Baburaj vs The Special Tahsildar (Lr)
2021 Latest Caselaw 22333 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
                       WP(C) NO. 28023 OF 2020
PETITIONER:

          BABURAJ, AGED 49 YEARS, S/O.VELLAN, RESIDING AT
          KAKKANCHIRA HOUSE, POT ANJUKUNNU, MANANTHAVADY,
          WAYANADU.

          BY ADVS.V.V.SURENDRAN
          SRI.P.A.HARISH


RESPONDENTS:

    1     THE SPECIAL TAHSILDAR (LR),
          MANANTHAVADY, WAYANAD-670 645.

    2     THE LAND TRIBUNAL, MANANTHAVADY, WAYANAD-670 645.

    3     KELU, AGED 62 YEARS, S/O.CHAPPAN, RESIDING AT PADIYERI
          HOUSE, POST ANJUKUNNU, MANANTHAVADY, WAYANAD-670 645.

    4     KUMBHA, AGED 78 YEARS, W/O.PADIYERI CHAPPAN, RESIDING
          AT PADIYERI HOUSE, POST ANJUKUNNU, MANANTHAVADY,
          WAYANAD-670 645.

    5     C.BABU, AGED 55 YEARS, S/O.PADIYERI CHAPPAN, RESIDING
          AT PADIYERI HOUSE, POST ANJUKUNNU, MANANTHAVADY,
          WAYANAD-670 645.

    6     RAMAN, AGED 46 YEARS,
          S/O.PADIYERI CHAPPAN, RESIDING AT PADIYERI HOUSE,
          POST ANJUKUNNU, MANANTHAVADY, WAYANAD-670 645.

          BY ADVS.SRI.BIJU ABRAHAM
          SMT.RESHMITHA RAMACHANDRAN - GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 28023 OF 2020
                                    -2-

                              JUDGMENT

The petitioner says that he is the legal heir

of late Padiyeri Achappan, in whose favour the

jurisdictional Land Tribunal had initiated

suo motu proceedings, numbered as SMC 2794 of

1973, covering an extent of 5.15 acres of land,

comprised of in Re.Sy.No.102/9 of Anjukunnu

Village; and though his rights were declared by

the said Tribunal and assignment offered in his

favour, when the Purchase Certificate was issued,

on account of a clerical error, instead of the

name 'Padiyeri Achappan' the name of 'Padiyeri

Chappan' was mentioned therein.

2. The petitioner submits that since this is

only a clerical mistake, it is liable to be

corrected under Rule 136A of the Kerala Land

Reforms (Tenancy Rules) (hereinafter referred to

as 'the Rules', for short); and that when WP(C) NO. 28023 OF 2020

proceedings for the same were taken forward, the

3rd respondent challenged the order of the Land

Tribunal itself before this Court, which ended in

Ext.P4 judgment dismissing it for default.

3. The petitioner says that even though an

attempt was made by the 3rd respondent to restore

the writ petition, the same was also dismissed. He

says that, therefore, the 3rd respondent, or any

other person tracing title to 'Padiyeri Chappan',

cannot claim any right over the property in

question.

4. The petitioner alleges that, however, when

he approached the 1st respondent - Special

Tahsildar (LR), for correction of the Purchase

Certificate, based on original order of assignment

by the Land Tribunal, the same has been rejected

through Ext.P11, saying that unless the legal

heirs of Late Padiyeri Chappan appears before him,

no action can be taken by him. The petitioner says WP(C) NO. 28023 OF 2020

that this record of helplessness by the 1st

respondent in Ext.P11 is egregiously improper and

thus prays that the same be set aside; and that

the said respondent be directed to correct the

clerical error in the Purchase Certificate

appropriately, within a time frame to be fixed by

this Court.

5. I have heard Sri.V.V.Surendran - learned

counsel for the petitioner; Sri.Biju Abraham -

learned counsel appearing for respondents 3 to 6

and the learned Government Pleader - Smt.Resmitha

Ramachandran for the official respondents.

6. Sri.Biju Abraham - learned counsel for

respondents 3 to 6, submits that the proceedings

of the Land Tribunal was completely without

jurisdiction and that the property belongs to his

clients' predecessor - Late Padiyeri Chappan. He

submitted that, however, without following due

procedure and without even issuing notices, either WP(C) NO. 28023 OF 2020

to Late Padiyeri Chappan or his legal heirs, the

assignment has been made in favour of Padiyeri

Appachan. He submitted that, therefore, the

entries in the Purchase Certificate are absolutely

correct and it cannot be corrected at the request

of the petitioner, invoking Rule 136A of the

Rules.

7. The learned Government Pleader -

Smt.Resmitha Ramachandran, submitted that the 1st

respondent is incapacitated from considering the

request of the petitioner, because, in the

original Purchase Certificate, the name of the

beneficiary has been shown as Late Padiyeri

Chappan. She added that since none of the legal

heirs of Late Padiyeri Chappan appeared before the

1st respondent and the original of the Purchase

Certificate was also not produced, he was not in a

position to accede to the request of the

petitioner.

WP(C) NO. 28023 OF 2020

8. When I evaluate the afore submissions, it

is without doubt that, even as per respondents 3

to 6, the order of assignment issued by the Land

Tribunal was in the name of Late Padiyeri

Achappan. It is, therefore, that they had

approached this Court, through W.P.

(C)No.35159/2007, to have the same set aside; but

Ext.P4 judgment was delivered dismissing their

writ petition for default. Even though Sri.Biju

Abraham submitted that an application was filed by

his clients to restore the writ petition, he

himself admits that it was dismissed; though he

now says that an unnumbered writ appeal is pending

against the same before this Court.

9. However, this cannot offer any solace to

the party respondents unless they are able to have

the proceedings of the Land Tribunal set aside;

and the petitioner is certainly entitled to

approach the 1st respondent, seeking that the WP(C) NO. 28023 OF 2020

Purchase Certificate be corrected in terms of the

order of assignment of the Land Tribunal.

10. To paraphrase, if respondents 3 to 6 are

able to have the orders of the Land Tribunal set

aside or corrected in terms of law, then certainly

they will be entitled to stake their claim against

the property, but not otherwise.

11. In such perspective, I fail to understand

why the Tahsildar should have insisted on the

presence of the legal heirs of Late Padiyeri

Chappan, particularly when Sri.V.V.Surendran -

learned counsel for the petitioner, asserts that

the original of the Purchase Certificate is in the

custody of his client.

In the afore circumstances, I allow this writ

petition and set aside Ext.P11; with a

consequential direction to the 1st respondent -

Special Tahsildar (LR) to reconsider the matter, WP(C) NO. 28023 OF 2020

after affording an opportunity of being heard to

the petitioner; and if it is found eligible, then

to correct the Purchase Certificate in tune with

the order of Assignment issued by the Land

Tribunal, provided the original of the same is

produced before him by the petitioner, within a

period of one month from the date of receipt of a

copy of this judgment.

Needless to say, but merely to reiterate, I

clarify that if respondents 3 to 6 are able to

have the orders of Land Tribunal set aside, then

the Purchase Certificate would also axiomatically

stand vacated and the afore directions would cease

to have any effect thereafter.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C) NO. 28023 OF 2020

APPENDIX OF WP(C) 28023/2020

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE IA 8/2007 FILED BY THEYI BEFORE THE 2ND RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 3RD RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 20.09.2007.

EXHIBIT P4 A TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC NO.235159/2007 DATED 14.12.2012.

EXHIBIT P5 A TRUE COPY OF THE DEATH CERTIFICATE OF THEYI ISSUED BY THE PANAMARAM PANCHAYATH DATED 04.09.2014.

EXHIBIT P6 A TRUE COPY OF THE LEGAL HEIR SHIP CERTIFICATE ISSUED BY THE TAHSILDAR, MANATHAVADY DATED 29.05.2015 SHOWING THE DETAILS OF THE LEGAL HEIRS OF THEYI.

EXHIBIT P7 A TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 26.11.2019.

EXHIBIT P8 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER ALONG WITH HIS SIBLINGS THE 2ND RESPONDENT DATED 12.02.2020.

EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AND HIS SIBLINGS DATED 18.03.2020.

EXHIBIT P10 A TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER AND HIS SIBLINGS TO THE 1ST RESPONDENT DATED 21.07.2020.

WP(C) NO. 28023 OF 2020

EXHIBIT P11 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AND HIS SIBLINGS DATED 12.10.2020.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE