IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 LA.App..No. 216 of 2006(D) -------------------------- LAR.427/2001 of ADL.SUB COURT, THALASSERY .................... APPELLANT: CLAIMANTS NO.2 & 3 ----------------------------- 1. ENTHUNKAL JOSEPH(DIED), ENTHUNKAL HOUSE, P.O.VARAYAL, VIA-THALAPUZHA, MANANTHAVADY TALUK. 2. THRESSIA, W/O.LATE JOSEPH, RESIDING AT ENTHUNKAL, VARAYAL, PERIYA AMSOM, VARAYAL DESOM. 3. E.J.JOSEPH, S/O.LATE JOSEPH, DO.DO. (C2 AND 3 ARE IMPLEADED AS PER ORDER IN IA.904/2003, DATED 26/5/2003) BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM RESPONDENTS: RESPONDENTS ------------------------ 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, KANNUR. 2. LAND ACQUISITION OFFICER, THALASSERY. BY GOVERNMENT PLEADER SRI.BASANTH BALAJI FOR R1,2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ---------------------------------- LA.A. NO. 216 of 2006 ---------------------------------- Dated this the 22nd day of July , 2008 JUDGMENT In this appeal preferred by claimants 1 to 3 in L.A.R. No.427/2001, they impugn the award passed by the Land Acquisition reference Court, Thalasery in a reference for apportionment of the total compensation under Section 30 of the Land Acquisition Act. It is not disputed that the appellants were parties 1 to 3 and the State -the respondent herein was arrayed as party No.4 in the L.A.R. In fact, the parties were all arrayed by the reference court as co- claimants. The Land Acquisition Officer did not became inclined to pay the compensation to the appellants on the reason that they had not proved their title to the acquired property by producing documents. Before the reference court, the appellants produced Exts.A1 and A2 which were respectively certificate of purchase issued by the Land Tribunal, Kuthuparamba and the order of that Tribunal assigning the janmam rights over the properties in question in favour of the L.A.A. No.216/2006 2 appellants. Ext.A3 encumbrance certificate, Ext.A4 possession certificate and Ext.A5 tax receipt were also put in evidence by the appellants/claimants 1 to 3. No counter evidence was adduced by the respondent Government before the Reference Court. The judgment of the reference court will show that no statement was filed before that court by the Government claiming any portion of the compensation. But, it is seen from the judgment that the property in question belonged to Kottiyoor Devaswam Nair Service Society in jenmam and it was only tenancy right which the appellants were having over the acquired properties. It was from the possession of the appellants that the property was acquired. In order to prove that the jenmam rights have been assigned to them, the appellants produced Exts.A1 and A2. But the learned Subordinate Judge noticed that the survey number of the propertty mentioned in Ext.A2 is 3023 while the survey number of the acquired property as per the award and as per the mahazar prepared at the time of taking possession is 3032. Noticing the above discrepancy in the survey number, the learned judge found that the appellants have not obtained title under Ext.A1 and that Ext.A1 does not L.A.A. No.216/2006 3 pertain to the acquired property. The ground prominently raised in the appeal memorandum is that the Government or the Land Acquisition Officer did not a case before the reference court that Ext.A1 did not pertain to the acquired property. 3. I have heard the submissions of Sri.C.Khalid, the learned counsel for the appellants and Sri.Basanth Balaji, the learned Government Pleader. I find merit in the submissions of the learned counsel for the appellants that in as much as the respondent Government did not dispute the identity of the acquired property with reference to Ext.A1 certificate of purchase it was too technical on the part of the learned Subordinate judge to have found on the basis of survey number discrepancy alone that the appellants did not adduce any evidence before the reference court to the effect that Ext.A1 was issued to them on the basis of application for purchase submitted by them. Though there is difference in the survey number quoted in Ext.A1 and in the Mahazar relating to the acquisition, Ext.A3 encumbrance certificate and Ext.P4 possession certificate issued by the Village Officer to a considerable extent clarifies the factual situation. At the same time, it would have been ideal if the appellants L.A.A. No.216/2006 4 adduced oral evidence also to prove that Ext.A1 purchase certificate relates to the acquired property itself. No explanation is forthcoming even in the appeal memorandum as to why the original of the certificate of purchase is not produced. 4. The result is that the judgment and decree under appeal is set aside and the appeal is allowed by way of remand of the L.A.R. back to the reference court. The reference court is directed to permit the appellants to adduce oral evidence for proving that Ext.A1 purchase certificate pertains to the acquired property itself. Through that evidence the appellants will convince the reference court that their failure to produce the original of A1 is due to a genuine reason. The appeal is allowed by way of remand. Refund the full court fee to Advocate Sri.Khalid, the learned counsel for the appellants. PIUS C. KURIAKOSE JUDGE dpk L.A.A. No.216/2006 5