Dismissed

Thayukutty v. Manikandan

Kerala HC15 Dec 2023RSA/373/2023

Case brief

AI extract

What is this about?

This second appeal challenged a decree for recovery of possession based on a purchase certificate. The court held that the plaintiff's certificate was conclusive proof of title as it was issued after proper procedure and the defendants failed to challenge the conflicting certificate, dismissing the appeal.

What did the court decide?

Recovery of possession sought by plaintiff in the suit was confirmed; appeal dismissed.

Thayukutty Vs Manikandan — Property and Title | Kerala HC (2023)

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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 A. BADHARUDEEN

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FRIDAY, THE 15TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945

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RSA NO. 373 OF 2023

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AGAINST THE JUDGMENT IN AS.NO.114/2016 OF II ADDITIONAL DISTRICT

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COURT,PALAKKAD

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 AGAINST THE JUDGMENT IN OS.NO.852/1999 OF ADDITIONAL MUNSIFF

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COURT, PALAKKAD

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APPELLANTS/APPELLANTS IN A.S/DEFENDANTS 1 TO 5 AND SUPPL.DEFENDANT

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NO.7 IN O.S.:

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1 THAYUKUTTY

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AGED 72 YEARS
W/O. MADHAVAN, S.N. NAGAR, VADUKAMBADATHU, MALAMPUZHA,
KOTTEKKAD AMSOM, PALAKKAD, PIN - 678732

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2 VIJAYAN

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AGED 50 YEARS
S/O. MADHAVAN S.N. NAGAR, VADUKAMBADATHU, MALAMPUZHA,
KOTTEKKAD AMSOM, PALAKKAD, PIN - 678732

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3 ARUMUGHAN

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AGED 47 YEARS
S/O. MADHAVAN, S.N. NAGAR, VADUKAMBADATHU, MALAMPUZHA,
KOTTEKKAD AMSOM, PALAKKAD, PIN - 678732

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4 CHENTHAMARAKSHAN,

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AGED 45 YEARS

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S/O. MADHAVAN S.N. NAGAR, VADUKAMBADATHU, MALAMPUZHA,
KOTTEKKAD AMSOM, PALAKKAD, PIN - 678732

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5 PRABHAKARAN

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AGED 42 YEARS

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S/O. MADHAVAN S.N. NAGAR, VADUKAMBADATHU, MALAMPUZHA,
KOTTEKKAD AMSOM, PALAKKAD, PIN - 678732

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6 VASANTHAKUMARI

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AGED 42 YEARS

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D/O. MADHAVAN S.N. NAGAR, VADUKAMBADATHU, MALAMPUZHA,
KOTTEKKAD AMSOM, PALAKKAD, PIN - 678732

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BY ADVS.
R.LAKSHMI NARAYAN

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R.RANJANIE

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RSA NO. 373 OF 2023 2

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RESPONDENTS/RESPONDENTS IN A.S./SUPPL.DEFENDANT NO.6 AND

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LEGAL HEIRS OF PLAINTIFF IN O.S.:

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1MANIKANDAN
AGED 40 YEARS
S/O. MADHAVAN, S.N. NAGAR, VADUKAMBADATHU,
MALAMPUZHA, KOTTEKKAD AMSOM, PALAKKAD, PIN - 678732

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2VESU
AGED 70 YEARS
W/O. NARAYANAN, CHIMBAKKOTTIL, NEAR KANHIRAKADAVU
GATE, MALAMPUZHA, KOTTEKKAD AMSOM, PALAKKAD, PIN -
678732
3RENUKA
AGED 35 YEARS
D/O. NARAYANAN, CHIMBAKKOTTIL, NEAR KANHIRAKADAVU
GATE, MALAMPUZHA, KOTTEKKAD AMSOM, PALAKKAD, PIN -
678732
R2 & R3 BY ADVS.
JACOB SEBASTIAN
WINSTON K.V
ANU JACOB
KEERTHY RAJ

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
15.12.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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RSA NO. 373 OF 2023 3

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JUDGMENT

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Dated this the 15^th day of December, 2023

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This Regular Second Appeal has been filed under Section 100 r/w Order XLII of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the judgment and decree in A.S.No.114/2016, dated 27.2.2023 on the files of the District Court, Palakkad, arose out of the judgment and decree in O.S.No.852/1999, dated 27.2.2016 on the files of the Additional Munsiff Court, Palakkad.

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The appellants herein are defendants 1 to 5 and supplemental defendant No.7. Respondents are supplemental defendant No.6 and legal heirs of the original plaintiff.

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Heard the learned counsel for the appellants and the learned counsel appearing for the respondents.

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I shall refer the parties in this appeal as 'plaintiff' and 'defendants' for convenience.

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As per order, dated 1.6.2023, my predecessor admitted this appeal raising the following substantial

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RSA NO. 373 OF 2023 4

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questions of law:

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Whether the Courts below are justified in holding that Ext.A1 purchase certificate cannot be challenged, placing reliance on Section 72K(2) of the KLR Act, if it be shown on evidence that mandatory proceedings in terms of KLR Act and Rules are not complied in the matter of issuance of Ext.A1?

¶47

Whether the Courts below are right in not considering the legal impact of the purchase certificate issued in SM.No.497/1976 of Land Tribunal No.2, Palakkad as discernible from Ext.X1 and Ext.X1(a)?

¶48

The original plaintiff Narayanan filed suit for recovery of possession of plaint schedule property, having an extent of 15 cents on the strength of title, for which patta obtained in his favour from the Land Tribunal. According to the plaintiff, defendants encroached upon the plaint schedule property and took possession of the same. Though a lawyer notice was sent, seeking possession of the plaint schedule property, the defendants sent a reply to the notice, raising untenable contentions.

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The defendants entered appearance and filed joint written statement. The title claimed by the plaintiff over the plaint schedule property was denied. The encroachment, as alleged in the plaint, also was denied and identification of the property also was disputed. According to the defendants, no property covered by the patta relied on by the plaintiff is in existence.

¶51

Initially, the suit was dismissed, against which, appeal was filed and the appellate court remanded the matter for identifying the plaint schedule property and to dispose of the case afresh, in accordance with law. Against which, F.A.O.No.183/2010 was filed by the plaintiff before this Court and the same also was dismissed as per judgment, dated 13.10.2014.

¶52

After remand, the trial court addressed the matter in issue on appraising the evidence confined to that of PW1 and Exts.A1 to A7 on the side of the plaintiff, DW1 and DW2 and Exts.B1 to B3 on the side of the defendants, CW1, Exts.C1 and C2, apart from the evidence of Exts.X1 and X1(a). Accordingly, after remand, suit was decreed. Though

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appeal filed challenging the said verdict, the same also was dismissed, confirming the trial court verdict.

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According to the learned counsel for the defendants, even though the plaintiff obtained patta in relation to 15 cents of property, no such property is in existence. It is submitted that defendants obtained property on the basis of patta, issued in their favour and the plaintiff claimed right over the said property on the strength of patta issued in favour of the defendants. It is argued further that the property covered by the patta in relation to the plaintiff, marked as Ext.A1, not properly identified and the defendants filed objection to the Commission Report, disputing the identity of the plaint schedule property, on the basis of Ext.A1.

¶56

Dispelling this argument, it is submitted by the learned counsel for the plaintiff that the plaintiff as well as the defendants claimed right as that of cultivating tenants and accordingly, on adjudication of the claim put up by both sides, the Land Tribunal issued Ext.A1 patta in favour of the plaintiff. Similarly, patta in respect of the remaining portion

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adjacent to the property covered by Ext.A1 patta in the same survey number, also issued in favour of the defendants, as per Ext.X1. But, in excess of the land obtained by the defendants, as per Ext.X1 patta, the defendants encroached upon the property covered by Ext.A1 and therefore, the plaintiff sought the relief of recovery of possession and the same was rightly granted by the trial court after remand, on identifying the property specifically. Therefore, the said verdict was confirmed by the appellate court as also. Since the plaintiff perfected title on the basis of Ext.A1 patta in respect of property identified by the Commissioner, as per Ext.C2 sketch, the trial court as well as the appellate court rendered verdict in favour of the plaintiff and the said verdicts do not require any interference, as Ext.A1 patta is conclusive proof of title of the plaintiff over the plaint schedule property.

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Coming to the substantial questions of law, the same is specifically centered as regards to the nature of purchase certificate in the matter of title. In this connection, Section 72K of the Kerala Land Reforms Act, 1963, required

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to be extracted. Section 72K deals with issuance of certificate of purchase and the same is extracted hereunder:

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72K. Issue of certificate of purchase .

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(1) As soon as may be after the determination of the purchase price under Section 72F or the passing of an order under sub-section (3) of Section 72MM the Land Tribunal shall issue a certificate of purchase to the cultivating tenant, and thereupon the right, title and interest of the landowner and the intermediaries, if any, in respect of the holding or part thereof to which the certificate relates, shall vest in the cultivating tenant free from all encumbrances created by the landowner or the intermediaries, if any.

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Explanation . - For the removal of doubts, it is hereby declared that on the issue of the certificate of purchase, the landowner or any intermediary shall have no right in the land comprised in the holding, and all his rights including rights, if any, in respect of trees reserved for his enjoyment shall stand extinguished.

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(2) The certificate of purchase issued under sub-section (1) shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the

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intermediaries, if any, over the holding or portion thereof to which the assignment relates.

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(3) The purchase price payable by the cultivating tenant shall be a first charge on the land comprised in the holding or part thereof to which the assignment relates and shall be recoverable together with interest as provided in sub-section (3) of Section 72M, under the provisions of the Revenue Recovery Act for the time being in force.

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The impact of Section 72K of the Act is subject matter of discussion by this Court as well as the Hon'ble Apex Court, since its introduction in the statute book. In this connection, I am inclined to refer one decision in Chandran Nair v. Kunhambu Nair , reported in [1981 KHC 262] : [1981 KLT SN 150] , where a learned single Judge of this Court while considering a case where purchase certificate was issued without the presence and without notice to the opposite party, behind his back, and held that the purchase certificate issued without notice to the other side and one obtained behind his back has no evidentiary value.

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In the decision of the Apex Court in Mathew v. Taluk Land Board , reported in [1979 KLT 601] , where the Apex Court stated that the evidentiary value of certificate of purchase could not be disregarded except where it was inaccurate on its face or obtained by fraud. The Apex Court in the decision, observed as under:

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"It would thus appear that even though the certificate of purchase issued under sub-s. (1) of S.72K is conclusive proof of the assignment of the right, title and interest of the landowner in favour of the holder in respect of the holding concerned under sub-s.(2), that only means that no contrary evidence shall be effective to displace it, unless the so-called conclusive effective proof is inaccurate on its face, or fraud can be shown (Halsbury's Laws of England, fourth edition, Vol. 17, page 22 Para.28). It may be stated that 'inaccuracy on the face' of the certificate is not as wide in its connotation as an 'error apparent on the face of the record'. It will not therefore be permissible for the Board to disregard the evidentiary value of the certificate of purchase merely on the ground that it has not been issued on a proper appreciation or consideration of the evidence on record, or

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that the Tribunal's finding suffers from any procedural error. What sub-s.(2) of S.72K provides is an irrebuttable presumption of law, and it may well be regarded as a rule of substantive law. But even so, for reasons already stated, it does not thereby take away the jurisdiction of the Taluk Land Board to make an order under S.85(5) after taking into consideration the 'conclusive' evidentiary value of the certificate of purchase according to S.72K(2) as far as it goes."

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The ratio in Mathew ’s case (supra) is reiterated in Lakshmi Bai v. Taluk Land Board reported in [1986 KHC 86] : [1986 KLT 332] .

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In another decision in Mohammed Koya v. Bichikoya , reported in [2004 KHC 812] : [2004 (2) KLT SN 76] , [ILR 2004 (2) Ker. 223] , a learned single Judge of this Court held that, certificate of purchase issued by the Land Tribunal during pendency of the suit without the landlord being a party is not conclusive evidence of possession in a suit for injunction.

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In the decision in Hamza Haji v. State of Kerala

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and Another , reported in [2006 KHC 1248] : [2006 (3) KLT 941] , the Apex Court considered claim of exemption under Section 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, where the Tribunal upheld the claim under Section 3(3), which was interfered by the High Court for the reason that the appellant obtained the decision from the Tribunal in his favour by playing fraud on the Tribunal and the Apex Court confirmed the finding of the High Court.

¶80

In the decision in Chinnayya Mudaliyar and Others v. Vasudevan reported in [2010 (3) KHC 200] : [2010 (3) KLT SN 30] , this Court considered the same issue in the light of the decision in Patinhare Purayil Nabeesumma v. Miniyatan Zacharias , reported in [2008 KHC 6089] : [2008 (2) KLT SN 12] rendered by the Apex Court, where the Apex Court considered a situation when two purchase certificates were issued in favour of different persons and it was held by this Court that the purchase certificate issued prior in point of time prevails over the purchase certificate issued thereafter and it binds on

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including the Land Tribunal and therefore, subsequent purchase certificate had no legal effect. It was also held in the decision that, if a tenant constructs a building immediately after lease of property and puts it for commercial use, he is not a ‘cultivating tenant’.

¶83

In the decision in Mathilakath Skaria and

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Another v. Mathilakath Joseph and Another reported in [2013 (1) KHC 293] : [2013 (1) KLT SN 28] , [2013 (1) KLJ 410] , this Court held that, Civil courts cannot be mute spectators to such material alterations made; without power or authority and with abject impunity. The corrected Purchase Certificates are inaccurate on its face and are issued in violation of the provisions of the Act and Rules. With respect to the question as to whether a challenge on the validity of the Purchase Certificates could be maintained in a Civil Court under S.72K, this Court has no hesitation to find that S.72K applies only to valid Purchase Certificates issued by the Land Tribunals, respectfully following the Full Bench cited supra. Material irregularities have been found in the Purchase Certificates. Corrections have been made thereon

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without the seal of authority conferred under the KLR Act and the Rules framed thereunder; and substantially altering the boundaries, which, forms the essence of identification of the 'holding' as specified under the Act.

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In the decision in Viswambaran P.N. v. T.P. Sanu

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and Others , reported in [2018 (3) KHC 73] : [2018 (2) KLT 947] : [2018 (3) KLJ 227] , a Full Bench of this Court considered the impact of Section 72K(1) of the Act and held that, benefit obtained by one of the co-sharers in the form of certificate of purchase shall be held by him also for the advantage of the other co-owners and certificate of purchase obtained by him shall enure to the benefit of the other coowners also. In the said decision, it was also held as under:

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“The principle of res judicata would apply only when the matter directly and substantially in issue in a suit has been directly and substantially in issue in a former suit or proceedings between the same parties, or between parties under whom they or any of them claim litigating under the same title. When the Land Tribunal decides the question of tenancy and passes an order in favour of

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one of the co heirs of cultivating tenant, it does not decide whether the certificate of purchase to be issued pursuant to such order would enure to other co heirs. The Division Bench in Paul's case (supra) has held that for the issue of the purchase certificate the inter se rights of the co tenants need not be gone into by the Land Tribunal and how far the benefit of such certificate of purchase will devolve on the other co heirs is not a matter to be gone into by the Land Tribunal. Another Division Bench of this Court has concurred with this view in Balakrishnan Nair v. Radha Amma (1987 KHC 74: 1987 (1) KLT 195 : 1987 KLN 117). We agree with the aforesaid view taken by the two Division Benches of this Court. It then follows that when the Land Tribunal decides the question of tenancy and passes an order in favour of one of the co heirs of a cultivating tenant for issuing certificate of purchase, no finding is entered by it with regard to the inter se rights of the co heirs / co tenants or whether the certificate of purchase enures to the other co heirs / co tenants. If that be so, the principle of res judicata does not apply and the Civil Court is not precluded from trying and deciding such issue.”

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In the decision in State of Kerala and Another v. Mohammed Basheer , reported in [2019 (1) KHC 750] : [2019 (1) KLT 386] : [2019 (2) KLJ 60] , the Apex Court also considered the impact of Section 72K. In the said decision, it was held as under:

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“Certificate of purchase was issued by the Land Tribunal, under sub section (1) of S.72K. Sub section (2) of S.72K of the Land Reforms Act clearly states that the certificate of purchase issued under sub section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase. Therefore, it can safely be concluded that the respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our view, the land in

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question is exempted from vesting in the State under sub section (2) of S.3 of the KPF Act.”

¶97

Thus, the legal position is that certificate of

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purchase shall be conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates, subject to condition that the order led to issuance of the purchase certificate is one passed with notice to the land owner, with opportunity of hearing and the same is not the outcome of fraud or inaccurate. The remedy of the aggrieved person when the certificate of purchase is issued in a proceedings without notice to the landlord or by fraud or the same is inaccurate, the aggrieved can file an appeal before the appellate Tribunal, as provided under the Kerala Land Reforms Act, 1963. It is true that when the purchase certificate is inaccurate on its face, or obtained by fraud, the evidentiary value of the purchase certificate could not be disregarded. Doubtlessly, a purchase certificate shall not bind a party, who is not party to the proceedings before the Land Tribunal, having better title over

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the property covered by the purchase certificate.

¶101

In the instant case, the learned counsel for the plaintiff submitted that appeal, challenging Ext.A1 patta also was dismissed and thereby, Ext.A2 proceedings led to issuance of Ext.A1 patta, has become final and the defendants have no challenge thereafter. Therefore, the plaintiff perfected title over the plaint schedule property on the strength of Ext.A1 patta and the Commissioner rightly identified the property as one in existence as per Ext.C2, having an extent of 11 ¾ cents, after noting a portion of the same was given for framing the road on the northern side of plaint schedule property.

¶102

In this matter, on perusal of Ext.A1 patta, relied on by the plaintiff to assert title over the plaint schedule property, the same would go to show that, as on 8.4.1976, Land Tribunal, Palakkad No.II, as per S.M.proceedings No.496/1976 issued purchase certificate No.3175/1976 in favour of Kunchappu S/o.Narayanan (the original plaintiff), in respect of 15 cents of property in old survey No.53/3A4 of Malampuzha 1 village of Palakkad Taluk. Ext.X1 series are

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the documents showing issuance of purchase certificate including the purchase certificate issued in favour of Madhavan, S/o.Kunchappan, as per S.M.proceedings No.497/1976. In S.M.proceedings No.497/1976, the same Land Tribunal, as on 8.4.1976, issued purchase certificate No.3177/1976 in favour of Madhavan, S/o.Kunchappan, to an extent of 23 cents of property in old survey No.53/3A4. Thus, it appears that the Land Tribunal, Palakkad – II, issued Ext.A1 patta in respect of 15 cents in favour of the plaintiff Narayanan and also issued patta in respect of 23 cents in favour of Madhavan. As per Exts.C1 report and C2 sketch, the Commissioner identified plot No.6 as property available, having an extent of 11 ¾ cents on the eastern side of the property of Madhavan, as per Ext.X1, as the property covered by Ext.A1. Even though the defendants filed objection, challenging the veracity of Exts.C1 and C2, no specific objection raised to set aside the Commission Report and plan or no prayer made before the trial court to identify the property available to the defendants on the strength of Ext.X1 patta. In the written statement also, no specific plea raised

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to contend that the defendants obtained patta in respect of plaint schedule item also in any manner. It is difficult to believe that the same Land Tribunal issued two pattas in respect of the same property on the same day. Therefore, it appears that the property allotted in favour of the defendants, having an extent of 23 cents is lying on the eastern side of the property covered by Ext.A1 patta as shown in Ext.C2 plan (plotted as plot No.6 in Ext.C2 plan). In fact, the trial court as well as the appellate court considered the impact of Ext.X1 patta in the above line, as discussed and therefore, the second substantial question of law is answered, holding that the courts below did not went wrong in not considering Exts.X1 and X1(a).

¶107

To summarise, it is held that the plaintiff proved his conclusive title, based on Ext.A1 patta and also identified the said property on the immediate eastern side through the property covered by Ext.X1. Therefore, recovery of possession sought for in the strength of title is liable to be allowed, as rightly done by the trial court and confirmed by the appellate court.

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In view of the matter, this appeal deserves no merits and

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the same is dismissed.

¶111

All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed.

¶112

Registry shall inform this matter to the trial court as well as the appellate court, forthwith.

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