IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 CRP.No. 244 of 2007() ------------------------------- AGAINST THE ORDER DATED 15/06/2006 IN IA 157/04 IN AA.52/2004 of APPELLATE AUTHORITY, (LR) KANNUR OA.69/1977 of LAND TRIBUNAL NO. III, (SPECIAL TAHSILDAR) TALIPARAMBA .................... REVN. PETITIONER(S): APPELLANTS. ------------------------------------------------------ 1. P.P.KARTHIYAYANI, D/O.P.M.KUNHIRAMAN, RESIDING AT ANDOOR AMSOM DESOM, PARASSINIKKADVU, KANNUR DISTRICT. 2. P.P.SAVITHRI, D/O.P.M.KUNHIRAMAN, RESIDING AT TALIPARAMBA AMSOM, TRICHAMBARAM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. 3. P.P.LEELA, D/O.P.M.KUNHIRAMAN, RESIDING AT ANDOOR AMSOM DESOM, PARASSINIKKADAVU, TALIPARAMBA TALUK, KANNUR DISTRICT. 4. P.P.KAUSALYA, (DIED), REPRESENTED BY HER LEGAL HEIR, P.P.SHYAMALA, D/O.P.P.KAUSALYA, NEAR TRAINING SCHOOL, THALASSERY ROAD, KANNUR. 5. P.P.ROHINI (DIED), REPRESENTED BY HER LEGAL HEIR, P.P.GANGADHARAN, RESIDING AT THALAP, KANNUR. 6. P.P.BALAKRISHNAN (DIED), REPRESENTED BY HIS LEGAL HEIRS, WIFE C.LEELA, W/O.LATE P.P.BALAKRISHNAN, SUKA NIVAS, KANHANGAD SOUTH, KASARAGOD DISTRICT. 7. RENJITH KUMAR, S/O.LATE P.P.BALAKRISHNAN, SUKA NIVAS, KANHANGAD SOUTH, KASARAGOD DISTRICT. tss CRP. NO.244/2007 8. LEELA, D/O.LATE P.P.BALAKRISHNAN, SUKA NIVAS, KANHANGAD SOUTH, KASARAGOD DISTRICT. 9. P.P.SAJITH, S/O.LATE P.P.BALAKRISHNAN, SUKA NIVAS, KANHANGAD SOUTH, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.T.P.ELDHO RESPONDENT(S): RESPONDENTS AND STATE. ------------------------------------------------------------------ 1. P.M.KARINCHI @ P.M.MADHAVI, W/O.KAPPADAN NARAYANAN, NEAR MUTHAPPAN TOURIST HOME, ANDOOR AMSOM DESOM, PARASSINIKKADAVU, TALIPARAMBA TALUK, PARASSINIKKADAVU POST, KANNUR DISTRICT. 2. ABDUL JABBAR, S/O.LATE KARAKKATTU PUTHIYAPURAYIL MAMMED HAJI, AROLI POST, PAPPINISSERY, KANNUR DISTRICT. 3. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. R1 BY ADV. SRI.ANTONY M. AMBAT THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== C.R.P. No. 244 of 2007 ==================================== Dated this the 07th day of December, 2011 O R D E R This Civil Revision is in challenge of the order dated 15.06.2006 on I.A. No.157 of 2004 in A.A. No.52 of 2004 of the court of Appellate Authority (LR), Kannur. Petitioners, claiming to be the owners of property challenged the order passed by Land Tribunal No.IIII, Thaliparamba (for short, “the Tribunal”) on 25.04.1977 in O.A. No.69 of 1977 assigning landlord's right in respect of property involved in favour of the first respondent and the issue of purchase certificate to him (on 29.07.1977). Petitioners challenged that order before the Appellate Authority and filed I.A. No.157 of 2004 to condone the delay of around 25 years in filing that appeal. In the affidavit in support of the application it is pointed out that they were not parties to the proceeding in the Tribunal, they did not get notice or other information about pendency of proceeding in the Tribunal and that immediately on learning about the order of the Tribunal they obtained certified copy of the order and preferred appeal and hence no question of delay is involved. Alternatively it is prayed C.R.P. No.244 of 2007 -: 2 :- that if there is delay the same may be condoned for the same reason. 2. Learned counsel for first respondent contended that herself and mother were in possession of the property from time immemorial and that in the partition effected in the tarwad (I am told, of the first respondent) as per decree in O.S. No.34 of 1979, subject matter of the present proceeding was set apart as it was in the possession of the first respondent and her mother. After obtaining purchase certificate first respondent assigned the property in favour of Aneesh Kumar, her son-in-law and thus the said Aneesh Kumar is in possession and enjoyment of property from 01.09.1992 onwards. 3. In the impugned order the Appellate Authority observed that affidavit of petitioner in support of I.A. No.157 of 2004 does not disclose date of order of the Tribunal, date of petitioner getting knowledge about the order and the date on which application for copy was made, date of its receipt, etc. Appellate Authority has also referred to the contention of first respondent that property involved in the proceeding was left out from partition in O.S. No.34 of 1979. In the above circumstances C.R.P. No.244 of 2007 -: 3 :- Appellate Authority was of the view that the delay is not liable to be condoned. 4. It is contended by learned counsel for petitioners that approach made by the Appellate Authority is not correct. According to the learned counsel if property belonged to the petitioners they were entitled to get notice of the proceeding and if notice was given and their contention that they learned about the order of the Tribunal only recently is accepted, there could be no delay in filing the appeal. According to the learned counsel second respondent in this proceeding who was impleaded as B party in O.A. No.69 of 1977 had nothing to do with the property. Learned counsel for first respondent has supported the order on I.A. No.157 of 2004. 5. It would appear that the Appellate Authority has not given serious consideration of the contentions raised by petitioners in the affidavit in support of I.A. No.157 of 2004. Petitioners would say that property belonged to them as per document No.93 of 1952 of SRO, Kalliassery. Even for the purpose of deciding I.A. No.157 of 2004 it was necessary to refer to that contention of petitioners. If property belonged to the C.R.P. No.244 of 2007 -: 4 :- petitioners, necessarily the Appellate Authority had to consider whether notice on O.A. No.69 of 1977 was required to be issued to them or any of them as the case may be, and if not issued, whether contention of petitioners that they learned about the order of the Tribunal under challenge only recently could be accepted. It is not the length of time that matters but whether there is delay involved and if so it has been explained. 6. But it is seen that affidavit of petitioners did not say when they learned about the impugned order, applied for a copy of the order or received the same. When applying for condonation of delay petitioners are required to provide such materials for consideration of the Appellate Authority. 7. Having heard counsel on both sides I am inclined to think that Appellate Authority is required to consider the matter afresh after giving both sides opportunity to adduce evidence if any in support of the application to condone the delay. Civil Revision is allowed. Order dated 15.06.2006 on I.A. No.157 of 2004 in A.A. No.52 of 2004 of the Appellate Authority (LR), Kannur is set aside and I.A No.157 of 2004 is remitted to C.R.P. No.244 of 2007 -: 5 :- the Appellate Authority for fresh decision after giving opportunity to the petitioners to file additional affidavit giving details required to decide whether the delay is to be condoned and opportunity to both sides to adduce evidence in support of their contentions. Parties shall appear before the Appellate Authority(LR), Kannur on 23.01.2012. All Pending Interlocutory Applications will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv