AMINA Vs. LAND TRIBUNAL BADAGARA

JUDGEMENT

(1.) The kudikidappukaran seeks to set aside Ext. P7 order passed against him by the 1st respondent Land Tribunal whereby the 2nd respondent's application for shifting was allowed. The main contentions raised before me are that, (1) the 1st respondent Land Tribunal's decision is based on the evidence gathered by it on local inspection; (2) that the landlord, 2nd respondent, is not capable of complying with S.75(2)(iv) in that he is incapable of transferring ownership for the reason that he has got only kanam kuzhikanam right in respect of the alternate site; and (3) that the finding of the Land Tribunal regarding bona fides is not supported by legal evidence and that it has been arrived at without adverting to the legal evidence.

(2.) By Ext. P7 order the 1st respondent Tribunal on an appreciation of the evidence of Pws. 1 and 2 and on the basis of the Revenue Inspector's report, and also, after making a local inspection, found that the applicant (2nd respondent) bona fide requires the land for construction of a residential house for his son and that the alternate site is fit for residential purposes. The first point raised by the learned counsel for the petitioner is based on the decision of this Court in Ayisha v. Kunhathutty ( 1973 KLT 57 ) wherein my learned brother Viswanatha Iyer J. equating R.137 of the Kerala Land Reforms (Tenancy) Rules, 1970 to R.18 of O.18 in the Code of Civil Procedure, 1908, and applying the principles laid down with reference to the latter provision held that the decision of the Land Tribunal should not be one resting solely on the evidence gathered at the local inspection. In that decision the learned Judge relied on Ugamsingh & Mishrimal v. Kesrimal, 1970 (3) SCC 831 , wherein it is said:

(3.) Mr. Sreedharan appearing on behalf of the 2nd respondent brought to my notice the decision reported in Mahin v. Collector of Customs ( 1967 KLT 539 ) wherein at page 544 Mathew J. had extracted a passage rendered by Diplock L. J. in Regina v. Deputy Industrial Injuries Commissioner, Ex parte Moore (1965 (2) WLR 89). The passage that was pointed out by Mr. Sreedharan is this: