IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 11971 of 2004(A) -------------------------- PETITIONER(S): --------------- KESHAVA BHAT, S/O. SUBRAYA BHAT, LECTURER, POMPAI JUNIOR COLLEGE, KUNNIGOLI, BANGALORE TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR RESPONDENT(S): --------------- 1. DUGGAMMA W/O. ACHUTHA BHAT, RESIDING AT GUMPE, BAYAR P.O., VIA. UPPALA, KASARAGOD TALUK AND DISTRICT. 2. THE COMMISSIONER (LAND REVENUE), THIRUVANANTHAPURAM. 3. THE REVENUE DIVISIONAL OFFICER, KASARAGOD. 4. THE TAHSILDAR, KASARAGOD. ADV. SRI.V.V.ASOKAN FOR R1 SMT.S.AMINA FOR R1 SR.GOVT. PLEADER SRI.SHYSON P.MANGUZHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 11971/04 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT IN A.A.NO.34/99 DATED 25.3.2002. EXT.P2 - TRUE COPY OF THE SKETCH APPROVED BY THE TAHSILDAR IN LA 90/85/BAYAR DATED NIL. EXT.P3 - TRUE COPY OF THE ARGUMENT NOTES DATED 24.11.2003. EXT.P4 - TRUE COPY OF THE ORDER PASSED BY RESPONDENT NO.2 IN LR(J2)-10296/2002 DATED 8.12.2003. EXT.P5 - TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT. RESPONDENTS' EXTS. EXT.R1(a) – TRUE COPY OF THE SITE INSPECTION REPORT GATHERED BY THE RDO, KASARAGOD. /TRUE COPY/ K.BALAKRISHNAN NAIR, J. ----------------------------------------- W.P.(C) NO. 11971 OF 2004-A ----------------------------------------- JUDGMENT The petitioner's predecessor-in-interest was granted assignment of three items of properties by the competent authority. They were kumki lands, lying adjacent to the warg land of the said predecessor- in-interest. The 1st respondent herein was assigned certain lands in the neighbourhood. She claimed a right of way through one of the items assigned in favour of the predecessor-in-interest of the petitioner, which is now in the possession and enjoyment of the petitioner. Feeling aggrieved by the non-reservation of the right of way to the 1st respondent, she filed an appeal against the assignment order before the Revenue Divisional Officer, after the lapse of 21 years of the assignment. The R.D.O dismissed the appeal. The 1st respondent filed a suit before the Munsiff's Court, to establish her right of way. Simultaneously, she moved the Land Revenue Commissioner in revision against the appellate order of the R.D.O. The Land Revenue Commissioner, by Ext.P4 order, remitted the matter for reconsideration WPC 11971/04 2 by the R.D.O., after making a site inspection. This Writ Petition was filed, challenging the said order of remand. While admitting the writ petition, this Court ordered that further proceedings pursuant to Ext.P4 would be subject to the result of the writ petition. The petitioner submits, the conduct of a local inspection while hearing the appeal after the lapse of 21 years of the assignment, will be a futile exercise. Whether the 1st respondent was using one of the items of properties as a pathway, at the time of assignment of that property in favour of the predecessor-in-interest of the petitioner, cannot be ascertained by the present site inspection. Therefore, the impugned order is vitiated, it is submitted. 2. The 1st respondent has filed a counter affidavit, stating that pursuant to the order of remand, a site inspection was conducted and a report was filed, showing the existence of a pathway. The learned counsel for the 1st respondent also handed over a copy of the judgment in O.S.No.254/1999 passed by the Principal Munisiff's Court, Kasaragod. The said suit has been decreed as follows: “The defendants are hereby directed by a decree of mandatory injunction to restore Road R1 and R2, as shown WPC 11971/04 3 in the Ext.C4 plan, to its original condition, so as to connect the road leading from the house of the plaintiffs. The defendants are further restrained by a decree of permanent prohibitory injunction from trespassing into the plaint C schedule property or in any way interfering with the peaceful possession and enjoyment of the 3rd plaintiff over the plaint C schedule property.” The 1st respondent herein is the 1st plaintiff in that suit. The petitioner herein is the 3rd defendant. In view of the decree of the competent civil court, this writ petition has become infructuous, as the dispute between the parties was concerning only with the right of way through one of the items of properties assigned. Accordingly, the Writ Petition is closed. 7th October, 2008. K.BALAKRISHNAN NAIR, JUDGE. Nm/