Disposed

Rajendra Babu v. Srivalsan

Kerala HC12 Jul 2011OP(C)/603/2011

Case brief

AI extract

What is this about?

Petitioner sought correction of an Appellate Authority order regarding land rights. The court inferred the authority intended remand despite omission. High Court held if the original order was against a deceased person without legal representatives, it was a nullity and could be reopened at the Land Tribunal. Court directed Appellate Authority to dispose of the correction application.

What did the court decide?

Disposed the petition by directing the Appellate Authority to dispose of the correction application and noting potential reopening of null proceedings at Land Tribunal.

Rajendra Babu Vs Srivalsan — Landlord and Tenant | Kerala HC (2011)

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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 K.T.SANKARAN

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TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933

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OP(C).No. 603 of 2011(O)

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----------------------------------

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AA.42/2001 of A.A.(LR),THRISSUR

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OS.1266/1999 AND OS.1263/2002 of MUNSIFF COURT,CHAVAKKAD ....................

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PETITIONER:

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-------------------

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RAJENDRA BABU ,S/O.SATHYENDRAN, VAZHOOR HOUSE,KAZHIBRAM DESOM, VALAPPAD VILLAGE, THRISSUR DIST.

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BY ADV. SRI.M.K.DILEEP KUMAR

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RESPONDENTS:

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-----------------------

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1. SRIVALSAN, S/O.SURENDRAN, VAZHOOR HOUSE,KAZHIBRAM,VALAPAD VILLAGE, PO,KARAYAVATTOM,THRISSUR DIST.PIN 680 567

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2. LATHABHAI, W/O.SRINIVASAN, VAZHOOR HOUSE,....DO...

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3. REENA, W/O.MOHANADAS, DO..DO..

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4. SEENA, W/O.THILAKAN,

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VAZHOOR HOUSE, DO..DO...

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R1 TO R4 BY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SMT

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THOMAS P JOSEPH, J.

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O.P(C).No.603 of 2011

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Dated this 12^th day of July, 2011

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JUDGMENT

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Petitioner is the respondent in A.A.No.42 of 2001 of the Appellate Authority (LR), Thrissur and applicant in S.M.No.45 of 1978 of the Kodungallur Land Tribunal. The Land Tribunal allowed petitioner to purchase landlord's right in respect of 1.1 acres of purayidam and 35 cents of nilam in survey Nos.366/1B/3 and 365/6, respectively. Legal representatives of the landlord, claiming that purchase certificate was obtained by fraud and collusion and without notice to the interested parties, filed A.A.No.42 of 2001 before the Appellate Authority. Appellate Authority considered the appeal and in page 4 of its order observed that on a consideration of the matter in detail after perusing the records of the case and after hearing counsel for respondents (appellants in the appeal) as also perusing the lower court records it was found that respondents (appellants in the appeal) had admittedly got some interest over the land in question, they have not contested the matter in the Land Tribunal and it is only just and proper to give them an opportunity to adduce evidence to prove their claim over the property.

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O.P(C).No.603 of 2011

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-: 2 :-

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Appellate Authority also observed that if the appeal is not allowed, justice would be defeated at the very threshold itself of contesting a genuine case. Appellate Authority therefore set aside the order of Land Tribunal and allowed the appeal. Appellate Authority however in the operative portion of the said order did not mention that the case is remitted to the Land Tribunal for fresh decision after giving both parties opportunity to adduce evidence. Learned counsel for petitioner submits that petitioner has filed Ext.P2, application before the Appellate Authority for correction in the appellate order to direct a remand. Prayer in this petition is to direct the Appellate Authority to dispose of Ext.P2, application as early as possible since the connected suits – O.S.Nos.1266 of 1999 and 1263 of 2002 filed by the parties are pending consideration before the learned Munsiff, Chavakkad.

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Learned counsel for respondents contended that no such application like Ext.P2 has been preferred before the Appellate Authority as per instruction given to the learned counsel. It is also submitted that the matter was considered by this Court in W.P(C).No.26515 of 2003 and hence nothing survived to be decided by the Land Tribunal, not to say that the

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O.P(C).No.603 of 2011

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-: 3 :-

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Appellate Authority did not contemplate remand of the case. It is also submitted by learned counsel that at any rate the order passed by the Land Tribunal is a nullity since it is passed against a dead respondent, the predecessor-in-interest of respondents and none of his legal representatives were imp leaded as additional parties.

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On the question whether the Appellate Authority had contemplated remand or not, reference is required to the order of the Appellate Authority which I have already referred to above. Going by the last paragraph of the order, what I understand is that having regard to the facts and circumstances of the case and considering the contention of respondents, the latter were given opportunity to contest the case and adduce evidence. So far as Appellate Authority did not say that such evidence will be recorded by that authority itself, necessarily that should be done only by the lower authority, ie, the Land Tribunal. Therefore it appears to me that what was in the mind of the Appellate Authority while passing Ext.P1, order was to remand the case to the Land Tribunal though, the operative portion of the order did not say so. It is in these circumstances that Ext.P2, application is said to be filed by the petitioner for correction of the order.

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O.P(C).No.603 of 2011

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-: 4 :-

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Learned counsel for respondents submit that there is no provision for review before the Appellate Authority. Assuming so, what is required is only a clarification or correction of Ext.P1, order. I am not inclined to think that having regard to the materials on record, I must hold that Appellate Authority is without power either to clarify or make necessary correction in Ext.P1, if such authority finds that there was an omission on its part in mentioning in Ext.P1, order that the matter is remitted to the Land Tribunal to give opportunity to adduce evidence. I make it clear that if Ext.P2, application is already preferred by petitioner or if any such application is preferred, the Appellate Authority shall dispose of such application as provided under law.

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On the question whether order of the Land Tribunal is a nullity, it depends on the date on which the sole respondent in that proceeding expired – if the death was before disposal of the original application and since none of his legal representatives were made parties in that application, the order passed by the Land Tribunal against a dead person can only be treated as nullity in which case the appeal arising therefrom (A.A.No.42 of 2001) should also be a nullity. If that be the situation it is open to the petitioner or any of the respondents as the case may be to

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O.P(C).No.603 of 2011

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-: 5 :-

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file application before the Land Tribunal to reopen the proceeding, implead legal representatives of the deceased respondent (notwithstanding the order passed by the Appellate Authority which I said, in the circumstances can only be treated as a nullity) and contest the claim made in S.M.P.No.45 of 1978.

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This original petition is disposed of with the above

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directions.

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(THOMAS P JOSEPH, JUDGE)

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Sbna/-

Rajendra Babu v. Srivalsan

Case brief

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Rajendra Babu v. Srivalsan

Case brief

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