RAVEENDRANATHAN Vs. VARIJAKSHAN

JUDGEMENT

(1.) The prayers in the above Writ Petition (Civil) are as follows:

(2.) Heard Sri T.M. Chandran, learned counsel appearing for the petitioner, Sri V.C. Madhavankutty, learned counsel appearing for contesting respondent No. 1 and Sri Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for 3 to 5.

(3.) According to the petitioner, he had obtained 19.2 Ares of property in Sy. No. 303/2 of Ollukkara Village, Thrissur Taluk, Thrissur Revenue District, on the basis of partition deed and 12 cents in Sy. No. 291/1 and 3 cents in Sy. No. 303/2, both in the same village, on the basis of a registered sale deed executed by his brother. The subject property involved in this case is one having 12 cents in Sy. No. 291/1. Since the said property in Sy. No. 291/1 was on pattom tenure, the petitioner had applied for purchase certificate, which led to institution of suo motu proceedings S.M. No. 678/2013 on the file of the 4th respondent Land Tribunal and the Land Tribunal had allowed the said plea as per Ext. P-1 order dated 1-8-2013 in S.M. No. 678/2013 and had consequentially issued Ext. P-2 purchase certificate dated 1-10-2013 with respect to the subject property under Sec. 72K after following the due procedure in the Kerala Land Reforms Act. According to the petitioner, the Tribunal had duly caused publication of notice inviting objections as mandated in Sec. 72K(f) as required in Sec. 72F(1) and the rules framed thereunder and the 1st respondent had not responded to the said notice and had not submitted any objections whatsoever to the plea of the petitioner. So also, it is stated that respondent No. 2, who is jenmi/landlord, had not turned up before the Tribunal despite service of notice and hence he was set ex parte both by the Tribunal as well as subsequently by the appellate authority. That, much after the issuance of Exts. P-1 and P-2 proceedings the 1st respondent had submitted appeal with a petition to condone delay in filing the said appeal on 7-8-2014 before the 3rd respondent Appellate Authority (Land Reforms) under Sec. 102 of the Kerala Land Reforms Act. The appellate authority had condoned the delay and has now allowed the appeal filed by the 1st respondent as per the impugned Ext. P-5 order dated 4-7-2018 whereby the impugned Exts. P-1 and P-2 proceedings have been set aside and the matter has been remitted to the Land Tribunal for consideration of the matter afresh, after hearing the parties concerned including the 1st respondent. The main plea put up by the 1st respondent before the appellate authority was that he had filed Ext. P-4 original suit as O.S. No. 1300 of 2013 on 25-3-2013 before the Munsiff's court, Thrissur, wherein the petitioner herein has been arrayed as defendant and the relief sought for in the suit is for injunction to restrain the defendant therein (petitioner) from obstructing the plaintiff (R-1 herein) from using the pathway in the subject property. That the subject property involved in this suit over which the 1st respondent had claimed easement, is the subject property involved in Exts. P-1 and P-2. That it was only after the receipt of summons of Ext P-4 suit by the petitioner herein, that he had filed the application for grant of purchase certificate before the Tribunal, etc. The main objection raised by the petitioner herein before the appellate authority was that person like the 1st respondent herein cannot seek to disturb the purchase certificate already issued to the petitioner on the ground that he has filed a suit claiming easement right and that even if the claim for easement right is granted by the trial court concerned, that by itself will not make any material difference in the outcome as to whether the petitioner herein is eligible and entitled for the grant of purchase certificate in respect of the subject property. However, the appellate authority held has that since the petitioner had already received summons in the said suit before he had filed the application for grant of purchase certificate, it is only fair that the 1st respondent is again given a chance by the Land Tribunal to consider his objections in the matter of grant of purchase certificate to the petitioner herein. The last paragraph of the impugned Ext. P-5 appellate order dated 4-7-2018 reads as follows: