Allowed

Tharamal Kunhootty v. Angeth Puthiya Purayil Abdyul Rahiman

Kerala HC12 Jan 2010CRP/581/2007

Case brief

AI extract

What is this about?

This court allowed a revision petition challenging an order by the Appellate Authority that had set aside a Land Tribunal decision granting jenm rights to a cultivating tenant. The court held that as a rival tenant had filed a civil suit for title confirmation which was pending on appeal, the Appellate Authority should have kept proceedings in abeyance rather than deciding the title dispute. The r

What did the court decide?

The order of the Appellate Authority allowing the appeal and setting aside the Land Tribunal decision was set aside. The matter was remitted to the Appellate Authority for fresh consideration, pending

Tharamal Kunhootty Vs Angeth Puthiya Purayil Abdyul Rahiman — Land Acquisition | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID

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TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931

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CRP.No. 581 of 2007()

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--------------------AA.93/2000 of APPELLATE AUTHORITY(LR), KANNUR SMP.29/1979 of LAND TRIBUNAL, IRIKKUR

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REVN. PETITIONER/ RESPONDENT NO.1/Cultivating tenant:

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THARAMAL KUNHOOTTY, S/O. KANNAN,

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ERUVASSY AMSOM, DESOM, P.O. NELLIKUTTY.

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BY ADV. SRI.K.S.MADHUSOODANAN

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SRI.T.V.JAYAKUMAR NAMBOODIRI

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RESPONDENTS/APPELLANT & LAND OWNER:

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ANGETH PUTHIYA PURAYIL ABDUL RAHIMAN, S/O. MAMMAD, ERUVASSY AMSOM DESOM, P.O. ERUVASSY, TALIPARAMBA, KANNUR DISTRICT.

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DISTRICT COLLECTOR (MOOTHEDATH ARAMANA PROPERTY), KANNUR.

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STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM.

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ADV. SRI.K.V.SOHAN FOR R.1

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GOVERNMENT PLEADER FOR R2 & R3 BY T.K.SAJEEV

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ORDER ON IA.NO.3517/09 IN CRP.NO.581/2007

DISMISSED

12/1/2010

Sd/-

HARUN-UL-RASHID, JUDGE.

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HARUN-UL-RASHID,J.

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C.R.P.NO.581 OF 2007

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DATED THIS THE 12TH DAY OF JANUARY, 2010

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This revision petition is directed against the order dated 21/3/2006 in A.A.No.93/2000 on the file of the Appellate Authority (LR), Kannur. Revision petitioner is the applicant in SMP.No.29/79. A.A.No.93/2000 was filed challenging the order of the Land Tribunal, Irikkur in SMP.No.29/79. The Land Tribunal allowed the application. Sri Abdul Rahiman, who is not a party in SMP.No.29/79, had preferred A.A.No.93/2000. The appellant in the said appeal is the applicant in SMP.No.410/74 on the file of the same Land Tribunal. The Appellate Authority allowed the appeal and dropped SMP.No.29/79. Aggrieved by the said order, the applicant in SMP.No.29/79 has preferred this revision petition.

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The subject matter of the appeal is 2 acres of land.

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The revision petitioner claims that he is the cultivating tenant.

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C.R.P.No.581/2007

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The lst respondent herein, who is the appellant in A.A.No.93/00, claimed rival title. The Land Tribunal passed an order dated 24/1/1979 in SMP.No.29/79 assigning the jenm right of 2 acres of property comprised in R.S.No.16 of Eruvassy Village, Taliparamba Taluk in favour of the applicant. The case of the lst respondent is that he is the cultivating tenant of the very same property and that the Land Tribunal passed an order dated 31/3/1975 in SMP.No.410/74 assigning the jenm right in his favour. Finding that there is an order passed in SMP.No.29/79 in favour of the revision petitioner, he preferred an appeal stating the true facts. According to the lst respondent, the Appellate Authority allowed the appeal and set aside the order in SMP.No.29/79. The applicants in both the SMPs. claimed that they are the cultivating tenants of the property.

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The appellant before the Appellate Authority, who is the applicant in SMP.No.29/79, has filed a suit O.S.No.55/80 before the Munsiff's Court, Taliparamba for recovery of

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-3-

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C.R.P.No.581/2007

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possession and permanent prohibitory injunction. The revision petitioner is the 2^nd defendant in the suit. The suit was originally dismissed and confirmed by the Appellate Authority in A.S.No.134/89. The civil court in O.S.No.55/80 held that the purchase certificate issued in the name of the applicant in SMP.No.410/74 is not in respect of the plaint schedule property and that the plaintiff, who is the applicant in SMP.No.410/74 has no right or possession over the property. The civil court also noted that the property described in SMP.No.410/74 is comprised in R.S.No.141/4 and the extent shown is 59.53 Are, whereas the plaint schedule property is comprised in R.S.No.16. The applicant in SMP.29/79 is claiming right over the property comprised in RS.No.16. The plaintiff in the suit preferred second appeal as S.A.No.251/92 before this Court challenging the decree and judgment in A.S.No.134/89. This Court set aside the judgment and decree of the court below and remanded the matter to the trial court and directed the trial court to examine the rival

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C.R.P.No.581/2007

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contentions of the parties and decide which is the certificate relating to the plaint schedule property. After remand, the suit was re-tried by the Munsiff's Court and again dismissed the same. The said judgment and decree is challenged by the lst respondent herein before the Appellate Court and the same is pending as A.S.No.62/01 on the file of the Sub court, Payyannur. The learned counsel for the revision petitioner submitted that the first appeal is pending before the Appellate Court and the same is ripe for final hearing.

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The lst respondent herein, who is the applicant in SMP.No.410/74, was not a party in SMP.No.29/79. He preferred the appeal under challenge. The Appellate Authority held that the finding in SMP.No.410/74 is final and conclusive and the purchase certificate issued in SMP.No.410/74 is conclusive proof of the title and possession of the appellant over the property covered by the purchase certificate. The Appellate Authority also held that the revision petitioner, who is the applicant in

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C.R.P.No.581/2007

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SMP.No.29/79, is not having any right over the disputed property

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and therefore the order in SMP.No.29/79 was set aside.

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It is a fact that the applicant in SMP.No.410/74 has

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filed a suit O.S.No.55/80 before the Munsiff's Court, Taliparamba for recovery of possession on the strength of title and for consequential injunction. I have already observed that the suit was originally dismissed and confirmed in appeal. In the second appeal this court remanded the case to the trial court to decide which among the purchase certificate is the right one on the basis of the competing claims of the parties. After remand, the civil court passed a revised judgment by which the suit stands dismissed. The appeal is pending before the Lower Appellate Court as A.S.No.62/01. At the time when the Appellate Authority heard the matter, the decision of the civil court and the pendency of the appeal are brought to its attention. The judgment under appeal shows that the Appellate Authority has also taken into consideration the pendency of the civil suit, the decision rendered

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C.R.P.No.581/2007

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by the civil court and the pendency of the appeal etc. Since the parties approached the civil court for a declaration of title and recover of possession, ultimately the decision of the civil court has to prevail. In these circumstances, the Appellate Authority should not have entered into the findings and decided the dispute. The Appellate Authority ought to have kept in abeyance their proceedings, till a final decision is taken in the civil case. Title to the property is a matter to be decided by the civil court.

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In the above circumstances, the civil court ought to have waited, till a final decision is taken by the Appellate Court. Therefore, the order under revision is set aside and the matter is remitted to the appellate Authority for fresh consideration. The Appellate Authority is also bound by the decision of the civil court in the case between the parties. In the interest of justice the first appeal (A.S.No.62/01) pending before the Sub Court, Payyannur will have to be disposed of at an early date. Hence, there will be a direction to the Sub Court, Payyannur to dispose

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C.R.P.No.581/2007

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of A.S.No.62/01 on or before 31/3/2010. Registry shall send a

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copy of this order to the Sub Court, Payyannur.

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The C.R.P. is disposed of by way of remand.

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HARUN-UL-RASHID, JUDGE.

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kcv.

Tharamal Kunhootty v. Angeth Puthiya Purayil Abdyul Rahiman

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Tharamal Kunhootty v. Angeth Puthiya Purayil Abdyul Rahiman

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