Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
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?
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
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.