K. Madhavan vs The State of Kerala

B. Kemal Pasha, J.—The petitioner is challenging order dated 30.07.2009 passed by the Taluk Land Board, Palakkad in L.B. No. 853/1976. Through the impugned order, the Revision Petitioner, who is the legal representative of the declarant Sri. Kandu, has been directed to surrender 0.50 acres of property in Sy. No. 245/9 of Elapully II Village.

The proceedings were earlier challenged by the very same petitioner before this Court through CRP 939/2004 by stating that the said property was earlier in the possession of Vellakutty, who is the daughter of the declarant, as is evident from the partition deed No. 2413/62. As a lessee, she was entitled to fixity of tenure, and thereafter Vellakutty had transferred the property to one Kandunni who is one of her relatives. The said Kandunni has obtained a purchase certificate dated 29.06.1974 in respect of the said 50 cents of property in the said survey number. From the beginning, it seems that the petitioner has been clamoring with the contention that the said property was never in the possession of the declarant and therefore, the declarant or the petitioner cannot be directed to surrender such an extent of property in the said survey number. This Court, vide order dated 19.02.2008 in CRP 939/04 had directed the Taluk Land Board to reconsider the matter and to pass appropriate orders in accordance with law. It was also directed that the purchase certificate, issued in favour of Kandunni, should also be taken note of while deciding the matter.

It seems that without having any discussions with regard to the validity or otherwise of the purchase certificate in favour of Kandunni, the Taluk Land Board has once again found that the said property had not gone away from the possession of the declarant Kandunni.

Heard the learned counsel for the petitioner Sri. P.S. Appu and the learned Special Government Pleader Smt. Susheela R. Bhatt for the respondents. The learned counsel for the petitioner has pointed out that in the partition deed No. 2413/62 itself there is a recital to the effect that in the portions of the properties allotted to the declarant, there were subsisting lessees namely Vellakutty and Kuttan. It is true that Vellakutty is none other than the daughter of the declarant. At the same time, it is true that even without noting down any consequences, the said recitals were entered in the partition deed whereby styling the said Vellakutty as well as Kuttan as lessees in the property allotted to the declarant. Any mal-intention cannot be attributed on the part of the declarant in incorporating the said recitals in the partition deed, as it cannot be believed that he might have foreseen the consequences of the Kerala Land Reforms Act.

It has clearly come out that the levy notices produced by the petitioner before the Taluk Land Board for the years 1965, 1966 and 1967 were issued in respect of the property in favour of Vellakutty. Therefore, admittedly Vellakutty was the person who had to pay levy for the years 1965, 1966 and 1967. The learned counsel for the petitioner has produced the copy of the thandaper account which clearly shows that in the year 1968 the thandaper of the property stood in the name of Kandunni. The levy notices upto the year 1967 and the fact that thandaper had been changed in favour of Kandunni in the year 1968, coupled with the recitals contained in the partition deed of 1962, make the picture clear that the said property was in the possession of Vellakutty even as on the date of the execution of the partition deed of the year 1962. It continued to be so till 1967. After 1967 Vellakutty had transferred the property to Kandunni and thereby he became the thandaper holder. Thereafter, through a valid legal proceedings, a purchase certificate was issued in favour of Kandunni. That purchase certificate is legally valid and it can be relied on to find that Kandunni was in possession of the property and thereby, he obtained purchase certificate in respect of the property.

From all the above, it is evident that through the partition deed of 1962 he had never come into possession of that portion of the land; whereas it continued to be in the possession of Vellakutty as lessee, upon which she was entitled to the fixity of tenure. Subsequently, the purchase certificate was issued in favour of the transferree of Vellakutty. Matters being so, there is no reason to find that the said 50 cents of land in Sy. No. 245/9 of Elapully II Village was in the possession and enjoyment of the declarant, at the time of commencement of the Kerala Land Reforms Act or afterwards. The said land which is clearly proved to be in the possession of Vellakutty, and subsequently in the possession of Kandunni, was never possessed by the declarant and therefore, the same has to be exempted. Matters being so, the impugned order is liable to be set aside.

In the result, this CRP is allowed and the impugned order is set aside. It is found that the declarant was never in possession of 50 cents of property in Sy. No. 245/9 of Elapully II Village as found by the Taluk Land Board and therefore, the same is liable to be exempted.