State of Kerala v. M. T. Joseph

BEG, J.-These appeals by special leave raise the question whether .the Kerala High Court had correctly interpreted and applied Section S .of the Kerala Govt. Land Assignment Act, 1960 (hereinafter referred .to as 'the Act') to the cases before us. This provision reads as follows :

"8. All provisions, restrictions, conditions and limitations over, contained in any Patta or other document evidencing an assignment of Government land shall be valid and take effect according to their tenor, any rule of law of usage to the contrary notwithstanding"'.

The facts upon which the provision was sought to be applied are these: On 23 October, 1939, the Government of Travancore sanc-tioned a scheme for the reclamation of the Vimbana Lake upon terrns and conditions which were set forth in a document dated 4 October, 1939. The agreement provided that one M. T. Joseph and his father, -on payment of Rs. 10/- per acre, which were to be recovered in ten equal instalments, would be given possession of certain tracts of land which they undertook to reclaim. For the first two years after what is called the "Registry" of the names of the two lessees no tax was to be levied. The "Registry" was liable to be cancelled if adequate\ pro-gress was not made within these two years. It appears that the agree-ment was modified by an order dated 12 February, 1941 and a fresh agreement was executed in July 1941 by M. T. Jo'5eph (now dead) who entered into possession of Keyal land, constructed the ring bunds at considerable expense, and brought the very large tracts of alnd to be reclaimed under paddy cultivation. In June 1957, M. T. Joseph •executed a deed of settlement of all this land, after he had acquired full ownership rights by fulfilling the terms of the agreement. The Act which is sought to be now applied was then passed. After that, the Kerala Land Reforms Act of 1963 was passed so that the '"State Land Board" started proceedings for the surrender of these lands in accordance with the provisions of the Land Reforms Act.

The only question now before us is whether, by an application of section 8 of the-Act, the whole land is to be treated as a single unit belonging to M. T. Joseph (since dead), on the dispositions made by M. T. Joseph, under the deed of settlement executed by him on 15th June, 1957, distributing the land among his children, resulted in sepa-rate units for the purposes of compe111Sation for the land surrendered. If the children had acquired right under. the deed of settlement each of them could be treated as entitled to compensation for a separate! unit. If the deed was of no effect, the mere fact that the children were in possession, under an authority from their father could not change the owner-ship of the land in the constructive possession of the father.

We have bs;en taken through the deed of agreement of July, 1941, with the Government, which contains the following term, the effect of which has to be determined:

. "Till the remittance of all amounts due to the Government by way tharavila (land value) etc. the executant shall have no right of alienation in respect of the schedule property and the property shall remain with the Government as sole owner. The executant shall remit the tax at the thirteenth thoram in the village office every year after the first two years of registry so loog as no default is made in the payment of instalment and obtain receipt therefor. Until the entire tharavila (land value under this agreement as st<1ted above is paid by the executant and until the assignment of the land and issue of patta is completed the executant undertakes not to do any act which may reduce the value of the propercy and if as stated above due to any reason the property is recovered from the executant he shall not put forward any claim for improve-ments etc. and the property shall be surr.ondct\~J to Govern-ment".

It is clear to us that this term in the agreement operated as a rest-raint upon the alienation of rights onjy so long as all the amounts due to the Government as Tharavila had not been paid up. The whole amount had to be paid up in ten yearly instalments. It ha:s b~cn paid up before 1957. Furthermore, as the Kerala High Court found, the settlement of land on 15th June, 1957 had not merely been given effect to by a mutation in the relevant Government records but pattas had actually been given by the Government, actin~ upon the settlement of 1957, in favour of the children of M. T. Joseph. Hence. it could not be said that there was any patta or other document containing any condition to which Section 8 of the Act could apply. We find. from the Judgment under appeal, that seve;ral questions. which have no real bearing on the rights of the parties, were also argued. One of these questions was whether land could be acquired by adverse posse<Ssion by the alienecs of the allottees of the land from the Government under the scheme for its reclamation. We fail to see how a question of adverse possession arises here when the Government itself recognises . ~e rights of the children of M. T. Joseph in the pattas executc1d by it m their favour.

The High Court recorded the following findings about the Govern-ment acting on the terms of the settlement of 15th June, 1957, the correctness of which had not been challenged before us :

"This settlement deed has been recognised by the Government mutation has been effected in the names of the children and pattas have also been issued to them. It has been further stated on behalf of the revision petitioners (the Aeirs of the said Joseph and those who took under the settlement deed dated 15.'6.1957) that levy under the Kerala Rice and Paddy (Procurement by Levy) Order, 1966, has been collected from each of the shares under the deed of 1957, that land tax has been imposed on each of the sha~es separately and agricultural income-tax collected on the m-come of the properties of each of the sharers".

We do not think it is necessary to go into any other question. The High Court was of opinioi1 that some facts had still to be as-certained when the case goes back to the Land Board for proceeding on the footing determined by the High Court. We think that we should make it clear that matters to be still determined could not, in view of our fin,ding, involve determination of any question of adverse possession of the claimants, the children of M. T. Joseph.

For the reasons given above, we dismiss these appeals. We make no order as to costs.

'P.H.P. Appeals dismissed.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 587-696 & 598-600 of 1976.

(Appeals by Special Leave from the Judgment and order dated 13th of July 1975 of the Kerala High Court in CRP Nos. 1188, 1227, 1250, 1272, 1278, 1279, 1284-1287, 1309, 1312 and 1386/73).

M. M. Abdul Khader., Adv.. Genl. and K. M. K. Nair, for the Ap-ll_)ellan ts.

T. S. Krislmamoorthy Iyer and P. K. Pilldi, for RR. excepting R. 8 in CA 587 /76.