IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 OP.No. 6435 of 2002(N) ---------------------- PETITIONER(S): --------------- NARAYANAN NAMBIAR.M., AGED ABOUT 62 YEARS, SON OF K.CHINDAN NAIR, CULTIVATOR, RESIDING AT ALANTHADKKA IN ADHOOR IN ADHOOR VILLAGE AND POST, KASARAGOD TALUK & DISTRICT. BY ADV. SRI.S.VINOD BHAT RESPONDENT(S): --------------- 1. SRI.MAVILA KUNHAMBU NAMBIAR, AGED ABOUT 52 YEARS, S/O.K.CHINDAN NAIR, RESIDING AT EDAKKAYIL HOUSE, CHEMNAD VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. 2. SRI.MAVILA BALAKRISHNAN NAMBIAR, AGED ABOUT 46 YEARS, S/O. K.CHINDAN NAIR, RESIDING AT ALANTHADKKA IN ADHOOR VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. 3. THE SPECIAL TAHSILDAR (LAND ASSIGNMENT) KASARAGOD, KASARAGOD TALUK & DISTRICT. 4. THE REVENUE DIVISIONAL OFFICER, KASARAGOD AT KANHANGAD, P.O.KANHANGAD, HOSDURG TALUK, KASARAGOD DISTRICT. 5. THE COMMISSIONER, LAND REVENUE, THIRUVANANTHAPURAM. 6. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR FOR R3 TO 6 SRI.V.V.ASOKAN FOR R1 & 2 SMT.S.AMINA FOR R1 & 2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON 31/03/2009 DELIVERED THE FOLLOWING: O.P.No. 6435/02. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER IN L.A.NO.14/97 PASSED BY R3. P2. COPY OF THE ORDER IN L.A.NO.1129/67 BY R3. P3. COPY OF THE ORDER OF R4. P4. COPY OF THE REVISION PETITION. P5. COPY OF THE ORDER BY R5. P6. COPY OF THE ORDER IN L.A.NO.96/81/ADHUR. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 6435 of 2002 ================== Dated this the 31st day of March, 2009 J U D G M E N T By Ext.P1 order, 50 cents of land in survey No.439/ID of Adhoor village in Kasargod Taluk, was assigned in favour of the petitioner on 16.8.1997. In 1997, respondents 1 and 2, who are the brothers of the petitioner, challenged the said assignment. The contention taken by respondents 1 and 2 was that the land in question was not Government land any more, since the same was assigned in favour of one Smt.Lakshmi Rathna, by Ext.P2 order of assignment dated 20.10.1976, which is produced by respondents 1 and 2 also as Ext.R1 (d). They took the contention that the land was purchased by the petitioner, respondents 1 and 2, and their father by sale deed No.1039/79 of SRO, Badiadka and later on, partitioned by deed No.2026/1981 of Badiadka Sub Registrar's office. The petitioner contended that as is clear from Ext.R1(d), no property in survey No.439/ID is included therein and therefore, it was not part of the properties assigned by Ext.P2. The petitioner also contended that although Ext.P2 order of assignment on registry was passed, no patta was issued, since Smt.Lakshmi Rathna failed to remit the value of the land and, therefore, the assignment itself had not taken effect. To prove the above fact, the petitioner requested the 4th respondent o.p.6435/02 2 appellate authority, who is the Revenue Divisional Officer, to call for the records in the land assignment proceedings in favour of the said Smt.Lakshmi Rathna. But that was not done and, by Ext.P3 order, the R.D.O. held thus: “Regarding the merit of the case the request of the respondent to summon the lower court records in LA.1129/67/Adhur was rejected on 21.1.2000 after hearing both sides. In this case the assigning authority in his report dt.27.11.99 stated that the land invovled in the appeal was originally assigned to one Laxmi Ratna as per LA 1129/67 that those properties along with other items were purchased by the appellants, respondent and others jointly as per registered sale deed No.1030 of 1979 of the S.R.O. Badiadka and subsequently these lands were partitioned among them as per partition deed NO.2062 of 1981 of the SRO Badiadka and that the land assigned as per the order under appeal to the respondent is the land earlier assigned and partitioned between the appellant and respondent and that this is a case of over lapping in the assignment. The respondent is the elder brother of the appellant. All of them are parties in the partition deed registered in the year 1981. Perusal of lower court records would reveal that the land assigned earlier as per LA 1129/67 dt. 20.10.1976 has not been taken into account, while assigning the land under appeal. It is evident that the subsequent assignment which is involved in the appeal is a clear case of overlapping. Assigning authority is competent to cancel the assignment order in such case after giving sufficient opportunity of being heard to the parties affected. In the result I allow the appeal. Order of the assigning authority dated 16.8.1997 is set aside and remanded the matter to the Tahsildar, Kasargod for fresh disposal after local inspection of the site with due notice to the parties and after giving sufficient opportunity of being heard to the parties affected. Tahsildar Kasargod will take disciplinary action against the Spl. Village Assistant and Spl. Revenue Inspector who prepared the assignment proposals. Suppressing the fact of earlier assignment and report the result to the Revenue Divisional Officer and Collector in due course if it is found that there is clear case of overlapping as claimed by the appellants. The stay already granted is vacated.” 2. The petitioner challenged the same in a revision before the Commissioner of Land Revenue. The Commissioner of Land Revenue, while dismissing the revision, passed the following order: o.p.6435/02 3 “This is clear case of over-lapping. By the impugned order, the subsequent assignment ordered on 16.08.1989 is set aside and the case is seen remanded to the assigning authority for fresh disposal. As such I see no reason to interfere with the order of lower authority. Revision Petition is hereby dismissed.” 3. Although the petitioner challenges both Exts.P3 and P5, the petitioner would be satisfied if the finding entered by the Commissioner of Land Revenue that there is a clear case of overlapping is vacated and the Tahsildar is directed to consider the matter as directed by the 4th respondent, without being influenced by Ext.P5 order. 4. I have heard the learned Government Pleader also. 5. Ext.P5 order has been passed on a revision filed by the petitioner. That being so, even if the revisional authority agrees with the findings of the appellate authority, the revisional authority should have simply dismissed the revision petition without entering the positive finding, which the appellate authority has not chosen to enter and left to be decided by the adjudicating authority after remand. That being so, I am of opinion that the revisional authority was not correct in entering a definite finding in respect of overlapping and should have left it to the Tahsildar to decide as to whether there is any overlapping at all. This is all the more so when admittedly neither the appellate authority nor the revisional authority had occasion to peruse the land assignment files relating to the assignment in favour of the o.p.6435/02 4 Smt.Lakshmi Rathna. In the above circumstances, the finding in Ext.P5 that there is clear a case of overlapping is vacated. The 3rd respondent-Special Tahsildar is directed to reconsider the matter as directed in Ext.P3 order without being influenced by the findings in Ext.P5 order. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 6435 of 2002 ================== J U D G M E N T 31st March, 2009