Dismissed

K.K.Madhavan v. Paravoor Puttingal Devaswom

Kerala HC22 Mar 2013RP/839/2012

Case brief

AI extract

What is this about?

Review petition against an order setting aside a reference to Land Tribunal. The High Court held the reference to Land Tribunal under Section 125(3) Kerala Land Reforms Act was unnecessary as the plea of tenancy was irrelevant to the suit for mandatory injunction.

What did the court decide?

Review petition dismissed. No order as to costs.

K.K.Madhavan Vs Paravoor Puttingal Devaswom — Kerala HC (2013) — LawSathi Research

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI

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FRIDAY, THE 22ND DAY OF MARCH 2013/1ST CHAITHRA 1935

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RP. No.839 of 2012 (O)

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(AGAINST THE ORDER/JUDGMENT DATED 10-04-2012 IN OP(C).1192/2010 OF HIGH COURT OF KERALA )

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REVIEW PETITIONER(S)/REVIEW PETITIONERS/RESPONDENTS:

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1. K.K.MADHAVAN, AGED 54 YEARS,

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YAKSHIKAVU VADAKKATHIL, PERUMPUZHA, PARAVOOR.P.O.

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KOLLAM-691 301.

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2. PRATHAPAN, AGED 45 YEARS,

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KOCHUVILA VEEDU, KALAKKODE, PARAVOOR.P.O.

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KOLLAM-691 301.

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3. SREERAMAN, AGED 34 YEARS,

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MOOLAVILA, KURUMANDAL-B, PARAVOOR.P.O. KOLLAM-691 301.

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4. VISWAMBHARAN, AGED 49 YEARS,

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VATTIKUNNUVILA VEEDU, KURUMANDAL-B, PARAVOOR.P.O. KOLLAM-691 301.

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5. BHASKARAN, AGED 63 YEARS,

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KALLUMKUNNU, KURUMANDAL-B, PARAVOOR.P.O. KOLLAM-691 301.

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6. PURUSHOTHAMAN, AGED 59 YEARS,

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THUNDUVILA VEEDU, KURUMANDAL-B, PARAVOOR.P.O. KOLLAM-691 301.

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7. DEVADAS, AGED 49 YEARS,

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THUNDUVILA VEEDU, KURUMANDAL-B, PARAVOOR.P.O. KOLLAM-691 301.

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BY ADV. SRI.G.BHAGAVAT SINGH.

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RESPONDENT(S)/PETITIONERS:

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1. PARAVOOR PUTTINGAL DEVASWOM, REPRESENTED BY ITS PRESIDENT, PARAVOOR.P.O. KOLLAM-691 301.

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¶28

RP.839/12

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2. PARAVUR PUTTINGAL DEVASWOM REPRESENTED BY ITS SECRETARY, PARAVOOR.P.O. KOLLAM-691 301.

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BY ADV.SRI.R.S.KALKURA.

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 22-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.V.RAMAKRISHNA PILLAI, J.

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R.P.No.839 of 2012 in O.P(C) No.1192 of 2010

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----------------------------------------------------Dated this the 22^nd day of March, 2013

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ORDER

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Under challenge in this review petition is the order passed by this Court in O.P.(C) No.1192 of 2010 filed by the respondents challenging the order of the court below referring an issue to the Land Tribunal to decide the question of fixity of tenure. This Court, by the impugned judgment, allowed the petition on 10.4.2012 setting aside the order referring the matter to the learned Tribunal.

¶37

The suit is for a decree of mandatory injunction to remove the plaint 'B' schedule shed put up in the plaint 'A' schedule property by the review petitioners, who, according to the respondents have been attempting to proclaim their rights over the plaint 'A' schedule property. The review petitioners, who resisted the suit, contended that their ancestors were in possession and enjoyment of plaint schedule properties as the Paravur Puttingal Devaswom had given the property to their ancestors for the services rendered by them as Oozhiyam. They claimed that they are

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RP{.839/12 in OP(C).1192/10 -:2:-

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deemed tenants entitled to fixity of tenure and prayed for sending the case to the Land Tribunal, Kollam, for adjudication of fixity of tenure.

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One of the issues raised by the court below was whether the review petitioners have tenancy right, rather fixity of tenure over the plaint 'A' schedule property. Considering the said issue preliminarily, the trial court held that the issue relating to deemed tenancy and fixity of tenure has to be referred to the Land Tribunal under Section 125(3) of the Land Reforms Act.

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This Court, by the impugned judgment supported by relevant judicial pronouncements, found that the question of fixity of tenure or deemed tenancy does not arise as the specific contention of the revision petitioners is that they are in possession of the properties for Oozhiyam services. It was also found that if it is an Oozhiyam service tenure, there is no transferable right in respect of the property and the Inamdar has no right over the property except the right to enjoy the same till services are continued.

¶42

It was after considering all the relevant aspects in the matter, the impugned judgment was rendered.

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RP{.839/12 in OP(C).1192/10 -:3:-

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There was one more reason for interfering with the order of the lower court. The suit is one for injunction simplicitor. It has been settled by a Full Bench of this Court in E.Keshava Bhat v. Subraya Bhat (AIR 1980 Kerala 40 F.B) that unless the question of tenancy actually arises for consideration, there is no obligation under Section 125(3) to make reference to the Land Tribunal. The mere incorporation of an unnecessary irrelevant plea of tenancy into the written statement which has no relation whatsoever to the material averments and the reliefs sought for in the plaint cannot attract the bar of Section 125(1) or the provisions of Section 125(3); so held in the aforesaid case.

¶45

The learned counsel for the review petitioners invited my attention to Section 6A and Section 7A of the Kerala Land Reforms Act in support of his argument. But, it is relevant to note that none of these sections have application in the present case. Section 6A of the Kerala Land Reforms Act deals with cases coming under the Malabar Tenancy Act, 1929 and Section 7A of the Act deals with cases where holder of the land holds the same believing it to be Government land.

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RP{.839/12 in OP(C).1192/10

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-:4:-

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The learned counsel for the review petitioners also produced photocopies of certain documents along with I.A.No.274 of 2013 and argued that the contents of those documents would prove that the review petitioners are cultivating tenants.

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My attention was also invited to the copy of the plaint in O.S.No.129 of 1956, the decree in which is relied on by the review petitioners/ respondents to prove their possession. But, as far as these review petitioners are concerned, all those are irrelevant. In paragraph (3) of the written statement filed by the review petitioners before the trial court, it was specifically pleaded that they got possession of the plaint items for Oozhiyam services rendered by them.

¶50

The attempt of this Court while disposing of the review petition was that to make it clear that the reference order made by the court below under Section 125 of the Kerala Land Reforms Act was quite unnecessary in the light of the specific contentions taken by both sides.

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During the course of discussion, the nature and incidence of Oozhiyam were also discussed in the judgment. The original petition was allowed and the order of reference made by the learned Munsiff under

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RP{.839/12 in OP(C).1192/10

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-:5:-

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Section 125(3) was set aside. However, it was directed that the trial court shall proceed with the trial deciding all the issues raised on the basis of the evidence adduced by both sides.

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An interference under Order XLVII Rule 1 CPC is warranted only when there is an error apparent on the face of record on the judgment sought to be reviewed. This Court is of the definite view that there is absolutely no scope for interference for a review under Order XLVII Rule 1 CPC.

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In the result, the review petition is dismissed. No costs.

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sd/-

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A.V.RAMAKRISHNA PILLAI JUDGE

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krj

K.K.Madhavan v. Paravoor Puttingal Devaswom

Case brief

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K.K.Madhavan v. Paravoor Puttingal Devaswom

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