STATE OF KERALA Vs. NELLITHANAM RUBBER & PRODUCE

JUDGEMENT

(1.) THE appeal filed by the defendant - the State of Kerala arises out of a suit filed by the Nellithanam Rubber &Produce Co.Ltd .,represented by its Managing Director Dr.M.K.Antony for declaration of title to and possession of the plaint properties covering an extent of 174 acres and 21 cents in Pallivasal pakuthy and to compel the defendant to register the land in favour of the plaintiff.The suit was decreed by the court below.The facts which are stated below are not disputed between the parties.

(2.) THE main question that has to be decided in his appeal is whether there was any completed contract of assignment between the plaintiff and the State in respect of the plaint property.The effect of Exts.P.1 and P.10 is an offer on the part of Dr.M.K.Antony to get registry of 224 acres 21 cents of lands situated within the cardamom reserve in Pallivasal pakuthy.Ext.P.1 application was made in accordance with R.4 of the Cardamom Rules in Form A prescribed by the Rules with the necessary particulars and the sketch and the initial deposit of Rs.5/ - per acre was also made.As a result of certain enquiries conducted by the Revenue authorities the Commissioner,Devicolam,admitted the application.After the application is admitted and Commissioner takes the view that the land is assignable notices have to be published in accordance with R.10 and 11 of the Puduval Rules dated 19 -4 -1935.The claims and objections received in pursuance to those notices should be enquired into and disposed of by the Commissioner.After the Commissioner comes to the conclusion as a result of such enquiry that the land is assignable without auction the formalities prescribed in R.7 and 8 of the Cardamom Rules will have to be followed.R.8 of the Cardamom Rules prescribes that the Commissioner,Devicolam,shall pass the preliminary order of registry if the area applied for is 25 acres or below or forward the records to the Land Revenue and Income Tax Commissioner in other cases with his recommendation and the Land Revenue and the Income Tax Commissioner shall pass the order in case the land applied for is 50 acres or below and submit the records for the orders of Government in respect of all other applications.

(3.) SINCE the request of Dr.Antony in Exts.P.1 and P.10 was for getting registry of 224 acres and 21 cents the competent authority who can pass the preliminary order for registry is only the Government to whom the application has to be forwarded with the recommendation of the Commissioner,Devicolam,and also the Land Revenue and Income Tax Commissioner,Trivandrum.Ext.D.6 the order passed by the Government shows that Ext.P.1 application was considered by the Government and the Government out of the property comprised in Ext.P.1 allowed registry of 50 acres refusing registry in respect of the plaint property.In the face of Ext.D.6 we are not in a position to appreciate the contention of the appellant that there was either a concluded contract between the State and Dr.M.K.Antony to assign the plaint property to him or that there is an agreement to assign.All the preliminary steps taken by the Subordinate Revenue authorities to enable the Government to come to a decision as to whether the area applied for registry is assignable cannot constitute an agreement on the part of the State to assign the property to Dr.M.K.Antony.If the authority competent to order registry is satisfied that there is no objection in assigning the land in favour of the applicant the Rules contemplate the passing of a preliminary order for registry by that authority.Even such an order as per the Rules has only the force of an executory contract.The applicant has to perfect the right intended to be conferred on him under the contract by prompt payment of the tharavila or ground value within the time prescribed by the Rules.R.10 of the Cardamom Rules requires the applicant to pay the first instalment of the tharavila and to execute an agreement undertaking to pay the remaining instalments as and when they fall due.R.10 also enables the State to cancel the preliminary order for registry if the applicant commits default in the payment of any instalment.Thus there can be no doubt that the contract for registry could be completed only with the payment of the entire amount of the tharavila.In Kunjen Thampi v.The Dewan of Travancore 2 TLT 808 it was ruled that without an order for registry of the land the mere deposit of tharavila will not confer any right on the applicant to get the land assigned in his favour.In Vallinayagom Pillai v.The Dewan of Travancore 9 TLT 273 it was decided that the deposit of a sum of money with an application for registry has not the effect of creating a completed agreement for the assignment of the land and that the title in respect of the land at the disposal of the State passes to the applicant only on the completion of the registry.In the light of the above,the only inference that is possible in this case is that there was no completed contract between Dr.Antony and the State to assign the plaint property to him.Secondly,there is also no agreement between the State and Dr.Antony by which the State agreed to assign the plaint property to Dr.Antony.The attempt of the plaintiff's advocate to spin out a case of agreement to assign between the State and Dr.Antony on the basis of certain preliminary proceedings conducted by the Revenue Authorities on the basis of Exts.P.1 and P.10 to say the least is futile.If so,the prayer of the plaintiff for a declaration of title and possession cannot stand.By Ext.D.6 order passed by the Government the competent authority under R.10 to deal with the application refused to accept the offer of Dr.M.K.Antony for getting registry of 224 acres 21 cents.In this view,the plaintiff's suit has only to be dismissed.