The revision petitioner herein is before this Court challenging the order of the Appellate Authority under the Kerala Land Reforms Act,1963 (hereinafter referred to as "the Act"), which reversed the order of the Land Tribunal, Kollam; allowing the claim of the first respondent herein. The brief facts which led to the proceedings under the KLR Act is as follows. The revision petitioner had purchased the subject property from one Krishnan Sivarajan, the 3rd respondent by Ext.B1 sale deed on 27/01/1979. The 3rd respondent, is the brother of the second respondent and they had effected partition of certain properties and the property sold to the revision petitioner was from the property set apart to the share of 3rd respondent. The property that was sold by 3rd respondent was bounded on two sides by the property of the second respondent.
2. The petitioner had his residence elsewhere and later he found that the boundaries of the property were destroyed and there was an attempt by the 2nd respondent to annex and C.R.P.NO. 2298 of 2001 2 appropriate the four and odd cents belonging to the petitioner. Hence, a suit numbered as O.S. No. 136/1985 was filed before the Munsiff Court, Kollam. The second respondent herein was the 8th defendant and the first respondent, who is the claimant before the Land Tribunal, was the 10th defendant. In the suit, the 10th defendant appeared and claimed fixity of tenure, however, thereafter he remained ex-parte. The 2nd respondent contested the suit. While the suit was pending, the first respondent filed O.A. No. 73/1988 under Sec.80(B) of the KLR Act for purchase of Kudikidappu land. The Kudikidappu was claimed with respect to the property which, the revision petitioner had purchased by Ext.B1. More specifically the claim was set up on the ground of residence in Door No. 464 of Ward VII of SakthiKulangara panchayath, from 1976 onwards, as a tenant of the second respondent i.e., Krishnan Devarajan. It is pertinent that, Ext.B1 sale deed was executed by the brother of Krishnan Devarajan, viz., Krishnan Sivarajan, the 3rd respondent herein.
3. The O.A was rejected by the Land Tribunal after considering the report of the Revenue Inspector as also the C.R.P.NO. 2298 of 2001 3 report of the Village Officer. The contention of the revision petitioner that, the application under Sec 80(B) of the KLR Act was under the instigation of the second respondent was accepted by the Land Tribunal. Immediately, after the rejection of the claim in O.A No. 73/88 on 12/01/1988; the suit filed by the revision petitioner was decreed by judgment dated 30/06/1988. The first respondent did not challenge the judgment and decree. The 8th defendant therein, i.e., the second respondent, challenged the judgment in the suit in A.S 57/99 which was dismissed on 13/02/2006. The Appellate Court while dismissing the appeal also noticed the rejection of the claim set-up by the first respondent before the Land Tribunal. It is submitted by the learned counsel for the revision petitioner that after the dismissal of the appeal filed by the second respondent herein, against the judgment & decree in the suit, the revision petitioner has received delivery and possession of the scheduled properties from the competent Civil Court and is now in possession and enjoyment of the same.
C.R.P.NO. 2298 of 2001 4
4. The first respondent, though chose not to file an appeal from the judgment and decree in the suit, filed an appeal from the rejection of the claim under Sec.80(B). The Appellate Authority by order dated 29/06/2001, impugned in the revision, allowed the claim of the Kudikidappu set up by the first respondent.
5. I have heard the learned counsel Sri.Dinesh Rao, for the revision petitioner. The first respondent though recorded appearance in the Civil Revision Petition, subsequently, it was reported by the counsel that he is no more and the only legal heir is his mother. The revision petitioner sought to implead his mother who failed to accept the notice.
6. The Appellate Authority has reversed the order of the Land Tribunal relying on the report of the Revenue Inspector dated 07/05/1990. The findings of the Appellate Authority are entirely based on the Authorised Officer's report and the Appellate Authority even goes to the extent of finding that the Village Officer's report filed in the year 1997, was a collusive one; and that was the only reason why the claim of Kudikidappu was C.R.P.NO. 2298 of 2001 5 rejected by the Land Tribunal.
7. I have gone through the Authorised Officer's report dated 07/10/1990. The Authorised Officer in the said report has specifically said that, the claimant before the Land Tribunal was not present at the time of inspection and that it was the second respondent who was present and who had opened the hut for inspection by the Authorised Officer. It is also specifically noticed that, there was absolutely no evidence produced by the 2nd respondent to evidence the residence of the claimant in the said hut. The report also categorically finds that, the Building tax assessment register maintained by the competent authority shows that, House No. 464 of Ward No. VII is a shed in which the second respondent's wife is said to be conducting a fire-wood shop. The learned counsel for the petitioner also would take me to Ext.B3, extract of the voters list of the year 1987. The learned counsel would point out that, in page 14 of the said voters list, available in the records, persons in serial no. 1137 to 1141 is shown to be residents of House No. 457, called 'Kadapuzha Veedu'. The persons shown in 1141 to 1147 are respectively one C.R.P.NO. 2298 of 2001 6 Chellamma Krishnan, Dharmarajan Krishnan, Devarajan Krishnan, Prabha Devarajan and Bhavanandan Raju. Devarajan Krishnan is obviously the 2nd respondent and Bhavanandan Raju, the claimant, before the Land Tribunal is also shown as having residence in House no. 457 and not 464. It is very clear that, the findings of the Appellate Authority are on an erroneous appreciation of facts.
8. The Authorised Officer's report relied on by the Appellate Authority does not at all lead to the conclusion arrived at by the Appellate Authority as to the residence of the claimant in the subject shed. The vernacular extracts in the Appellate Authority's order are out of context and that alone does not lead to a conclusion of residence or evidence of Kudikidappu in the said lands. On the strength of the above findings, it is found that, the Appellate Authority's order is liable to be set aside and I do so. The order of the Land Tribunal is restored as the deceased first respondent could not have sustained the claim of Kudikidappu in the subject land. In any event as noticed above, his claim of Kudikidappu is under the 2nd respondent while the C.R.P.NO. 2298 of 2001 7 revision petitioner has obtained ownership and possession of the subject properties by Ext.B1 sale deed executed by the 3rd respondent.
The Civil Revision Petition is allowed, however, with no costs.
K.VINOD CHANDRAN JUDGE LSN