The plaintiff who concurrently lost in a suit for injunction is the appellant in R.S.A. 816/2003. His suit, O.S. No. 531/1991 was in respect of 4.46 acres in Re.Sy. No. 551/part of Wandoor village. R.S.A. No. 808/2003 is filed by the plaintiff in O.S. 531/1991 which is a suit for injunction. His suit is in respect of 2.18 acres, of which 1.96 acres is comprised in Re.Sy. No. 546/3B and 22 cents in R.S. No. 546/3C of Wandoor Village. The main dispute in that suit was with regard to 1.96 acres in Re.Sy. 546/3B. He also lost concurrently.
2. The suit properties originally belonged in jenm to the Kidangazhi Mana. Paramaeswaran Namboodiri, The plaintiff in O.S. 531/91 claimed that the plaint schedule property was leased out to Smt.Cheravanna Nair and on her R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 2 :- death her leasehold right devolved upon her son Govindan Nair who obtained the purchase certificate from the Land Tribunal. The above Govindan Nair assigned the said property to the plaintiff Parameswaran Namboodiri as per Ext. A2 assignment deed No. 738/1987.
3. There was a proceeding before the Taluk Land Board. As per the order originally passed by the Taluk Land Board, this property and other properties were ordered to be surrendered as the excess land of the declarent therein. Hence, the plaintiff Parameswaran Namboodiri filed claim petition before the Taluk Land Board under Sec. 85 (8) of the KLR Act. That claim petition was allowed. It was contended that the defendants who claimed to be the assignees of the land from the Government attempted to trespass into the suit property and hence the suit was filed.
4. So far as Damodaran Naboodiri, the plaintiff in O.S. No. 538/1991 is concerned, he claims that he had R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 3 :- obtained oral lease from Kidangazhi Mana in respect of 10 acres of land in Re.Sy. No.551/part in the year 1960 and since then he has been in possession and enjoyment of the said property. It was stated that out of the said property, 5 acres and 50 cents of land was already sold as per a registered document of 1974 and the balance extent of 4.40 acres shown in the schedule to the plaint is in his direct possession. He also contends that when he came to know that the Taluk Land Board had ordered to surrender the aforesaid property, he moved the Taluk Land Board by filing a claim petition under Sec. 85(8) of the KLR Act and that application was allowed. Since the defendants who claimed to have obtained assignment of the portions of the land attempted to trespass into the property the suit was filed.
5. The defendants therein who claimed to be the assignees of excess land filed written statement contending that these two suits were filed without bonafides and that the plaintiffs have absolutely no title to or possession over R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 4 :- the plaint schedule property. The properties were assigned in favour of the defendants and since then they have been in possession of the property. It was stated that the order of assignment was passed on 29-11-1975 and so the purchase certificates issued in respect of the properties in favour of Govindan Nair, and Damodaran Namboodiri are invalid and inoperative.
6. Both suits were jointly tried. The plaintiffs were examined as P.W.1 and P.W.2. DW1 and DW2 were examined on the side of the defendants. Exts. A1 to A8 were produced on the side of the plaintiffs and Exts. B1 to B9 were marked on the side of the defendants. The Commissioner's reports and plans were marked as Exts. C1 to C6.
7. The trial Court held that a perusal of Exts. A1 and A5 would show that the Taluk Land Board ordered to re- convey the property covered by those applications under Sec. 85 (8) only if the assignment proceedings were not R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 5 :- completed, but from the documents produced by the defendants it is evident that the assignment deeds as stated under Rule 29 of the Kerala Land Reforms (Ceiling) Rules were already executed in favour of the defendants on behalf of the Government and there was no re-conveyance of the land to the plaintiffs. It was also found that the documents produced by the defendants would show that they had remitted the purchase price, as well as the basic tax, in respect of the properties assigned to them. It was further found that as per Rule 29 (8) of the Kerala Land Reform (Ceiling) Rules, cancellation of assignments can only be done after giving a reasonable opportunity of being heard to the party affected. Hence, the trial Court dismissed those suits. The lower appellate Court after re-consideration of the evidence and circumstances concurred with the view taken by the trial court.
8. The learned counsel for the appellants vehemently argued that the courts below failed to take note of the fact R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 6 :- that the assignment would be complete only if patta under Form No. 20 of the Ceiling Rules is issued but admittedly no such patta was issued to the defendants. As against the earlier order passed by the Taluk Land Board ordering surrender of land, Revision Petitions were filed before this Court and after considering the entire aspects, those Revision Petitions were allowed and the matter was remanded to the Taluk Land Board to re-consider the entire issue. That aspect was omitted to be taken note of by the courts below, the plaintiffs contend. The further fact that in the order passed by this Court it was also mentioned that due consideration should be given to the purchase certificates obtained by the plaintiffs in respect of the respective plots obtained by them was also not considered by the courts below. The fact that the defendants were only acting as dictated by the revision petitioner in CRP. No. 244/2001 is evident from the evidence given by DW1 but it was omitted to be taken note of by the courts below. The R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 7 :- Commissioner's reports would make it undoubtedly clear that the entire property was in the direct possession of the respective plaintiffs and that no assignment whatsoever had taken place and nobody has entered into or taken possession of the property alleged to have been assigned by the Tahsildar. These vital aspects should have been taken note of by the courts below but those vital aspects escaped notice of the courts below.
9. The following substantial questions of law have been reframed:-
1.When the claims made by the plaintiffs under Sec. 85 (8) of the K.L.R. Act were allowed by the Taluk Land Board and when it was directed that the properties should be reconveyed to the claimants and when there is evidence to show that the plaintiffs were not at all divested of the possession from the suit property at any point of time, are the courts below justified in holding that the plaintiffs were not in possession of the suit property as on the date of the suit. ?
2.When pattas in Form No. 20 of the Ceiling Rules were not issued to the defendants, are the courts below R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 8 :- justified in holding that the assignment was complete ?
3.When there is no acceptable evidence to show that the suit properties were actually taken possession pursuant to the first order passed by the Taluk Land Board, can it be simply assumed that because orders if assignments were issued in favour of 5 persons, the property went out of possession of the plaintiffs.
4.If the plaintiffs were not dispossessed of the plaint schedule properties at any point of time, can the courts below simply ignore the purchase certificates especially when the Taluk Land Board allowed the claim petitions filed by the plaintiffs under Sec. 85 (8) of the KLR Act and when it was confirmed by this Court ?
10. The CRP 204/2004 was actually filed on 11.4.2001. Since there were defects, it was returned for curing defects. Thereafter it was re-presented only after three years and hence, this CRP was numbered as CRP 204/2004.
11. Kidangazhi Manakkal Madhavan Namboodiri is the declarant who submitted the ceiling return declaring R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 9 :- the lands held by him. Since his children Unnikrishnan Namboodiri and Chandrika were minors as on 1.1.1970 they were treated as members of the statutory family. The ceiling case was considered by the Taluk Land Board, Eranad in C.R.156/1973. An extent of 11.45 Acres was surrendered by the declarant in advance. After enquiry and after considering the objections raised by the declarant another extent of 22.02 Acres of land was also ordered to be surrendered. It takes in 6.25 Acres in Survey No.560/1, 1.96 Acres in 546/3B, 6.35 Acres in 551/pt and another 3 Acres in 548/1A part and 4.46 Acres also in the very same survey subdivision. All the properties were situated in Vandoor Village, Eranad Taluk. The first order was passed by the Taluk Land Board on 29.11.1975. Though CRP was filed by the declarant under Sec.103 of the KLR Act as CRP No.2781/1975, that was dismissed. This revision petition is filed by the person who claims to be the assignee of the land from persons to whom excess lands were distributed and R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 10 :- who were stated to have been given possession. According to the revision petitioner, the Tahsildar, Eranad had taken possession of 13.87 Acres of land as per proceedings dated 27.5.1977 which takes in 1.96 Acres in R.S.No.546/3B. It is also contended that the proceedings for assignment of land were commenced and applications were invited from many persons and thereafter Forms 18 & 19 were issued under the Assignment Rules. Thus, the revision petitioner, who claims right under five assignees, contends that the Land Board proceedings were completed on 20.4.1978 and as such, the subsequent interference disturbing the assignment should not have been undertaken. It was also contended that the five assignees had paid the instalments payable by them and had also obtained loan by mortgaging those plots. It was further contended that another order was passed by the Taluk Land Board on 31.11.1981 directing the declarant to surrender 8.15 Acres but it was actually superfluous since the entire area measuring 22.02 R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 11 :- Acres was already ordered to be surrendered, pursuant whereto, that much land was taken possession by the Tahsildar. Again a revision petition was filed by the declarant before this Court as CRP No.554/1984 which also met with the same fate. It is further contended that after the dismissal of that petition, Unnikrishnan, the son of the declarant also filed CRP 636/1983 which also was dismissed by this Court on 9.3.1987.
12. It was further contended that while the assignment proceedings were in progress some persons filed claim petitions under Sec.85(8) of the Kerala Land Reforms Act. The names and addresses of those five persons are mentioned in this revision petition. The first among them is Damodharan Namboodiri, the nephew of the declarant and the second claimant is Parameswaran Namboodiri, the son-in-law of the declarant. Out of the claim petitions filed by five persons, the claim petitions filed by claimants 1 and 2 were allowed by the Taluk Land Board R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 12 :- on 20.6.1988. That order was challenged before this Court in Civil Revision Petition. This Court remanded the matter to Taluk Land Board for fresh consideration.
13. The revision petitioner herein contended that he was not a party to the proceedings initiated under Sec.85(8) of the KLR Act. The revision petitioner further contended that on coming to know of the proceedings he filed OP 16923/1993 before this Court contending that he was not given opportunity of being heard and he also opposed the claim set up by the petitioners in CRP Nos.674/1997 and 105/1998. CRP No.674/1997, CRP No.105/1998 and OP 16923/1993 were disposed of by this Court as per a common judgment dated 30.7.1998 and the matter was remanded to the Taluk Land Board holding that the revision petitioner herein shall be given opportunity of being heard. The Taluk Land Board after hearing both sides passed an order dated 15.9.2000 accepting the claim of the claimant Parameswaran Namboodiri and rejecting the claim made by R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 13 :- Amina Kutty, Ummar and Chekkunny. The revision petitioner contends that the order passed by the Taluk Land Board rejecting the claim made by the petitioner is illegal and unsustainable. It is stated that the claim of Damodaran Namboodiri was also allowed.
14. The main contention that is advanced by the learned counsel for the petitioner is that the property claimed by the petitioner, which was purchased by him from other assignees takes in the properties claimed by Parameswaran Namboodiri and Damodharan Namboodiri. The petitioner herein had filed OP 16923/1993 challenging the order of the Taluk Land Board. Those two CRPs, CRP Nos.674/1997 and 105/1998 were considered along with OP No.16923/93. Both those revision petitions were filed against the order of the Taluk Land Board dated 4.2.1997. The revision petitioners were the applicants who had filed petitions under Sec.85(8) of the KLR Act before the Taluk Land Board. The aforesaid OP and the two civil revision R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 14 :- petitions were disposed of by this Court as per common order dated 30.7.1998. It was observed that the extent of land involved in CRP 674/1997 is 5.38 Acres and the land involved in the other CRP was 2.70 Acres. Those revision petitioners claimed tenancy right and obtained purchase certificate from the Land Tribunal. Initially the Taluk Land Board, after considering their cases held that their properties could not be included in the declarant's property and deleted those properties by order dated 20.6.1988. That order was challenged before this Court in CRP 2469/1989. That revision petition was filed by the State. The contention raised by the State was that the lands which were said to be in the possession of the petitioners mentioned in the order referred to above by this Court had been assumed by the Taluk Land Board when the declarant surrendered the property in 1977 and that subsequently portions of those properties were assigned in favour of landless labourers. It was found by this Court, after R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 15 :- considering the rival contentions, that as a matter of fact there was no proof before this Court to show that the lands which were alleged to be in the possession of the revision petitioners therein were taken possession by the State. But as requested by the Government Pleader, in order to give an opportunity to produce such document, the case was remanded to the Taluk Land Board for fresh disposal. The remand order was made in order to enable the Government to produce document to show that the lands were taken possession earlier. Again the Taluk Land Board considered the entire matter in detail. Then there was a shift in the stand taken by the Taluk Land Board. It was said earlier that the revision petitioners mentioned in the above order were in possession of the property. The Taluk Land Board after remand held that the property was in possession of the declarant. CRPs were filed challenging the order of the Taluk Land Board. Considering such matters, this Court observed:
R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 16 :- "The Supreme Court has time and again cautioned not to throw out or ignore a purchase certificate lightly. If a purchase certificate is produced that shows conclusively that the holders thereof are the owners of the properties and the landlords' right are vested in the Government. Unless the Taluk Land Board is able to find that there has been fraud in obtaining the purchase certificate or that it was obtained without any material, the Land Board should not set aside such document. Here, I find that no enquiry was made by the Land Board to the Land Tribunal, which had issued the purchase certificate in favour of the petitioners. It has not looked into the proceedings of the Land Tribunal. It has not scrutinised the order passed by the Tribunal. This Court has also said that if the Land Tribunal, after considering the materials, takes a particular view that cannot be set at naught by the Taluk Land Board simply because a different view is possible."
In the course of the argument, the learned counsel for the petitioner (Abdul Razack - the petitioner in the CRP) submitted before this Court that the sketch and mahazar prepared and which were relied on by the Taluk Land Board to show that it had assumed possession were not prepared in conformity with the Ceiling Rules. It was observed that there are conflicting claims with regard to the assumption R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 17 :- of possession. It was observed that the Taluk Land Board would have maintained the records after taking possession till the lands were distributed. Though this Court had made a search of the entire records no document could be found to show whether the possession was assumed. However, finally this Court set aside the orders impugned in that case and the Taluk Land Board was directed to consider the matter again. It was specifically observed that it is necessary for the Taluk Land Board to consider the validity of the purchase certificates.
15. The case of the revision petitioner herein is that, he is the purchaser of certain extent of land in R.S.No.546/3B and 551/pt. He obtained assignment from five persons to whom assignment of various extents of land ranging from 89 cents to 98 cents were given. The learned counsel for the respondents would submit that it is not a case where the assignee - the landless poor, who is before this Court but actually a real estate business man, who, R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 18 :- exploiting the poverty of such landless poor persons (who had been allegedly assigned land) had purchased the land from all the assignees paying some paltry sum and then came forward to attack the lease granted in favour of the predecessor-in-interest of the respondent (the claimant under Sec.85(8) of the KLR Act) and so, the learned counsel submits that it is a case where the petitioner does not deserve any sort of sympathetic consideration. Be that as it may, the question is whether the lands in question were taken possession by the Taluk Land Board or by the Tahsildar pursuant to the order passed by the Taluk Land Board.
16. It is pointed out by the learned counsel for the respondent that this petitioner purchased the lands from the five assignees only in 1993 and so, his plea that he should have been given notice in the proceedings is bereft of any merit. He was attacking the orders passed in 1988 and 1989 when he was nowhere in the picture. He obtained R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 19 :- assignment only in 1993. Since the petitioner herein was not heard, the matter was again remanded to the Taluk Land Board and the impugned order dated 15.9.2000 was passed by the Taluk Land Board.
17. The main attack was with regard to the tenancy right claimed by Parameswaran Namboodiri. It is a case where the claimant's predecessor Govindan Nair had obtained purchase certificate from the Land Tribunal. There is a detailed consideration of the claim made by Parameswaran Namboodiri in pages 8, 9 and 10 of the impugned order. The definite case of the claimant is that the property claimed by him was outstanding on tenancy right in the name of one Cheroma Nair who is the mother of Govindan Nair, as per a registered lease deed of 1941. It was earlier observed by the Taluk Land Board that the claimant did not produce any record to show payment of rent etc. But the fact remains that the lease was granted in 1941 as per a registered document. On the death of R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 20 :- Cherovanna Nair, the tenancy right devolved upon Govindan Nair, who applied to the Land Tribunal for purchase of jenm right and purchase certificate was issued to him in S.M.535/1984. It is true that the proceedings before the Land Tribunal were initiated subsequent to the original order passed by the Taluk Land Board. But that does not mean that a genuine claim made by the tenant should be thrown out. The learned counsel for the respondent submits that had it been a case where the claimant was simply relying upon certain self serving recitals in a document that the assignor was in possession of the property on an oral lease, then certainly it may be said that such recitals were incorporated in a document created long after 1.1.1970 only to lay claim on the property of the declarant. But that is not the case here. The other ground that was projected by the petitioner was that the present claimant is the nephew of the declarant. But the claimant is not claiming right under the declarant but is R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 21 :- relying upon the registered lease deed of 1941 in the name of Cherovanna Nair, whose legal heir is admittedly Govindan Nair, who obtained purchase certificate in 1985. Admittedly Govindan Nair or his mother Cheroma were not parties to the proceedings in the Taluk Land Board. Therefore, whatever was said and done by the Taluk Land Board is not binding on Govindan Nair to whom the purchase certificate was issued.
18. It was contended by the petitioner that earlier the stand taken by the declarant was that he was in possession of the property. Had the petitioner who is none other than his nephew been in possession of the property then certainly the declarant would not have stated so but that contention cannot be accepted in view of the fact that at the time of declaration and till Govindan Nair assigned the property to Parameswaran Namboodiri, (the declarant's nephew) the property was in the possession of Govindan Nair and prior to it in the possession of his mother. R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 22 :- Therefore, the non-mention of the fact that the property was outstanding on tenancy right in the name of Govindan Nair is not a ground that can be projected by the petitioner, for, Govindan Nair was not a person related to the declarant. So far as Govindan Nair is concerned, the proceedings till then taken by the Taluk Land Board was not binding on him. It was also contended that the declarant had earlier contended that he had gifted the property as per a gift deed of 1974 and that takes in this disputed property measuring 1 Acre and 96 cents in Survey No.546/3B. Govindan Nair, the tenant is not bound by the document executed by the jenmi/landlord, who is the declarant. Therefore, that also is not a ground that can be used against the claimant.
19. The Taluk Land Board had a detailed consideration of the entire matter. The Revenue Inspector's report was relied upon by the Taluk Land Board. Besides, the registered lease deed of 1941 was also relied upon. In view of the fact that this Court had directed the Taluk Land R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 23 :- Board to consider the matter again, there was a detailed discussion of the entire evidence. The report of the authorised officer would show that there were remnants of an old house which did indicate that there was in existence the house of the tenant in the said property, for, there was no case that there was in existence the house or any other building of the landlord in the said property. It was also found that as per the registered lease deed of 1941, the area on computation of Kole measurements would come to 2.07 Acres but the actual area available was only 1.96 Acres. The report of the Officer relied upon by the Taluk Land Board would also show that the property was outstanding on tenancy right, based on which purchase certificate was issued and that the order of the Land Tribunal does not suffer from any infirmity. Though the Land Board was not sitting in appeal, it (the Land Board) has considered all those aspects in order to counter the allegation made by the petitioner herein that the purchase R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 24 :- certificate is vitiated by fraud or collusion and that it was obtained behind his back. The petitioner herein was not a person to be given notice of the proceedings because he purchased the property only in 1993 several years after the purchase certificate was issued in favour of Govindan Nair. When the lease was covered by a registered deed of 1941 and when the competent Tribunal accepted the document as true and valid, and when, after conducting enquiry the purchase certificate was issued, it cannot be said that the said purchase certificate is vitiated on the ground of fraud or collusion. The fact that the said certificate was issued after orders were passed earlier by the Taluk Land Board does not in any way affect the validity of the purchase certificate because Govindan Nair, the assignee was not a party to the proceedings. The Taluk Land Board after elaborate discussion found that the order of the Land Tribunal based on which purchase certificate was issued is not vitiated by fraud or collusion. Hence, Parameswaran R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 25 :- Namboodiri who obtained assignment of that property from Govindan Nair was found to be entitled to get protection in respect of 1.96 Acres of land comprised in R.S.No.546/3B of Vandoor Village. Thus, the Taluk Land Board rightly directed deletion of that ceiling area from the account of the declarant.
20. The other ground that has been very much projected by the petitioner is that this property had already been taken possession by the Tahsildar earlier and so, purchase certificate should not have been granted. According to the petitioner, the property was taken possession on 20.4.1978. It is contended that the Taluk Land Board should have verified the records to find that the possession was taken on that date. If actual possession had been taken on 20.4.1978 then there must be records to show that the Government had taken possession after issuance of notice to those assignees, it is argued. The petitioner contended that the assignment proceedings were R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 26 :- completed and Form Nos.18 and 19 were issued under the Assignment Rules. But the learned counsel for the respondent would submit that even if there are records to show that there was an assumption of land by the Tahsildar and assignment of those lands in favour of the five assignees as mentioned by the petitioner, it can only be held that it was only a "paper assignment" and that assumption of possession was only in papers but the actual possession of the property by the claimant was not at all disturbed. In other words, the claimant who was in possession of the property on the strength of the registered deed of 1941 and who obtained purchase certificate subsequently was not at all dispossessed and so, whatever was made to appear on papers, cannot whittle down or negative the case of title and possession asserted by the claimant Govindan Nair under whom the claimant Parameswaran Namboodiri claims right by virtue of the assignment deed.
21. It is argued on behalf of the revision petitioner R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 27 :- that the claim petitions should not have been allowed by the Taluk Land Board in view of the fact that the claimant- Parameswaran Namboodiri put forward the claims based on a document of assignment obtained after 1-1-1970 and so they cannot be treated as "persons interested" occurring in Sec. 85 (8) of the Act. It is vehemently argued by the learned counsel appearing for the revision petitioner that the "person interested" mentioned in Sub Sec. 8 must be one who had acquired right over the land prior to 1-1-1970. Hence, the claimant should establish that as on 1-1-1970 he had an interest in the land which was sought to be included in the account of the declarant. Therefore, without establishing such right an order directing the declarant to surrender excess land cannot validly be challenged, it is argued. In this connection, the learned counsel for the respondent/claimant would submit that at no point of time earlier when the claim petitions were filed any such contention was raised by the State or by anybody else R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 28 :- contending that the petition is not maintainable under Sec. 85(8) of the Act. True that, a question of law can be raised at any point of time. But the fact remains that no such contention was raised earlier. So far as the claim made by Parameswaran Namboodiri is concerned it is not a case where the claim was founded on any document of lease executed after 1-1-1970. The claimant's predecessor-in- interest Govindan Nair had obtained right as the legal heir of Cheravanna Nair. Cheravanna Nair had obtained right on the strength of a registered lease deed of 1941. That fact cannot be lost sight of. The Taluk Land Board considered all these aspects earlier and passed an order and again it was reconsidered by the Taluk Land Board. It is after the second remand, the impugned order was passed.
22. The decision in Malathi Amma v. Taluk Land Board - 1988 (1) KLT 350 has no application to the facts of this case. That was a case where the person who filed the claim petition under Sec. 85 (8) was the person R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 29 :- who purchased the land from a declarant after the determination by the Taluk Land Board of the excess land liable to be surrendered by him. The facts of this case are entirely different.
23. In Venketeswara Naidu v. Taluk Land Board
- 1981 KLT 545 it was held that the right to move the Land Board under Sec. 85(8) is conferred only on a person interested. In that case the learned Government Pleader contended that the "person interested" means a person who is able to establish a right in the property involved in the case and if that be so, before allowing the application under Sec. 85 (8), the Land Board has to record a definite finding whether the applicant has established or failed to establish the right claimed. The person interested is a person having some interest in the proceedings.
24. In the decision in Sundaran v. State of Kerala
- 1989 (2) KLT 806 the question which arose was whether a defeated claimant has any right to exercise option within R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 30 :- the meaning of sub Sec. 6 of Sec. 85. On that point It was held by this Court that he had no such right and the right of option can be exercised only by a declarant. The decision in Sundaran v. State of Kerala (supra) was followed by the Division Bench in Kunhalan Hajee and others v. State of Kerala and others [1994 (2) KLJ 366].
25. The learned counsel for the petitioner has relied upon the decision in Kunhalan Haji's case - 1994 (2) KLJ 366 in support of his submission that the claimants herein came to the picture only after 1-1-1970 and so they cannot be treated as the persons interested. In that case it was held that Sub Sec. 8 of Sec. 85 does not confer any right on a person who obtained right after 1-1-1970 to exercise option as to the land to be surrendered. It was held that the right to exercise option is given only to the declarant and not to a claimant. There the person who filed the application under Sec. 85 (8) wanted an option statement filed by him to be accepted by the Taluk Land R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 31 :- Board. It was in that context, it was held that the claimant has no right to exercise option but it is available only to the declarant.
26. It is not a case where the claimants were parties to the proceedings earlier. It was without their junction the order was passed asking the declarant to surrender certain lands. When the respective claimants came to know of the said order they moved the Taluk Land Board under Sec. 85 (8) of the KLR Act. In the earlier round of litigation it was held by this Court that the fact that the claimants had obtained purchase certificate also has to be given due weight. That observation was made relying upon the Supreme Court decisions and other decisions on the point. It was not contended before this Court when C.R.P. 2469/1989 was pending or when this Court considered CRP Nos. 674/1997, 105/1997 and O.P. 16923/1993, that the claim petitions are unsustainable. The claimant Parameswaran Namboodiri is claiming under Govindan R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 32 :- Nair who obtained purchase certificate of the said property from the Land Tribunal he being the legal heir of Cheravanna Nair who had obtained lease as per a lease deed of 1941.
27. So far as, Damodaran Namboodiri, the claimant in the other case is concerned he set up an oral lease in 1960. He subsequently obtained jenm right in respect of the said property as per the proceedings in SM 266/1989 of Land Tribunal, Wandoor. The said proceedings was initiated after the initiation of the Ceiling case before the Taluk Land Board and after the earlier order was passed by the Taluk Land Board directing the declarant to surrender 22 and odd acres of land which includes the property shown in his claim petition as well. But it cannot be contended that he is not a person interested in the property since he claims that he was in possession of the property based on an oral lease of 1960 which subsequently culminated in the issuance of a purchase certificate by the Land Tribunal. R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 33 :-
28. It is also pertinent to note that the order passed by the Taluk Land Board which was impugned in CRP 204/2004 was not at all challenged by the Government. In view of the fact that the properties were in the possession of the respective tenants or the predecessors- in -interest prior to 1-1-1970, the contention that the two claimants were not the "persons interested" within the meaning of Sec. 85 (8) of the KLR Act, cannot be accepted at all. It is not a case where these claimants had filed mere option statement requesting the Taluk Land Board to take some other land instead of the land in their possession but they put forward a specific claim that they are entitled to fixity of tenure and that the Land Tribunal had granted purchase certificate in respect of the respective holdings. It is also worthwhile to note that such a plea is not raised by the Government but by a person who purchased the property only in 1993. Therefore, on facts, the decision in Kunhalan Haji (Supra) has to be distinguished. The R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 34 :- decision in Kunhalan Haji (Supra) is thus not applicable to the facts of this case.
29. It is also submitted by the learned counsel for the second respondent in CRP who is the appellant in R.S.A. 816 of 2003 that based on the claim petition filed by Damodaran Namboodiri, the Land Board as per order dated 8-8-1988 found that 4.40 acres of land comprised in R.S.A. 551/part of Wandoor Village was in the direct possession of Damodaran Namboodiri. The rent receipts, basic tax receipts of the year 1970 and 1971 and also of the subsequent periods and the reports of the authorised officer were considered by the Taluk Land Board. Considering all those aspects, the claim made by Damodaran Namboodiri was allowed by the Taluk Land Board as per order dated 8-8-1988. It was that order which was earlier challenged by the Government in CRP No. 2463/1989.
30. It was contended by the Government that the R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 35 :- District Collector had taken possession of the land on 31- 3-1977 and the land was already assigned. It was held by this Court that if in fact possession of the land had already been taken by the State and the properties were assigned to the assignees on 20-6-1988, it cannot be contended that the two claimants were in possession of the respective portions of the property claimed by them. The purchase certificates and so many other documents produced by the claimants were considered by this Court. Besides, the fact that the purchase certificates issued to the respective claimants became conclusive was also taken note of. But in view of the contention raised by the Government that there would be records to show that the property was taken possession by the State as excess land and that those properties were assigned to the assignees, the matter was remanded to the Taluk Land Board. In other words, the fact that the claimants are otherwise entitled to get the land exempted was in a way confirmed by this Court. R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 36 :- However, since the matter was remanded to the Taluk Land Board, the entire dispute was considered afresh.
31. The reports of the Authorised Officer were also obtained for that purpose. It was already observed by this Court while ordering C.R.P. No. 2469/1989 dated 11-10- 1996 that no document was produced to prove that the property had been taken possession by the State in the year 1977 or 1978 or that it was assigned to the assignees in the year 1978. The report of the authorised officer was also found in favour of the claimants. As said earlier, it was only to enable the Government to produce documents to prove the actual taking over of land and assignment and putting the assignees in possession of the property, the matter was remanded. Again the Taluk Land Board considered the entire matter in detail and decided in favour of the claimants. Thereafter Mr.Abdul Razak, who was stated to have obtained assignment of the property in 1993 from the assignees of excess land approached this Court R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 37 :- contending that he has to be heard in the matter. Since he was not heard, the matter was remanded to the Taluk Land Board for fresh consideration. Again the Taluk Land Board after obtaining report from the authorised officer and after perusal of the records found that the claimants are entitled to get fixity of tenure and that their land has to be deleted from the declarant's account .
32. Though it was argued vehemently that the properties were taken possession from the declarant no document could be produced at any time to show that the Government had actually taken possession of the land. There is no document to show that the two claimants were at any point of time dispossessed, it is argued on behalf of the claimants.
33. Much was argued by the learned counsel for the respondents in the Second Appeals and the Petitioner in the Revision Petition pointing out Ext.A8 that on 27-4- 1989 the land was re-conveyed to Damodaran Namboodiri R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 38 :- and others. It is seen that an order was issued by the Tahsildar on 7-3-1989 stating that as per order passed by the Taluk Land Board on 20-6-1988 the lands which were taken earlier as per the order of the Taluk Land Board were directed to be re-conveyed to the claimant and, accordingly, 1.96 acres of land in R.S. No. 546/3B should be re- conveyed or given back possession to Parameswaran Naboodiri. Similarly, an extent of 4 acres 40 cents of land in R.S. No. 551/1 should be given back possession to Damodaran Namboodiri, it was ordered. Ext.A4 produced in the suit is a document similar to Ext.A8 pertaining to 1.96 Acres claimed by Parameswaran Namboodiri.
34. It is vehemently argued that, if as a matter of fact, the properties were not taken possession pursuant to the earlier order passed by the Taluk Land Board, there was no necessity to re-convey the land to Parameswaran Nbamboodiri or Damodaran Namboodiri. But in this connection the learned counsel for the respondents in the R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 39 :- CRP (the appellants in the RSA) would submit that it was only a paper transaction and at no point of time, the appellants in Second Appeals (the respondents in the CRP) were dispossessed. No document could be produced or shown by the Government or by anybody else to show that the properties were actually taken possession from the possession of the claimants. All the reports filed by the authorised officer would clearly go to show that the properties were in the possession of the claimants only and there was no separate demarcating boundary showing assignment of the respective plots measuring 89 cents, 98 cents etc. to the various assignees. It is pointed out by the learned counsel for the claimants/respondents in the CRP that the Revision Petitioner or five assignees (the defendants in the suit) do not attack the claim made by Aminakutty, Ummar and Chekkutty who made similar claims in respect of the various portions held by them. That is yet another circumstance pointed out by the R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 40 :- claimants herein that the theory of taking possession of the land by the government from the claimants and putting the assignees in possession of the same is untrue.
35. It was already observed by this Court on earlier occasions that the Government could not show mahazar or any other document to show the actual taking over possession of the land. No document could also be shown to the Court now or on earlier occasions as to the handing over of possession of the land to the respective assignees. Simply because an order of assignment was passed in favour of the assignees it cannot be said that the claimants/respondents in this CRP were dispossessed from the respective portions held by them.
36. The suit was filed in the year 1991. Even going by Ext.A8 and the order passed by the Tahsildar it would show that the direction to re-convey the property was issued on 7-3-1989 about two years prior to the filing of the suit. It was pursuant to that the Village Officer has R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 41 :- made a record to show that the re-conveyance was effected in respect of which a plan was also produced. The plan appended to Ext.A8 order would show that it pertains to the property measuring 4.40 acres mentioned in the suit filed by Damodaran Namboodiri.
37. Much was argued by the learned counsel for the revision petitioners and the respondents in the Second Appeals that once the land was taken possession and was assigned to the assignees, without giving notice to the assignees, no order of cancellation could be passed and any action taken pursuant there to should be held to be invalid. In support of that submission the learned counsel has relied upon a decision of this Court in Bhaskara Kurup v. District Collector - 1982 KLT 656 where it was held that there is no provision in Rule 29 of the Land Reforms (Ceiling) Rules, 1970 (Kerala) empowering the collector to cancel the assignment made by the Taluk Land Board. There is no document to show that any notice was issued to R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 42 :- the claimants (respondents in the Civil Revision Petition) that they were given notice of the so called taking over of possession of the respective lands pursuant to the order earlier passed by the Taluk Land Board. It has already been found by this Court on two earlier occasions that no document could be produced or shown to prove the actual taking over of possession of the property or to show the actual handing over of possession of the same to the assignees. It is further submitted by the learned counsel for the appellants in the Second Appeal that no objection was raised by anybody with regard to the claim made by Aminakutty to whom four acres of land was re-conveyed and to Ummar, and Chekkutty to whom 1.30 acres of land was re-conveyed. Though the revision petitioner attacks handing over of possession to Parameswaran Namboodiri and Damodaran Namboodiri, no challenge was made with regard to the two plots which were similarly ordered to be re-conveyed to Aminakutty, Ummar and Chekkutty. Those R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 43 :- are also matters which would speak volumes, the learned counsel for the respondents in the CRP submits.
38. It is also pertinent to note that the CRP was filed not by the persons who were stated to have been assigned portions of the land measuring 98 cents, 89 cents etc. but by a person who claims to have purchased the entire land from all the assignees as per registered documents of 1993.
39. It is pointed out by the learned counsel for the appellants in the Second Appeal that the evidence of DW1 and DW2 would indubitably make it clear that the entire expense for conducting the case was met by Abdul Razak, the revision petitioner in CRP No. 204/2004 and that even an agreement was entered into between DW1 and DW2 on the one hand and Abdul Razak mentioned above on the other hand with regard to the conduct of the case and the money to be spent for that purpose etc. It is further contended that those assignees were put in the front to have a fight against the actual persons in possession of the R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 44 :- property and that it was actually financed and monitored by the revision petitioner Abdul Razaak, who according to the respondents is a real estate business man and not a landless poor person.
41. Parameswaran Namboodiri, the plaintiff in O.S.No. 531/1991 was examined as P.W.1. He has deposed that he purchased the property from Govindan Nair who was the legal heir of Cheravanna Nair and that he has been in possession of the said property. It is true that Govindan Nair was not examined but at the same time, the fact remains that a registered assignment deed was executed by Govindan Nair in favour of P.W.1. The registered lease deed of 1941 was subsequently produced and so it cannot be now contended that there is no document to show that the property was not obtained on lease by Cheravanna Nair who is the mother of Govindan Nair. It was argued by the defendants that except the purchase certificate, the earlier registered lease deed and the basic tax receipts there are R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 45 :- no other documents showing possession prior to 1-1-1970. It is true that there is no document to show that prior to 1- 1-1970, Cheravanna Nair and Govindan Nair had paid basic tax in respect of the said property. But non-payment of the basic tax by cultivating tenants prior to 1-1-1970 is no reason to hold against the plea of fixity of tenure, if it is otherwise available to the tenant because as it stood then land revenue was to be paid by the landlord, it is argued.
42. It was specifically asserted by P.W.1 that the defendants in the suit were never in possession of the suit property. The contention that the assignee had raised tapioca cultivation was denied. It was asserted by P.W.1 that it was done by him. In this connection the learned counsel for the appellants in the Second Appeal would press into service the observations made by the Advocate Commissioners in all the reports which would support the case of the appellants that the plaint schedule property is lying contiguously and the land covered by the alleged R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 46 :- assignment deeds was not severed or separated nor was any boundary put up demarcating the remaining property. The observations made by the Commissioners also support the case of the plaintiffs that they were in possession of the suit properties.
43. The cumulative effect of these towering circumstances would scuttle the plea raised by the defendants that the plaintiffs were not in possession of the property as on the date of the suit.
44. The husband of the 2nd defendant in O.S. 531/1991 was examined as DW1. He has stated that the Government had issued Form No.19 Ext.B3 series to defendants 1 and 2 assigning 92 cents of land each. Before issuance of Form No.19, order in Form No. 18 Ext.B2 series were also issued. The appellants contend that there is absolutely no document to show that the respective assignees were put in possession of the land based on the said order of assignment. A specific question was put to R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 47 :- DW1 and DW2 regarding the non-issuance of patta in Form No. 20. They could not say anything regarding the same. They had no case that patta was issued to them. On the other hand, the documents would show that the assignment was cancelled. So far as the appellants are concerned the fact whether the original assignees were given notice or not may not assume much importance. So far as the revision petitioner (Abdul Razak) is concerned he was not the person interested so as to get notice on the so called handing over of or taking possession or re-conveyance of the land, because he came to the picture only in 1993 several years after the order was passed by the Taluk Land Board.
45. When DW1 was cross-examined he feigned ignorance as to whether the plaintiff was having possession and right over the land. It was stated by him that the application was filed by the defendants for getting assignment of the land for the purpose of putting R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 48 :- residential houses in the property. Admittedly, none of the assignees had even made preparation for the construction of residential houses, even though they claimed to have been in possession of the property for about 12 years. These aspects are highlighted by the learned counsel for the appellants to contend that the courts below failed to take note of the fact that as on the date of the filing of the suits the plaintiffs were in settled possession of the respective plots and that their possession was never disturbed even though based on the order passed by the Taluk Land Board, certain portions of land were shown to have been assigned to various assignees. When questions were put to DW1 that the Advocate Commissioner has reported that the entire property within the four boundaries were lying contiguous he could not explain the same. It was also admitted by DW1 that there is no document to show that the properties were assigned to the various defendants in the suit. DW1 was not even aware of the fact R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 49 :- whether a pattayam should be issued in Form No. 20. DW1 was not aware of the fact whether the first order passed by the Taluk Land Board was set aside subsequently. It was admitted by DW1 that the entire expense to conduct the litigation is met by Abdul Razak. Abdul Razak is not a person residing in that locality. He is stated to be residing in Manjeri.
46. The learned counsel for the appellants in the two RSAs who are the respondents in the Civil Revision Petition has referred to various decisions of this Court and also of the Hon'ble Supreme Court to canvass for the position that unless the certificate of purchase is proved to have been obtained by fraud or collusion, the conclusiveness attached to the purchase certificates cannot be taken away. One such decision of the Hon'ble Supreme Court is in Cheeranthoodika Ahmmedkutty and Another v. Parambur Mariakutty Umma and Others - (2000) 2 SCC 417. There it was held by the Apex Court :- R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 50 :- "When the enactment enjoined that any evidence would be treated as conclusive proof of certain factual position or legal hypothesis the law would forbid other evidence to be adduced for the purpose of contradicting or varying the aforesaid conclusiveness. This is the principle embodied in Sec.4 of the Evidence Act, when it defined "conclusive proof".
"4. "Conclusive proof"- When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it".
9. Of course, the interdict that the court shall not allow evidence to be adduced for the purpose of disproving the conclusiveness, will not prevent a party who alleges fraud or collusion from establishing that the document is vitiated by such factors. Except regrading the said limited sphere the conclusiveness of the document would remain beyond the reach of controvertibility".
47. In the decision cited above it was observed that nobody averred that the purchase certificate was collusively obtained. Even the authorised officer who was to make a report under Sec. 105-A of the Act reported that the said areas were covered by the certificates of purchase. R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 51 :- It was also found that the authorised officer did not even suggest that the certificates were procured collusively. The Taluk Land Board also did not hold that the certificates of purchase were the product of any fraud or collusion and hence it was held by the apex court that it was unnecessary for the High Court to have remarked that the certificates were procured collusively as nobody has alleged them to be so. In this case the learned counsel would point out that in the earlier round of litigation, this Court had observed on two occasions that the purchase certificates in these cases were to be given due weight. The reports filed by the authorised officer at various stages would also support the case of the appellants in the R.S.A. that they were cultivating tenants entitled to fixity of tenure. In other words, there is nothing on record to show that the purchase certificates were obtained by fraud or collusion. In the absence of any other evidence the certificates of purchase obtained by the respective tenants, which were relied upon R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 52 :- by the Taluk Land Board to uphold the plea of tenancy set up by those claimants in their applications under Sec. 85 (8) of the Act have to be accepted and acted upon.
48. Similar to Ext.A8, there is Ext.A4 dated 24-4-1989 marked in the suit where 1.96 acres of land comprised in 546/3B was shown to have been re-conveyed to Parameswaran Namboothiri mentioned above. An argument has been advanced by the defendants in the suit that Ext. A4, just like A8 would show that the Tahsildar had taken possession of the land, for otherwise, there was no reason for re-conveyance of that land. It was already adverted to by me that the defendants and the revision petitioners could not point out any paper in the various files maintained by the Taluk Land Board, which run to several hundreds, to show the actual putting the assignees (the defendants) in possession of the land. It was observed earlier by this Court that there would be mahazers, plans and other documents indicating the same and also to indicate which are the R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 53 :- portions of the land which were assigned to various assignees including the five assignees from whom the revision petitioner (Abdul Razak) was stated to have purchased the land.
49. Therefore, in the absence of any other document indicating the actual taking over of possession of the suit property, and putting the assignees in possession of the land it cannot be said that it should pre-suppose, because of Ext.A4, that possession was taken over by the Government. It is only to make it appear, as per record, that a re- conveyance was also made Ext.A4 and Ext.A8 were prepared. At any rate, since even as per Exts.A4 and A8 possession of the respective plots were found to be with Parameswaran Namboodiri and Damodaran Namboodiri, the two plaintiffs in the suit and since it was done about two years prior to the filing of the suit, it cannot be said that the plaintiffs were not in possession of the property as on the date of the suit. Of course, the plaintiffs do not rely very R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 54 :- much on Exts.A4 and A8 because according to them the property was never taken possession by the Revenue Authorities but only to comply with the order passed by the Taluk Land Board, based on the claim petitions filed by Parameswaran Namboodiri and Damodaran Namboodiri which were allowed, Ext.A4 and A8 were prepared and by the revenue authorities acknowledgments were obtained from the respective claimants for having received possession of the land. In other words, the factum of possession asserted by the plaintiffs based on the lease and purchase certificates was only acknowledged, reaffirmed and reinforced by Exts.A4 and A8. It is further argued on behalf of the appellants in the RSAs that irregularity in the procedure followed by the revenue authorities cannot in anyway affect the plaintiffs' right or possession over the property since they assert possession based on the lease and the purchase certificates which were approved by the Taluk Land Board also. Therefore, the attempt made by the R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 55 :- defendants to contend that Exts.A4 and A8 cannot be accepted as true because no notice was given to the Revision Petitioner or the defendants in this suit and that resumption of land should pre-suppose that earlier the Revenue Authorities had taken possession of the respective land from the declarants or the claimants cannot be sustained.
50. In O.S. 538/1991, the suit filed by Damodaran Namboodiri, an emergent commission was taken out. Ext.C3 is the report and Ext. C4 is the plan. It was stated by the Advocate Commissioner that the plaint schedule property therein is having a measurement of 130 six feet koles being the east-west measurement and 55 six feet koles being the north-south measurement. It was found that the said property was well demarcated having barbed wire fence, on the west and north. On the other two sides there were mud varamba ridges. It was also observed that the said property was cultivated with tapioca. Besides, there R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 56 :- were cashew trees and so many other trees as well. The said report and plan were remitted back again to measure the property and to submit a report. Exts. C5 and C6 are the further report and plan submitted by the very same Advocate Commissioner. It is reported by the Advocate Commissioner that the said property is comprised in Sy. No.
551. Plot ABCDE shown in the plan is the property measuring 4 acres 40 cents which is the subject matter of the suit O.S.No.538/1991. It was specifically reported by the Advocate Commissioner that the plaint schedule property is situated as a single compound with definite boundaries on all its four sides. It was observed that there are ridges or mud varambas on two sides and on the other two sides barbed wire fence could be seen. Earlier, the objection raised by the defendants therein was that the observation made by the Commissioner that the plot was lying compact plot is untrue and it was for that purpose also the report was remitted. Again the Advocate Commissioner R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 57 :- reported that the plaint schedule property is having well- defined boundaries. The contention raised by the defendants and the revision petitioner (in the CRP) is that the property was not held by the plaintiff and that this property was assigned to various assignees from whom Abdul Razak had purchased the property in 1993. If as a mattrer of fact, the properties were assigned to various persons as claimed by the defendants then certainly there would have been separate plots measuring 89 cents each and also 98 cents each . But no such plot could be pointed out by the defendants nor could the Commissioner see any such plots there. During trial also, the defendants did not show the respective plots alleged to have been assigned to them by referring to the various polans submitted by the Advocate Commissioners. If so how could it be said that they were put in possession of any particular plot. That would scuttle the plea raised by the defendants that separate plots were assigned to those assignees. That itself R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 58 :- will unfold the fallacy of the case put forward by the defendants that the property was taken possession by the Government/Revenue Department and thereafter the portions were assigned to various assignees. It would butress the submission made on behalf of the plaintiffs that though there may be papers showing the assignment of the various plots measuring 89 cents, 98 cents etc. to the defendants in the suits, the assignment remained to be in papers only, for otherwise there would have been separate demarcated plots indicating separate possession of those plots by the different assignees. The cumulative effect of these factors would also demolish the case of the defendants that the various assignees were put in possession and those assignees had taken possession of different plots. It was specifically reported by the Advocate Commissioner that he could not see any definite boundary which indicate the lie of the property as different plots as stated by the defendants in the objection/adffidavit filed by R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 59 :- them. Nothing could be brought out to hold that the report and plan submitted by the Advocate Commissioner is unacceptable.
51. Damaodaran Nambooditi the plaintiff in O.S. 531/1991 who was examined as P.W.2 has asserted that the plaint schedule property has well-defined boundary . That evidence which is in consonance with the reports and plans submitted by the Advocate Commissioner could not be controverted by the defendants. When those reports and plans, (in which it was specifically reported that the plaint schedule property was well within the four boundaries) were put to DW1, the husband of the second defendant in O.S. 531/1991 he only feigned ignorance. Thus, it could be proved to the hilt that the plaint schedule property in O.S. 531/1991 was found to be within the four well-defined boundaries. As said earlier, the plaintiff in O.S. 531/1991 who was examined as P.W.1 has given evidence regarding the lie and position of the property held by him. It was R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 60 :- specifically asserted by him that this property was never assigned to anybody and nobody did come to assert possession of that property.
52. The second defendant in O.S.538/1991 was examined as DW2. He also had to admit the fact that the entire suit property in O.S. 538/1991 is lying as a single plot. The adjacent property is of one Nabeesa. It was admitted that the southern boundary of the property is in the possession of one Ummer. That also is stated to be a rubber estate. DW2 could not say when Ummer and Nasbeesa mentioned above came into possession of those respective plots. DW2 has also admitted the fact that the eastern and western boundary of the suit property in O.S. 538/1991 is held by Damodaran Namboodiri. There is barbed wire fence separating the said property from the neighbouring property. It was also admitted by him that on the entire southern side there is a varamba. Though he says that the Village Assistant had measured the property R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 61 :- and a plan was prepared for having given possession of the land to him, no such plan was produced, nor could he show the property measuring 98 cents or 89 cents alleged to have been assigned to the 2nd defendant or to any other assignee. It was admitted by him that no pattayam in Form No. 20 was issued. He also says that if only 'Form No. 20 pattayam' was issued, the assignee could get possession of the property. All these factors would demolish the case of the defendants that the plaintiff was not in possession of the plaint schedule property as on the date of the suit.
53. Ext.C1 is the plan and Ext.C2 is the report filed in O.S.No.531/1991. That was the suit filed by Parameswaran Namboodiri. There also it was reported by the Advocate Commissioner that the plaint schedule property was measured and that it was seen to be lying in "two tacks". One tack measuring 1.96 Acres and the other tack measuring 22 cents. The disputed property is 1.96 Acres in Survey No.546/3B. The land measuring 22 cents was R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 62 :- situated on a higher level than the other plot measuring 1.96 Acres. It was noted by the Advocate Commissioner that two ponds were seen in the northern boundary of the property measuring 1.96 Acres. The water level of those ponds was about 6-8 feets. One contention advanced on behalf of the respondents in the appeal (the revision petitioners in the CRP) is that though in the lease deed of 1941, reference is made about a pond that pond is not seen. But that argument is found to be incorrect in view of the observation made by the Commissioner in paragraph 5 of Ext.C2. The lie and position of the ponds are seen marked in Ext.C2 plan as P1 and P2. It was also reported by the Advocate Commissioner in paragraph 6 of Ext.C2 that a skeleton of a shed was seen on the north-eastern portion of the plaint schedule property. The report shows that the representation made by the plaintiff (Parameswaran Namboodiri) was that he constructed that shed as a temporary shelter for the workers. A small lane was R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 63 :- provided as a way to the place where the shed stood. The Commissioner has noted that there were improvements like cashew trees and other trees situated in the property. There is nothing in Ext.C2 to indicate that portions of the properties measuring 89 cents or 98 cents were separately demarcated to indicate that those portions were the plots assigned to the assignees or which the assignees took possession pursuant to the order of assignment issued by the Taluk Land Board. Those are also aspects which would run counter to the case advanced by the respondents in the RSA (the revision petitioners in the CRP). Though the five assignees claimed to be in possession of the respective plots pursuant to the order of assignment issued in their favour marked as Exts.B2 and B3 series, they did not challenge the order of the Taluk Land Board by filing revision petition. Therefore, according to the appellants in the RSA, the order passed by the Taluk Land Board has become final as against them. So far as the two suits which are the subject matters R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 64 :- of two RSAs - R.S.A.Nos.808 of 2003 and 816 of 2003 are concerned, admittedly, the respondents are not in possession of the property. Even the right allegedly obtained by them had already been assigned to Abdul Razack in 1993 itself. That would also indicate that the assignees had never been in possession of the property. Abdul Razack, who was stated to have obtained right over the property of the five assignees did not file any application in the Second Appeal to get himself impleaded. It is important to note that even during the pendency of the first appeal before the lower appellate court, the respondents therein had no subsisting right over the property. It is true that since the transfer was pendente lite, the transferee would be bound by the result of the appeal or the second appeal. But the fact that the assignee did not think of coming on record as the supplemental respondents would also according to the appellants would speak volumes.
R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 65 :-
54. Learned counsel for the appellants in RSA would submit that the evidence and circumstances which have been detailed earlier were omitted to be considered by the courts below. Since those are vital documents and circumstances, the non-consideration of which would prejudice the right of the appellants herein, the jurisdiction under Sec.100 of CPC can certainly be invoked since the non-consideration of the vital documents and the observations made by the Advocate Commissioner had fundamental impact on the verdict rendered by the courts below. Therefore, it is argued that the plaintiffs in the two suits are entitled to succeed since they could prove that as on the date of the suit they were in settled possession of the property as could be well proved by the reports and plans submitted by the Advocate Commissioner.
55. It is submitted by the learned counsel for the appellants that the courts below failed to take note of these important aspects, as to whether the two plaintiffs were in R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 66 :- possession of the respective plots as on the date of the suit and whether they were holding the property based on the purchase certificates issued by the Land Tribunal. The further fact that the two claim petitions were allowed by the Taluk Land Board and that this Court had on two occasions observed that the purchase certificates obtained by those two claim petitioners should be given due weight were omitted to be taken note of by the courts below. It is also pointed out that the courts below were persuaded to hold that the plaintiffs were out of possession of the property on the simple premise that Form No. 18 and Form No. 19 were issued to the various assignees without taking note of the fact that there was nothing on ground to show that the different plots were measured and identified or to show that the respective assignees (defendants) were put in possession of the property. The further fact that no pattayam in Form No. 20 was issued was also ignored by the courts below. The further fact that the Advocate R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 67 :- commissioner appointed in the two cases reported that the plaint schedule property in O.S. 538/1991 was found to be a compact plot having well defined four boundaries demarcating the property from the neighbouring properties and no separate plots indicating assignment to various persons could be seen was also not seriously taken note of by the courts below. It has to be thus held that there was no proper or concluded assignment of the land in favour of the various assignees. It must also be held that the Revenue authorities did not take possession of the property from the possession of the plaintiffs and there was no actual assignment of the separate plots in favour of the five persons shown in Ext.B3 series. Therefore, there was non-consideration of certain vital aspects by the courts below. The factum of non-issuance of pattayam as provided under Form No. 20 was also not seriously considered by the courts below and as such the reasons given by the courts below to non-suit the two plaintiffs cannot be sustained. R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 68 :-
56. Rule 29 of the Kerala Land Reforms (Ceiling ) Rules, stipulates certain conditions and restrictions regarding assignment. Rule 30 deals with the preparation of list of persons eligible for assignment. Rule 31 says that as soon as may be after the list referred to in Rule 30 is prepared, the Land Board shall communicate each person in the order of priority given in such list an offer to assign the land on Registry subject to such conditions and restrictions as specified in Rule 29 and provisions of the Act and such offer shall be in form No. 18. Here the defendants would contend that they were issued Form No. 18. Rule 31 (2)says that where on receipt of the offer under sub rule (1) the person to whom the offer is made pays or deposits the purchase price in lump or the first instalment thereof within the time allowed or within such further time as may be allowed by the Land Board the land specified in such offer shall be assigned to him on registry and a deed of assignment in Form No. 19 shall be executed. Here, the R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 69 :- defendants would point out that the documents produced by them would show that they had paid the first instalment of the purchase price pursuant where to deeds of assignment in Form No. 19 were executed in favour of D1, D2, D4 etc.. Thus, according to the defendant once deed of assignment is issued in Form No.19 it cannot be cancelled without notice to the assignees and without hearing him. But at the same time, it is also profitable to refer sub Rules 8 and 9 of Rule 31. Rule 31 (8) says that after the execution of the assignment deed under Sub-Rule 2 the assignee shall be put in possession of the land assigned and the Collector shall cause the boundaries of the land to be demarcated. The plaintiffs would contend that there is absolutely no document to show that after the so called assignment in form No.19 the properties were measured, demarcated and the boundaries were fixed. In other words, unless the boundaries of the land are demarcated and the assignee is actually put in possession of the land, it cannot be said that R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 70 :- there was due compliance of Rule 31 (8). There is dearth of evidence regarding the same. Similarly, Rule 31 (9) says that as soon as may be after the execution of the assignment deed, the Tahsildar of the taluk in which such land is situate shall take steps to make necessary changes in the revenue records, to survey and demarcate the land and to issue a patta in form No. 20. Admittedly, no patta in Form No. 20 was issued in favour of the defendants/ assignees. It was already pointed out that in the earlier round of litigations also this Court had pointed out that there would be records to show the actual demarcation and putting in possession of the land to the assignees, had it been done, but no such document could be shown to the court or produced or marked in evidence to show that the assignees were put in possession of the land assigned and that the Revenue Authorities had caused the boundaries of the land to be demarcated. Not only that the observations made by the Advocate commissioner in all the R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 71 :- reports would make it clear that the plaint schedule property in O.S.No.531/1991 measuring 4.46 Acres lies as a compact plot without any plot of 98 cents each being demarcated. Hence, in view of the fact that the lands were not demarcated and assignees were not put in possession of the land and no patta in Form No.20 was issued the contention that subsequent order passed by the Taluk Land Board under Sec. 85 (8) of the KLR Act in favour of the plaintiffs cannot come to their rescue cannot be accepted at all. So far as the plaintiffs are concerned, the fact whether notices of cancellation were issued to the defendants or not may not assume much relevance because there is no evidence to show that the actual physical possession was taken by the Land Board or the Tahsildar.
57. The lower appellate court has adverted to those Rule 31(8) and 31(9) in the light of the argument advanced on behalf of the plaintiffs. But the lower appellate court did not place much importance on the necessity of R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 72 :- measurement of the property and putting the assignee in possession of the property as required under sub rule (8) and (9), but found that once the deed of assignment is issued in Form No. 19 that would give title to the actual assignees. But so far as the handing over possession of the property is concerned, what is contained in sub rules 8 & 9 of Rule 31 cannot be simply ignored. That would assume relevance in view of the fact that most often the claimants or persons in actual possession may not know the proceedings before the Taluk Land Board pursuant to the declaration filed by the declarant. In that context the actual measurement of the property and putting in possession of the property covered by the deeds of assignment to the assignees thereunder would assume much importance, the learned counsel for the plaintiffs submits. Therefore, the view taken by the lower appellate court pertaining to the same cannot be accepted.
58. It is also submitted by the learned counsel for the R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 73 :- plaintiffs that the lower appellate court has given no weight to the Commissioner's report Exts.C1 to C6. In all the three reports and plans it was specifically stated that the entire property mentioned in the suit (O.S.No.531/1991) was lying as a compact plot. Similar is the report filed by the Commissioner in O.S.No.538/1991. It would demolish the case of the assignees that they were assigned and put in possession of the respective plots measuring 98 cents each. No separate plots could be pointed out by the defendants when the Commissioner inspected the property. The reports and plans cannot be simply ignored by the courts below when the suits are only for injunction.
59. A Second Appeal does not lie merely on the ground of erroneous findings of fact based on appreciation of the relevant evidence. Existence of a substantial question of law is a sine qua non for the exercise of jurisdiction under Sec.100 of CPC. But, at the same time, there is no prohibition to entertain a second appeal even on R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 74 :- question of fact provided the Court is satisfied that the findings of the Courts below were vitiated by non- consideration of relevant evidence or by showing erroneous approach to the matter.
60. It was held by the Hon'ble Supreme Court in Union of India v. Ibrahim Uddin and Another [2012 KHC 4379] :
"There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of S.100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of Court of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction."
The courts below were persuaded to hold against the plaintiffs on the ground that the plaintiffs are the son or son-in-law of the original declarant in the ceiling case. But when the three Advocate Commissioners inspected the property on three different occasions, defendants did not and could not point out the plots allegedly given possession R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 75 :- to them as per the assignment orders passed in their favour. One of the defendants was examined in court. He did not say where his property was situated. The other defendants did not mount the witness box. Therefore, there is absolutely no evidence to show which were the plots assigned to each of the defendants under the Ceiling Rules. They did not show it to the Commissioner. They could not show those plots with reference to the plans submitted by the Commissioner at the time of trial also. Therefore, the argument advanced by the learned counsel for the plaintiffs/ appellants is that there is absolutely no evidence to show that the defendants were, at any point of time, in possession of any portion of the suit properties whereas the evidence given by the plaintiffs coupled by the Commissioners' report and plans and the purchase certificates and other records would clearly show that they were in possession of the property. There is no evidence to show that the plaintiffs were dispossessed at any point of time. The suit is only for R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 76 :- injunction. The courts below should not have overlooked the evidence and circumstances as delineated earlier. Therefore, I find that it is a case where this Court should exercise the jurisdiction under Sec.100 of CPC.
61. In view of what is stated above, the CRP must fail. The plaintiff in the two suits are entitled to succeed. The substantial questions formulated are answered in favour of the appellants.
In the result, CRP 204/2004 is dismissed. The two Regular Second Appeals are allowed. O.S. 531/1991 is decreed granting a permanent prohibitory injunction restraining the defendants and their men from trespassing into the plaint schedule property or in any other way interfering with the plaintiff's peaceful possession and enjoyment of the same.
O.S.538/1991 is also decreed granting a permanent prohibitory injunction restraining the defendants and their men from trespassing into the plaint schedule property or in R.S.A.Nos.808 & 816 of 2003 and C.R.P.No.204 of 2004 -: 77 :- any other way interfering with the plaintiff's peaceful possession and enjoyment of the same.
Sd/-
N.K.BALAKRISHNAN, JUDGE.
//True Copy// P.A. To Judge Ani/Jvt/Das