KUNHIRAMAN Vs. KUNHAPPU

JUDGEMENT

(1.) The petitioner in this original petition is the person in possession of R.S. 23/3 of Kariyoor Desom in Chokli Amsom in which the kudikidappu of the 1st respondent was situated. The grievance of the petitioner is against Ext. P-2 order of the 2nd respondent by which the petitioner's application O. A. No. 39 of 1974 for shifting the kudikidappu of the 1st respondent was dismissed. The questions that arise for consideration in this original petition are: (1) Whether the pendency of an application for shifting the kudikidappu under the Kerala Land Reforms Act, 1963, for short the Act, be a bar for the issue of the certificate of purchase under S.80C(2) of the Act; (2) Can an application for shifting filed after the order of the Land Tribunal allowing the application for purchase of kudikidappu under S.80B(3) arrest the further proceedings in the purchase of kudikidappu; and (3) when will the order of the Land Tribunal allowing an application for purchase of kudikidappu become final for the issue of the certificate of purchase and in the absence of a stay order issued by the appellate authority the mere fact that an appeal is pending can prevent the issue of the certificate of purchase by the Land Tribunal.

(2.) The short facts of the case are as follows: The 1st respondent filed O. A. No. 402 of 1972 before the 2nd respondent Land Tribunal under S.80B of the Act for the purchase of his kudikidappu. The petitioner on 28-6-1973 tiled O. A. No. 448 of 1973 under S.77 of the Act for shifting the kudikidappu of the 1st respondent. This application for shifting was dismissed for default on 4-9-1973. The 1st respondent's application for purchase, O. A. No. 402 of 1972, was also allowed by the 2nd respondent on 4-9-1973. On 7-9-1973 the petitioner filed I. A. No. 45 of 1973 before the 2nd respondent for restoration of O.A. No 448 of 1973. The 2nd respondent restored O.A.No. 448 of 1973 to file even though the 2nd respondent had no power to restore an application dismissed for default. But O.A. No. 448 of 1973 was again dismissed for default on 24-1-1974. Thereupon, the petitioner filed O. A. No 39 of 1974 a fresh application for shifting on 24-1-1974 itself, which was posted for appearance of the parties on 25-2-1974. In the meanwhile, in pursuance of the order allowing the application for purchase O A. No. 402 of 1972 the 1st respondent remitted the first instalment of purchase money on 29-1-1974. Accordingly the 2nd respondent issued the certificate of purchase under S.80C(2) of the Act on 4-2-1974. Thereafter, on 31-5-1974 the 2nd respondent dismissed O.A. No. 39 of 1974 by Ext. P-2 order. There is an averment in Para.2 of the original petition that the petitioner has preferred an appeal against the order of the 2nd respondent allowing the 1st respondent's application for purchase O. A. No. 402 of 1972. This is not denied in the counter affidavit filed by the 1st respondent.

(3.) Shri P.V Madhavan Nambiar, learned counsel for the 1st respondent refers to S.80C(1) and (2) of the Act and contends that once the certificate of purchase is issued, shifting of the kudikidappu cannot be ordered and that is the reason why the proviso is there to S.77(2) of the Act. If as a matter of fact the certificate of purchase was wrongly issued by the 2nd respondent it is for the petitioner to get it quashed in appropriate proceedings. Learned counsel points out that there is no prayer in the original petition for quashing the certificate of purchase issued in O.A. No. 402 of 1972. According to the learned counsel, as long as the order allowing O.A. No. 402 of 1972 stands, the issue of purchase certificate made long after that order cannot be said to be illegal or irregular. Learned counsel refers to Thattamuttathu Puthiyaparayil Nabeesumma v. The Land Tribunal, Cannannore (O.P. No. 5531 of 1974) wherein my learned brother Bhaskaran J. has held: