Tressa D'Cruz v. Elizabeth George & Ors.

BY ADV. SRI.M.A.GEORGE RESPONDENTS/RESPONDENTS: -------------

8. ELIZABETH GEORGE, ODASSERIL PURAYIDAM, VADAKKUMBHAGOM, KOLLAM.(EXPIRED) JAIN GEORGE, DO. DO. (EXPIRED) JOHNSON GEORGE, DO. DO. PHILIP GEORGE, DO. DO. JESSEE GEORGE, DO. DO. MARY GEORGE, DO. DO. BEENA GEORGE, DO. DO. (EXPIRED) STATE OF KERALA REPRESENTED BY THE CHIEF SECREATARY, SECRETARIAT, THIRUVANANTHAPURAM. (RESPONDENTS 3, 4, 5 AND 6 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 1ST, 2ND AND 7TH RESPONDENTS VIDE ORDER DATED 5/7/06 IN I.A. 1709/06 IN C.R.P. 1641/00) BY GOVERNMENT PLEADER, SRI.S.DILEEP THIS CIVIL REVISION PETITION HAVING COME UP FOR DETERMINATION AT THE LOK ADALATH ON 17-8-2007, THE FOLLOWING ORDER IS PASSED: K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 1641 OF 2000 G -------------------------------------------- Dated this the 14th February, 2008 O R D E R This Revision is filed by the applicant in O.A.No.164 of 1986, on the file of the Land Tribunal, Kollam, which was an application filed under Section 80B of the Kerala Land Reforms Act. The Land Tribunal dismissed the application as per order dated 20.10.1993. The revision petitioner filed A.A.No.86 of 1998, on the file of the Appellate Authority (Land Reforms), Alappuzha, challenging the order passed by the Land Tribunal. The Appellate Authority dismissed the appeal by the judgment dated 11.11.1999, which is under challenge in this Revision.

2. The case of the petitioner is that she is in occupation of an extent of three cents as a kudikidappukari as permitted by Tuet Church, represented by a priest. It is alleged that the petitioner constructed a small house in the property and that she is residing in that house from 1965 onwards.

3. In O.A.NO.164 OF 1986, the first respondent is shown as Fr.Peter Thekkevila, Tuet Church, Kollam. Fr.Peter Thekkevila died. In the appeal filed by the petitioner, the Church is not seen made a party. In the Civil Revision Petition also the Church is not a party. C.R.P. NO. 1641 OF 2000 :: 2 ::

4. The case put forward by the petitioner was denied by all the respondents. Respondents 2 to 8 in the Original Application contended that an extent of eight cents of land including the three cents claimed by the petitioner was ordered to be assigned in favour of P.J.George, the predecessor-in-interest of respondents 2 to 8 in O.A.No.164 of 1986, as per the proceedings in O.A.No.385 of 1974. The petitioner herein was not a party to O.A.No.385 of 1974. It is also stated that an appeal was filed by the Church against the order in O.A.No.385 of 1974 and that appeal was dismissed. The claim of P.J.George (the predecessor-in-interest of respondents 2 to 8 in the present OA) was that he was a cultivating tenant in respect of eight cents of land and that he was put in possession by the Church represented by a priest. The Land Tribunal accepted that contention and allowed O.A.No.385 of 1974. The proceedings in O.A.No.385 of 1974 are not binding on the revision petitioner. The revision petitioner claims kudikidappu rights under the Church.

5. Evidence was adduced by both the parties before the Land Tribunal. On a reading of the order of the Land Tribunal and the judgment of the Appellate Authority, the facts are not very clear. Both the authorities below were under the impression that the order in O.A.No.385 of 1974 would conclude the issue and that the petitioner would not be entitled to claim kudikidappu rights in view of the order in O.A.No.385 of C.R.P. NO. 1641 OF 2000 :: 3 ::

1974. This finding is incorrect. The petitioner is not bound by the order in O.A.No.385 of 1974. The claim of the petitioner is entirely different from the claim put forward in O.A.No.385 of 1974. That the claim of P.J.George that he was a cultivating tenant in respect of eight cents of land was accepted by the Land Tribunal in a proceeding in which the revision petitioner was not a party, is not a ground for rejecting the kudikidappu claim made by the petitioner under the Church, provided the petitioner proves her case that she was permitted by the Church to occupy the premises. The authorities below have not discussed the evidence and have not arrived at a conclusion on the facts. A revisional court would not be justified in scanning the evidence and in arriving at a finding as to whether the claim of kudikidappu is established or not. Therefore, I have no other alternative but to set aside the order passed by the Land Tribunal and the judgment of the Appellate Authority and to remand the case to the Appellate Authority for fresh disposal. Since many of the Land Tribunals have been abolished and since only one Land Tribunal in a district is available, I do not think that a remand to the Land Tribunal would be justified. The Appellate Authority being a final court on facts in the proceedings under the Kerala Land Reforms Act, I am of the view that it would be ideal if the matter is remanded to the Appellate Authority for fresh disposal. C.R.P. NO. 1641 OF 2000 :: 4 ::

6. In this Civil Revision Petition, the parties expressed their desire to settle the case and the matter was placed before the adalath. A detailed order dated 17.8.2007 was passed by the adalath recording the agreement between the parties to have the matter amicably settled. The Village Officer was directed to prepare a plan. The plan was prepared which would show that the house in respect of which the petitioner claims kudikidappu is situated on the extreme southern side of the eight cents of land. The subsequent order passed by the adalath would indicate that a consensus was arrived at by the parties as to how the matter could be settled and it was agreed that a portion of the house could be occupied by the petitioner and the petitioner would pay a sum of Rs.25,000/- to the respondent. Unfortunately, that consensus reached between the parties has not culminated in an agreed final order, since some of the parties were not prepared to agree for a settlement. This is being mentioned in this order only for the purpose of enabling the parties to have an amicable settlement after the remand to the Appellate Authority. The Civil Revision Petition is allowed, the order passed by the Land Tribunal and the judgment rendered by the Appellate Authority are set aside and the matter is remanded to the Appellate Authority for fresh disposal. The Appellate Authority shall afford an opportunity to the parties to settle, if such a course is possible. If no settlement is arrived at, the C.R.P. NO. 1641 OF 2000 :: 5 :: Appellate Authority shall dispose of the case on the merits in accordance with law. The parties will be entitled to adduce evidence and to produce documents before the Appellate Authority. No order as to costs. ahz/ (K.T.SANKARAN) Judge K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- C.R.P.NO. 1641 OF 2000 G O R D E R 14th February, 2008 -------------------------------------------