K P VIJAYAN Vs. P DAMODARAN

JUDGEMENT

(1.) The revision-petitioner obtained a certificate of purchase dt. 19-7- 1974 as per orders of the Land Tribunal, Kozhikode dt. 18-2-1974 in O. A. No. 1674 of 1971 for assignment of the right, title and interest of the landlord in respect of 23 cents of garden land in R. S. No. 58/5 of Vengeri Village Under S.72-B of the Kerala Land Reforms Act. Overlooking the issue of the certificate of purchase to the petitioner the respondent in this revision was also issued a certificate of purchase by the same Land Tribunal on 5-5-1975 as per its order dt. 27-4-1974 in O. A. No. 1081 of 1973. The revision-petitioner is not a party to O. A. 1081 of 1973; nor was the respondent a party to O. A. 1674 of 1971 filed by the revision-petitioner. Realising that in respect of the same property another certificate of purchase has been issued in favour of the respondent, the revision-petitioner filed an application I.A. 150 of 1975 purporting to be in both O.A. Nos. 1674 of 1'971 and 1081 of 1973 for cancellation of the certificate issued to the respondent on the ground that a certificate has already been issued to the petitioner with necessary parties on record in the proceedings, that the respondent being only a rental occupant of the building in the property was not a necessary party and that he has obtained a certificate of purchase in respect of the same property on the basis of an application without the necessary parties being brought on record. The Land Tribunal on the basis of the documentary evidence adduced in the case allowed the application and ordered cancellation of the certificate of purchase issued to the respondent. In appeal the appellate authority has reversed the decision of the Land Tribunal and has dismissed the application on the ground that the question involved relates to a contest between rival claimants to tenancy and the Tribunal has no jurisdiction to decide such a question. It is against this that the petitioner has come up in revision.

(2.) A few more facts are necessary for a proper understanding of the case. The respondent and others had kanom rights in the property. They sold the same to one Unni Nair as per Ext. P7 dt. 23-10-1961. The house in the property was entrusted to the respondent who executed Ext. P6, cooly chit, on the same date as of Ext. P7, in favour of Unni Nair. The kanomdar, Unni Nair, filed O.A. 1674 of 1971 before the Land Tribunal, Calicut for assignment of the right, title and interest of the landlord Under S.72-B of the Land Reforms Act. Unni Nair died during the pendency of the proceedings. His legal representative, Malu Amma, assigned the kanom right to the petitioner as per a registered document, Ext. P5 dated 12-11-1973. On the strength of Ext. P5 the petitioner got himself impleaded in O. A. 1674 of 1971 as a supplemental applicant. After due enquiry the Land Tribunal by order dt. 18-2-1974 directed the issue of a certificate of purchase to the petitioner and a certificate dt 19-7-1974 was issued to him. It was during the pendency of these proceedings that the respondent made an application O.A. 1081 of 1973 before the same Land Tribunal Under S.72-B of the Act for assignment of the right, title and interest of the landlord in respect of the same property. Malu Amma, the sole legal representative of Unni Nair, who had executed Ext. P5 assignment of the landlord's rights in favour of the petitioner, was the only respondent in O. A. 1081 of 1973. Malu Amma having parted with all her rights in favour of the petitioner was apparently not interested in contesting the application filed by the respondent. Neither the petitioner nor the landlord of the property was impleaded as a party to O. A. 1081 of 1973 filed by the respondent. Apparently overlooking the fact that there was already an order for assignment of the right, title and interest of the landlord in the property to the petitioner on 18-2-1974, the Land Tribunal passed an order in O. A. 1081 of 1973 on 27-4-1974 for assignment of the right, title and interest of the landlord to the respondent. In pursuance to this order the respondent also obtained a certificate of purchase dt. 5-5-1975, Ext. P 4, produced in these proceedings, is the certified copy of the decree in O. S. 85 of 1974 on the file of the Munsiffs Court, Kozhikode filed by the petitioner and another against the respondent. Ext. P 4 shows that a decree for permanent injunction is passed against the respondent from entering into and taking the usufructs from the property. It is not disputed that Ext. P4 decree relates to the land involved in the two applications-- O. A. Nos. 1674 of 1971 and 1081 of 1973. From these facts it is clear that the respondent is not a cultivating tenant entitled to apply for and obtain a certificate of purchase Under S.72-B of the Kerala Land Reforms Act. There is also a decree of the Civil Court, Ext. P4, against him restraining him from entering upon the property. Neither the revision-petitioner nor the landlord are parties to the proceedings for assignment of the right, title and interest of the landlord instituted by the respondent. He had impleaded only the Kanomdar, who had already assigned her rights to the petitioner as per Ext. P5 sale deed of the year 1973. In these circumstances there can be little doubt that the issue of a certificate of purchase by the Land Tribunal to the respondent was clearly a mistake and overlooking the proceedings which culminated in the issue of a certificate of purchase to the petitioner, The respondent had suppressed material facts such as the execution of Exts. P7 and P8 to which he is a party. In all probability he had deliberately impleaded a person, who has ceased to have any rights in the property and those interested were not impleaded. It was on the basis of such an application that he managed to get a certificate of purchase.

(3.) On the basis of the decision reported in Kochu Lakshmi v. Velayudhan ( 1981 KLT 639 ) it is submitted by learned counsel for the respondent that the Tribunal has no jurisdiction to decide as to who among the rival claimants to tenancy is entitled to the issue of a certificate of purchase. The decision in Kochu Lakshmi v. Velayudhan (1981 KLT 639) did not relate to a contest between rival claimants to tenancy. It was a case where some among the coowners had obtained a certificate of purchase without the other coowners having been brought on record in the proceedings before the Land Tribunal. In those circumstances a Division Bench of this Court held that the certificate of purchase issued in favour of the applicants should enure for the benefit also of the others who are found to be coowners along with the applicants. A subsequent decision of the same Division Bench in CRP No. 2590 of 1979 : (reported in AIR 1982 Ker. 38 ) has clearly held that there is no scope for reading the decision as precluding an enquiry as to whether the applicant for the issue of a certificate of purchase is a cultivating tenant. When the status of the applicant is questioned by other parties on record who contest his claim as a cultivating tenant either denying his title or setting up a title in themselves it becomes necessary for the tribunal to decide as to whether the applicant is a cultivating tenant, or person who contests his claim and sets up a title in himself is the cultivating tenant entitled to a certificate of purchase. This is made clear in the decision of the same Division Bench in CRP 2590 of 1979.