THOMMEN JOSEPH Vs. MATHAI GEORGE

JUDGEMENT

(1.) The revision petitioners are respondents 4 and 5 in an application filed by respondents 1 and 2 herein under S.80B of the Kerala Land Reforms Act for purchase of kudikidappu rights. Respondents 3 and 4 are the legal heirs of the original landlord. Originally the present petitioners were not a party to the purchase application. They are alleged to be the owners of the property lying adjacent to the kudikidappu site. The petitioners herein were subsequently impleaded in the purchase proceedings. Since there was no dispute regarding the status of the respondents 1 and 2 as kudikidappukars a preliminary finding was passed by the Land Tribunal. Steps were taken to measure out the 10 cents of land. The Revenue Inspector inspected the plot on 20/01/1971 and he submitted the report on 11/03/1971 stating that the actual area in possession of the original landlord was only 4 cents and hence that area alone could be allowed to be purchased by the kudikidappukars. The property is comprised in Sy. No. 117/4A of Perumbaikadu village in Kottayam taluk. After the filing of the report by the Revenue Inspector the landlord and kudikidappukars jointly filed O.S. No. 20 of 1971 before the Munsiff's Court, Ettumanoor to restrain the present revision petitioners from trespassing into the property comprised in Sy. No. 117/4A. It appears that the landlord originally purchased 40 cents, but on measurement it was found to be 25 cents and out of this 25 cents he sold 12 1/2 cents to some third party by way of a sale deed. The landlord further contended that the rest of the 12 1/2 cents of the property has been in his possession. The suit was originally decreed restraining the present revision petitioners from trespassing into that area. That decree was set aside by the appellate court and the suit was remanded to the lower court. The Munsiff's Court revised its judgment and held that the original landlord had been in possession of only 4 cents of property in Sy. No. 117/4A of Perumbaikad village. The prayer of the landlord to restrain the present revision petitioners from trespassing into the entire 12 1/2 cents of property in Sy. No. 117/4A was disallowed by the court. No appeal was filed therefrom and the decree of the Munsiff's Court has thus become final.

(2.) The Land Tribunal, despite the report of the Revenue Inspector that the landlord had been in possession of only 4 cents of land, allowed the kudikidappukars to purchase 10 cents of land. The grievance of the petitioners is that the property situated on the southern side of the kudikidappu site belongs to the revision petitioners and the Land Tribunal had no authority to grant purchase certificate in respect of the property which has been in the possession of the revision petitioners. The revision petitioners filed an appeal against the order of the Land Tribunal. The Appellate Authority also was not convinced that the landlord had been in possession of only 4 cents of property. The Appellate Authority confirmed the order of the Land Tribunal and permitted the kudikidappukars to purchase 10 cents of land. The present revision petition is directed against the order of the Appellate Authority.

(3.) This case has got a chequered career. The Land Tribunal allowed the application several time and on each occasion the present revision petitioners filed appeal and the orders of the Land Tribunal were set aside and ultimately the present position is that the kudikidappukars have been allowed to purchase 10 cents of land around the homestead. The property is admittedly comprised in Sy. No. 117/4A of Perumbaikadu village. The contention of the present respondents is that the revision petitioners have no right in the property comprised in Sy. No. 117/4A and that they are trespassers. It is important to note that neither the kudikidappukars nor the original landlord have got a case that the revision petitioners trespassed into the land subsequent to the commencement of the Kerala Land Reforms Act 35 of 1970. When the Revenue Inspector visited the property on 20/01/1971 the original landlord was found to be in possession of only 4 cents of property in Sy. No. 117/4A. The property lying further south of this 4 cents of property, eventhough fell within Sy. No. 117/4A was not in the possession of the original landlord. This fact has been further strengthened by the decree passed in O.S. No. 20 of 1971 on the file of the Munsiff's Court, Ettumanoor. The kudikidappukars as well as the original landlord tried to establish their possession over the remaining 12 1/2 cents of land in Sy. No. 117/4A. They were rebuffed by the decree in the above suit and they failed to establish their possession. That decree has become final and it cannot be heard to say that the original landlord had been in possession of the entire 12 1/2 cents of property in Sy. No. 117/4A. When the original landlord is not in possession of the property the kudikidappukars cannot be allowed to purchase the property which was not in the possession of the original landlord. This is clear on a reading of S.80A (6) of the K.L.R. Act, which is as follows: