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SUPREME COURT OF INDIA
GYAN SUDHA MISRA, V. GOPALA GOWDA, JJ.
MATHAI MATHAI – APPELLANT
Vs.
JOSEPH MARY @ MARYKKUTTY JOSEPH & ORS. – RESPONDENTS
CIVIL APPEAL NO.4479 of 2007
Decided On : 25-04-2014
(1903) I.L.R. 30 Calc. 539 – Relied upon
(b) Transfer of Property Act, 1882 – Sections 58(b) and 58(d) – Possession of mortgaged property not delivered – Mortgagee not authorised to receive rent and profits from the property – Mortgage in question is simple mortgage and not usufructuary mortgage. (Para 11, 12)
(1903) I.L.R. 30 Calc. 539; (2000) 4 SCC 614; AIR 1963 SC 890 – Relied upon
(c) Administration of Justice – Judicial Review – Courts below deciding questions based on mortgage deed – Mortgagor or his legal heirs not impleaded – Whole proceeding vitiated – Transfer of Property Act, 1882 – Section 58. (Para 13)
Facts of the case:
The appellant Original Application before the Land Tribunal, Kottayam claiming to be a deemed tenant under Section 4A of the Kerala Land Reforms Act, 1963 read with Kerala Land Reforms Tenancy Rules and stating that his uncle had executed a mortgage deed in the year 1909-1910 in favour of the appellant’s mother late Smt. Aley as a collateral security for a sum of 7000 Chakram which was the dowry amount.
Appellant’s mother has been in continuous possession of the mortgaged property for more than 50 years as on the date of the commencement of the K.L.R. Act immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969. Therefore, he should be registered as deemed tenant in respect of the land in question as it has conferred a statutory right on him to purchase the mortgaged land in toto to the extent of 2 acres 48 cents. In the said proceedings the father of the appellant got impleaded and opposed the claim made by the appellant and further denied that the mother of the appellant had right as the mortgagee and was in possession and holding the land as a deemed tenant for the 50 years immediately preceding the amended provisions of Section 4A of the K.L.R. Act, which provision came into effect from 1.1.1970. Therefore, he has contended that he is not entitled to be registered as a deemed tenant and cannot obtain purchase certificate of the land in question as per Section 72B of the K.L.R. Act.
The Land Tribunal held that the appellant is a deemed tenant under Sections 4A of the K.L.R. Act and therefore, he is entitled to get the purchase certificate.
The first respondent and others filed an appeal before the Appellate Authority (Land Reforms).
The Appellate Authority held that the property involved in the original application of the appellant has been in his possession and enjoyment of the appellant and he has effected improvements on it and cultivated the property and that the first respondent has no title or possession over the property at any time.
The High Court allowed the Revision Petition of the first respondent and rejected the Original Application filed by the appellant.
Finding of the Court:
Courts below erred in law.
Result: Appeal dismissed.
JUDGMENT :-
V.Gopala Gowda, J.
This appeal is directed against the impugned judgment and order dated 1.7.2005 passed by the High Court of Kerala at Ernakulam in Civil Revision Petition No. 873 of 1997(C) allowing the Civil Revision Petition and rejecting the O.A. No. 230 of 1981, urging various facts and legal contentions.
2. Necessary relevant facts of the case are stated hereunder:-
The appellant herein filed Original Application No. 230 of 1981 before the Land Tribunal, Kottayam claiming to be a deemed tenant under Section 4A of the Kerala Land Reforms Act, 1963 (hereinafter referred to as “the K.L.R. Act”) read with Kerala Land Reforms Tenancy Rules (for short “the Tenancy Rules”) and stating that his uncle had executed a mortgage deed in the year 1909-1910 in favour of the appellant’s mother late Smt. Aley as a collateral security for a sum of 7000 Chakram which was the dowry amount.
3. It is the case of the appellant that his mother has been in possession of the land involved in the case as a mortgagee from the date of execution of the mortgage deed referred to supra and she has been in continuous possession of the same for more than 50 years as on the date of the commencement of the K.L.R. Act (substituted by Act 35 of 1969) immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969 which was published in the Kerala Gazette Extraordinary No. 295 dated 17.12.1969 w.e.f. 1.1.1970. Therefore, he should be registered as deemed tenant in respect of the land in question as it has conferred a statutory right on him to purchase the mortgaged land in toto to the extent of 2 acres 48 cents. In the said proceedings the father of the appellant got impleaded and opposed the claim made by the appellant and further denied that the mother of the appellant had right as the mortgagee and was in possession and holding the land as a deemed tenant for the 50 years immediately preceding the amended provisions of Section 4A of the K.L.R. Act, which provision came into effect from 1.1.1970. Therefore, he has contended that he is not entitled to be registered as a deemed tenant and cannot obtain purchase certificate of the land in question as per Section 72B of the K.L.R. Act. Vide order dated 21.3.1994, the Land Tribunal, after recording the finding of fact, held that the appellant is a deemed tenant under Sections 4A of the K.L.R. Act and therefore, he is entitled to get the purchase certificate.
4. Aggrieved by the said order, the first respondent and others filed an appeal before the Appellate Authority (Land Reforms) under Section 102 of the K.L.R. Act questioning the correctness of the order dated 21.3.1994 passed by the Land Tribunal, Kottayam, on various factual and legal contentions. The Appellate Authority has adverted to certain relevant facts in respect of the previous proceedings in relation to the same land initiated by the appellant under Section 72 of the K.L.R. Act in O.A. No. 531 of 1975, which was allowed by order dated 25.4.1978 which order was challenged by the first respondent herein before the Land Reforms Appellate Authority, Ernakulam as L.R.A.S. 534 of 1978 which appeal came to be allowed and the case was remanded to the Land Tribunal for reconsideration. In the said proceedings the Revenue Inspector had filed his Report dated 23.4.1992 as contemplated under Section 105A of the K.L.R. Act. The same was marked as Exh.C1, after examining Revenue Inspector in the proceedings. The said report was not challenged by the first respondent’s father and the same was accepted in toto by the Land Tribunal. It is further stated that the objection of the father of the first respondent was taken in the original application before the Land Tribunal but he was not examined as a witness in support of his claim as he died during the pendency of the case. However, he was examined as a witness before the Land Tribunal in the previous O.A. No. 531 of 1975. In his deposition he has clearly stated that the possession
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