Kerala High Court · 2024

BY SRI. RENJITH THAMPAN (SR.), SRI. V.M.KRISHNAKUMAR R.P.No.690/2021 in C.R.P.No.221/2009 -:2:- RESPONDENTS/RESPONDENTS 1 TO 10 & 5TH PETITIONER: 1 2 3 4 5 6 7 8 9 INDIRA, D/O LATE RAMA VARMA RAJA, RAMANTHARASU, MAIPADDY PALACE, P.O.MAIPADY, KASARGODE TALUK, KASARAGODE DISTRICT PIN 671124 RAJAN, S/O.LATE RAMA VARMA RAJA, RAMANTHARASU, MAIPADDY PALACE, P.O.MAIPADY, KASARGODE TALUK, KASARAGODE DISTRICT PIN 671124 RAVI, S/O.LATE RAMA VARMA RAJA, RAMANATHARASU, MAIPADDY PALACE, P.O.MAIPADY, KASARGODE TALUK, KASARAGODE DISTRICT PIN 671124 JAYA, D/O.LATE RAMA VARMA RAJA RAMANTHARASU, MAIPADDY PALACE, P.O.MAIPADY, KASARGODE TALUK, KASARAGODE DISTRICT PIN 671124 SHASHI, S/O.LATE RAMA VARMA RAJA, RAMANTHARASU, MAIPADDY PALACE, P.O.MAIPADY, KASARGODE TALUK, KASARAGODE DISTRICT PIN 671124 RADHAKRISHNAN, S/O.LATE RAMA VRMA RAJA RAMANTHARASU, MAIPADDY PALACE, P.O.PAIPADY, KASARGODE TALUK, KASARAGODE DISTRICT PIN 671124 KRISHNA MOHAN RAJ, S/O.LATE RAMA VARMA RAJA, RAMANTHARASU, MAIPADDY PALACE, P.O.MAIPADY, KASARGODE TALUK, KASARAGODE DISTRICT PIN 671124 GOPINATH, S/O.LATE RAMA VARMA RAJA, RAMANTHARAVU, MAIPADDY PALACE, P.O.MAIPADY, KASARGODE TALUK, KASARAGODE DISTRICT PIN 671124 MAHALAXMI, D/O.LATE RAMA VARMA RAJA, RAMANTHARAVU, MAIPADDY PALACE, P.O.MAIPADY, KASARGODE TALUK, KASARAGODE DISTRICT PIN 671124 R.P.No.690/2021 in C.R.P.No.221/2009 -:3:- 10 11 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM 695001 MOHAMMED, S/O LATE MOOSA, AGED 34 YEARS, CHENNARVALAPPU, SHRIBAGILU VILLAGE, KASARAGODE TALUK, KASARAGOD DISTRICT PIN 671124 SRI. S. UNNIKRISHNAN, GP THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON

07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.P.No.690/2021 in C.R.P.No.221/2009 -:4:- O R D E R This review petition has been filed to review the order passed by this Court in C.R.P.No.221/2009 dated 14.8.2019.

2. The review petitioners are the petitioners 2 to 4 and 6 to 8 in C.R.P.No.221/2009 and the respondent are respondents 1 to 10 and the 5th petitioner therein.

3. The review petitioners and the 11 respondent are the legal heirs of one Moosa. According to the review petitioners, the father of Moosa, Abdulla Biyari was a cultivating tenant in respect of 1.85 acres of land comprised in re-survey No.11/1 of Shiribagilu Village in Kasaragod District. It is alleged that he took the aforesaid 1.85 acres of land on lease (Chalageni lease) prior to 1959. It is further alleged that after the death of Abdulla, his son Moosa, the father of the review petitioners, succeeded the tenancy, cultivated the land, planted coconut trees and cashew trees, constructed house, dug well and has been enjoying the property without any hindrance. Suo Motu R.P.No.690/2021 in C.R.P.No.221/2009 -:5:- proceedings were initiated under Section 72C of the Kerala Land Reforms Act, 1963 as S.M.58/1997 to issue purchase certificate to late Moosa. From among the respondents, the 7th respondent alone resisted the claim of Moosa contending that the lease was after 1.4.1964, the contract rent was ₹200/- per year and hence Moosa was not entitled to get fixity of tenure. The Land Tribunal No.II, Kasaragod vide order dated 30.9.1997 disposed of S.M.No.58/1997 holding that there is no reliable evidence regarding the tenancy in favour of Moosa. It was specifically observed that the tax receipts produced were of the year 1996- 1997 and 1995-1996 and one tax receipt marked as Ext.A1 dated 29.3.1958 produced does not appear to be genuine. Accordingly, the suo motu proceedings were dropped. Late Moosa unsuccessfully challenged the order in the suo motu proceedings before the Appellate Authority (LR), Kannur as A.A.No.47/1998.

4. Thereafter, Moosa preferred revision petition before this Court as CRP No.221/2009 challenging the order in A.A.No.47/1998. During the pendency of the revision petition, R.P.No.690/2021 in C.R.P.No.221/2009 -:6:- Moosa died and his legal heirs were impleaded as supplemental revision petitioners who are the petitioners and 11th respondent in this review petition. During the pendency of the review petition, the 1st respondent died and her legal heirs are impleaded as remaining review petitioners. This Court dismissed the revision petition confirming the orders in Suo motu proceedings of the Land Tribunal as well as the order of the Appellate Authority. This Court found that the petitioners failed to prove the tenancy prior to 1964. It was also observed that this Court sitting in revision cannot re-appreciate the evidence.

5. Now the review petition has been filed to review the order in C.R.P.No.221/2009 mainly on the ground that after the dismissal of the revision petition and after the death of Moosa, the 2nd review petitioner Abdulla managed to get two rent receipts regarding the payment of rent by Moosa in favour of the landlord in 1959 and 1961. According to the review petitioners, the said documents would show that Moosa was in possession of the property as a tenant prior to 1.4.1964 and not after 1964 as contended by the 7th respondent. It is in these circumstances, R.P.No.690/2021 in C.R.P.No.221/2009 -:7:- this review petition has been filed.

6. I have heard Sri.Renjith Thampan, the learned Senior Counsel instructed by Sri.V.M.Krishnakumar, appearing for the review petitioners and Sri. S. Unnikrishnan, the learned Government Pleader.

7. The learned Government Pleader strongly opposed the review petition. Even though notice has been served to the remaining respondents, there is no appearance.

8. This is a case where the tenancy of late Moosa over the disputed property is not in dispute. The 7th respondent who was the only contesting respondent resisted the claim of late Moosa, contending that lease was after 01.04.1964 and the contract rent was Rs.200/- per year. Thus, the contesting respondent admitted that the late Moosa was a tenant at least after 01.04.1964. The Land Tribunal dismissed the claim of the petitioner on the ground that no document has been produced by late Moosa to prove his tenancy over the property prior to

01.04.1964, which is the cut off date to claim tenancy under Section 72 of the Kerala Land Reforms Act. Even though, a rent R.P.No.690/2021 in C.R.P.No.221/2009 -:8:- receipt dated 29.03.1958 was produced and marked as Exhibit A1, the Land Tribunal found that it was not a genuine one. Now, the review petitioner has produced two rent receipts as Annexures I and II along with I.A.No.1/2021. Those rent receipts are in Kannada language. The translated copies have also been produced. It would show that the rent receipts are dated

12.01.1959 and 09.11.1961. It was issued by the then Jenmi/landlord in favour of late Moosa. Those documents as it stand throws some light on the claim raised by the petitioners. However, at this stage, the genuineness, acceptability and reliability of those documents cannot be decided. If those documents are found to be legally acceptable, then the concurrent findings of the two statutory authorities that there is no evidence to show that Moosa was in possession of the property as a lessee prior to 01.04.1964 cannot be sustained.

9. Order XLVII Rule 1 of CPC deals with review of judgment. Sub rule (1) (b) of Order XLVII says that any person considering himself aggrieved by a decree or order from which no appeal is allowed and who, from the discovery of new and R.P.No.690/2021 in C.R.P.No.221/2009 -:9:- important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made etc., can seek for review of the judgment. In paragraph 6 of the review petition, the review petitioners have pleaded that after receipt of the order in CRP 221/2009, the 2nd petitioner Abdulla showed the copy of the order to one Govindan Pallikkappil, who is a social worker in the locality and on going through the said order, Govindan Pallikkappil informed him that the reason for rejecting the suo-motu proceedings was that no documents were produced before the Land Tribunal or any other forum to prove that the land was leased out by the petitioners' grandfather prior to 1964. It is further stated that, he advised the 2nd petitioner to make a thorough search and on the basis of his advice, the 2 nd petitioner has made thorough search of old papers kept by Moosa and they could find out the two rent receipts produced now. Thus it is a case falling under Order XLVII Rule 1 of CPC. There is a clear pleading that those documents were not in their possession at the time when the case was decided by the Land R.P.No.690/2021 in C.R.P.No.221/2009 -:10:- Tribunal, Appellate Authority and even after due diligence, they could not produce the same. In these circumstances, I am of the view that order in CRP No.221/2009 dated 14.08.2019 is liable to be reviewed. Ordered accordingly. The matter is remanded to the Land Tribunal concerned for trial and disposal. The Land Tribunal shall issue notice to the parties and permit the petitioners to adduce evidence with regard to Annexures I and II rent receipts alone and dispose of the suo-motu proceedings afresh in accordance with law. The Review petition is allowed as above. Sd/- DR. KAUSER EDAPPAGATH JUDGE R.P.No.690/2021 in C.R.P.No.221/2009 -:11:- PETITIONER ANNEXURES ANNEXURE I ANNEXURE II ORIGINAL OF THE LEASE RENT RECEIPT DATED 12.1.1959 ISSUED IN FAVOUR OF MOOSA ALONG WITH MALAYALAM TRANSLATION ORIGINAL OF THE RENT RECEIPT DATED 9.11.61 ISSUED IN FAVOUR OF MOOSA KUNJI, PETITIONERS FATHER ALONG WITH MALAYALAM TRANSLATION