pillai and granted to him a decree for recovery of possession with mesne profits. That court also held that there was no reason not to accept the case of respondents No. 4 that on the death of his father on 7.2.1971, he took possession of the property along with the other properties of his father and in view of that contention, it could not. be held that Kumara Pillai Velayudhan Pillai had proved his possession of the property as on the date of suit. As 1 understand the finding, the trial court did not find positively that respondent No. 4 was in possession in his own right but on the other hand found that Kumara Pillai Velayudhan Pillai had not established his possession. This decree of the trial court was confirmed in appeal A.S.547 of 1976 by the District Court. That court in addition to confirming the finding that respondent No. 4 had no tenancy right over the property also held Thai Kumara Pillai Sankara Pillai his father, had no legal right to lease the property and a lease in contravention of the Viruthi tenure was invalid. Thai court also noticed that it was probable that respondent No. 4 took possession of the property after the death of his father. It is said that a second appeal filed in this court challenging the decree in O. S.400 of 1971 was also dismissed. Thereafter, Kumara Pillai Velayudhan Pillai, the decree In folder, filed E.P. 290 of 1979 praying for delivery of the property and for ascertainment of the mesne profits to be recovered. After notice to respondent No. 4 and after giving him necessary opportunity of being heard, the executing Court ordered delivery and directed that the delivery be effected on 29.1.1979. When the Amen went to effect delivery, one Sreedharan Nair resisted delivery in respect of 1.42 acres in Sy. No. 66/18 and respondent No. 5 Gopinathan Nair resisted delivery in respect of 10 cents in Sy. No. 36/2. In view of the resistance by these two strangers to the decree, the Amen actually delivered 12 cents of property in Sy. No. 66/18. No. 66/18 and respondent No. 5 Gopinathan Nair resisted delivery in respect of 10 cents in Sy. No. 36/2. In view of the resistance by these two strangers to the decree, the Amen actually delivered 12 cents of property in Sy. No. 66/18. Alleging that, the 'Obstruction offered by the two strangers was at the instance of the judgment debtor, Kumara Pillai Velayudhan Pillai filed two applications E.A. 681 of 1979 and E.A. 680 of 1979 for removal of the obstructions offered by the two strangers. While those applications were pending, Kumara Pillai Velayudhan Pillai died on 22.11.1980. Meanwhile the present petitioners, the legal representatives of Kumara Pillai Velayudhan Pillai and the other representatives of the tharwad effected a further partition. As per that partition the present petitioner were authorised to obtain possession of the property through court after removal of the obstructions and after obtaining any further rights that may accrue to them as holders of Viruthi. The petitioners therefore, filed applications for impleading them in the executing court. Those applications for impleading were allowed. Though two revisions were filed challenging the said orders, those revisions were dismissed on 4.2.1987. Enquiry into the applications for removal of obstructions is reported to be still pending. 3. This was obviously because meanwhile on 6.8.1981 the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981, hereinafter called 'the Act' came into force. Under S.3 of that Act, rights of land owners vested in the Government on abolition of the services to be rendered by them. The lands held on'Oozhiyam' also came within the purview of the Act. Hence the title over the disputed lands also came to vest in the Government in terms of the Act. S.5 of the Act conferred right on a land holder, meaning a person holding Service Inam land, to get an assignment of the right, title and interest which vested in the Government under S.3 of the Act. Tome definition of 'land holder' an explanation was provided to effect that where any service inam land is in the possession of a person other than the person to whom the land was granted for performing the services or any of his successors-in-interest, the person in possession of the land shall be deemed to be the land holder for the purpose of the Act. Under S.2(h) of the Act 'to hold' was to mean'to be in actual possession'. Under S.2(h) of the Act 'to hold' was to mean'to be in actual possession'. Claiming that, he is entitled to the assignment under the Act, respondent No. 4 herein filed O. A. 115 of 1982 before the Authority under the Act entrusted with the duty of entertaining applications for assignment and deciding them. Respondent No. 5 who had obstructed delivery in respect of 10 cents while the decree in O.S.400 of 1971 was being executed, in his turn filed O. A. 962 of 1982 for assignment in respect of the said 10 cents. Petitioner No.1 herein, son of Kumara Pillai Velayudhan Pillai filed O. A. 624 of 1982 claiming assignment on the basis that he was the land holder within the meaning of the Act. Respondent No. 4 herein produced copy of a lease deed said to have been executed in his favour by his father Kumara Pillai Sankara Pillai which had been put forward by him in O.S.400 of 1971 as part of his defence and which had been found against by the Land Tribunal and by the Civil Court while holding that he had no right to possession of the land. Petitioner No. 1, in support of his application, produced copies of the judgments in O.S.400 of 1971 and in A.S.547 of 1976 and the copy of the delivery list in O.S.400 of 1971. Respondent No. 5 produced a tax receipt in support of his claim. The Settlement Officer by the order Ext. P1 proceeded to uphold the claims of respondents 4 and 5 for assignment merely on the ground mat the decree in O.S.400 of 1971 though obtained by Kumara Pillai Velayudhan Filial, had not been executed and since the decree was one for recovery of possession, it must be taken that respondent No. 4 herein was in possession as on the appointed day, namely 6.8.1981. The application by petitioner No, 1, son of Kumara Pillai Velayudhan Pillai was dismissed. On appeal by petitioner No.1 under S.12 of the Act, the Appellate Authority after noticing the contentions, stated that respondents 4 and 5 herein are seen to have proved that they were in actual possession and enjoyment of the land on the crucial date and therefore, he saw no reason to interfere with the order of the Settlement Officer. On appeal by petitioner No.1 under S.12 of the Act, the Appellate Authority after noticing the contentions, stated that respondents 4 and 5 herein are seen to have proved that they were in actual possession and enjoyment of the land on the crucial date and therefore, he saw no reason to interfere with the order of the Settlement Officer. A revision filed under S.13 of the Act by the petitioners herein was dismissed by the Board of Revenue by an order which can be said to be non-speaking. It is challenging these orders that the petitioners have tiled this Original Petition. 4. On the facts, it is clear that respondent No. 4 cannot claim any possession over the property after the delivery was effected on 29.1.1979. The delivery was not effected only in respect of the two extents claimed by two obstructors, one Sreedharan Nair and respondent No. 5 herein. 12 cents of property was actually delivered over from respondent No. 4, judgment debtor in O.S.400 of 1971. According to me, on the delivery being so effected, respondent No. 4 has lost whatever possession he had over the property and he cannot thereafter be heard to contend that he was in possession of the property. The fact that the decree holder Kumara Pillai Velayudhan Pillai tiled applications for removal of resistance offered by Sreedharan Nair and respondent No. 5 herein, two strangers and his contention that those obstructors were merely set up by respondent No. 4 the judgment debtor, would not in any manner alter the legal position that respondent No. 4, judgment debtor in O.S.400 of 1971, lost whatever possession he had when the property was delivered over as per Order in E.P. 260 of 1978. The contention of learned counsel for respondent No. 4 that in the Memorandum of Revision before the Board of Revenue, in ground No. 4, the petitioners have stated that the Appellate Authority ought to have found that respondent No. 4 herein is in possession as a trespasser must be taken to be an admission that respondent No. 4 herein was in possession, cannot be accepted. At best, it can be said that the contention of the petitioner was that even if he was in possession, it was only as a trespasser and he could not claim any right under the Act. At best, it can be said that the contention of the petitioner was that even if he was in possession, it was only as a trespasser and he could not claim any right under the Act. Moreover, the legal consequences of the delivery effected in execution of the decree in O.S.410 of 1971 cannot be effaced by the fact that a ground was taken by the petitioners in that manner in their Memorandum of Revision before the Board of Revenue. According to me, therefore, this is a case where respondent No. 4 cannot be found to be in possession (whether lawful or as a trespasser) on 6.8.1981, the date of the Act. He is bound by the delivery. Neither the Settlement Officer nor the Appellate Authority has considered the effect of the delivery in O.S.400 of 1971 as against respondent No. 4 and therefore their decision that respondent No. 4 is entitled to assignment under S.5 of the Act is clearly vitiated by errors apparent on the fact: of the record. The order of assignment made in O.A. 115 of 1982 is clearly one without jurisdiction. As regards respondent No. 5, he had only offered obstruction and it remained to he considered whether he was as a matter of fact in possession and if so under what right and while that adjudication was pending in the executing court, he rushed to the authorities under the Act with his application. He has also not adduced any evidence to establish that he was in possession of the property as on the appointed day. Merely because he offered obstruction, the authorities below were in error in observing that he must be held to be in possession. The order in O.A. 962 of 1982 is hence sustainable. Thus, on facts, this is a case where both the orders in O.A. 115 of 1982 and in O.A. 962 of 1982 are vitiated by errors apparent on the face of the record and the orders must be held to be ones without jurisdiction. This Original Petition is therefore liable to be allowed on that ground. 5. Thus, on facts, this is a case where both the orders in O.A. 115 of 1982 and in O.A. 962 of 1982 are vitiated by errors apparent on the face of the record and the orders must be held to be ones without jurisdiction. This Original Petition is therefore liable to be allowed on that ground. 5. The point on which this Original Petition was referred to me and on which the -two learned judges of this court differed, is whether the alleged possession of respondents 4 and 5 subsequent to the decree and delivery in O.S.400 of 1971 and before the applications for removal of obstructions could be heard and decided, would make them land holders within the meaning of the Act. On my finding, respondent No. 4 has no possession. Respondent No. 5 has only claimed possession. In the light of this, this aspect may not arise. But, since this is the aspect on which the Original Petition has been placed before me, I am answering that aspect also. 6. According to my learned brother Ramakrishnan, J. a person is a land holder only when he is lawfully holding a service inam land and the possession (alleged possession) of respondents 4 and 5 subsequent to the decree in O.S.400 of 1971, could not be held to be lawful and consequently, they could not be treated as land holders within the meaning of the Act and the persons who would be entitled to assignment would be the petitioners herein. According to my learned brother Patnaik, J. There was no reason to restrict: the meaning of the word 'to hold' defined in the Act and even the possession of a rank trespasser would enable a person who had got into the service inam land, to seek an assignment under the Act. While Ramakrishnan, J. relied on the decision in Budhan Singh v. Babi Bux (AIR 1970 SC 1880) and KM. Mathew v. Hamsa Haji (AIR 1987 SC 1326) in support of his conclusion, Patnaik, J. merely referred to those decisions and did not follow the ratio of those decisions stating that there was no compulsion to add the words 'lawful' before the words 'hold' in the Act. Mathew v. Hamsa Haji (AIR 1987 SC 1326) in support of his conclusion, Patnaik, J. merely referred to those decisions and did not follow the ratio of those decisions stating that there was no compulsion to add the words 'lawful' before the words 'hold' in the Act. In other words Patnaik, J. has held that even a rank trespasser into a service inam land even one week prior to the coming into force of the Act would be entitled to assignment under the Act. I will have therefore, to consider whether that is the legal position obtaining under the Act. 7 My learned brother Ramakrishnan, J. has considered in detail the relevant provisions of the Act and the scheme of the Act. The relevant provisions have also been quoted by brother Patnaik, J. I therefore, do not think it necessary to refer to the provisions of the Act all over again. With respect I am entirely in agreement with what has been stated by Ramakrishnan, J. on the scheme of the Act. 8.In construing the words of a statute there is always the presumption that the Legislature would not have intended the emerging of an unjust result by the words used in a statute. It is settled that while interpreting the words of a statute, the more reasonable interpretation ought to be adopted. The court also draws a presumption against injustice and any unjust result. Where the language of a statute in its ordinary meaning and gramatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. (See Tirath Singh v. Bachittar Singh, AIR 1955 S. C. 830). Both in Budhan Singh (AIR 1970 SC 1880) and in KM. Mathew AIR 1987 SC 1326) in a similar situation, the Supreme Court had interpreted the words 'to hold' as to 'lawfully hold'. It is on the basis that there is a presumption against conferring unjust benefit on a wrong doer. Here, respondent No. 4 had been clearly dispossessed in execution of a decree, He is bound by that decree and the delivery. He cannot be heard to say that he continues to be in possession after the delivery. It is on the basis that there is a presumption against conferring unjust benefit on a wrong doer. Here, respondent No. 4 had been clearly dispossessed in execution of a decree, He is bound by that decree and the delivery. He cannot be heard to say that he continues to be in possession after the delivery. Even assuming that he has got into possession, it can only be a getting into possession after the delivery, illegally and in defiance of the decree against him. The claim of such a person cannot be considered to be one that would make him eligible for raising a claim under the Act. I do not see anything in the Act which compels the court to come to such a conclusion or to reach such an unjust result. Similarly, respondent No. 5 in the present case is merely an obstructor to execution. He has not established his claim over the property. For that, he will have the opportunity during the course of the proceeding for removal of the obstruction in which the burden will be on him to establish his right to possession as well as his possession. Without establishing his right to possession and possession, he is also not entitled to claim that he is entitled to the protection of the Act. As I noticed on the facts of this case, there cannot be any difficulty in holding that respondents 4 and 5 are not entitled to raise any claim under the Act on the allegation that they are holding the land which is the subject-matter of. a grant. 9. Learned counsel for the respondents relying on the decision in U.N. Namboodiri v. State of Kerala (1988 (2) KLT 928) argued that in that case, it had been held that an alienee from an inam holder, though the alienation was illegal, would be entitled to the protection of the Act, to contend that the same principle should apply even in a case where a person has trespassed into the property. With respect, I am not able to accept the correctness of the decision in U.N. Namboodiri v. State of Kerala (1988 (2) 1998 (1) by a service inam holder which were invalid in terms of the Act. An action which is against the terms of a statute is clearly void in law and cannot be recognised by a court of law administering justice. An action which is against the terms of a statute is clearly void in law and cannot be recognised by a court of law administering justice. The Act clearly contemplates that there should be sanction from the Government before effecting transfers of the Inam lands and any transfer in contravention of a provision will have to be held to be void and if held void, there would be no question of such alienees acquiring any right over the property taken assignment of by them in the teeth of the statute. Moreover, in the present case, the alienees are not claiming an assignment from the original Viruthi holder. What respondent No. 4 claimed was based on a lease said to have been granted by his father which had been found to be invalid by the civil court in a properly contested litigation. Respondent No. 5 claims only to have got into possession of the property which claim he is yet to establish. In either case, the ratio of the decision in U.N. Namboodiri v. State of Kerala (1988 (2) KLT 928) cannot come to the rescue of the respondents. 10. on the scheme of the Act, I do not see any reason to hold that even a rank trespasser into the service inam land could be conferred the benefit of assignment under the Act as against the service inam holder himself. Such a construction would pay a premium on illegal entry into the property and there is no jurisdiction for giving such a meaning to the expression'to hold' occurring in the Act. If the contention of the respondents were to be accepted, a person who had trespassed into the property the day previous to the coming into force of the Act would also be entitled to claim an assignment on the ground that on the day of the coming into force of the Act he had got into possession of the property though it might be by way of trespass. Acceptance of such a contention would lead to absurd results and will go against all settled norms of law and justice recognised by the Courts. As I noted, there is no compelling circumstance which leads the court to come to such a conclusion. Acceptance of such a contention would lead to absurd results and will go against all settled norms of law and justice recognised by the Courts. As I noted, there is no compelling circumstance which leads the court to come to such a conclusion. I am therefore of the view that the expression 'to hold' contained in S.2 of the Act means 'to lawfully hold' and would not take in the wrongful possession of a trespasser or a person who had already been dispossessed in execution of a decree. 11. counsel for respondents 3 and 4 relies on the explanation to S.2(c) of the Act defining a'landholder'. A person in possession shall be deemed to be a land holder, emphasises counsel. I see nothing in the explanation which precludes the court from understanding the expression 'possession' as 'lawful possession'. With respect, I am in full agreement with the view expressed by brother Ramakrishnan, J. on this aspect. The explanation cannot carry the case of the respondents further. 121 have therefore, no hesitation in holding that respondent No. 4 is not entitled to the assignment sought for by him from the authorities under the Act. Respondent No. 5 has also not made out his claim under the Act but it will be open to him to approach the authorities under the Act under the conclusion of the enquiry into the obstruction he has put forward before the executing court and which awaits adjudication at the hands of the executing court. In case respondent No. 5 herein succeeds in his obstruction finally, then it will be time enough for him to approach the authorities under the Act for assignment and then it will be lime enough for the authorities, after giving notice to the other persons interested to take a decision on the claim of respondent No. 5. Of course if the obstruction offered by respondent No. 5 is ordered to be removed by the civil court there will be no question of respondent No. 5 being in a position to apply under the Act. 13. In the view I have taken, all that is required to be done is to allow this Original Petition and to quash the orders Exts. P1, P2 and P4 and dismiss O. A. Nos. 115 of 1982 and 962 of 1982. The application O.A. 624 of 1982 has been dismissed only in view of O.A. Nos. 13. In the view I have taken, all that is required to be done is to allow this Original Petition and to quash the orders Exts. P1, P2 and P4 and dismiss O. A. Nos. 115 of 1982 and 962 of 1982. The application O.A. 624 of 1982 has been dismissed only in view of O.A. Nos. 115 of 1982 and 962 of 1982 being allowed. Hence, the order on O.A. 624 of 1982 is also set aside and that application remitted to the Settlement Officer, Service Inam Lands, Trivandrum for a fresh disposal in accordance with law and in the light of the decision in this Original Petition. In the circumstances of the case, I make no order as to costs.