MUNDATHODE MOHAMMED KUTTY Vs. SUBAIR

JUDGEMENT

(1.) Based on the report submitted by Special Revenue Inspector, Tirur, S.M.Proceedings Nos. 309/1990 and 310/1990 were initiated by Special Tahsildar (LR) cum Land Tribunal, Tirur under Section 72C of Kerala Land Reforms Act (hereinafter referred to as 'the Act'). Revision petitioners herein, though not originally impleaded, filed an objection before the Land Tribunal contending that the property has originally been in the possession of their predecessor Mundathod Saidalavi and hence, all his legal heirs are to be impleaded. Consequently, they were impleaded. They filed a statement contending that respondents are assignees of kanaris under Document No.1762/1927 and the right created under the said document is only a commercial lease and not a lease or mortgage, entitled to fixity of tenure. Land Tribunal, as per order dated 30.3.1994, finding that nobody has a case that Exhibit P1, the Document No.1762 of 1927, is a lease, found that it is a mortgage and as the property is situated in Tirur, where Malabar Tenancy Act, 1929 was applicable and as the predecessor of the respondents has been in possession of the property from 1927, under Section 6B of the Act, they are entitled to purchase the jenm right and allowed the S.M. Proceedings in their favour. Petitioners challenged that order before the Appellate Authority (Land Reforms), Kannur in A.A.Nos.235/1997 and 236/1997. Appellate Authority, as per common order dated 11.6.1999, reiterated the findings of the Land Tribunal and dismissed the appeals. These revision petitions are filed challenging the said order.

(2.) Learned counsel appearing for the petitioners and learned senior counsel appearing for the respondents were heard.

(3.) Learned counsel appearing for the petitioners argued that even though petitioners' case before the Land Tribunal was that Exhibit P1 creates only a commercial lease, the Land Tribunal, without granting any opportunity to adduce evidence, found that no evidence was adduced and wrongly found that no party has got a case that it is a lease. Learned counsel argued that on a reading of Exhibit P1, it is clear that the property was granted on lease for construction of a shop building and in any case, there is no direction to pay any michavaram or pattam and therefore, the finding of the Land Tribunal as well as the Appellate Authority that it is mortgage is unsustainable. It is also argued that as the Land Tribunal and the Appellate Authority found that it is a mortgage and Section 6B of the Act applies and therefore, respondents are entitled to purchase the jenm right, when Exhibit P1 shows that it is a commercial lease, the orders are to be set aside.