Ayisumma and Others vs Pazhaniyappa Pillai and Others

S.S. Satheesachandran, J.—The writ petition is filed seeking the following reliefs:

i) To call for the records leading to the passing of Ext.P5 order and set aside the same.

ii) To allow I.A. No. 1390/2009 in I.A. No. 120/2001 in O.S. No. 107/1977 on the file of the Court of the Subordinate Judge of Palakkad.

iii) To issue a writ in the nature of mandamus directing the court below to consider the plea u/s 106 of the Kerala Land Reforms Act claimed by the petitioners being the legal heirs of the 21st defendant.

Petitioners are the respondents 17 to 23 in the final decree proceedings, I.A. No. 120 of 2001 in O.S. No. 107 of 1977 on the file of the Sub Court, Palakkad. The predecessor of the petitioners was the 21st defendant in the suit who had passed away during the pendency of the appeal preferred against the preliminary decree passed in the suit. These petitioners were not brought on record during the pendency of the appeal, but, only in the final decree proceedings. In the final decree proceedings, when an application was moved for appointment of a commission for division of the properties by mets and bounds in tune with the preliminary decree, these petitioners had challenged the order of the trial court filing a revision as C.R.P. No. 1173 of 2002 before this Court. The challenge was raised on the ground that the decree passed in the suit was not binding on them since they have not been brought in as legal representatives of the 21st defendant in the appeal. That was repelled by this Court holding that whether the decree passed in the suit is binding on them on account of their nonimpleadment is to be considered in the final decree proceedings. Any how, the challenge canvassed against the appointment of the commission in the final decree proceedings was negatived by dismissal of that revision. Petitioners had also moved an application for reference to the Land Tribunal, the claim raised by them in respect of a building in the plaint property. They claimed of conducting a saw mill in that building and contended they are entitled to the benefits u/s 106 of the Land Reforms Act. The application moved by the petitioners claiming that right was negatived by the learned Sub Judge and the order thereof was challenged by them in C.R.P. No. 2467 of 1993. That revision was disposed of by order dated 20.9.2002 by this Court observing that their claim for the benefits u/s 106 of the Land Reforms Act is to be considered in the final decree proceedings after taking evidence. In view of the decision rendered by this Court in Govinda Panicker v. Sreedhara Warrier 2000 (2) KLT 43 it was pointed out the claim of tenancy need not be referred to the Land Tribunal but has to be considered by the civil court. Ext.p1 is the copy of the order passed in the revision. Later, petitioners moved an application before the court below for remitting the commission report which had been prepared by the commissioner during the final decree proceedings before Ext.P1 order was passed in their revision contending that very many factors substantiating their claim of tenancy over the building were not taken into account by the commissioner. Since the right of the petitioners for the benefit u/s 106 of the Land Reforms Act got crystalised only by virtue of Ext.P1 order and so much so, at the time of preparation of the commission report which was much earlier those factors could not be brought to the notice of the commissioner, is the submission of the learned Counsel to contend that the order passed by the court below dismissing the application for remission of the commission report is not proper and correct. Ext.P5 is the order passed by the learned Sub Judge declining the request of the petitioners for remission of the commission report. Writ petition is filed for setting aside Ext.P5 order directing the court below to pass appropriate orders by the learned Sub Judge, invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

I heard the counsel on both sides.

Having regard to the facts and circumstances presented and also the submissions made by the learned Counsel on both sides, I find the question as to whether the commission report is to be remitted as requested by the petitioners would arise for consideration only on establishing of their entitlement of the claim canvassed u/s 106 of the Land Reforms Act, and by Ext.P1 order this Court had directed the civil court to examine that claim after taking evidence. So much so, the court below has to examine the claim of the petitioner as to whether they are entitled to claim of tenancy u/s 106 of the Land Reforms Act and then proceed with the question whether the report prepared earlier which is challenged by them is liable to be remitted for collecting further details. The fact that the petitioners have not canvassed the claim earlier till filing of this application is of not of much moment when there is already a direction by this Court to examine that question to determine the claim after taking evidence. I direct the court below to consider the claim canvassed by these petitioners u/s 106 of the Land Reforms Act, providing sufficient opportunity to both sides to lead evidence in support of their respective case and enter a finding thereof, as expeditiously as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. Once such finding is entered into the court below will pass appropriate orders if warranted on their application for remitting the commission report. Ext.P5 will not stand in the way of the petitioners to challenge the commission report to the limited extent of the right claimed by them Section 106 of the Land Reforms Act provided a finding in their favour is made by the court after enquiry over the claim.

Writ petition is disposed of as above.