IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 OP.No. 9691 of 2002(D) ------------------------------------ PETITIONER(S): ------------------------ VENUGOPALA KALLURAYA M., S/O.M.VASUDEVA KALLURAYA, MADHUR VILLAGE, MADHUR POST, KASARAGOD TALUK AND DISTRICT. BY ADVS. MR.P.SHRIHARI, SMT.P.VANI. RESPONDENT(S): --------------------------- 1. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM. 2. KUTTY, S/O.KUKKA KOPALA, RESIDING NEAR SREE MAHALINGESHWARA TEMPLE, BAJAKUDLU, ENAMAKAJE VILLAGE, P.O.PERLA, KASARAGOD TALUK AND DISTRICT. R1 BY GOVERNMENT PLEADER MR. I.V.PRAMOD R2 BY MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, MR.P.B.KRISHNAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/05/2009 ALONG WITH WPC.NO.10141/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.17263/2002 IN O.P.NO.9691/2002 D DISMISSED 27/05/2009 SD/- ANTONY DOMINIC, JUDGE APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE I.A. FOR CONDONATION OF DELAY IN FILING A.A.NO.77 OF 90 FILED BY THE 2ND RESPONDENT. P2: COPY OF THE COUNTER TO THE DELAY PETITION IN A.A.NO.77 OF 90 FILED BY PETITIONER. P3: COPY OF THE ORDER DTD. 30/06/1999 IN A.A.NO.77/90 PASSED BY THE R.D.O., KASARAGOD. P4: COPY OF THE REVISION PETITION NO.LR (J) 2-30567/99-D.DIS. FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. P5: COPY OF THE ORDER DTD. 25/01/2002 IN REVISION PETITION NO. LR(J)2-30567/99-D.DIS. PASSED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC,J. --------------------- O.P.No.9691 OF 2002 ------------------------ Dated this the 27th day of May, 2009. JUDGMENT Challenge in this Original Petition is against Ext.P5, an order passed by the first respondent exercising the revisional powers under the Kerala Land Assignment Act and Rules. 2. The facts of the case are that 47 cents of land situated in R.S.No.698/1A3, of Enmakaje Village in Kasaragod Taluk was assigned to the petitioner by order dated 4.7.1972 in L.A.No.252/71. According to the petitioner, since then he has been in possession of the land and had constructed even a foundation for a building. It is stated that while so, the 2nd respondent and his men trespassed into the property, which lead the petitioner to approach the Munsiff Court, Kasaragod by filing O.S.No.280/9, seeking an order of injunction O.P.No.9691/02 2 restraining the 3rd respondent and his men from trespassing into the property. Petitioner submits that the suit was decreed on 27.10.1992. 3. Against the said judgment and decree the second respondent filed A.S.No.26/1993 before the Sub Court Kasaragod which was dismissed by judgment dated 14.11.1994. It is stated that in the meanwhile the 2nd respondent filed A.A.No.77/90 before the Revenue Divisional Officer, Kasaragod against the order dated 4.7.1972 assigning the aforesaid 47 cents of land to the petitioner. Along with the appeal which was filed in October, 1990, he also filed Ext.P1 dated 17.10.1990, seeking to condone the delay of 18 years in filing the appeal. Petitioner contested the prayer for condonation of delay by filing Ext.P2 counter affidavit. Parties were heard and the Revenue Divisional Officer by Ext.P3 rejected the appeal, on the ground that he was not satisfied that sufficient grounds were made out to condone the delay. O.P.No.9691/02 3 4. Against Ext.P3 second respondent filed Ext.P4 revision before the first respondent. Revision was considered and the first respondent by Ext.P5, allowed the revision by Ext.P5 order, the operative portion of which, reads as under. “The revision petitioner's claims to have made valuable improvements and was enjoying the 47 cents in R.S. No.698/A13 of Enmakaje Village for the past 40 years. Now having started construction of a dwelling house on it, the Sy. No is not a subject matter. From the impugned order, it is clear that the appellate authority did not inspect the site and considered the above contention of the revision Petitioner. The impugned order is set aside and the Revision Petition is allowed and decided in his favour taking into account of the above objectives. 5. It is in these circumstances the original petition is filed seeking to quash Ext.P5. 6. I heard the counsel appearing for the petitioner and the learned Government Pleader. A reading of Ext.P5 order shows that the only ground on which the revision was allowed is that according to the first respondent the appellate authority ought to have inspected the land to ascertain the O.P.No.9691/02 4 correctness of the averments made by the 2nd respondent. I am not in a position to uphold this conclusion of the revisional authority. A reading of Ext.P3 order passed by the appellate authority shows that the appellate authority was not satisfied by the explanation offered for condoning the delay of more than 18 years and the appeal was rejected on that ground only. Appellate authority has not expressed anything on the merits of the case. The appellate authority having rejected the appeal on the ground of delay, it was not necessary or relevant for the appellate authority to have conducted any local inspection, to ascertain the correctness of the allegations made by the 2nd respondent. Therefore the conclusion of the revisional authority deserves to be interfered with. 7. Even otherwise a reading of Ext.P1, shows that in no satisfactory manner, has the second respondent explained the inordinate delay of more than 18 years in filing his appeal. The appellate authority has rightly rejected the appeal and therefore Ext.P3 order has to be sustained. It also needs to be O.P.No.9691/02 5 mentioned that the dispute between the parties was the subject matter of O.S.No.280/90 resulting in a decree and judgment which was confirmed by the appellate court in A.S. No.26/99. This is the added reason in upholding Ext.P3. Accordingly, Ext.P5 has to be set aside and I do so. Original Petition is allowed. (ANTONY DOMINIC) JUDGE vi/ O.P.No.9691/02 6 ANTONY DOMINIC, J ------------------------------------------------- O.P.NO.9691/02 -------------------------------------------------- JUDGMENT Dated.27.5.2009 O.P.No.9691/02 7