Kerala High Court · 2007

H.L. DATTU, C.J. & K.T. SANKARAN, J. ...................................................................................W.A. No. 1761 OF 2007...................................................................................Dated this the 8th August, 2007J U D G M E N TK.T. Sankaran, J:The appellant/ writ petitioner filed Ext.P1 application dated 18.03.2003 undersection 53 of the Kerala Land Reforms Act before the Land Tribunal. (Hereinafter theappellant is referred to as the ‘petitioner’.) By Ext.P2 order dated 31.12.2003, the LandTribunal rejected the application on the ground that the petitioner is not in possessionof the property having an extent of 3.75 acres. The petitioner has also filed Ext. P8application dated 19.06.2003 before the Land Tribunal. The prayer in the Writ Petitionfiled by the appellant herein is to issue a writ of Certiorari to quash Ext.P2 order and toissue a writ of mandamus directing the first respondent-Special Tahsildar to decideExts. P1 and P8 applications after taking evidence . The learned single Judgedismissed the Writ Petition .2. The case of the petitioner is that the property in question, which belonged injenm to the predecessor in interest of the respondents 2 and 3, was taken on lease byKochintya, the grand-father of the petitioner in the year 1890. Various subsequentlease deeds were also executed . After the death of Kochintya, his son Velukuttyinherited the property . Velukutty died in the year 1968. The petitioner being the son ofVelukutty claimed that he is entitled to possess and enjoy the property 3. The Petitioner had filed an application before the Land Tribunal under W.A. No. 1761 OF 20072section 31 of the Kerala Land Reforms Act for fixation of fair rent. That applicationwas dismissed by the Land Tribunal and the dismissal was confirmed by the appellateauthority holding that the petitioner is not a cultivating tenant. The petitioner took upthe matter in C.R.P. 1101 of 1973 before this court . The said Revision Petition wasdismissed by Ext. R3(a) order dated 29.01.1974, wherein it was held that the petitioneris not a cultivating tenant and that Exts. D21 to D26-”Sookshmakychits” executed infavour of the respondent Nos. 2 and 3 herein, do not constitute any right as that of acultivating tenant. This Court held thus: “The decision of the Tribunal as well as of the appellate authority werebased on certain documents tendered in evidence by the respondentsland owners. They are Exts. D21 to D26. These are“............................” executed in favour of the predecessor -in-interestof the respondents by one Velu, the father of the applicants and alsoby one Narayanan, his maternal uncle. These kychits were all forindividual years; and the question raised and decided was whetherthese kychits confer any sort of right over the applicants . Apart fromthe provisions contained in these kychits the most significant aspectthat cannot be overlooked in this context is that the period for whicheach of these kychits was executed was for individual year. In otherwords, the arrangement automatically terminated on the expiry of thestipulated period. The latest of the series of kychits is of the year 1122and they are EXts. D23 and D25. On going through Ext.D25, it can befound that after the termination of the year the executant receivedback the initial deposit made by him after settlement of accounts.Thus the transaction stood closed in 1122. Therefore, the documents W.A. No. 1761 OF 20073produced by the respondents and on which reliance was placed uponby the applicant do not support the applicant's case that he is acultivating tenant within the meaning of Act 1 of 1964.”4. Between the parties there were five suits before the civil courts , viz.,O.S.Nos.72 of 1974, 596 of 1970, 64 of 1973, 262 of 1970 and 263 of 1970. Against thedecision in O.S.Nos. 262 and 263 of 1970, A.S.Nos. 176 of 1975 and 73 of 1976 werefiled before the District Court and the District Court remanded the cases to the trial courtfor fresh consideration. In O.S.Nos. 596 of 1970 and 64 of 1973 , the question oftenancy was raised and it was contended that it requires reference to the Land Tribunalunder section 125 (3) of the Kerala Land Reforms Act. The trial court rejected thatcontention . The order of remand as well as the orders rejecting the prayer to referthe question of tenancy to the Land Tribunal were the subject matter of two CivilMiscellaneous Appeals and three Civil Revision Petitions before this Court. In Ext.R3(d) judgment dated 7-2-1977, this court considered the question whether the petitionerherein is entitled to raise the question of tenancy again in view of Ext.R3(a) order inC.R.P.No.1101 of 1973 and it was held thus:“6. Counsel for the petitioner in C.R.P.No. 5268 of 1976 Shri EaswaraIyer, while admitting the fact that the question of tenancy was decidedby a competent Land Tribunal earlier, would contend that he wasentitled to put forward the question of tenancy again and the Courtbelow is bound to make a reference since the matter arises after01.01.1970 and since the tenure put forward is not the same as put W.A. No. 1761 OF 20074forward before. Reliance was placed upon the Supreme Court rulingreported in 1976 KLT Short Notes 98 overruling a Division Benchruling of this court in 1976 K.L.T. I am not impressed with thiscontention. The tenancy put forward by the petitioner in C.R.P. 5272of 1976 was that the predecessor -in-interest had a lease over theproperty and this lease was surrendered by him. There after theproperty was being taken by him year after year on “SooshmaKychit”. A large number of such Kychits were produced. This Courtin C.R.P. No. 1101 of 1973 considered the effect of all these “SooshmaKychits” and held against the tenancy set up. I cannot agree with thecontention that the tenancy sought to be put forward now in any waydiffers from the original tenancy put forward, and therefore such acontention cannot be countenanced at this stage. The contention ofthe learned counsel for the petitioner in C.R.P. 5268 of 1976 is thatwhatever be the nature of the lease put forward by the petitioner, theonly competent authority to decide it after 01.01.1970 is the LandTribunal and no Civil Court has jurisdiction to decide this question. Butthe identical plea was put forward before the Land Tribunal and thesame was found against and to say that the said Land Tribunalshould be invited to pronounce upon the validity or otherwise of theidentical lease is to unnecessarily protract the proceedings and todefeat the interests of the parties concerned and to deny justice to therightful claimants over the property. This Court in C.R.P. 1101 of 1973has made it absolutely clear that the tenancy put forward cannot beaccepted. It is idle to contend that Land Tribunal can go beyondwhat this Court has said considering the tenancy put forward by thetenant, and therefore is concluded by the order of this Court. Referring W.A. No. 1761 OF 20075the matter to the Land Tribunal on a mere technicality will not improvethe case of the plaintiff.”5. Thus by two judgments of this court, the question of tenancy raised by thepetitioner was rejected and it has become final. It was also held that the question oftenancy did not really arise for consideration in the two suits, from which the revisionsarose. After the question of tenancy was concluded against the petitioner by thedecision in C.R.P.No.1101 of 1973 and in Exhibit R3 (d) judgment , Ext.P1 applicationwas filed on 18.03.2003 under section 53 of the Land Reforms Act. 6. Relevant portion of Section 53 and Section 54 of the Kerala Land ReformsAct read thus:“53. Cultivating tenant's right to purchase landlord's rights:- (1) Acultivating tenant including the holder of a kudiyiruppu, and the holderof a karaima , entitled to fixity of tenure under Section 13, shall beentitled to purchase the right , title and interest of the landowner andthe intermediaries, if any, in respect of the land comprised in hisholding:54.Application for purchase of landlord’s right by cultivatingtenants: (1) A cultivating tenant entitled to purchase the right, titleand interest of the landowner and the intermediaries under Section 53may apply to the Land Tribunal for the purchase of such right, title andinterest. (2) The application for the purchase under sub-section (1) shall be in W.A. No. 1761 OF 20076such form and shall contain such particulars as may be prescribed.(3) Where a cultivating tenant is entitled to purchase the right, title andinterest in respect of only a portion of the land held by him, he mayindicate in the application, his choice of the portion, the right, title andinterest over which he desires to purchase. 7. As per section 72 of the Kerala Land Reforms Act, all right, title and interestof the landowners and intermediaries , if any, stood vested in the Government, witheffect from 01.01.1970. A cultivating tenant could file an application under section72B of the Kerala Land Reforms Act for purchase of right, title and interest of thelandowners and intermediaries, if any . Proceedings could also be initiated undersection 72C of the Act for the grant of purchase certificate in favour of a cultivatingtenant. For the sake of convenience relevant portions of Sections 72, 72B and 72C areextracted below:“72. Vesting of landlord's rights in Government:- (1) On a date tobe notified by the Government in this behalf in the Gazette, all right,title and interest of the landowners and intermediaries in respect ofholdings held by cultivating tenants (including holders of kudiyiruppusand holders of karaimas) entitled to fixity of tenure under Section 13and in respect of which certificates of purchase under sub-section (2)of Section 59 have not been issued, shall, subject to the provisions ofthis section, vest in the Government free from all encumbrancescreated by the landowners and intermediaries and subsisting thereonon the said date. W.A. No. 1761 OF 2007772B. Cultivating tenant's right to assignment:- (1) The cultivatingtenant of any holding or part of a holding, the right, title and interest inrespect of which have vested in the Government under Section 72,shall be entitled to assignment of such right, title and interest. 72C. Assignment where application is not made by cultivatingtenant:- Notwithstanding anything contained in sub-section (3) ofSection 72B or Section 72BB, the Land Tribunal may, subject to suchrules as may be made by the Government in this behalf, at any timeafter the vesting of the right, title and interest of the landowners andintermediaries in the Government under Section 72, assign such right,title and interest to the cultivating tenants entitled thereto, and thecultivating tenants shall be bound to accept such assignment. ” In view of Section 72 P of the Land Reforms Act, after 01.01.1970, an application filedunder section 54 read with Section 53 is not maintainable. Section 72 P of the Land Reforms Act reads as follows: “72P . Application under Section 54 and proceedings relatingthereto to abate on the date notified under Section 72:-(1) Allapplications under Section 54 (other than those which have beenrejected and such rejection has become final) and all proceedings inconnection therewith, whether pending before the appellate authority orthe High Court or the Land Board, shall, if the certificates of purchasehave not been issued under sub-section (2) of Section 59, abate witheffect from the date notified under sub-section (1) of Section 72, andno party shall be liable to pay the cost of any other party in any suchproceedings. W.A. No. 1761 OF 20078(2) Where a certificate of purchase is issued under Section 72K inrespect of any holding or part thereof to which an application referredto in sub-section (1) relates,-(a) the right, title and interest of the landowner and intermediaries inrespect of such holding or part shall be deemed to have vested in thecultivating tenant from the date of such application;(b) any amount paid or, deposited by the cultivating tenant by way ofrent after the date of such application, shall be adjusted towards thepurchase price payable by him under Section 72D;(c) any such amount received or withdrawn by the landowner or anyintermediary shall be adjusted towards the compensation payable tohim under Section 72 H and if the amount of compensation payableunder that section is not sufficient, the balance shall be adjustedtowards the compensation payable to him under Section 72 I; and (d) any purchase price deposited by the cultivating tenant shall beadjusted towards the purchase price payable by him under Section72D. 8. Even the application pending on the date of the Kerala Land Reforms(Amendment) Act 35 of 1969 which came info force on 01.01.1970 would abate, in viewof Section 72P. In cases where certificates of purchase were not issued under Section59(2), there would be a vesting under Section 72. Section 59 relates to an applicationunder Section 54. If the vesting under Section 72 occurs, assignment could be madeonly under Section 72B or Section 72C. In the scheme of the Act involving Sections72, 72B, 72C and 72P of the Kerala Land Reforms Act, after 01.01.1970, an application W.A. No. 1761 OF 20079could not be filed under section 53 or 54 for the purpose for which an application couldbe filed under Section 72 B or a proceeding could be initiated under Section 72C. 9. Section 108 A of the Land Reforms Act was introduced by amendment Act27 of 1979, which came into force on 07.07.1979. Section 108 A provides that theprovisions of Section 11 of the Code of Civil Procedure 1908 shall apply to theproceedings before the Land Tribunal. Even before section 108A was introduced bythe amendment Act 27 of 1979, a Full Bench of this Court in Koran vs. KamalaShetty (1977 KLT 358) had taken the view that the general principles of res judicatawould apply to the proceedings before the Land Tribunal . The same question wasalso considered by another Full Bench in Govindan Gopalan vs. Raman Gopalan(1978 KLT 315), and it was held that when the question of tenancy has become final,the same need not be referred to the Land Tribunal under section 125(3) of the KeralaLand Reforms Act . The question of finality of the proceedings before the LandTribunal was again considered by a Larger Bench of this Court in Kesava Bhat vs.Subraya Bhat (1979 KLT 766), wherein it was held that the question of tenancy whichis barred by res judicata need not be referred to the Land Tribunal . In view of thesedecisions and in view of Section 108A of the Land Reforms Act, the petitioner cannotbe heard to contend that the application filed by him claiming rights under section 53 ofthe Kerala Land Reforms Act is maintainable before the Land Tribunal.10. Section 2(57)of the Land Reforms Act defines “tenant”. The definition of W.A. No. 1761 OF 200710tenant includes 'kanamdar' and 'verumpattamdar'. Section 2(8) defines “cultivatingtenant”. By virtue of Section 13 of the Land Reforms Act, all tenants coming undersection 2(57) of the Act are entitled to fixity of tenure . Section 72B would enable thecultivating tenants to purchase the right, title and interest of the land owner andintermediaries, if any. Only cultivating tenants could purchase the right, title and interestof the landowner and intermediaries. 11. Learned counsel for the petitioner/appellant submits that the present claimput forward by the petitioner is as a 'kanam tenant'. Learned counsel points out thatunder section 2(22) of the Land Reforms Act, 'kanam' is defined and the proviso tosection 2(22) was deleted by amendment Act 16 of 1976. The proviso reads thus:“Provided that kanam or any other demise governed by the Kanam Tenancy Act, 1955,shall not be deemed to be a kanam for the purposes of this clause.” The contention isthat by the omission of the proviso to Section 2(22) of the Act, by The Kanam TenanyAbolition Act, 1976 (Act 16 of 1976), a kanam tenant could again apply to the LandTribunal for purchase of 'kanam right'. This contention is absolutely unsustainable. It iswell settled that if the claim of tenancy is rejected by the Land Tribunal on the merits,the same person cannot apply again before the Land Tribunal claiming tenancy right.The learned counsel contended that the claim now put forward is the claim of kanamright and not verumpattom right and therefore Section 108A would not apply. Thiscontention is also unsustainable. When the Land Tribunal dismisses the application ofa person who has put forward a contention that he is a verumpattomdar and entitled for W.A. No. 1761 OF 200711assignment of the right, title and interest of the landowner in respect of that holding,such a person cannot thereafter file another application claiming that he is a kanamdar.The subsequent application would be barred by res judicata, in view of Section 108A ofthe Kerala Land Reforms Act. In the present case, the predecessor in interest of thepetitioner contended that he was a cultivating tenant on the basis of the lease deedsproduced by him before the Land Tribunal. The Land Tribunal held that he was not acultivating tenant. This Court held in Exhibit R 3 (a) judgment that the"sookshmakachiyts" produced by the predecessor in interest of the petitioner did notentitle him to claim the rights of a cultivating tenant. It was also held that the petitioner'sfather got back the advance, settled the accounts and closed the transaction in 1122M.E. The claim made by the predecessor in interest of the petitioner was finally decidedagainst him. He never raised any contention that he had kanom rights. His son, who isthe petitioner, cannot now trun round and say that the leasehold right is kanam right. Inthe light of the finding in Exhibit R 3(a) that the transaction between the parties came toan end, it goes without saying that the predecessor in interest of the petitioner lostpossession of the property. The petitioner does not claim any independent title orpossession. The petitioner puts forward the claim only on the basis of the lease grantedto his grand father. In these circumstances, we are of the view that the claim of tenancymade by the petitioner is barred by res judicata. It is also well settled that a personwho has put forward a specific lease is not entitled to put forward a claim that he is a W.A. No. 1761 OF 200712deemed tenant. In Kaliyannan V. Narasimha Iyer: 1974 K.L.T. 286, it was held thus: “ A person who has set up a specific lease and failed to establish that plea cannot turnround and contend that he should be treated as a deemed tenant under Section 7 of theAct”. This decision was followed in several other decisions as well. 12. The tenancy claim put forward by the petitioner is barred by res judicata, inview of the earlier proceedings mentioned above . The Land Tribunal was justified inrejecting Exhibit P1 application. Ext.P8 application is not liable to be considered in viewof the finality reached in the proceedings. The petitioner is not entitled to any reliefssought for. The learned single Judge was right in dismissing the Writ Petition. Writ Appeal lacks merit and it is accordingly dismissed. H.L. DATTU, CHIEF JUSTICE.K.T. SANKARAN, JUDGE. lk