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2001 DIGILAW 309 (KER)

Kunhikannan v. Thevarath Ambu

2001-06-19

K.A.MOHAMED SHAFI

body2001
ORDER K.A. Mohamed Shafi, J. 1. This C.R.P. is directed against the order in I.A.7/1978 dated 12-10-1984 in S.M.No.917/77 passed by the Land Tribunal-I, Kangangad. The 1st respondent in the LA. and the petitioner in the S.M. Proceedings is the revision petitioner. 2. 77 cents of land comprised in R.S,No.260/9 of Hosdurg Village was assigned in favour of the petitioner as per the order in S.M.P. 917/77 in the joint application filed by the petitioner and respondents 3 to 7 herein. Respondents 1 and 2 being 3rd party challenged the order in the S.M. Proceedings before the Appellate Authority, Cannanore in A.A. 195/1979. The appellate authority found that appeal under S.102 of the Land Reforms Act is not sustainable since the impugned order was passed by the Land Tribunal under Sec.72MM (3) of the Land Reforms Act. Accordingly the appeal was dismissed as not maintainable, directing the appellants to seek remedy under Sec.72MM(7) of the Land Reforms Act before the competent authority within 90 days of the receipt of a copy of that judgment. Accordingly, the 3rd party appellants filed IA.7/78 before theLand Tribunal in SMP 917/ 77. The Land Tribunal after enquiry found that the 1st respondent - revision petitioner herein is only a co-owner and he is not entitled to purchase the jenmom tight in the property exclusively in his name and set aside the certificate of purchase already issued to him by order dated 12-10-1984. That order was challenged by the revision petitioner in A.A.1/85 before the Appellate Authority. Respondents 1 and 2 produced the certified copy of the judgment of this court in S.A.523/85 before the Appellate Authority. On the basis of the findings of this court that the revision petitioner herein has not proved the alleged oral lease set up by him in favour of his mother, dismissed the appeal confirming the order passed by the Land Tribunal. Hence this C.R.P. is preferred by the 1st respondent before this court. 3. According to the revision petitioner, the plaint schedule property belonged to one Ambady on jenmom right and it was outstanding on illidarvar right with one Morarji and Seetharamayya in the year 1864. There were legal proceedings against them and M/s. Venkal Subha Rao and K.P. Rama Rao were appointed as liquidators. 3. According to the revision petitioner, the plaint schedule property belonged to one Ambady on jenmom right and it was outstanding on illidarvar right with one Morarji and Seetharamayya in the year 1864. There were legal proceedings against them and M/s. Venkal Subha Rao and K.P. Rama Rao were appointed as liquidators. According to the petitioner, as per the registered assignment deed dated 4-10-1918 the liquidators assigned the arwar right belonged to Morarji and Seetharamayya to one Kannan, S/o. Ambady. Kannan assigned the property in favour of his sister Vellachi and nephew Achuthan as per the registered assignment deed dated 30*11-1932. Karichi, the mother of the petitioner obtained oral lease of the property from Vellachi and Achuthan. Karichi died and petitioner herein is her only son and legal representative. The legal representatives of Vellachi and Achuthan were the respondents in S.M. 917/77. Accordingly the joint application in Form J was filed between the petitioner and the respondent in the S.M. Proceedings and purchase certificate was issued in favour of the petitioner. 4. The respondents 1 and 2 who were not parties in the S.M. Proceedings filed A.A. 195/79 before the Appellate Authority, Cannanore and the same was dismissed stating that the respondents 1 and 2 can agitate their contentions under Sec.72MM(7) of the Kerala Act 1/1964 as amended on 9-11-1981. While I.A.7/78 filed by the respondents 1 and 2 was pending consideration before the Land Tribunal, the petitioner herein filed O.S.266/78 before.the Munsiff's Court, Hosdurg seeking permanent prohibitory injunction against respondents 1 and 2 herein. The trial court dismissed the suit by judgment dated 20-12-1980. The lower appellate court in A.S.36/81 reversed the judgment of the trial court and decreed the suit as prayed for by the plaintiff. The defendants in the suit preferred S.A.523/85 before this court and this court by judgment dated 12-6*1990 found that the oral lease in favour of the petitioner's mother is not proved, though title and possession of Vellachi and Achuthan as assignees of Kannan were upheld. 5. Respondents 1 and 2 contended that the property belonged to the tharawad of Ambady and as per the registered moolageni lease dated 11-8-1915 executed by Ambady and another the property demised to Karichi, Chirutha and Manickom with l/3rd share each. Karichi died leaving her only son Alamy who also died. 5. Respondents 1 and 2 contended that the property belonged to the tharawad of Ambady and as per the registered moolageni lease dated 11-8-1915 executed by Ambady and another the property demised to Karichi, Chirutha and Manickom with l/3rd share each. Karichi died leaving her only son Alamy who also died. Krishnan & Kumaran are the children of Alamy and therefore, they are entitled to l/3rd share in the property. Chirutha died leaving the petitioner's mother Karichi as her only heir. The petitioner being the son of Karichi is entitled to l/3rd share in the property.Manickom died and respondents land 2 are her legal representatives. So according to the respondents, the petitioner, respondents, Krishnan & Kumaran are coowners of the plaint schedule property. The lower appellate court found in A.S.36/81 that the kanam demise dated 11-8-1915 by Ambady to Kanchi, Chirutha and Manickom alleged by the respondents is a sham document not taken effect and the petitioner is in possession of the property as per the assignment deed executed by the liquidators of Morarji and Seetharamayya who assigned the property in favour of Kannan on 4-10-1918 and by Kannan to Vellachi and Achuthan as per registered assignment deed dated 30-11-1932. This court by judgment in S. A.523/85 dated 12-6-1990 though found that Vellachi & Achuthan were in possession as assignees of Kannan, the oral lease in favour of the mother of the petitioner is not proved and reversing the judgment of the lower appellate court, dismissed the suit. 6. The counsel for the revision petitioner vehemently submitted that it is not in dispute that the respondents in the S.M. Proceedings who are respondents 3 to 7 herein, are the legal representatives of Vellachi and Achuthan, whose right in the property as assignees of Kannan is upheld by this court in S.A.523/85. Therefore, according to him, since Sec.72MM of the Land Reforms Act contemplates assignment of the landlord's right to the tenant by mutual agreement, the assignment of the jenmom right in favour of the petitioner as per the S.M. Proceedings is perfectly legal and valid and has to be upheld since there is no rival claimant as tenant in this case. According to him, Sec.72MM(7) contemplates application to set aside the order passed by the Land Tribunal under Sec.72MM(3) only by any person affected by the order of the Land Tribunal. According to him, Sec.72MM(7) contemplates application to set aside the order passed by the Land Tribunal under Sec.72MM(3) only by any person affected by the order of the Land Tribunal. Therefore, according to him, respondents 1 and 2 herein who are not affected parties by the assignment of the landlord's right belonged to Vellachi and Achuthan devolved upon respondents 3-to 7 herein are not entitled to challenge the assignment. He further submitted that if at all the respondents 1 and 2 being the ultimate jenmy under the arwar executed in favour of Morarji and Seetharamayya, can claim at best only the landlord's share in the jenmom rights even if they are members of the tarwad, since the jenmom right in the property vested in the Government under Sec.72 of the Land Reforms Act as on 1-1-1970. Therefore, according to him, respondents 1 and 2 cannot make any claim under Sec.72MM(7) of the Act on the basis that they had no notice of the S.M. Proceedings and they can claim their share of purchase price from the legal representatives of Vellachi and Achuthan. 7. This contention of the petitioner is not sustainable. The assignment of the jenmom right in the tenanted property under the provisions of the Land Reforms Act including by mutual agreement as provided under Sec.72MM is only 'between the landlord and the tenant as contemplated under Kerala Act 1/64 as amended. Once a person is found to be not a tenant in respect of the property in question, he cannot approach the Land Tribunal with joint application in J Form by mutual agreement with the jenmies of the property for assignment of the jenmom right in the property. The provisions of the Land Reforms Act have no application to cases in which no tenancy in respect of the property is involved. Of course the jenmom right in the property can be conveyed by the jenmies of the property to anybody by any of the methods envisaged under the law of conveyance of property. Therefore, the very joint application in Form J preferred by the petitioner and respondents 3 to 7 in this case for assignment of jenmom right in the property in favour of the petitioner is incompetent and the Land Tribunal had no jurisdiction to entertain such application and to pass orders assigning the jenmom right in the property. Therefore, the very joint application in Form J preferred by the petitioner and respondents 3 to 7 in this case for assignment of jenmom right in the property in favour of the petitioner is incompetent and the Land Tribunal had no jurisdiction to entertain such application and to pass orders assigning the jenmom right in the property. Therefore, the order passed by the Land Tribunal in the S.M. Proceedings being null and void as passed without jurisdiction, the Land Tribunal is perfectly justified in setting aside the order assigning jenmom right in favour of the petitioner and the purchase certificate issued in favour of the petitioner. The observation made by the Land Tribunal in the Order in I.A.7/78 that the petitioner and respondents 1 and 2 are coowners of the property along with others is not sustainable, in view of the authoritative pronouncement of this court in S.A.523/85 to the effect that respondents 1 and 2 have no right in the property as per the sham kanam demise alleged by them and Vellachi and Achuthan, the predecessors-in-interest of respondents 3 to 7 in this C.R.P. who are the respondents in the S.M. Proceedings are in possession of the property as assignees under Kannan. 8. The counsel for the petitioner submitted that the order passed by the Land Tribunal by merely setting aside the order of assignment Of jenmom right under Sec.72MM(7) is incorrect and if at all, the Land Tribunal found that the order passed by it assigning jenmom right in favour of the petitioner herein is liable to be set aside, the matter should have been proceeded under Sec.72F of the Act to determine about the assignment of jenmom right in the property. 9. This contention raised by the petitioner cannot be sustained in this case. If the petitioner is not a tenant entitled to purchase jenmom right in the property under the provisions of the Land Reforms Act and the joint application filed in J Form under Sec.72MM of the Act is liable to be dismissed, there is no question of further adjudication as to whether the petitioner is entitled to purchase jenmom right in the property under the provisions of Sec.72F of the Act. In view of what is stated above, it is clear that there is absolutely no ground to interfere with the order passed by the Land Tribunal, confirmed by the Appellate Authority, in I.A.7/78 dismissing the joint application in J form filed by the petitioner for purchase of jenmom right in the petition schedule property and setting aside the purchase certificate issued to him as per the order in the S.M. Proceedings in this revision petition. Therefore, this revision petition is dismissed. It is made clear that the order passed in this revision petition will not stand in the way of the petitioner purchasing the rights of respondents 3 to 7 herein in the property inherited by them from Vellachi and Achuthan as assignees of Kannan, as found by this court inS.A.523/85 on any mode prescribed under the law of conveyance of property.