IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 OP.No. 28574 of 2000(B) ----------------------------- PETITIONER(S): ------------------- S. PARAMESWARA BHAT, S/O. KRISHNA BHAT, RESIDING AT SEDIMOOLA, MAIRE VILLAGE, P.O. ARIYAPPADY, KASARAGOD DISTRICT (DIED). SUPPL. 2. LAKSHMI AMMA, W/O. S. PARAMESWARA BHAT, RESIDING AT SEDIMOOLA, MAIRE VILLAGE, P.O. ARIYAPPADY, KASARAGOD DISTRICT. SUPPL.3 S. SOORYANARAYANA BHAT, S/O. S. PARAMESWARA BHAT, SEDIMOOLA, MAIRE VILLAGE, P.O. ARIYAPPADY, KASARAGOD DISTRICT. SUPPL.4: S. PUSHPALATHA, D/O. S. PARAMESWARA BHAT, AND W/O. SEETHARAMA BHAT, RESIDING AT GUNDIMAJALU, BOLANTHIR VILLAGE, BUNTWAL TALUK, SOUTH KANARA DISTRICT. SUPPL5: S. ANNAPOORNA, D/O. S. PARAMESWARA BHAT, AND W/O. C. NARASIMHA BHAT, RESIDING AT GUNDIMAJALU, BOLANTHIR VILLAGE, BUNTWAL TALUK, SOUTH KANARA DISTRICT. SUPPL 6: P.S. KRISHNA BHAT, S/O. S. PARAMESWARA BHAT, RESIDING AT KANJARPANE HOUSE, DODDATHOTA VILLAGE, SULLIA TALUK, POST KUKKUJADKA, SOUTH KANARA DISTRICT. (IMPLEADED AS PER ORDER IN I.A.NO.3826 OF 2007 IN O.P.NO.28574 DTD. 5.3.2009) BY ADV. MR.D.KRISHNA PRASAD MR.JOJI VARGHESE OP.No. 28574 of 2000 RESPONDENT(S): --------------------- 1. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF LAND REVENUE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE REVENU DIVISIONAL OFFICER, KASARAGOD AT KANHANGAD. 4. THE SPECIAL TAHSILDAR (LA), KASARAGOD. 5. KADEEJAMMA, W/O. ABDULKHADER, RESIDING AT KUNDEKATTE,MAIRE VILLAGE, POST MAIRE (VIA) PERDALA, KASARAGOD DISTRICT. GOVERNMENT PLEADER MS. SMITHA SUKUMAR FOR R1 TO R4 MR. GRASHIOUS KURIAKOSE FOR R5 MR. K.A.LALAN FOR R5 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 28574 of 2000 ORDERS ON C.M.P.NOS. 48153/00 AND 61756/2001 IN O.P.NO.28574 OF 2000 CLOSED. 5.3.2009 SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF ORDER BEARING NO.L.A.NO.43/91 DTD 29.3.1993 OF THE 4TH RESPONDENT. EXT.P1(a): COPY OF ENGLISH TRANSLATION OF EXT.P1. EXT.P2: COPY OF ORDER BEARING NO.D.DIS. 2324/99(AA 9/97) DATED 28.2.1999 OF R3. EXT.P3: COPY OF ORDER BEARING NO.L.R. (J2) 13029/99/D.DIS. DATED 2.8.2000 OF R2. EXT.P4: COPY OF REPLY BEARING NO.C4-46938/2002 DTD 4.11.2005 SENT BY THE DISTRICT COLLECTOR, KASARAGOD TO THE DISTRICT LEGAL SERVICES AUTHORITY, KASARAGOD. EXT.P5: COPY OF ORDER BEARING NO.DR-10395/58/MAIRE/L5 DATED 3.6.2005 OF THE TAHSILDAR, KASARAGOD. EXHIBIT IN I.A.NO.3827/08 EXT.P5: COPY OF LETTER NO.L5.21970/04 DTD 30.7.2005 SENT BY THE TAHSILDAR, KASARAGOD TO THE CHAIRMAN, DISTRICT LEGAL SERVICES AUTHORITY, KASARAGOD. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 28574 OF 2000 ---------------------------------------- Dated this the 5th day of March, 2009 JUDGMENT The issue involved in this original petition is the competing claims between the petitioner on the one hand and the 5th respondent on the other, for assignment of certain lands. The land was assigned to the 5th respondent by Ext.P1 order. The petitioner challenged the same on the ground that the said land is kumki land. The petitioner claims to have submitted applications for assignment of the land as kumki to his other kadim warg land, prior to 6.12.1968 and therefore, he claims that he is entitled to preference in the matter of assignment by virtue of Rule 7A of the Kerala Land Assignment Rules. The petitioner's appeal in this regard before the 3rd respondent found favour with him on the ground that since the land in question was within two chains from the kadim warg land of the petitioner, the petitioner should have been given notice prior to assignment of the land. Accordingly, the 3rd respondent, by Ext.P2 order set aside Ext.P1 order and remanded the matter to the 4th O.P.No.28574/2000 2 respondent for fresh disposal as per law after giving sufficient opportunity of being heard to the petitioner herein. Dissatisfied with that order, the 5th respondent filed a revision before the 2nd respondent. By Ext.P3 order, the 2nd respondent set aside Ext.P2 order on the ground that the petitioner had not been able to prove that he had filed any application for assignment prior to 6.12.1968 as required under Rule 7A of the Act and therefore, he cannot challenge the assignment in favour of the 5th respondent. The petitioner is challenging Ext.P3 order. 2. The petitioner's contention is that his specific case all along was that he has submitted applications much prior to 6.12.1968 which have been registered as DR No.10395/58, DR No.13/61-62, DR No.223/62/F and DR No.112/84 etc. He points out that nobody has so far denied that the petitioner had not filed such applications. On the other hand, the contention has only been that those records could not be traced out. The petitioner asserts that, that itself is wrong and those applications are still there in the files. The petitioner has filed I.A.No.3827/08 producing Ext.P5 letter from the Tahsildar, Kasaragod to the Chairman, District Legal Services O.P.No.28574/2000 3 Authority, Kasaragod dated 30.7.2005 in which it is specifically admitted that applications L.A.No.10395/58 and L.A.No.112/84 are available in the file. It is further stated in Ext.P5 that several applications have been clubbed together in L.A.No.10395/58 and that application Nos.13/61-62 and L.A.223/62 are not available and connected registers are also not available. Ext.P5 is not disputed by the respondents. In fact, it has been issued pursuant to notice from the District Legal Services Authority in an attempt to settle the matter in the Lok Adalath. That being so, Ext.P5 clearly shows that the finding in Ext.P3 that the petitioner has not produced any proof that he had filed applications prior to 6.12.1968 is clearly wrong and unsustainable. In fact that is the only reason mentioned in Ext.P3 to set aside Ext.P2. Therefore, Ext.P3 is liable to be quashed. I do so. Consequently, Ext.P2 stands restored. Appropriate orders, pursuant to Ext.P2, shall be passed by the 4th respondent, after affording an opportunity of being heard to the petitioner as well as the 5th respondent as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. 3. The learned Government Pleader points out that O.P.No.28574/2000 4 L.A.No.10395/58 does not relate to this property. I am not expressing any opinion about the same. I make it clear that I have not considered whether the applications referred to by the petitioner relate to this property. It is for the 4th respondent to take evidence and decide the matter in accordance with law. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.28574/2000 5