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2003 DIGILAW 697 (KER)

Mohammed Koya v. Bichikoya

2003-11-11

R.BHASKARAN

body2003
JUDGMENT 1. This second appeal is filed by the plaintiff in a suit for injunction. The suit was decreed by the Trial Court; but in appeal the decree was set aside and the suit was dismissed. 2. According to the plaintiff, the plaint schedule property belonged to Kesava Menon. Kuttiassan was the lessee under Kesava Menon. After his death, in a partition, the plaint schedule property was partitioned among his legal heirs. The plaint schedule property was allotted to the defendant. The defendant orally entrusted the property to Veerankutty Mulla in 1976 and Veerankutty Mulla assigned the property to the plaintiff in 1986. He also obtained certificate of purchase from the Land Tribunal. Since the defendant and his men attempted to trespass into the plaint schedule property, the suit was filed. 3. The defendant contended that the oral entrustment in favour of the father inlaw of the plaintiff in 1976 is untrue. The plaintiff has no possession of the property and the plaintiff did not get any right on the basis of the assignment from his father inlaw. Before the Land Tribunal, the defendant was not a party. The Trial Court did not believe the oral evidence on either side. According to the Trial Court, since the defendant did not take any step to get himself impleaded in the proceedings before the Land Tribunal and on the basis of the tax receipts produced by the plaintiff, the suit was decreed. The appellate court reversed the Judgment of the Trial Court on the ground that there was no oral assignment of the right of the 1st defendant and plaintiff did not succeed in proving possession as on the date of suit. 4. In this second appeal, it is contended that the appellate court went wrong in discussing title in a suit for injunction. It is also contended that the purchase certificate was issued after getting a report from the Revenue Inspector which showed possession of the property with the plaintiff. The learned Counsel for the appellant also relied on the decision of this Court in Lakshmi v. Viswanathan ( 1999 (2) KLT 621 ). It is also contended that the purchase certificate was issued after getting a report from the Revenue Inspector which showed possession of the property with the plaintiff. The learned Counsel for the appellant also relied on the decision of this Court in Lakshmi v. Viswanathan ( 1999 (2) KLT 621 ). In that decision it is held that certificate of purchase is conclusive proof of possession as well and unless the certificate is set aside by a competent authority or in a Court of law, statutory enforcement in terms of S.(2) has to be honoured and a person claiming on the basis of such purchase certificate has to be taken as in possession of the properties. The certificate of purchase was obtained pending the suit. A Full Bench of this Court in Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 ) has held that in a simple suit for injunction the court is concerned with the question of possession and the nature and character of the possession is immaterial. Following the Full Bench decision, a Division Bench of this Court in Eldho v. Alias (ILR 2003 (3) Ker. 604) has held that in a suit for injunction, possession only is relevant. Even if there is a statutory prohibition under S.4(2) of the Benami Transactions (Prohibition) Act, and no defence based on any right under benami claim or action by or on behalf of a person claiming to be the real owner of such property shall be allowed in any suit, the plaintiff will not get a decree for injunction unless he proves possession of the suit property as on the date of suit. In this case as on the date of suit no certificate of purchase was obtained by the plaintiff. Moreover, what S.72K of the Land Reforms Act states is that the certificate of purchase is conclusive proof of assignment to the tenant of the "right, title and interest of the landowner and intermediary". It does not say that the certificate of purchase is conclusive proof of possession of the person to whom the certificate is issued. 5. In the present case, the defendant was the admitted tenant. His oral assignment or oral lease in 1976 to Veerankutty Mulla even if it is true is invalid in law. Therefore, the subsequent sale by the oral assignee is also invalid. 5. In the present case, the defendant was the admitted tenant. His oral assignment or oral lease in 1976 to Veerankutty Mulla even if it is true is invalid in law. Therefore, the subsequent sale by the oral assignee is also invalid. When the Land Tribunal issues a certificate of purchase to such an assignee, it can be seen that the certificate of purchase is inaccurate on its face. In a similar case in Sree Karikad Devaswom v. Wandoor Jupiter Chits ( 1980 KLT 760 ), M. P. Menon, J. has held that when the tenancy was created in 1969 when S.6 C of the Act was not in the legislative anvil and a certificate of purchase is issued by the Land Tribunal, there is inaccuracy writ large on its face and a court can declare it as invalid especially when the landlord was not given notice of the application for purchase of landlord's rights. This decision was followed in Chacko v. Joseph (1986 KLT SN 34). 6. In Shahul Hameed v. Lakshmi (1987 (1) KLT SN 17 Case No. 31), Padmanabhan, J., has held that non compliance with the provisions of the Act and the Rules and denial of natural justice to the affected party will also take away the conclusiveness of the certificate of purchase. The conclusiveness of the certificate of purchase again came up before a Division Bench of this Court in George v. State of Kerala (1987 (1) KLT SN 50 Case No. 67) wherein it was held that it is not conclusive as against a person to whom individual notice is not issued. 7. In C. Veettil Ammad v. Taluk Land Board ( AIR 1979 SC 1573 ), the Supreme Court held that conclusive proof under S.72K only means that no contrary evidence shall be effective unless the so called conclusive proof is inaccurate on its face or fraud can be shown. This decision was followed by the Supreme Court in Cheeranthody Ahammed Kutty v. Parambath Mariyakutty Umma ( AIR 2000 SC 1853 ). After referring to the conclusiveness of the certificate of purchase it was held that in the absence of any material to doubt the correctness of the certificate of purchase, the learned Single Judge should have given due weight to those documents as law enjoins. 8. After referring to the conclusiveness of the certificate of purchase it was held that in the absence of any material to doubt the correctness of the certificate of purchase, the learned Single Judge should have given due weight to those documents as law enjoins. 8. Since in this case the pleading is that the plaintiffs predecessor claimed tenancy right under an oral entrustment in 1976 which is hit by S.74 of the Kerala Land Reforms Act and in the assignment deed it is described as an oral sale which is also invalid in law and the certificate itself was obtained pending the suit and without notice to the defendant there is inaccuracy writ large in the certificate of purchase and it has lost its conclusiveness in the light of the various decisions referred to herein before. At any rate, a certificate of purchase obtained after the filing of the suit cannot be conclusive proof of possession of plaint schedule property as on the date of suit. Therefore the decision in Lakshmi v. Viswanathan ( 1999 (2) KLT 621 ) will not apply to the facts of this case. 9. With regard to the other items of evidence adduced by the parties the appellate court has appreciated both oral and documentary evidence and in the matter of appreciation of evidence regarding possession the decision of the first appellate court is final and is not liable to be interfered in second appeal as there is no substantial question of law involved in it. Therefore, it is not necessary to discuss in detail about the evidence on both sides. The documents produced are of the year 1986 and thereafter for the same period defendants has also produced documents to show possession. Plaintiffs father in law had other properties in the same survey number and the oral evidence on the side of the plaintiffs was found to be unbelievable by the lower appellate court. In the above view of the matter, I do not find any reason to interfere in the second appeal and it is dismissed without any order as to costs.