IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 LA.App..No. 53 of 2005(C) ----------------------------- LAR.47/97 OF SUB COURT, PATHANAMTHITTA ---------------- APPELLANT(S): CLAIMANT: ------------------------------ * KRISHNA KURUP JANARDHANA KURUP, NEDIYAKALAYIL VEEDU, KURAMPALA MURI, THONNALLOOR VILLAGE, ADOOR TALUK. ** ADDL. APPELLANTS IMPLEADED ADDL. 2ND APPELLANT:- C.K.THULASIBAI, AGED 55, JAYANILAYAM, KURAMPALA, PANDALAM. ADDL. 3RD APPELLANT:- N. J. JAYAN, AGED 41, -DO- -DO- ADDL. 4TH APPELLANT:- N.J.PRASANNAN, AGED 39, -DO- -DO- REP. BY MOTHER AND POWER OF ATTORNEY HOLDER THE 1ST PETITIONER, C.K.THULASIBAI, JAYANILAYAM, KURAMPALA, PANDALAM. ADDL. 5TH APPELLANT:- N. J. HARIKUMAR, AGED 37, -DO- -DO- REP. BY MOTHER AND POWER OF ATTORNEY HOLDER THE 1ST PETITIONER C.K.THULASI BAI. -DO- -DO- BY ADV. SRI.K.SASIKUMAR *[DIED. ADDL. APPELLANTS 2 TO 5 IMPLEADED] **[ADDL. APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LRS OF THE DECEASED 1ST APPELLANT VIDE ORDER DT.21/02/2006 IN I.A.2331/2005] LA.App..No. 53 of 2005(C) -2- RESPONDENT(S): RESPONDENT: ------------------------------------ STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. SR. GOVERNMENT PLEADER SMT.LATHA T. THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ L. A. A. No.53 of 2005 ------------------------------------------------ Dated this the 16th day of February, 2011 JUDGMENT Pius C. Kuriakose, J The subject matter of this appeal preferred by the appellant/claimant is the claim for compensation for injurious affection of his un-acquired property. A total extent of 8.95 Ares was acquired from the possession of the appellant. The Reference Court fixed the value of land at Rs.10,000/- per Are and the appellant has no grievance about such fixation. His grievance is that 28.43 Ares situated on the western side of the canal which has been constructed by utilising the land acquired from his possession has become completely deprived of road frontage and the value of that land has become diminished considerably. Before the Reference Court, reliance was L. A. A. No.53 of 2005 -2- placed on Exts.C1 to C3 commission report, mahazar and plan. A reading of Exts.C1 to C3 will show that it is clearly reported by the Commissioner that about 28.43 Ares of land situated on the western side of the newly constructed canal had been deprived of road frontage completely. We are also convinced that the aforesaid extent of 28.43 Ares has been affected injuriously by the acquisition in this case at least to some extent. The court below did not award any compensation for injurious affection on the reason that the appellant did not produce document No.903 dated 26/03/113 M.E. of the Noornadu Sub Registry, the partition deed under which the property is claimed by him. A reading of the notes to award will show that the acquired property and the above un-acquired property (28.43 Ares) was alloted jointly to one Parvathy Amma and her daughter Gouri Amma. The appellant, Janardhana Kurup is the son of Smt.Gouri Amma. The court below insisted on production of L. A. A. No.53 of 2005 -3- the partition deed or any other document of title in respect of the un-acquired property as the court felt that it was probable that there were other persons who were interested in the aforesaid extent of 28.43 Ares. We also feel that it is probable that there are persons other than the appellant who are interested in the aforesaid extent of 28.43 Ares which has been injuriously affected due to the acquisition. According to us, the court below was justified in insisting on production of documents which will show that as to what is the interest which the appellant is having over the aforesaid extent of 28.43 Ares. 2. Coming to the question of the compensation to be awarded for injurious affection, we will only observe that the above property extending to 28.43 Ares has been affected at least to the extent of 10%. We do not propose to decide the extent of diminution finally in this appeal. We relegate that issue to be decided afresh by the court below. L. A. A. No.53 of 2005 -4- 3. The result of the above discussion is that the impugned judgment and decree are set aside to the extent the same pertains to the appellant's claim for compensation for injurious affection in respect of 28.43 Ares remaining un- acquired. The appellant is permitted to produce documents which will prove as to what exactly is the appellant's interest over the above mentioned 28.43 Ares. The appellant is also permitted to adduce further evidence regarding the percentage of diminution suffered by the aforesaid extent. The court below is directed to take a fresh decision in the light of the evidence already on record and the evidence which comes to be on record. The parties will enter appearance before the Reference Court on 9th March, 2011. The learned Sub Judge is directed to take a fresh decision early. 4. In the facts and circumstances of the case, we are not inclined to refund the full court fee remitted on the L. A. A. No.53 of 2005 -5- appeal memo. We are inclined to refund only 50% of the court fee remitted on the appeal memo. 5. This appeal is thus, allowed by way of remand. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-