IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 CRP.No. 250 of 2009() --------------------- AA.632/1997 of APPELLATE AUTHORITY, KANNUR OA.27/1993 of LAND TRIBUNAL, KASARGOD .................... REVN. PETITIONERS: APPELLANTS 2 AND 3/ LEGAL REPRESENTATIVE OF RESPONDENT: -------------------------------------------------------- 1. LEELAVATHI V.RAI, W/O.VITTAL RAI, 2. SUNIL KUMAR SHETTY, S/O.THIMMAPPA SHETTY. BOTH ARE RESIDING AT ENMAKAJE HOUSE, ENMAKAJE VILLAGE, KASARAGOD TALUK, P.O.PERLA. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS: RESPONDENTS IN 11 AND STATE ----------------------------------------------------------------- 1. CHANDRAVATHI, W/O.MADHAVA ACHARY, RESIDING AT PERLA HOUSE, ENMAKAJA, ENMAKAJA VILLAGE, KASARAGOD TALUK, P.O.PERLA. 2. RATHNAKALA PAKKALA, W/O.RAMAKRISHNA PAKKALA. 3. SUDHIR KUMAR SHETTY, S/O.THIMMANNA SHETTY. 4. PUSHPAVATHI B.ALVA, W/O.D.RAMANATHA ALVA. 5. NIRMALA G.PAKKALA, W/O.GOPALAKRISHNA PAKKALA. 6. KONARK PAKKALA 7. KARTHIK PAKKALA (CHILDREN OF GOPALAKRISHNA PAKKALA) NO.1 TO 4 ARE C/O.K.VITTAL RAI, ENMAKAJA HOUSE, ENMAKAJE VILLAGE KASARAGOD TALUK, P.O.PERLA, NOS.5 TO 7 ARE RESIDING AT 460, RAJ MAHAL VILAS EXTENSION, 11TH MAIN, SADASHIVA NAGAR, BANGALORE 560080. 8. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER, SMT. K.T.LILLY FOR R8 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/12/2011, THE COURT ON 14/12/2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- C.R.P. No.250 of 2009 ----------------------------------------------- Dated 14th December, 2011. O R D E R This Civil Revision Petition is filed by the legal heirs of deceased 'B' party respondent in O.A.27/93 on the file of Land Tribunal No.II, Kasaragode. 2. The facts of the case as stated in the revision petition is as follows : The first respondent herein as petitioner filed O.A.No.27/1993 before the Land Tribunal, Kasaragod under Section 80B of the Kerala Land Reforms Act, claiming to be a kudikidappukari in respect of the house situated in R.S.No.896/2B of Enmakaje village. In the application, she alleged that her husband Madhava Achary was the kudikidappukaran. In column No.3, she described the building as 'small house' without mentioning whether the same is a hut or homestead. In column no.4 she gave the cost of construction as Rs.700/-, but did not say what is the monthly rental the building would have fetched. Column no.6 requires the applicant to state whether the kudikidappukaran is in possession of any other land and its extent and column no.7 requires the petitioner to state whether the said land, if any, is C.R.P.250/09 2 fit for constructing a homestead. Against column no.6, it is stated 'no' and against column no.7, it is alleged “N.A.”(meaning-not applicable). The sole respondent (predecessor of revision petitioners and respondents 2 to 7 herein) filed a counter challenging the claim of the petitioners. It is contended that the building was obtained by Madhava Achary on 14.4.1965 on a monthly rental of Rs.15/- and the costs of construction of the building was more than Rs.5,000/- and as such the building is not and cannot be a hut. It is specifically contended that Madhava Achary was the owner of 0.25 acres in R.S.No.897/7 of Enmakaje vilage, which is very close to the land in question and that the said land is suitable to construct a house and the petitioner has deliberately suppressed the said fact with a view of make a wrongful gain. The authorised officer visited the property on 25.5.1995 and filed a report. He erroneously reported that the cost of construction of the building was Rs.700/- and the rent would have been Rs.5/- without giving any data or materials. He never reported about R.S.No.897/7 owned by Madhava Achary. The respondent filed objection to set aside the report. To the C.R.P.250/09 3 said petition to set aside the report, the petitioner in the O.A. filed a counter. In para 4 of the counter, it is stated that “it is emphatically denied that one Madhava Achary is having dark hast measuring 25 cents in Miss Patta 1740. Revenue Inspector is not bound to report facts relating to third parties to the O.A. Hence the objection in para 3 is baseless.” The Land Tribunal, instead of setting aside the report, referred back the same. In the further report, the Revenue Inspector reported that “enquiry shows that Madhava Achary, husband of the applicant having assigned land of 0.25 acres in R.S.No.897/7 of Enmakaje village. The assigned land is not fit for house site”. No reason is stated in support of the said report. It is also not stated whether the said land is close to the land in dispute. 3. Before the Land Tribunal, PW1 and RW1 were examined and Exts.C1 and C2 were marked. The Land Tribunal, on considering the evidence found that the petitioner is a kudikidappukari and allowed to purchase 5 cents of property in R.S.896/2B of Enmakaje village. Against that order, the original 'B' party respondent filed appeal before the Appellate Authority (LR), Kannur as A.A.632/1997, which was C.R.P.250/09 4 dismissed as per order dated 8.4.2008. Against that order, the legal heirs of the appellant filed this Civil Revision Petition under Section 103 of the Kerala Land Reforms Act. 4. Heard the learned counsel for the revision petitioners and the learned Government Pleader. 5. At the time of hearing learned counsel for the revision petitioners raised the following contentions : The appellate authority committed an error in holding that the 0.25 acres of land is not fit for building a house, without any legal or material evidence. The appellate authority should not have overlooked the fact that the said land in R.S.897/7 is situated very near to the petition schedule land comprised in R.S.no.896/2B. This could be gathered from the fact that both lands are in adjoining survey number, which means that they cannot be far off from each other. 6. Learned counsel for the revision petitioners submitted that the only prayer of the revision petitioners in this Civil Revision Petition is to remand back the case to the Land Tribunal, so that the revision petitioners can take out an Advocate Commission to inspect the 25 cents of property in C.R.P.250/09 5 R.S.No.897/7 of Enmakaje village and to ascertain whether that property is fit for construction of a homestead. As per Section 2 (25) of the Kerala Land Reforms Act, a person, who is having an extent of 3 cents in any city or major Municipality or 5 cents in any other Municipality or 10 cents in any Panchayat area, who is in possession either as owner or as tenant, on which he could erect a homestead, cannot claim kudikidappu right. 7. In the order of the Land Tribunal, it is stated that Madhava Achary, the husband of the petitioner in O.A.27/1993 was assigned of 25 cents of land in R.S.No.897/7 of Enmakaje village and that according to the S.R.I., that is a rocky land and not fit for erecting a homestead. In the S.R.I., it is not stated as to why that property is unfit for constructing a homestead. Considering the facts and circumstances of the case, I am of the view that the report of an Advocate Commissioner is absolutely necessary to ascertain whether the 25 cents of property in R.S.897/7 of Enmakaje village is fit for constructing a homestead and for that purpose, O.A.27/1993 has to be remanded back to the Land Tribunal, Kasaragod. 8. Accordingly, this Civil Revision Petition is allowed C.R.P.250/09 6 and the order in A.A.632/1997 on the file of the Appellate Authority(LR), Kannur and the order in O.A.27/1993 on the file of the Land Tribunal-II, Kasaragod are set aside and O.A.27/1993 is remanded back to the Land Tribunal No.II, Kasaragod for fresh disposal in accordance with law, after giving sufficient opportunity to the revision petitioners to take out a Commission to ascertain the question whether the 25 cents in R.S.897/7 of Enmakaje village is fit for constructing a homestead and both sides should be given sufficient opportunity to adduce further evidence. The parties are directed to appear before the Land Tribunal No.II, Kasaragod on 28.2.2012. There is no order as to costs. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.