MOHAMMED Vs. PATHUMMA

JUDGEMENT

(1.) The cultivating tenant of a holding, the right, title and interest in respect of which have vested in the Government, is entitled to have assignment of those rights under S.72B of the Kerala Land Reforms Act. Such assignment could be made by the Land Tribunal either in a suo motu proceeding or on application. The question for consideration in the second appeal filed by the defendant is whether the inclusion of the name as land owner in a suo motu proceedings for assignment coupled with an alleged admission by the so called tenant that she is the land owner will entitle the plaintiff without anything else to claim title and whether the order rejecting the tenancy right in such proceedings will operate as res judicata in denying the title of the plaintiff in a suit for eviction on the strength of title.

(2.) Appellant did not claim directly under the respondent plaintiff. He claimed under Ext.B1 verumpattam assignment deed of 1978 tracing right under previous tenants holding under Exts.B3 to B6 and B2 ranging from 1927 upto 1973. The name of respondent happened to find a place in the suo motu proceedings as land owner only as a member of the family to which the property is said to have belonged originally. The interest of the appellant in the suo motu proceedings was only to get assignment, whoever is the owner. Anyhow, it is a proceeding initiated suo motu as it is a holding vested in the Government and held by a tenant. The appellant is admittedly in possession. He was not able to establish his tenancy. Therefore, he did not succeed before the Land Tribunal, Appellate Authority or this court in revision. Taking advantage of this position, respondent filed the suit alleging that she was laid up for 8 or 9 years and now it is found that the appellant trespassed upon the property in 1979. Except the order of the Land Tribunal and the revisional order of this court produced as Exts. Al and A2 and a certified copy of resurvey register extract produced as Ext. A3 before the appellate court, she has no records. She claims to have obtained the property under family partition and subsequent documents ranging from 1911, none of which was produced. Still she claims title and wants recovery alleging trespass. Not even a single tax receipt was produced by her.

(3.) Appellant specifically contended, in spite of what he said before the Land Tribunal, that respondent never had title or possession. Trial Court found that title was not established and the admission before the Land Tribunal will not help her. Exts.A1 and 2 were found not to operate as res judicata. But the appellate court found that Ext. Al and 2 will operate as res judicata and the admission before the Land Tribunal will operate as estoppel. Taking Ext.A3 also into consideration, the suit was decreed.