Ext.P5 order passed by the Land Revenue Commissioner is under challenge in this writ petition. 2. The petitioners allege that as per Exts.P1 and P2 Gift Deeds executed by the father of the petitioners, the petitioners obtained ownership and possession of 1.45 acres of property in Sy.No.753/2- 55-1-1 (Resy.No.84/4), 1.45 acres of property in Sy.No.753/2-55-1-1 and 753/2-55-1-3 (Re.sy.No.84/3) and 20 cents of property in sy.No.84/1 of Amboori village. According to them, the properties were in the possession of their father Varkey Varkey who got patta in respect of the property on the basis of the proceedings No.PC 7/66. As respondents 3 to 9 disputed the right of the petitioners, they instituted O.S.No.230/1981 before the Additional Munsiff Court, Neyyattinkara which resulted in Ext.P3 judgment in favour of the petitioners. The respondents did not challenge the same in appeal. However, they proceeded for cancellation of patta before the revenue authorities, which resulted in Ext.P4 order by the District Collector, wherein it was found that the assignment of land measuring 6.20 acres to a single person is against the provisions of the Kerala Land Assignment Rules and the Tahsildar, Neyyattinkara was directed to take appropriate steps to recover possession of the land measuring 3.10 acres which was originally under the possession and enjoyment of the respondents.
3. Challenging Ext.P4, Ext.P5 revision was filed before the first respondent by the petitioners under Rule 21(9) of the Kerala Land Assignment Rules. As there was delay in considering the revision, they approached this Court with Writ Petition No.27375/2006 which was disposed of as per Ext.P5. Accordingly, the Land Revenue Commissioner had passed an order (Ext.P6) upholding the finding of the District Collector. It is with this background, the petitioners have come up before this Court.
4. In the counter affidavit filed by the State, it was contended that the petitioners have failed to produce documentary evidence to make out that the property was legally possessed by them or their predecessors. According to them, on examination by the revenue authorities, it was found that the assignment of land in 1966 was done in irregular manner and the same was cancelled later. The petitioners possessed 6.20 acres illegally and therefore, the District Collector examined the matter in detail and ordered to recover 3.10 acres of land. It was also pointed out that the civil court has not declared any title over the property while passing the decree in O.S.No.231/1981. Therefore, they prayed for a dismissal of the petition.
5. In the counter filed by the 6th respondent, it was contended that the averments contained in paragraph 1 of the writ petition to the effect that petitioners are the absolute owners in possession and enjoyment of 1.45 acres of property in Sy.No.753/2-55-1-1 (Re.Sy.No.84/4), 753/2-55-1-3 (Re.sy.No.84/3) and 20 cents of property in Sy.No.84/1 of Amboori village are false. According to them, the late father of the petitioners never had any lawful possession or title over the properties described above. Therefore P1 and P2 documents are invalid and illegal; it is contended. According to them, petitioners' father was only an encroacher in the above described properties. The patta No.3197 obtained by the petitioners' father was found illegal and therefore cancelled by the revenue authorities later. O.S.230/1981 mentioned in paragraph-3 of the writ petition was filed before the Munsiff's Court, Neyyattinkara with a prayer to pass a decree of permanent prohibitory injunction restraining defendants 1 to 4 from evicting the plaintiffs from the plaint schedule property or assigning rights to defendants 5 and 6. The Munsiff's Court disallowed the above prayer. The learned Munsiff restrained defendants 5 to 10 from using force in dispossessing the plaintiffs. Therefore, Ext.P3 does not confer any title to the petitioners. Assignment of the land in question in favour of this respondent's father Raman Ayyappan was suppressed by petitioners, while applying for the patta. The civil court never found that the title of the property belonged to the petitioners. In fact the civil court has only injuncted the party respondents from forcefully evicting the petitioners from the plaint schedule property.
6. It was contended that the respondent's father late Raman Ayyappan was a freedom fighter. Three acres and 10 cents of property comprised in survey No.753/2/55/1 of old Kunnathunkal village was allotted to him on Kuthakapattam during the year 1950-1951 by the Government of Kerala. (A true copy of the Government Order concerning the grant of the above said Kuthakapattam is produced herewith and marked as Ext.R6(1) for reference.) The property covered by Ext.R6(1) is situated at present in Amboori village of Neyyattinkara Taluk. The property is situated on the side of a hill. The father of the 6th respondent was allotted 3.10 acres of land on one side and 3.10 acres on the other side was allotted to one Mr.Krishnan. Petitioners' father Mr.Varkey Varkey took possession of the property held by Mr.Krishnan. Later by filing Puthuval case No.7/1966, Mr.Varkey Varkey claimed possession of the entire properties falling in survey No.753/2/55/1 of old Kunnathunkal village. He succeeded in getting patta over the entire 6 acres and 20 cents of land covered by the above said survey number. Raman Ayyappan and Krishnan were not parties to the said case.
7. When Raman Ayyappan came to know about this, he filed L.A.Appeal No.4/1977 before the R.D.O., Thiruvananthapuram. Allowing the appeal, the Revenue Divisional Officer cancelled the patta issued in favour of Mr.Varkey Varkey concerning the above said property. (A true copy of the order passed by the Sub Collector, Trivandrum in L.A.Appeal No.4/77 is produced and marked as Ext.R6(2) for reference.) Against the R6-2 order, Mr.Varkey Varkey moved the board of revenue by filing a revision petition. By its order dated 27.7.1979, the board of revenue dismissed the revision petition filed by Mr.Varkey Varkey. (A true copy of the board of revenue's order passed in the revision petition dtd.27.7.1979 is produced and marked as Ext.R6(3) for reference.)
8. After the dismissal of the revision petition filed by Mr.Varkey Varkey, Sri.Raman Ayyappan submitted several representations before revenue authorities. The Tahsildar Neyyattinkara issued a notice to Mr.Varkey Varkey asking him to surrender the patta obtained from revenue department suppressing material facts. The above communication was numbered as B8-114/77. On the basis of the illegally obtained patta Mr.Varkey Varkey executed gift deeds in favour of the petitioners herein. The last gift deed was executed, while the revision petition was pending before the Revenue Board against the order of the Sub- Collector (R.D.O.) cancelling the patta. Though the decree in O.S.230/1981 before the Addl.Munsiff's Court, Neyyattinkara did not decide the title of the property, the respondent wanted to challenge the decree. Since he was facing acute financial problems he applied for legal aid to challenge the decree before the Kerala State Legal Aid and Advice Board. He received a letter dtd.18.11.1992 from KSLA & AB advising him to approach the Government for reddressal of his grievance. (A true copy of the above mentioned communication of KSLA& AB No.C-
3-558/92 dtd.16.11.1992 is produced and marked as Ext.R6(4) for reference.) Later petitioners moved the District Collector, Thiruvananthapuram by filing a revision petition against the Tahsildar's order cancelling the patta on the basis of this Court's judgment in WPC No.497/05H. By an order dtd.28.6.2005 passed in proceedings No.D.Dis/ 49114/03/G6 the District Collector directed the Tahsildar, Neyyattinkara to take appropriate steps to recover possession of the land measuring 3.10 acres from the petitioners which was originally in the possession of Raman Ayyappan. (A true copy of the order of the District Collector dtd.28.6.2005 is produced and marked as Ext.R6(5) for reference.) Due to the inaction on the part of Revenue authorities to implement R6-5 order the respondent was constrained to move this Court by filing WP(C) No.4439/07 C. In the above writ petition, the petitioner who is the respondent in this petition produced the order of the District Collector, Thiruvananthapuram dtd.28.6.2005 passed in D.Dis/49114/03/G6 as Ext.P5 along with the writ petition. By the judgment dtd.9.2.2007, this Court disposed of the above mentioned writ petition directing the Tahsildar, Neyyattinkara Taluk to give effect to the Ext.P5 order therein if the same has obtained finality. (A true copy of the judgment of this Court in WPC No.4439/2007c is produced herewith and marked as Ext.R6(6) for reference.). Therefore, they prayed for a dismissal of the petition.
9. The petitioners have filed a reply affidavit re-iterating their stand.
10. Arguments have been heard.
11. The main argument advanced by the learned counsel for the petitioners is that once the patta has been granted, the property cannot be taken back by the Government without due process of law. It was pointed out that the order of the District Collector to re-convey 3.10 acres of land, which is in possession of the petitioners, to respondents 3 to 9 is against the decision of a competent civil court which has declared the right between the parties. At this juncture, Ext.P3 judgment passed by the Munsiff's Court, Neyyattinkara assumes some relevance. The suit which was instituted by the petitioners herein was a suit for injunction. In that case, they claimed that they have perfected title over the property in question by adverse possession and limitation and therefore, defendants 1 to 4 be restrained by a permanent prohibitory injunction from evicting the defendants 1 to 4 from the plaint schedule property or assigning the right to defendants 5 to 6.
12. In Ext.P3 judgment, the civil court observed that the petitioners, who are the plaintiffs, did not perfect their right by adverse possession. The patta in the name of the petitioners' father Varkey Varkey was produced as Ext.A6 in the case. It was observed that Ext.A6 was only a provisional patta issued to the father of the petitioners subject to certain conditions. The gift deeds relied on by the petitioners, Exts.P1 and P2 were marked as Exts.A1 and A2 in the suit. As per Rule 5(b)(ii) of the Kerala Land Assignment Rules, 1964, the maximum limit to be assigned for a cultivation is 4 acres of dry land in hilly tracts. However, as per the description in Ext.A1, it was recited that the petitioner's father got 6 acres 20 cents by assignment. As per Rule 8(3) of the Act, the registery is liable to be cancelled, if it is found that the registery was made by the misrepresentation of facts or it was grossly inequitable.
13. The prayer of the petitioners in the suit for an injunction restraining defendants 1 to 4, who are the State and the authorities under the State, from evicting the petitioners from the suit property and from assigning the rights to the defendants 5 and 6 were rejected by the civil court. However, it was found that the petitioners, who are the plaintiffs, were in possession and unless and until evicted by due process of law, they are entitled to injunction as prayed for against defendants 6 to 10 in that case. That means the right of the State to evict the petitioners, who were the plaintiffs in the suit from the suit property, was reserved by Ext.P3 judgment.
14. The documents, especially, Ext.R6(2) produced by the party respondents would indicate that the patta was cancelled long before the institution of the suit.
15. It is relevant to note that there was no prayer at all in the original suit for the declaration that the cancellation is invalid. It was argued by the learned counsel for the petitioner that the orders of cancellation were issued not under due process of law. As observed by B.K.Mukherjea, J. “Due” means “what is just and proper” according to the circumstances of a particular case (See A.K.Gopala v State of Madras AIR 1950 SC 27).
It cannot be said that reasons for cancelling the patta were without any just and proper reasons.
On a consideration of the entire materials now placed on record, this Court is of the definite view that the petitioners failed in substantiating that there are genuine grounds for interfering with the impugned orders. Therefore, this Court is of the view that the petitioners are not entitled to get the reliefs as prayed for. Hence, this writ petition is dismissed.
sd/-A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE