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2012 DIGILAW 898 (KER)

Korath v. Elias

2012-09-28

K.VINOD CHANDRAN

body2012
ORDER K. Vinod Chandran, J. 1. The revision petitioner sought for fixity of tenure as a cultivating tenant before the Land Tribunal under the Kerala Land Reforms Act(for short the 'KLR Act'). The claim set up by the revision petitioner before the Land Tribuanal was through his father Paulo who is said to have been granted a tenancy by the original landlord(Ittikuriyathh); of 70 cents of property. Paulo having cultivated the said land in his life time; the same devolved on his son, the revision petitioner, on Paulo's death. Paulo and Korath had been cultivating the said land continuously and had been the tenants in occupation of the said lands. Korath, is a cultivating tenant entitled to cultivate the said lands as visualised by the KLR Act. 2. The respondents herein who were the great- grandchildren of Ittikuriyathh set up a claim that Ittikuriyathh had in fact by a will of the year 1957 set apart these properties for them and they being minors, at that point of time, their father Paulose had been looking after the affairs of the said property. The said Paulose was originally the respondent in the revision petition and having taken up the said contention on behalf of his children, the revision petitioner impleaded the respondents herein. The defence set up by the father and children who were the respondents before the Tribunal was that the father having been in possession of the said property on behalf of the minors, was incompetent to create any tenancy which the claimant could claim as having crystallized under the Act. 3. The Land Tribunal having found against the claimant, the claimant was in appeal before the appellate authority twice, which ended in remand. The appellate authority in the second round; by order dated 31.12.1985 in LRA 116/1982 remanded the matter to the Land Tribunal, however, with certain observations. The Land Tribunal took up the matter afresh and permitted both parties to lead evidence. PW1 to PW4 were examined on the side of the claimant. Alias, one of the great-grandchildren of Ittikuriyathh, the first respondent herein, was examined as RW1. The Land Tribunal rejected the claim of the tenant which was confirmed in appeal by the appellate authority. The appellant is before this court in revision from the above orders. The questions of law raised by the revision petitioner are re-framed as hereunder:- 1. Alias, one of the great-grandchildren of Ittikuriyathh, the first respondent herein, was examined as RW1. The Land Tribunal rejected the claim of the tenant which was confirmed in appeal by the appellate authority. The appellant is before this court in revision from the above orders. The questions of law raised by the revision petitioner are re-framed as hereunder:- 1. Whether the Land Tribunal and the appellate authority were correct in their finding that the claimant failed to esatablish the tenancy from the year 1941 by Ittikuriyathh to Paulo and also in the finding that the further lease admitted by Paulose, the first respondent to the claimant in the year 1960 was bad for the reason of Paulose being incompetent to create such a tenancy on the subject lands? 2. Are not the orders impugned vitiated for non-consideration of relevant materials? 3. Whether reliance placed on the Will and the recitals to find that the claimant's tenancy is not correct since the same has not been mentioned in the Will, is proper and would not such finding be perverse? 4. Whether by the specific recital in the Will it could be found that Paulose had not been holding the said property merely as a guardian of his minor children and was it not evident, on the contrary that Paulose had been conferred with absolute rights in his life time? 5. Whether the Land Tribunal could have granted resumption of land as per its order in the context of there being no such application and whether for that sole reason is not the order of the Land Tribunal vitiated? 4. I have heard the learned counsel for the revision petitioner Sri.N.M. Mohamed Ayub as also the learned senior counsel Sri. N.N. Sugunapalan for the respondents. At the outset the learned senior counsel would submit regarding the last question framed; that, it cannot for a moment be said that the resumption of lands has been ordered by the Land Tribunal. According to him the resumption of land can be applied for by the landlord only as against the cultivating tenant. In the context of the Land Tribunal and the appellate authority having not found the claimant to be a cultivating tenant; there is no question of the Land Tribunal granting such resumption. It cannot at all be disputed that for recovery of possession the respondents may have to approach the proper civil forum. In the context of the Land Tribunal and the appellate authority having not found the claimant to be a cultivating tenant; there is no question of the Land Tribunal granting such resumption. It cannot at all be disputed that for recovery of possession the respondents may have to approach the proper civil forum. In this context, this Court feels that that question does not at all arise in the above revision and a passing reference to the entitlement of resumption does not by itself vitiate the entire order. 5. The main thrust of the arguments of the leaned counsel for the petitioner is regarding the appreciation of evidence by the authorities below as also the reliance placed on the recitals in the Will. The Land Tribunal noticed the evidence of PWs 1 to 4. PW1 was the claimant himself who spoke about the lease granted by Ittikuriyath to his father Paulo. Paulo had been cultivating the land during his life time and after that PW1. PW1 deposed about the improvement made in the said land and also produced two rent receipts issued by Paulose, the father of the respondents to PW1, PWs 2 and 3 were persons of the locality who deposed to the effect that they were aware of the fact that Paulo was cultivating the land during his life time and later the claimant, PW1. PW4 again was the labourer who had worked in the said land under Paulo as also the revision petitioner. After noticing the evidence of these witnesses the Land Tribunal went on to consider the Will. The Land Tribunal specifically extracted the portion of the Will which states that the properties so willed would remain with the possession of the executant during his life time. The Land Tribunal strangely found that if any tenancy had been created, then, that would have found mention in the said Will. The evidence of PW1 to PW4 were brushed aside on the finding that PWs 2 to 4 had no knowledge about the pattam arrangements between Ittikuriyath and the father of the claimant. It was also held that there is no evidence as to the exact date on which the pattam arrangement was actually made. The evidence of PW1 to PW4 were brushed aside on the finding that PWs 2 to 4 had no knowledge about the pattam arrangements between Ittikuriyath and the father of the claimant. It was also held that there is no evidence as to the exact date on which the pattam arrangement was actually made. Again the recitals in B1 Will was considered and the pious wish of the executant regarding his intention to set apart the C schedule properties in the said Will for his great grand children Alias and George was noticed. Since Alias and George were minors on the date when the Act came into force any tenancy created by their father before the Act came into force was incompetent, was the finding. That would disentitle the claimant, to make a claim for fixity of tenure under the provisions of the Act. The appellate authority concurred with the view of the Land Tribunal, again mainly for the reason that the Will of Ittikuriyath did not mention about the pattam arrangement. 6. It is trite that Section 103 of Act does not confer any power on this Court to re appreciate the evidence led before the fact finding authority. It is also trite that any appreciation of evidence which is perverse and which does not emanate from the evidence on record would enable this Court to interfere with the orders of the fact finding authority; treating the same as a question of law.The mere fact that niceties of facts would have to be examined would not for that sole reason stay the hand of this Court from looking into whether the conclusions arrived at by the fact finding authorities, are one possible and reasonable from the evidence on record. This Court also has a duty to examine if any immaterial and irrelevant considerations weighed with the lower authority and if that is eschewed then, would it lead to a different conclusion; however not amounting to re-appreciation of evidence. 7. The first issue would be as to whether the authorities below were correct in disbelieving PWs 1 to 4. PW2 to 4's evidence was refused to be relied upon only for the reason that they did not know about the exact pattam arrangement. That the lands were in the possession of the father and the son were quiet evident from their evidence. PW2 to 4's evidence was refused to be relied upon only for the reason that they did not know about the exact pattam arrangement. That the lands were in the possession of the father and the son were quiet evident from their evidence. It was also evident that the father in his life time and afterwards the son were cultivating in the property. There is also an admission by Paulose the grandson of Ittikuriyath, and beneficiary of Ext.B1 Will, that he had leased out the property to the son, Korath after the death of Ittikuriyath and that he had obtained rent for the cultivation carried on by Korath in the said lands. This is also evident from the suggestions put to PW1 in cross- examination. PW2 and PW3 spoke of the knowledge of cultivation carried on in the subject land by Paulo and his son Korath. PW4 spoke about the pattam arrangement between Ittikuriyath and Paulo and also that he had taken the paddy on behalf of Paulo to Ittikuriyath. The evidence led by the claimants in its entirety was disbelieved only on the ground that the Will executed by Ittikuriyath did not speak about the tenancy created in the lands. For one, this Court cannot assume that Ittikuriyath would have spoken everything with respect to the lands in his possession and which he intended to convey to his heirs on his death; especially about a tenancy. Nor is there any reason for such disclosure in the Will. 8. The pious feelings behind the intention of settling certain properties on his great grandchildren for the reason that he had used for himself the Sthreedhanam which their mother brought into the family cannot at all be questioned. However, if a tenancy had been created in such lands and by operation of law the tenants in such lands are entitled to claim for fixity of tenure; the rigor of such law cannot be diluted merely on the ground of piety displayed by a gracious old man. The provisions of law necessarily would take effect, whatever the hardship caused. 9. Looking at Ext.B1 Will and the recitals contained therein, it cannot at all be said that the properties were intended to devolve upon the minor-great-grandchildren of the executant, immediately on the executants death. Ittikuriyath had two children, Annam and Mathiri. Annam his daughter and also his wife of the same name predeceased him. 9. Looking at Ext.B1 Will and the recitals contained therein, it cannot at all be said that the properties were intended to devolve upon the minor-great-grandchildren of the executant, immediately on the executants death. Ittikuriyath had two children, Annam and Mathiri. Annam his daughter and also his wife of the same name predeceased him. At the time of execution of Ext.B1 Will he intended that the properties he owned and possessed would devolve upon Mathiri, his daughter and Paulose his grandson, through his deceased daughter Annam. He specifically excluded another granddaughter Maria. After specifically stating his intention to divide his properties between his daughter Mathiri and grandson Paulose, he scheduled 70 cents of property separately as C schedule. The recital in the Will would show that he intended that this property was set apart for his great grandsons, the sons of Paulose; Alias and George. But he also intended that on his death Paulose would get possession of the properties and the great grandchildren would only get absolute possession and enjoyment on the death of the said Paulose. The contention raised before the authorities below that the creation of tenancy by Paulose who was only managing the affairs of the property as father of the minors would be incompetent, hence, cannot be sustained. 10. Paulose had interest over the property and he also had interest which could have created a tenancy in the said land. Paulose admits having inducted the revision petitioner into the land as a tenant and also having received rent for the same for which valid receipts were issued. Of course, Paulose also has a claim that the rent receipts were issued only for the purpose of enabling the revision petitioner to be a ration card holder. In any event, the possession of the father and the son cannot at all be disputed on the strength of the overwhelming evidence of PWs 2 to 4. The fact that they were cultivating the said lands also is a fact evident from the evidence of PWs 2 to 3. As noticed above, the only finding which upset the evidence according to the lower authorities was the absence of a recital in the Will which would indicate a tenancy in C schedule property. As held above, the absence of such recitals in the Will cannot lead to any adverse inference being drawn against the claimants. As noticed above, the only finding which upset the evidence according to the lower authorities was the absence of a recital in the Will which would indicate a tenancy in C schedule property. As held above, the absence of such recitals in the Will cannot lead to any adverse inference being drawn against the claimants. Even going by the recitals in the Will it is evident that Paulose had possession of the properties after the death of Ittikuriyath. The deposition of Paulose also would indicate that from 1957 onwards Paulose had been managing the affairs of the land. 11. It is also to be noticed that in the earlier proceedings which ended in a remand order by the appellate authority, specific findings were made with respect to the possession of the property by the father and the son as cultivating tenants from 1941 onwards. The matter was remanded specifically with the above observation for fresh consideration to the Land Tribunal. The learned counsel for the revision petitioner would contend that in the light of the respondents having not challenged the said order, they are not entitled to turn around and contend against the clear findings entered into by the appellate authority. Even the Land Tribunal ought not to have entered into the rowing enquiry as far as the findings in the earlier order is concerned. The learned senior counsel however, would say that such a contention cannot be accepted for two reasons. The order of the appellate authority in LRAs No. 116/1982 cannot be considered to be a final order which could be challenged under Section 103. He also places reliance on the decisions reported in Kothamma v. Kunjihetti, 1973KLT 390, Joseph v. Velayudhan Pillai, 1976 KLT 870 and Bhaskara Menon v. Gangadharan, 1983 KLT 435 . The second reason projected is that merely for the reason that there were findings against the respondents, that alone was no ground for filing an appeal or revision and as held by the Supreme Court, the respondents could assail such findings before an appellate court in the appeal filed by the other side, even though a specific appeal was not filed. The leaned senior counsel relies on C.Cheriyathan v. P. Narayanan Embranthiri, 2009 (2) SCC 673 to advance the said proposition. 12. The leaned senior counsel relies on C.Cheriyathan v. P. Narayanan Embranthiri, 2009 (2) SCC 673 to advance the said proposition. 12. The learned counsel for the revision petitioner, however, would point out a decision of a learned Single Judge of this Court in Mahadeva iyer & others v. Bhagavathi Ammal & others, 1979 KLT 910 , which; specifically dealt with the issue of a revision being filed from an order of the appellate authority under the KLR Act. In the said decision, the learned Single Judge held that the literal understanding of subsection (I)(i)of Section 103 only means that there must be an appeal from the Land Tribunal and the appellate order should be a final order as distinguished from an interlocutory order. The final order having disposed of the appeal necessarily it can be subject of challenge in revision under Section 103. The learned counsel for the revision petitioner also would take me to Mammu v. Hari Mohan and another, 2000 (2) SCC 32 wherein the Hon'ble Supreme Court approved this position and held that it was not correct to say that under the KLR Act, no revision petition could be filed against the order of remand by the first appellate authority. Joseph v. Velayudhan Pillai, 1976 KLT 870 and Bhaskara Menon v. Gangadharan, 1983 KLT 435 were overruled by the Supreme Court. Mahadeva iyer & others v. Bhagavathi Ammal & others, 1979 KLT 910 was approved. It is too late in the day to contend that the respondent in LARS 116/1982 could not have filed a revision against the order in appeal. In any event, the remedy under Article 227 was available as has been held in the decision reported in C.Sharadha v. State of Kerala & others, 2007 (1) KLJ 498 . The respondents cannot say that the order could not have been subject to a revision under Section 103 at this point. They suffered the appellate order and what has been held against them holds good even in subsequent proceedings. 13. The other contention with respect to the earlier appellate order is that even without an appeal the findings could be assailed by the aggrieved party in the appeal by the other person. C.Cheriyathan's case (supra) was one in which the plaintiff approached the Munsiffs Court for redemption of mortgage and partition in respect of his half- share. 13. The other contention with respect to the earlier appellate order is that even without an appeal the findings could be assailed by the aggrieved party in the appeal by the other person. C.Cheriyathan's case (supra) was one in which the plaintiff approached the Munsiffs Court for redemption of mortgage and partition in respect of his half- share. The respondents took up the contention that the deed executed by the plaintiff was not in the nature of a mortgage and it was in the nature of a sale. The trial court having opined that the transaction represented a sale, the suit was rejected. The plaintiff was in appeal before the first appellate authority which confirmed the rejection of the suit but held that the deed in effect was a mortgage by conditional sale. But the plaintiff was dis-entitled for redemption since he failed to repurchase the property within a period of three years. In second appeal the High Court confirmed the concurrent decisions and interpreted the document as the first appellate court did. Before the Supreme Court it was found that the deed was not in effect a mortgage but a sale as held by the trial court. It was the contention of the plaintiff in the Supreme Court that the defendant could not take up such a contention since he had not filed an appeal from the findings of the first appellate authority It was in this context that the Supreme Court said that since the ultimate result of the proceedings went in favour of the defendant/respondent; there was no necessity for filing an appeal against any findings entered against him and he could as well assail it in the appeal filed by the other party. 14. That proposition, considering the proceedings in this case, according to me will not be applicable. Here, the order of the Land Tribunal had once suffered an open remand and had again reached the appellate authority, wherein the respondents were ex-parte despite notice. Findings were entered into by the appellate authority regarding the possession of the father and the claimant herein. After noticing the contention of either side in paragraph 3, the order dated 31.12.1985, available in the records, would show that, the appellate authority had specifically found that the possession continues with the father of the applicant and after that with the applicant. After noticing the contention of either side in paragraph 3, the order dated 31.12.1985, available in the records, would show that, the appellate authority had specifically found that the possession continues with the father of the applicant and after that with the applicant. It was specifically directed that the nature of long possession from 1941 by the applicant is to be considered. The order of remand also set aside the order in the O.A and remanded it for fresh consideration, specifically with "the above observation". It went back to the Land Tribunal. The Land Tribunal could not have entered any other finding regarding the possession. The order of the Land Tribunal was challenged before the first appellate authority and now before this Court. It is not as if the respondent is assailing any findings against him in the proceedings from which the present revision arises, despite the proceedings before the lower authorities went in his favour. Though relating to the same subject matter the first proceeding had gone up to the appellate authority and the same was remanded with certain observations. Neither the applicant nor the respondent challenged the said order. The findings entered in to in the said order inter-parties would survive. Neither parties could challenge it in a separate proceeding. 15. In any view of the matter it has also been found by this court that the rejection of the claim of the applicant as a cultivating tenant under the Act was not one which was reasonably possible from the evidence recorded by the authorities below. The recitals in the Will rather the non- mentioning of tenancy could not have been accepted as the gospel truth by the lower authorities, and the reliance placed on it is clearly erroneous. The absence of any reference to tenancy created by the executant of the Will does not totally efface such tenancy. On facts it has been convincingly established before the authorities below that the petitioner and before him his father had been in possession of the said lands and had been cultivating the same or at least entitled to cultivate the same. The fixity of tenure claimed by the applicant could not have been rejected by the Land Tribunal. 16. The questions of law are to be answered in favour of the revision petitioner. The fixity of tenure claimed by the applicant could not have been rejected by the Land Tribunal. 16. The questions of law are to be answered in favour of the revision petitioner. The authorities below have failed to appreciate the evidence on record and has erroneously found the tenancy not to be established. Relevant materials were merely brushed aside. The Will could not have been relied on to reject the tenancy. The recitals of the Will could only be reasonably interpreted as Paulose having interest in the property to create tenancy. The creation of tenancy anyway is admitted. The lower authorities relied on irrelevant material and failed to look at the relevant evidence led by the claimant. The approach of the Land Tribunal and the Appellate Authority were clearly erroneous. The order of the Land Tribunal as also the order of the appellate authority confirming the order of the Land Tribunal are hereby set aside. The revision petitioner shall be entitled to fixity of tenure and the Land Tribunal shall take such steps under the KLR Act enabling him to the fixity of tenure as contemplated under the Act. The Civil Revision Petition is allowed with costs throughout.