Kerala High Court · 2012

O R D E R Parukutty Amma Bhageerathi Amma was the applicant under Section 17 of the Kerala Land Reforms Act (hereinafter referred to as the 'Act') for resumption, of one half of the holding, subsisting in a tenancy to one Nelli Paru. It was claimed that Nelli Paru, who was a cultivating tenant under the Act, was in possession of about 54 cents of property, under a tenancy. Bhageerathi Amma being a 'small holder' as defined under Section 2(52) of the Act, claimed entitlement to one half of the holding, i.e., subsisting in tenancy and remaining in the possession of the tenant.

2. Originally, the application filed as O.S.No.741/1965 was dismissed by order dated 17-09-1975, holding that the applicant is not a small holder. The appellate authority remanded the same for finding out the actual extent held by the family of the appellant, including her husband. Further evidence was adduced before the Land Tribunal and it was found that the land in possession of the applicant along with her husband, exceeded the limit and the applicant could not be treated as a small holder, under the Act. In appeal, that was confirmed. The C.R.P.No.488 OF 2007 2 applicant was in revision before this Court. By judgment dated 30-05- 1989 in C.R.P.No.2127/1988, this Court relying on a decision of another Single Judge in Mariam v. Aley (1978 K.L.T. Short Notes 56 Case No.128), held so :- The orders of the authorities below are set aside and the petition for resumption is allowed. The tribunal shall pass appropriate consequential orders after giving an opportunity of being heard to the parties to the proceedings.

3. The matter was remanded to the Land Tribunal. In the opinion of this Court, the status of the applicant in O.S.No.741/1965 as a 'small holder' and her entitlement to be granted resumption was no longer up for consideration; the same having been concluded by this Court. The Land Tribunal also understood that such issues have been concluded. After extracting the order in the C.R.P, it was noticed that the respondent had requested retention of the lands surrounded by her homestead. The respondent also opted to resume the land on the western boundaries of her kudikidappu; to the northern and southern side of the property.

4. An Advocate Commissioner was appointed to demarcate C.R.P.No.488 OF 2007 3 the property on the basis of the option and to furnish a report together with the list of improvements of the respondent, on the land to be resumed and the annual income and value thereof. The Commissioner filed a report, to which the tenant and the applicant had filed objections. The Commissioner was examined and two more witnesses were examined on the side of the respondent/tenant. On an examination of the entire evidence, the Land Tribunal proceeded to compute the value of the improvements, as reported by the Commissioner and also included certain aspects objected to by the respondent/tenant. Final orders were passed directing resumption of an extent of 18.125 cents being one half of the 36.250 cents found in the possession of the tenant. Compensation was also fixed at an amount of Rs.24,451/-.

5. Despite the order passed by the Land Tribunal, in compliance with the directions in C.R.P.No.2127/1988, and an agreement, at least on the resumption, the tenant/respondent chose to file an appeal. The appeal memorandum was made available to the court across the bar and the court looked into it, on agreement of both counsels. Five grounds are raised with respect to the inadequacy of the C.R.P.No.488 OF 2007 4 compensation granted by the Land Tribunal. While the matter was pending before the Land Tribunal, the land lord expired. In fact, such demise occurred, after the appeal had been renumbered as A.A.No.122/1997, before the Appellate Authority(L.R), Alappuzha. The earlier appeal was before the Appellate Authority, Thrissur and numbered as A.A.No.107/1995. It is noticed that the appeal was dismissed on 31-08-2000. But the records were not sent to the Land Tribunal. The legal representatives of the original land lord Bhageerathi Amma, then appeared before the appellate authority and filed an application dated 10-03-2005 to get themselves impleaded. It is submitted by both counsel that the original order was not taken into account by the appellate authority since the order was passed against a dead person and in favour of a dead person. That obviously is a nullity. In any event, the appellate authority, despite the earlier dismissal proceeded to consider the appeal, on merits, as agreed to by both parties.

6. On receipt of notice in the application filed by the legal representatives of the appellant; the appellant/tenant appeared and filed C.R.P.No.488 OF 2007 5 an application seeking impleadment of the legal representatives. The impleading applications were allowed by the Land Tribunal and the impugned order was passed dismissing the appeal, with the legal representatives of the tenant as also the original land lord in the party array.

7. I have heard learned counsel Sri.R.Azad Babu appearing for the revision petitioners herein and Sri.T.K.Venugopalan, appearing for the respondent. Sri.R.Azad Babu raises a contention, regarding the competence of the appellate authority or the Land Tribunal to implead the legal representatives of the petitioner for reason of such power being not available under Section 101 of the Kerala Land Reforms Act. On behalf of the revision petitioners, it is also urged that, even looking at Order 22 Rule 2 of the Civil Procedure Code, it cannot be said that the legal representatives can be impleaded automatically since the right to sue has to survive. The legal representatives have to show that independently they are small holders. The correct procedure according to the counsel, would have been to remand the matter to the Land Tribunal to ascertain the individual status and holding. The learned C.R.P.No.488 OF 2007 6 counsel for the revision petitioners also urge that as per Section 20(2) of the Act, compensation has to be fixed as per the Kerala Compensation for Tenants Improvements Act, 1958 (hereinafter referred to as the 'Improvements Act'). The quantum of compensation, so computed would be more and going by sub-section 3 of Section 5, the tenant is entitled to be granted compensation as on the date of dispossession. It is to be noticed that, neither before the appellate authority, nor in the revision, there is any such ground raised.

8. The learned counsel for the respondent Sri.T.K.Venugopalan, however, would draw my attention to Rule 92(3) of the Kerala (Tenancy) Rules, 1970, which makes the provision of Order 22 of the first schedule to the Civil Procedure Code applicable to the proceedings under the Act. He would contend that the definition of tenant or rather the categories which are included in such definition would clearly indicate that only a person who has been continuing bona fide as a tenant would be entitled to the improvements. It also urged that it is not an absolute rule, that compensation has to relate to the actual time of dispossession. Even as per sub section 3 of Section 5, only on the C.R.P.No.488 OF 2007 7 execution court finding it to be necessary, such a procedure has to be adopted.

9. The order of resumption was passed on 06-07-1995, in pursuance to the order in Civil Revision Petition dated 30-05-1989. It was an agreed order, according to the respondent. When the status of the land owner as a 'small holder' and the entitlement to resume lands were declared by this Court, in a Civil Revision Petition, it is pointed out that, the tenant could not have made any further improvements in the land. If at all made, then there could be no compensation claimed for reason of the person in occupation not being a tenant, in any event, after the order of the Land Tribunal.

10. The learned counsel for the revision petitioner has placed before me a decision of the Division Bench of this Court reported in Mathai Anthraper & Others v. Lonan Carlose (1972 K.L.T.899). According to him, the position of law declared therein would squarely apply to the facts of this case. That was a case, in which, the land holder expired and his legal representatives claimed that though their predecessor-in-interest was not a 'small holder', on his death, the C.R.P.No.488 OF 2007 8 properties held by him being partitioned between the legal representatives; they individually became 'small holder' under the Act to claim for resumption of land from tenants. This Court specifically referred to the Explanation to Section 2(52), which laid down, that, a person who was in possession of or had interest in land exceeding the limits prior to 18-12-1957, cannot claim that subsequent to that date, there was a division or partition of the properties, entitling such person to be deemed to be a 'small holder' under the Act. It was held that on the death of the land holder, the legal representatives would be tenants in common and they could claim the status of a 'small holder' only if their interest together in the property, that devolved on them, is confined to an extent equal or below the extent for a small holder. That in the opinion of this Court is not the facts as disclosed in the above revision.

11. In Mathai Anthraper (supra) the declarant was not a small holder and on his death the legal heirs claimed that status since after partition, what remained with each of them was only an extent below the extent for a small holder. The Court found that each of the C.R.P.No.488 OF 2007 9 such legal heirs is in possession of the whole estate of the deceased as tenants-in-common. In the instant case the predecessor was a small holder, entitled to resumption of land from the tenant. On her death the legal heirs succeed to that claim and there is no question of their independently establishing their claim. Then, if independently, they hold no other lands, each would be entitled to claim resumption as a 'small holder' under the Act and that would lead to absurd results. If the predecessor-in-interest has been adjudged a 'small holder', then on her death what devolves on the legal heirs is only so much property and their interest together remains to be of a 'small holder'.

12. In this context, it is apposite to refer to 1994(1) K.L.T 260, Paili Geevarghese v. Paili Varkey. In determining the extent of land value, entitled to resumption under Section 17, what was held to be relevant was the position as on 18-12-1957; as is again evident from the Explanation to Section 2(52) of the Act. The right of the land lord had to be determined as on the date of institution of the proceedings and it was found that law's delay cannot affect the right of parties one way or other. Here, after this Court upheld the status of the land lord as C.R.P.No.488 OF 2007 10 a “small holder”; on remand; though resumption was conceded to an appeal was filed against the compensation for improvements. The order in that appeal is challenged in the present revision. The revision petitioners have successfully retained the property; ordered to be resumed; with them. At the appellate stage, the land lord died. If resumption was effected as conceded to by the tenants/revision petitioners, then the legal heirs of the land lord would have definitely succeeded to such property. By the death of the land lord, it cannot at all be said that the right to sue does not survive in the legal representatives, by reason of their individual status as a “small holder” having not been declared. If, as held in Paili Geevarghese's case (supra) even subsequent acquisitions cannot affect the resumption under Section 17, it does not appeal to reason that mere death would result in extinguishment of the right of resumption under Section 17.

13. It would not be reasonable to say that on the death of the declarant the 'right to sue' does not survive. In fact the decision of the Division Bench in Mathai Anthraper (supra) is an answer to the contention of the learned counsel for the revision petitioner that there C.R.P.No.488 OF 2007 11 can be no impleadment of legal representatives by the appellate authority or the Land Tribunal. Rule 92(3) also specifically empowers the Land Tribunal with the authority to implead parties as legal representatives and such authority of the original authority necessarily is available with the appellate authority too. The Land Tribunal's power to implead legal representatives of a party to the proceeding in Rule 92 was also affirmed by this Court in 1976 K.L.T, Page No. 86 (Case No.196) O.P.No.5721 of 1975.

14. The next contention is with respect to Section 20(2) of the Land Reforms Act, which mandates compensation to be paid under the Improvements Act. At the outset, it is to be noticed that the revision petitioners or their predecessors-in-interest did not have a contention before the appellate authority that the compensation fixed by the Land Tribunal was not in accordance with the Improvements Act. Both the authorities below do not refer to the Improvements Act. The objection to the Commission report which computed the compensation as directed by the Land Tribunal also did not contain any such claim. For all we know, the compensation would have been computed under the C.R.P.No.488 OF 2007 12 provisions of the Improvements Act. If that was not so, it was for the objector/tenant to make such a contention before the fact finding authorities; at least before the appellate authority. There was no contention raised that the computation was not in accordance with the Improvements Act. This Court sitting in the jurisdiction under Section 103 is not required to make an enquiry into the computation made and re-work the compensation to verify whether the compensation awarded by the Land Tribunal was in fact under the Improvements Act.

15. The next question is regarding the period up to which the compensation can be claimed and the improvements which are to be taken into account.

16. The learned counsel for the revision petitioner has placed reliance on a number of decisions to buttress his contention that the compensation for improvements has to relate to the date of dispossession. 1962 K.L.T 688 (F.B), Kanakku Kumara Pillai Thanu Pillai v. Mathevan was a case in which, a Full Bench was concerned with the question whether the first appellate court was right in directing payment of the value of a building, constructed, in violation of C.R.P.No.488 OF 2007 13 injunction order in the suit. The view that any improvements made in violation of an injunction order or against a decree of ejectment, despite the impropriety, is entitled to compensation. However the said view was not approved. It was categorically held that the payment should be denied for improvements effected in violation of an order of injunction. Later, a learned Single Judge in 1984 K.L.T 882, Mathai v. Varkey while holding that a person is entitled to receive value of improvements effected even subsequent to a decree for eviction, did not notice the Full Bench decision referred to above. In 1993(1) K.L.T 528, Damodaran and others v. Sekharan and others, a Division Bench of this Court again considered the question of improvements effected in violation of injunction order and found the same be not a bona fide act and hence held the same to be dis-entitled for compensation.

17. Noticing the declarations in the above cited precedents, this Court is of the opinion that it is too late in the day to raise a contention for compensation for improvements till the actual date of dispossession; looking at the facts of the instant case. The earlier Civil C.R.P.No.488 OF 2007 14 Revision Petition affirming the right of resumption was rejected in the year 1989 and on remand, a Commissioner was appointed to verify the improvements and provide a computation of the compensation payable to the tenant. The tenant conceded to the resumption and opted to surrender specific portions of the property. The objections filed by the respondent/tenant regarding improvements were also elaborately considered in the order of the Land Tribunal. The compensation was fixed after considering the objections of the parties. The order was passed in the year 1995, ordering resumption and also directing deposit of compensation amount so computed. The respondent or their legal heirs, who were in possession of the lands, could not have made any improvements in the land after the said order, merely because proceedings were pending in revision and appeal. If any such improvements were made, it is at their own risk and peril and the Improvements Act cannot at all come to their aid; to claim further compensation till dispossession. An order having been passed by the Land Tribunal, it cannot be gainsaid that the respondents or legal representatives were continuing in possession as tenants under the C.R.P.No.488 OF 2007 15 Improvements Act. The revision petitioners also cannot raise a contention that the value of improvements should be adjudged, as at the time of the dispossession. This Court is informed that after the appeal was dismissed, the land lord has deposited the amounts. There can be no re-adjudication of the value of improvements merely by reason of passage of time, which occurred due to the parties approaching the appropriate forums enforcing their appellate and revisional remedies.

18. Abdulla Haji v. Rugmini Amma 1998(1) K.L.T, Short note 13 (Page No.15) was a case in which pursuant to a decree one of the parties in the litigation came into possession. When appeal was pending, the party made valuable improvements. This Court held that the improvements made by a party to a litigation pendentelite was with full knowledge of the risk he runs in doing so, and hence cannot seek any entitlement to compensation for such improvements.

19. The status of the deceased land owner as a 'small holder' and the entitlement to resumption has been found by this Court as long back as in 1989, in the order in C.R.P.No.2127/1988. The contentions now raised are only to avoid or as pointed out by the learned counsel C.R.P.No.488 OF 2007 16 for the respondent, to hamper delivery of the lands directed to be resumed:

20. The questions raised by the learned counsel for the revision petitioner and answered by this Court unfortunately were not raised in the revision. However, this Court has considered the same to facilitate a fair adjudication and since they were raised on the premise of questions of law arising from the impugned order. The impugned orders are not liable to be interfered with under Section 103 of the Act, since it cannot be said that there is an erroneous finding on law or failure to answer a question of law. The facts disclosed also does not persuade this Court to arrive at any other conclusion than that arrived at by the lower authorities; nor is such an enquiry open, by virtue of the orders in the earlier civil revision petition. The Civil Revision Petition is rejected with costs throughout. K.VINOD CHANDRAN, JUDGE.