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Wednesday, February 18, 2015

The Appellate Authority has completely ignored the undisputed pleadings and material documents on record in favour of the respondents and the said finding of the Appellate Authority is erroneous in law and patently perverse as it has ignored the correct findings of the Land Tribunal, on the relevant contentious issues which have been rightly questioned before the High Court by the respondents under Section 103 of the Act. The High Court has rightly reversed the decision of the Appellate Authority after careful examination of the divergent findings of fact recorded by it as the same are contrary to both the documentary and oral evidence on record, particularly Ext.B1. Thus, in the light of all the material evidence on record and the statutory provisions under Sections 74 and 75 of the Act, the relevant and glaring error on fact and in law committed by the Appellate Authority has been rightly interfered with by the High Court, after it had satisfied itself that the divergent findings of the Appellate Authority are not only erroneous but also error in law and it has exercised its revisional jurisdiction and set aside the divergent findings of the Appellate Authority. Reliance has been placed upon the decision of this Court in Mammu v. Hari Mohan[1], which reads thus:- "13......it is manifest that the power of revision vested in the High Court is wide and it is not limited only to the question of law or jurisdiction. It hardly needs to be emphasised that the revisional power to disturb findings of fact or law recorded by the Land Tribunal or the Land [pic]Board or the Taluk Land Board as the case may be, (sic) only in appropriate cases in which the Court is satisfied that such interference is necessary in the interest of justice and for proper adjudication of the dispute raised by the parties. In the case on hand, the High Court, as the impugned order shows, has taken note of the exception to the order of the Land Tribunal on the ground that it failed to take note of relevant factors like the facts and circumstances under which the structure was allowed to be constructed......" Thus, we are of the considered view that the power exercised by the High Court under Section 103 of the Act has been rightly exercised by it in setting aside the judgment and order of the Appellate Authority, as the same is not only erroneous but also error in law for the aforesaid reasons. The appeals are dismissed.

                               NON REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos.1942-1943 OF 2015
             (Arising out of S.L.P (C) Nos.26832-26833 of 2009)

N.M.KRISHNAKUMARI & ORS.                       ....APPELLANTS



















     Vs.

THALAKKAL ASSIYA & ORS.                        ...RESPONDENTS



                               J U D G M E N T



V.GOPALA GOWDA, J.

   Leave granted.

These appeals have  been  filed  by  the  appellants  against  the  impugned
judgment and order dated 23.03.2009 passed by the High Court of  Kerala,  at
Ernakulam, in Civil  Revision  Petition  Nos.  1172  and  1173  of  1997(D),
whereby the High Court allowed the Civil Revision  Petitions  filed  by  the
respondents and upheld the common judgment and order of the  Land  Tribunal,
Nileshwar, dated 16.10.1991 passed in O.A.No.51 of  1986  and  I.A.No.61  of
1986 in S.M.P.No.1474 of 1976 and set aside the common  judgment  and  order
of the Appellate Authority (Land Reforms), Kannur, dated  20.03.1997  passed
in A.A.No.221 of 1991 and A.A.No.233 of 1991.

For the purpose of considering the rival legal contentions urged  on  behalf
of the parties in these appeals, with a view to find out whether this  Court
is required to interfere with the impugned judgment and order  of  the  High
Court, the necessary facts are briefly stated hereunder:

    It is an admitted fact that the petition  schedule  property  originally
belonged to  Vaddakke  Kovilakam  of  Nileshwar.  It  is  the  case  of  the
respondents that Aboobacker Haji, who is now deceased had obtained  an  oral
Kuzhikanam in the  year  1957  and  while  doing  so,  the  members  of  the
aforesaid Vadakke Kovilakam entered into a partition in the  year  1959  and
the petition schedule property along  with  other  extent  was  allotted  to
Smt.V.C.Mahaprabha Thamburatti and her children as per schedule 'D'  in  the
partition deed and the deceased Aboobacker Haji had been paying purappad  to
jenmi  Kovilakam.  The  members  of  the  Kovilakam,  entered  into  another
partition in the year 1974 and  as  per  the  same,  the  petition  schedule
property is allotted to  Smt.  V.C.Mahaprabha  Thamburatti  and  her  female
children as per schedule 'A' in the partition deed.

The appellants are the legal heirs of the  deceased  V.C.  Rama  Varma  Raja
(Jr.), the 2nd respondent in O.A.No.51 of 1986 and the respondents  are  the
legal heirs of the deceased  Aboobacker  Haji,  the  original  applicant  in
O.A.No.51 of 1986 on the file of the Land Tribunal. A joint  application  (J
Form) i.e. O.A.No.51 of 1986, was filed  by  the  deceased  Aboobacker  Haji
along with the 1st respondent in O.A. 51 of 1986,  Kerala  Varma  Raja,  who
was also shown as the land owner by the  deceased  Aboobacker  Haji,  before
the Land Tribunal for the purchase of Jenm right in respect  of  0.12  Cents
of land in Re.Sy.435/2B, under the provisions  of  Section  72MM(1)  of  the
Kerala Land Reforms Act, 1963, (in short "the Act") as amended  by  the  Act
17 of 1972. The predecessor of the appellants i.e. deceased V.C. Rama  Varma
Raja (Jr.), got himself impleaded as the additional 2nd  respondent  in  the
proceedings before the  Land  Tribunal  and  disputed  the  tenancy  of  the
deceased Aboobacker Haji. The  deceased  V.C.  Rama  Varma  Raja  (Jr.)  has
further  contended  in  the  proceedings  that  he  is  the  tenant  of  the
properties and that he has already obtained an order  for  the  purchase  of
the Jenm right in respect of the land  in  question  as  per  the  order  in
S.M.P.No.1474 of 1976 of the Land Tribunal.

The deceased Aboobacker Haji filed I.A.No.61 of 1986 under  Section  72MM(7)
of the Act, seeking to set aside the order passed in S.M.P.No.1474 of  1976,
by the Land Tribunal. The Land Tribunal by its judgment  and  order  allowed
the application of the deceased Aboobacker Haji without  any  liability  and
held that he is the cultivating tenant of the schedule property.   Aggrieved
by the same, the legal heirs of the deceased  V.C.  Rama  Varma  Raja  (Jr.)
filed an appeal before the Appellate Authority, questioning the  correctness
of the order  of  the  Land  Tribunal  on  various  grounds.  The  Appellate
Authority has set aside the judgment and order  of  the  Land  Tribunal  and
upheld  the  order  passed  in  S.M.P.No.1474  of  1976  obtained   by   the
predecessor  of  the  appellants  earlier.  Aggrieved  by  the   same,   the
respondents filed a Civil Revision Petitions before the High Court,  by  its
order dated 23.03.2009, allowed the same by holding that the reasons  stated
by the Appellate Authority in its judgment for reversing a  well  considered
order passed by the Land Tribunal is unsustainable in law.  It  has  further
held that the transaction put forward by the deceased V.C. Rama  Varma  Raja
(Jr.) with respect to the land in question is hit by Section 74 of  the  Act
and hence, the same is invalid. Therefore, the High Court has  restored  the
order of the Land Tribunal  in  favour  of  the  respondents.  Hence,  these
appeals have been filed by the  appellants,  challenging  the  judgment  and
order of the High Court, urging a number of grounds and  has  prayed  before
this Court inter alia contending  that  the  High  Court  has  exceeded  its
jurisdiction under Section 103 of the Act and has erroneously  reversed  the
findings of fact recorded by the Appellate Authority  in  its  judgment  and
order and therefore prayed for setting aside the same.

It is the contention of the learned counsel  on  behalf  of  the  appellants
that Smt.  Mahaprabha  Thamburatty  had  executed  a  registered  marupattam
No.3990/64 dated 30.10.1964 and had leased out the  property  in  favour  of
the deceased V.C. Rama Varma Raja (Jr.), the predecessor of  the  appellants
herein. It has been further stated by him that the deceased V.C. Rama  Varma
Raja (Jr.) was in possession of the property three months prior to the  said
lease deed dated 30.10.1964 and therefore, he is in absolute possession  and
enjoyment of the property and  he  has  purchased  the  jenm  right  of  the
schedule property as per the order passed in S.M.P.No.1474  of  1976  before
the Land Tribunal, Nileshwar and has further  contended  that  the  deceased
Aboobacker Haji had no right or possession over the property as  he  is  not
the cultivating tenant and thus, he could not have applied for the  purchase
of Jenm right.

On the other hand, it has been contended by the learned  counsel  on  behalf
of the respondents that their  predecessor,  deceased  Aboobacker  Haji  had
obtained the schedule property by oral Kuzhikanam lease  in  the  year  1957
from Kovilakam and thus, he  is  the  cultivating  tenant  of  the  schedule
property. He has further contended that the deceased V.C.  Rama  Varma  Raja
(Jr.) had obtained the order in S.M.P.No.1474 of 1976 in his favour by  foul
play, misrepresentation and fraud, as he has never  been  in  possession  of
the property. It has been further contended by him that  the  Marupatt  deed
dated 30.10.1964, produced by the appellants is a  fabricated  document  and
further, the deceased V.C. Rama Varma Raja (Jr.) has been in  the  habit  of
fabricating documents, which  has  also  been  deposed  by  Smt.  Mahaprabha
Thampuratti and her daughters, who had filed a counter in  S.M.P.No.1474  of
1976, denying the tenancy of the deceased V.C. Rama  Varma  Raja  (Jr.)  and
have also disputed their signature in the 'J' Form.

It has been further contended by  the  learned  counsel  on  behalf  of  the
respondents that the Act, which came into force  on  01.04.1964,  stipulates
the eligibility of the cultivating tenant to  purchase  jenm  rights,  thus,
the appellants are ineligible under the Act to get  the  possession  of  the
property, even if they had the alleged  possession  of  the  property  three
months prior to 30.10.1964.
We have heard both the parties. On the basis of the  aforesaid  rival  legal
contentions urged on behalf of the parties and the evidence  on  record,  we
have to examine the following:

Whether the divergent findings  recorded  by  the  High  Court  against  the
appellants are legal and valid; and
Whether the High Court has exceeded in its jurisdiction  under  Section  103
of the Act in re-examining the case and holding that  the  findings  of  the
Appellate Authority are not only erroneous but also error in law?

  It has been deposed by the deceased Aboobacker Haji, PW1, before the  Land
Tribunal, in the proceedings held by it that he had paid varam to the  Jenmi
Kovilakam regularly. To  substantiate  his  claim  for  the  same,  deceased
Aboobacker   Haji   had   produced   Ext.A1   to   A5   documents    wherein
Exts.A1(a),(b)and(c) were produced as purappad  receipts  and  PW2  and  PW3
were examined as witnesses before the Land Tribunal to prove his claim.  The
contention of the appellants before the High Court as  well  as  this  Court
that the said documents are not genuine, as they do not contain  the  actual
survey number, extent and fixed varam, cannot be accepted by us in  view  of
the decision of the Land Tribunal as well  as  the  High  Court  which  have
rightly held that the same are valid and legal  on  proper  appreciation  of
the legal evidence on record,  as  nothing  had  been  brought  out  by  the
counsel on behalf of the appellants in the cross examination of PW1,  before
the Land Tribunal with regard to  the  genuineness  of  the  said  receipts.
Further, PW3, who is an independent witness before  the  Land  Tribunal  had
categorically deposed that the deceased Aboobacker Haji is  the  cultivating
tenant of the land involved in the claim as he  has  been  taking  usufructs
from the schedule property.

Further, the son of Mahaprabha Thamburatti, who is  the  1st  respondent  in
O.A.No.51/86 has also categorically stated before  the  Land  Tribunal  that
the deceased V.C. Rama Varma Raja (Jr.) has never  been  in  possession  and
enjoyment of  the  schedule  property.  He  has  further  deposed  that  the
deceased V.C. Rama Varma Raja (Jr.) has been in  the  habit  of  fabricating
documents. He has testified the  same  before  the  Munsiff  Court,  in  the
original suit between himself and the deceased V.C. Rama  Varma  Raja  (Jr.)
in O.S.331/84 on the file of the Munsiff's Court, Hosdurg, wherein the  said
court had found that the deceased V.C. Rama Varma Raja (Jr.) had  fabricated
the documents. This relevant and important fact has not been  considered  by
the Appellate Authority while reversing the findings of  the  Land  Tribunal
while giving its reasons on the contentious issue in its judgment and  order
and the same has been rightly reversed by the High Court in exercise of  its
revisional jurisdiction. The Land Tribunal has come to the right  conclusion
on the basis of the facts pleaded and  the  evidence  adduced  by  both  the
parties and held that  the  respondent's  predecessor,  deceased  Aboobacker
Haji is the cultivating tenant in respect of  the  land  in  question  after
proper appreciation of the evidence on hand and therefore, it  has  recorded
that the finding on the order which was obtained by the deceased  V.C.  Rama
Varma Raja (Jr.) in S.M.P.1474 of 1976 is an act of fraud and foul play  and
thus, the Land Tribunal has rightly set aside the same,  which  finding  has
been concurred by the High Court stating that the reversal  of  the  finding
of fact by the Appellate Authority are not only erroneous but also error  in
law.

The Exbt.B1 brought as evidence before the Land Tribunal is not  genuine  as
the same has been brought into existence by committing fraud and  foul  play
as Ext.B1 covers  5  items  of  property  including  the  petition  schedule
property and it has also been deposed by the deceased V.C. Rama  Varma  Raja
(Jr.), DW1 before the Land Tribunal that except  the  area  defined  in  the
schedule property, the other properties were allotted  in  schedule  'G'  in
the 1959 partition  and  the  said  schedule  'G'  is  allotted  for  family
viniyogas. Thus, as per the partition deed  Smt.Mahaprabha  Thamburatti  has
no right over the properties coming under  schedule  'G'  and  the  deceased
V.C. Rama Varma Raja (Jr.) has no right to alienate the  property  and  thus
the documents brought on record  as  evidence  by  the  predecessor  of  the
appellants before the Land Tribunal are not genuine. The finding of fact  of
the Land Tribunal has been rightly concurred by the  High  Court  which  has
held that the finding of fact by the Appellate Authority in this  regard  is
erroneous as there is non consideration of positive evidence  on  record  in
favour of the respondents. Further, the documents Exts.B1 to B5(d)  produced
before the Land Tribunal by the predecessor of the  appellants  as  evidence
in justification of the claim of the appellants, do not contain  the  survey
number, extent of the  land,  etc.  Additionally,  the  genuineness  of  the
signature of Smt. Mahaprabha Thamburatti has not been established  by  them,
as the deceased V.C. Rama Varma Raja (Jr.) himself could  not  identify  her
signature before the Land Tribunal. This  Court  cannot  overlook  the  fact
that Smt. Mahaprabha Thamburatti had filed a counter in I.A. 61 of  1986  to
the effect that the order in S.M.P.1474 of 1976 was obtained by forging  the
signatures of the Jenmis. Further, even the Karyasthan of the Kovilakam  did
not support the case of the appellants before the Land Tribunal.

Even if we accept the contention of the learned counsel  on  behalf  of  the
appellants that their predecessor had the possession of the  property  three
months prior to 30.10.1964, which  is  the  date  of  the  lease  deed,  the
appellants would still be ineligible under the provisions of the Act to  get
the cultivating rights upon the land in question in view of  the  fact  that
the deceased V.C. Rama Varma Raja (Jr.) had allegedly got the possession  of
the schedule property only after 1.04.1964, after the Act  came  into  force
and thus, he could not have claimed  the  right  of  cultivating  tenant  as
provided  under  the  provisions  of  Section  74  of  the  Act.  Thus,  the
contention of the appellants  that  the  property  was  leased  out  to  the
predecessors of the appellants as per the Marupat deed dated  30.10.1964  is
not maintainable in law. Further, the deceased V.C. Rama  Varma  Raja  (Jr.)
was also ineligible for the purchase of Jenm right from  the  Land  Tribunal
under the provisions of the Act.  Being  a  person  who  allegedly  came  in
possession of the property subsequent to 1.04.1964, he cannot claim  tenancy
rights. Thus, the Land Tribunal as well as the High Court have come  to  the
right conclusion based on the fact and evidence on record  in  holding  that
the respondents have proved their tenancy right. The respondents'  claim  is
further supported by the testimonies of the landlords,  who  have  testified
that the property  belonging  to  Vadakke  Kovilakam  was  obtained  by  the
deceased Aboobacker Haji in the year 1957 from the Kovilakam. The said  fact
has also been reiterated by Kerala  Varma  Raja,  who  is  examined  as  PW2
before the Land Tribunal.  Thus,  the  respondents  have  rightly  filed  an
application before the Land Tribunal after the Act  came  into  force  under
Section 75 of the Act, as they had been in possession  of  the  property  on
and before 1.04.1964. The Land Tribunal and the High Court have come to  the
correct conclusion and have rightly recorded the finding of  fact  that  the
deceased V.C. Rama Varma Raja (Jr.) had created  fabricated  documents  with
respect to the property  in  question  and  therefore,  his  claim  for  the
purchase of Jenm  right  for  the  schedule  property  is  illegal  and  not
supported by evidence.

The Appellate Authority has completely ignored the undisputed pleadings  and
material documents on record in favour  of  the  respondents  and  the  said
finding of  the  Appellate  Authority  is  erroneous  in  law  and  patently
perverse as it has ignored the correct findings of  the  Land  Tribunal,  on
the relevant contentious issues which have been  rightly  questioned  before
the High Court by the respondents under Section 103 of the Act.

The High Court has rightly reversed the decision of the Appellate  Authority
after careful examination of the divergent findings of fact recorded  by  it
as the same are contrary to  both  the  documentary  and  oral  evidence  on
record, particularly  Ext.B1.  Thus,  in  the  light  of  all  the  material
evidence on record and the statutory provisions under Sections 74 and 75  of
the Act, the relevant and glaring error on fact and in law committed by  the
Appellate Authority has been rightly interfered  with  by  the  High  Court,
after it had satisfied itself that the divergent findings of  the  Appellate
Authority are not only erroneous but also error in law and it has  exercised
its revisional jurisdiction and set aside  the  divergent  findings  of  the
Appellate Authority. Reliance has been placed  upon  the  decision  of  this
Court in Mammu v. Hari Mohan[1],  which reads thus:-
"13......it is manifest that the power of revision vested in the High  Court
is wide and it is not limited only to the question of law  or  jurisdiction.
It hardly needs to be  emphasised  that  the  revisional  power  to  disturb
findings of  fact  or  law  recorded  by  the  Land  Tribunal  or  the  Land
[pic]Board or the Taluk Land Board  as  the  case  may  be,  (sic)  only  in
appropriate cases in which the Court is satisfied that such interference  is
necessary in the interest of justice and  for  proper  adjudication  of  the
dispute raised by the parties. In the case on hand, the High Court,  as  the
impugned order shows, has taken note of the exception to the  order  of  the
Land Tribunal on the ground that it failed to take note of relevant  factors
like the facts and circumstances under which the structure  was  allowed  to
be constructed......"


Thus, we are of the considered view that the power  exercised  by  the  High
Court under Section 103 of the Act has  been  rightly  exercised  by  it  in
setting aside the judgment and order of  the  Appellate  Authority,  as  the
same is not only erroneous but also error in law for the aforesaid  reasons.
The appeals are dismissed.




.....................................................................J.

                           [V. GOPALA GOWDA]



..................................................................J.
  [R. BANUMATHI]

New Delhi,
February 17, 2015
-----------------------
[1]    (2000) 2 SCC 32

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