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CASE NO.: Appeal (civil)  1231 of 2008

PETITIONER: Patinhare Purayil Nabeesumma

RESPONDENT: Miniyatan Zacharias and another

DATE OF JUDGMENT: 12/02/2008

BENCH: S.B. SINHA & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T

S.B. SINHA, J.

1.      Leave granted. 2.       Plaintiff in a suit for declaration of title and possession is before us,  aggrieved by and dissatisfied with the judgment and decree dated 25th  January, 2007 passed by a learned Single Judge of the Kerala High Court in  Second Appeal No. 643 of 1994, whereby and whereunder the judgment and  order of the first appellate court dated 13th January, 1994 as also that of the  trial court dated 27th February, 1993 respectively, decreeing the suit of the  appellant, were set aside.    3.      In this appeal we are concerned only with Item No.2 of the properties  described in Schedule ’B’ of the plaint, which reads as under :-

                                         Schedule B             Item No. Revised Survey  No. Measurement

1

90/7

21 cents  

   B

2

90/3

26 cents

   A

3

90/8

13.5 cents

   F

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4.      Husband of the appellant was an agriculturist.  He was in cultivating  possession of five items of properties as a tenant under one Jenmi Palkodan  Kunhmina Ayissa.  Appellant contended that her husband had been in  possession of the suit land from the date of settlement which took place in  the year 1943; and in support thereof, Revenue Tax Receipts since 1955  were filed.   

5.      The Legislature of the State of Kerala enacted Kerala Land Reforms  Act, 1963 (the Act for short) with a view to enact a comprehensive  legislation relating to land reforms in the State.   6.      Section 13 of the Act provides for rights of tenants for fixity of tenure  in respect of the land holding.  Section 27 of the Act provides for  determination of a fair rent which a tenant is liable to pay to the landlord.   Section 53 confers upon a cultivating tenant who is entitled to fixity of  tenure, a right to purchase the right, title, interest and ownership of the land  by moving an application before the Land Tribunal constituted under the Act  upon payment of purchase price as may be determined in the manner laid  down under Section 55 thereof.  Section 72 of the Act, which was inserted in  the year 1969, provides for vesting of the landlords’ rights in the State as  regards holdings held by cultivating tenants entitled to fixity of tenure and in  respect of which certificate of purchase has not been issued under sub- section (2) of Section 59.   

7.      Whereas Section 72 provides for cultivating tenant’s right to  assignment of the land which he had been holding, Section 72-F provides  that where an application under Section 72-B is moved before the Land  Tribunal, it upon issuing a notice to the landlord and other intermediaries, if  any, may determine the quantum of compensation and purchase price  payable therefor.   8.      A certificate of purchase issued by the Land Tribunal to the  cultivating tenant under sub-clause (2) of Section 72-K is conclusive proof  of assignment to the tenant of the right, title and interest of the landowner  and the intermediaries, if any, over the holding or portion thereof to which  the assignment relates.

9.      Indisputably the husband of the appellant applied for and has been  granted a certificate of purchase by the Land Tribunal in the year 1976.   

10.     Respondents also applied for and were granted such a certificate by  the Land Tribunal of the same land in 1977.  Two certificates, therefore,  came to be issued in respect of the same land.  

11.     Inter alia on the premise that she may be dispossessed the appellant  filed a suit for permanent injunction and for recovery of possession of the  immovable properties described in Schedules A and B of the plaint.  In their  written statement, the defendants did not raise any contention with regard to  the plots of land described in Schedule A of the plaint.  However, the right,  title and possession of the appellant in regard to the plots of land mentioned  in Schedule B were questioned.

12.     Several issues were framed by the learned trial Judge, the  relevant one being Issue Nos.1, 2, 4 and 5, which read as under :-

"1.     Whether the plaintiff is in possession of the plaint  properties?

2.      Whether the plaintiff is entitled to the injunction prayed  for?

4       Whether the plaintiff has title to the plaint schedule  property?

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5.      Whether the plaintiff is entitled to recovery of possession  of any portion of the plaint schedule property?"

13.     On 25th March, 1988 the learned trial Judge decreed the suit of the  plaintiff appellant for all the items of the suit land, except for Item No.1 of  Schedule B. 14.     On appeals preferred by the appellant as well as the respondents, the  learned Subordinate Judge, Thalassery, passed the following order on 18th  December, 1990.   

"10.    In view of the foregoing discussions, I hold that  the finding of the trial Court with regard to items 2 and 3  in the plaint A schedule is liable to be confirmed.  So also  the finding of the trial Court in favour to the plaintiff for  recovery of possession of item No.3 in the plaint B  schedule is also to be confirmed.  The finding of the  lower Court with regard to item No.1 in the plaint B  schedule that the same belongs to the defendants is also  to be confirmed.  But, the finding on item No.2 in the  plaint B schedule is liable to be set aside and the question  of tenancy over this item (R.S. 90/3) has to be remanded  to the lower court for referring the matter to the Land  Tribunal for a fresh adjudication.  The point is answered  accordingly."  

15.     The learned Munsif, in view of the aforementioned, as also the two  conflicting certificates, referred the matter to the Land Tribunal.   

16.     In its order dated 15th October, 1992, the Land Tribunal, in regard to  the possession of the parties, opined :-  

"Except the receipts referred to above and Ex.A2  purchase certificate, the plaintiff has not produced any  other title deeds evidencing tenancy or of creation of  tenancy in favour of plaintiff’s predecessors by the land  owner."  

       It was held :-

"The respondent did not produce any jenmam deed to  prove conclusive that Shri Palakodan Moideen is the  actual jenmi of the suit property

       The case is that the Ist respondent (defendant) does  not possess any title deeds or valid documents evidencing  tenancy except some land revenue receipts towards  payment of assessment since the year 1976-77, the  manuscript rent receipts available in the case records as  Ex.B1 to B1(f) have not been proved and as such the  receipts have no evidentiary value.  The mere production  of land tax receipts cannot be taken as a conclusive  evidence to prove the title to the property.  The 1st  respondent (defendant) has no title deeds, whatsoever, to  establish creation of tenancy in his favour on or before  1.4.1964.  But the 1st respondent has obtained purchase  certificate in SM 6343/77 dt. 31.10.1977 (Ex.B3) by  filing J form statement whereas the plaintiffs predecessor  had obtained purchase certificate previously for the same  property as per SM 6324/75 dated 7.6.76 by filing J form  statement.  It is evident that one of the purchase  certificate has been obtained by fraud or collusion, but  none of the aggrieved parties did not approach this  tribunal for remedy under section 72MM (7) of the KLR

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Act.

       On a consideration of the facts and circumstances  of the case and the report of the authorized officer I am  satisfied that the respondents (A party in SM 6343/77) is  in possession of the property but he does not possess any  valid title deeds evidencing tenancy.  No valid records  have been produced by the respondent (defendant) (A  party in SM 6343/77) to establish creation of tenancy in  his favour by the land owner on or before 1.4.1964.  As a  result, I hold that the respondents/defendant in OS 105/85  are having no tenancy right over the said property."   

17.     Before the trial court, the parties adduced oral as well as documentary  evidence.  Keeping in view the fact that the plaintiff has been able to prove  his possession by producing tax receipts from 1955 onwards; whereas the  defendants were paying tax from 1977 onwards, the learned trial Judge in his  judgment dated 27th February, 1993 held :-

"On a proper appraisal of the evidence adduced in this  case it may be safely concluded that the property  comprised in R.S. No. 90/3 the predecessor in interest of  the plaintiff, Bavu Valappil Mammad had title over these  property.  This right has been subsequently developed on  the plaintiff.  In the light of discussions made this court is  satisfied that the plaintiff has title to item No.2 in the B  schedule property and she is entitled to recover  possession of the same as it is evident that the defendant  is in possession of the same."    

       As regards the contention of the defendants that they had acquired  title by adverse possession, it was held that the same has not been proved.  

18.     The first appellate court, by its judgment dated 13th January, 1994,  affirmed the said findings of the learned trial court holding that the purchase  certificate was granted by the Tribunal upon service of notice upon  Ayisumma, who was the original landlord.  It was held :-

"There is also no satisfactory or reliable evidence to  prove that the appellants have been in possession of item  No.2 of B schedule at any point of time. If really the first  appellant had been in possession of the property  eversince 1959 atleast he would have paid the assessment  in respect of the plaint schedule property.  But for the  first time the assessment was paid by the respondent in  1974.  This is just prior to the initiation of proceedings  before the Land Tribunal.  From the evidence available in  this case I find that the Land Tribunal and the lower  correct correctly came to the conclusion that the  respondent is the tenant of the disputed property and item  No.2 of B schedule belongs to her.  So this point is  answered in favour of the respondent."

       Plea of the respondents in regard to his claim of adverse possession  was also negated.

19.     The High Court in the second appeal filed by the respondents framed  the following substantial question of law :-

"Whether the courts below were justified in holding that  the plaintiff has title to be granted a decree for recovery  of possession of B schedule item No.2 from the

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defendants, after the Land Tribunal had found that the  plaintiff does not have valid title deeds evidencing  tenancy?"

20.     The High Court proceeded on the basis that as both the parties failed  to prove their title over the property, the defendant-respondent being in prior  possession over item No.2 of Schedule B of the suit property, the suit should  have been dismissed to that extent.

21.     Mr. T.V. George, learned counsel appearing on behalf of the appellant  in support of the appeal would submit :- 1)      The High Court committed a serious error in interfering with  the concurrent finding of fact arrived at by the courts below in  regard to possession of the appellant. 2)      Keeping in view the underlying principle governing the Act, the  fact that was required to be determined was whether respondent  No.1, having failed to prove that he was a tenant within the  meaning of Section 13 of the Act, could have been granted a  certificate of assignment.

22.     Mr. H.V. Hameed, learned counsel appearing on behalf of the first  respondent, on the other hand,  urged that the learned trial court as also the  court of appeal proceeded to determine the issue only on the premise that the  defendant being a sub-tenant under the plaintiff-appellant, the High Court  cannot be said to have committed any error in applying the correct legal  principle, namely that if the parties have not been able to prove their title,  the respondent who was in prior possession, should be allowed to continue  to do so.   

23.     We have noticed hereinbefore the relevant provisions of the Act.   

24.     In respect of four items of the properties, the plaintiff-appellant has  been able to prove her title as also the possession.  The fact that her husband  was the cultivating tenant in respect of the suit property is not in dispute.   The tax receipts filed by her also go to show that the entire suit land was the  subject matter of grant of tenancy by the landlord and if not from a date, tax  has been paid by the appellant-plaintiff atleast from 1955 onwards.  In view  of Section 110 of the Indian Evidence Act a presumption can be raised in  regard possession both backward and forward.

25.     Section 72 of the Act was inserted in the year 1969.  If prior to  coming into force of 1969 amendment Act, a tenant had purchased the right,  title and interest of the landlord, the matter might have been different.   Section 72-B of the Act empowers the Tribunal to entertain an application  for assignment of the right, title and interest of the landlord in favour of the  tenant on payment of a price to be determined in the manner envisaged  thereunder.  

26.     The jurisdiction of the Tribunal, therefore, was restricted.  Before  arriving at a conclusion that the applicant was entitled to a certificate of  assignment, a finding was required to be arrived at that he was a cultivating  tenant within the meaning of Section 13 of the Act.  The properties of the  erstwhile landlord or intermediates having vested in the State, they were  conferred a limited right, namely, the right to receive the sale proceeds.   

27.     Once a certificate of assignment had been granted in favour of the  husband of the appellant, no other certificate could have been issued unless a  finding of fact was arrived at that the first certificate was obtained by fraud  as was the case in Hamza Haji  vs.  State of Kerala and another : 2006 (8)  SCALE 75   and A.A. Gopalakrishnan  vs.  Cochin Devaswom Board and  others : 2007 (10) SCALE 572.    

28.     The Land Tribunal on the reference made by a Civil Court was  required to arrive at the conclusion one way or the other as to whether the

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plaintiff or the defendant was the cultivating tenant within the meaning of  Section 13 of the Act.  It could not have, on the basis of a stray statement  made by a co-villager, arrived at a finding that the defendant had been in  possession.  The said purported finding on the basis of a statement made  before the Revenue Inspector, CR, Payyannur could not have been acted  upon.   

29.     In any event, the Civil Court was the final court of fact.  Before it oral  or documentary evidence had been adduced.  It was not bound by the  observations made by the Tribunal either in regard to title or possession of  the property. The Tribunal moreover failed to consider that a tenancy can be  created orally upon delivery of possession and/or upon grant of rent receipt.   Rent receipt indisputably evidences possession. What was relevant for the  purpose of determination of the issue was who was in possession of the  properties in question when Section 72-B of the Act came into force.  As the  Tribunal itself had issued two certificates, the jurisdiction to determine the  right, title and interest as also possession of the suit properties was only with  the Civil Courts.  It is, therefore, not correct to contend that as on the basis  of the purported report, the Tribunal had found possession over the plot in  question.    

30.     The approach of the High Court, with respect, was not correct.  The  right to obtain a certificate of assignment is dependent upon one’s right as a  tenant in terms of Section 13 of the Act and not otherwise.  The High Court  could not have held that the appellant was an intermediatory and as such his  estate had also vested with the respondents.  No contention was raised by the  appellant that the respondent was the sub-tenant of the appellant.  The same,  in our opinion, was irrelevant.   

31.     The High Court proceeded only on the basis of the findings of the  Tribunal.  It failed to notice that for all intent and purport the said findings  was over turned by the Civil Court, wherefor it had the requisite jurisdiction. 32.     A certificate issued under Section 72-K of the Act is conclusive.   Once the same is found to be conclusive, the same cannot be refused to be  taken into consideration for any purpose whatsoever.  The only issue  which,  therefore, should have been raised by the High Court was as to who was  entitled thereto, keeping in view the fact that the Land Tribunal had granted  certificates of assignment to both the parties.  In view of the statutory  scheme, both the parties could not have been given the certificates of  assignment.  The certificate in favour of the appellant, even otherwise,  having been granted earlier and the same having not been set aside on the  ground of fraud or illegality, it was conclusive even as against the Land  Tribunal.   The Land Tribunal, therefore, had no jurisdiction to issue a  second certificate.

33.     For the reasons aforementioned the impugned judgment of the High  Court is unsustainable which is set aside accordingly.  The appeal is  allowed.  However, in the facts and circumstances of the case, there shall be  no order as to costs.