CHANDRAMOHANAN NAIR Vs. BOARD OF REVENUE

JUDGEMENT

(1.) This Original Petition has come up before me as per the order of the Hon'ble Chief Justice in view of the difference of opinion between Mr. Justice T. V. Ramakrishnan and Mr. Justice B.N. Patnaik who heard the original petition at the first stage.

(2.) One Kumara Pillai Sankara Pillai the father of the respondent No. 4 and Kumara Pillai Velayudhan Pillai, the predecessor - in - interest of the petitioners, were brothers. Kumara Pillai Sankara Pillai was the elder. An extent of 1.64 acres of land was held by the family of these brothers on 'Viruthi'. In a deed of partition in the family dated. 29.7.1097 M.E., it was provided that the elder brother Kumara Pillai Sankara Pillai be in possession and enjoyment of the property as the seniormost male member of the tharwad. The property was obtained from the Government for the performance of 'Oozhiyam'. Kumara Pillai Sankara Pillai died on 7.2.1971 and in terms of the arrangement, Kumara Pillai Velayudhan Pillai was entitled to possession. Respondent No. 4, the son of Kumara Pillai Sankara Pillai, attempted to raise claims over the property. Kumara Pillai Velayudhan Pillai therefore, filed a suit O.S. 400 of 1971 for declaration of his title and possession as against respondent No. 4 the son of Kumara Pillai Sankara Pillai and in the alternative, for recovery of possession. Respondent No. 4 resisted that suit. According to him, he was a tenant let into possession by his father and entitled to fixity of tenure under the Kerala Land Reforms Act and Kumara Pillai Velayudhan Pillai was not entitled to recover possession of the property. There was a reference of the question of tenancy raised by respondent No. 4 to the concerned Land Tribunal under S.125(3) of the Kerala Land Reforms Act. That reference was answered against respondent No. 4 by the Land Tribunal by finding that respondent No. 4 was not a tenant entitled to fixity of tenure. Accepting that finding the Trial Court held on an interpretation of the deed of partition entered into in the family and to which Kumara Pillai Sankara Pillai was also a party, that the property was service Inam and Kumara Pillai Velayudhan Pillai was the person entitled to be in possession and perform the Oozhiyam on the death of Kumara Pillai Sankara Pillai. The Trial Court declared the title of Kumara Pillai Velayudhan Pillai and granted to him a decree for recovery of possession with mesne profits. That court also held that there was no reason not to accept the case of respondents No. 4 that on the death of his father on 7.2.1971, he took possession of the property along with the other properties of his father and in view of that contention, it could not be held that Kumara Pillai Velayudhan Pillai had proved his possession of the property as on the date of suit. As I understand the finding, the Trial Court did not find positively that respondent No. 4 was in possession in his own right but on the other hand found that Kumara Pillai Velayudhan Pillai had not established his possession. This decree of the Trial Court was confirmed in appeal A.S. 547 of 1976 by the District Court. That court in addition to confirming the finding that respondent No. 4 had no tenancy right over the property also held that Kumara Pillai Sankara Pillai his father, had no legal right to lease the property and a lease in contravention of the Viruthi tenure was invalid. That court also noticed that it was probable that respondent No. 4 took possession of the property after the death of his father. It is said that a second appeal filed in this court challenging the decree in O.S. 400 of 1971 was also dismissed. Thereafter, Kumara Pillai Velayudhan Pillai, the decree holder, filed E.P. 290 of 1979 praying for delivery of the property and for ascertainment of the mesne profits to be recovered. After notice to respondent No. 4 and after giving him necessary opportunity of being heard, the executing Court ordered delivery and directed that the delivery be effected on 29.1.1979. When the Amin went to effect delivery, one Sreedharan Nair resisted delivery in respect of 1.42 acres in Sy. No. 66/18 and respondent No. 5 Gopinathan Nair resisted delivery in respect of 10 cents in Sy. No. 36/2. In view of the resistance by these two strangers to the decree, the Amin actually delivered 12 cents of property in Sy. No. 66/18. Alleging that the obstruction offered by the two strangers was at the instance of the judgment debtor, Kumara Pillai Velayudhan Pillai filed two applications E.A. 681 of 1979 and E.A. 680 of 1979 for removal of the obstructions offered by the two strangers. While those applications were pending, Kumara Pillai Velayudhan Pillai died on 22.11.1980. Meanwhile the present petitioners, the legal representatives of Kumara Pillai Velayudhan Pillai and the other representatives of the tharwad effected a further partition. As per that partition the present petitioner were authorised to obtain possession of the property through court after removal of the obstructions and after obtaining any further rights that may accrue to them as holders of Viruthi. The petitioners therefore, filed applications for impleading them in the executing court. Those applications for impleading were allowed. Though two revisions were filed challenging the said orders, those revisions were dismissed on 4.2.1987. Enquiry into the applications for removal of obstructions is reported to be still pending.

(3.) This was obviously because meanwhile on 6.8.1981 the Kerala Service Inam Lands (Vesting and Enfranchisement) Act, 1981, hereinafter called 'the Act' came into force. Under S.3 of that Act, rights of land owners vested in the Government on abolition of the services to be rendered by them. The lands held on 'Oozhiyam' also came within the purview of the Act. Hence the title over the disputed lands also came to vest in the Government in terms of the Act. S.5 of the Act conferred right on a land holder, meaning a person holding Service Inam land, to get an assignment of the right, title and interest which vested in the Government under S.3 of the Act. To the definition of 'land holder' an explanation was provided to effect that where any service inam land is in the possession of a person other than the person to whom the land was granted for performing the services or any of his successors - in - interest, the person in possession of the land shall be deemed to be the land holder for the purpose of the Act. Under S.2(h) of the Act 'to hold' was to mean 'to be in actual possession'. Claiming that he is entitled to the assignment under the Act, respondent No. 4 herein filed O. A. 115 of 1982 before the Authority under the Act entrusted with the duty of entertaining applications for assignment and deciding them. Respondent No. 5 who had obstructed delivery in respect of 10 cents while the decree in O.S. 400 of 1971 was being executed, in his turn filed O.A. 962 of 1982 for assignment in respect of the said 10 cents. Petitioner No. 1 herein, son of Kumara Pillai Velayudhan Pillai filed O.A. 624 of 1982 claiming assignment on the basis that he was the land holder within the meaning of the Act. Respondent No. 4 herein produced copy of a lease deed said to have been executed in his favour by his father Kumara Pillai Sankara Pillai which had been put forward by him in O.S. 400 of 1971 as part of his defence and which had been found against by the Land Tribunal and by the Civil Court while holding that he had no right to possession of the land. Petitioner No. 1, in support of his application, produced copies of the judgments in O.S. 400 of 1971 and in A.S. 547 of 1976 and the copy of the delivery list in O.S. 400 of 1971. Respondent No. 5 produced a tax receipt in support of his claim. The Settlement Officer by the order Ext. P1 proceeded to uphold the claims of respondents 4 and 5 for assignment merely on the ground that the decree in O.S. 400 of 1971 though obtained by Kumara Pillai Velayudhan Pillai, had not been executed and since the decree was one for recovery of possession, it must be taken that respondent No. 4 herein was in possession as on the appointed day, namely 6.8.1981. The application by petitioner No. 1, son of Kumara Pillai Velayudhan Pillai was dismissed. On appeal by petitioner No. 1 under S.12 of the Act, the Appellate Authority after noticing the contentions, stated that respondents 4 and 5 herein are seen to have proved that they were in actual possession and enjoyment of the land on the crucial date and therefore, he saw no reason to interfere with the order of the Settlement Officer. A revision filed under S, 13 of the Act by the petitioners herein was dismissed by the Board of Revenue by an order which can be said to be non speaking. It is challenging these orders that the petitioners have filed this Original Petition.