IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 OP(C).No. 713 of 2011(O) ------------------------ AGAINST THE ORDER DATED 13/12/2010 IN IA.32/10,IA.73/10 IN RC.2/2007 of LAND TRIBUNAL, KASARGOD .................... PETITIONER ------------------ GIRIDHAR NAYAK, AGED 61 YEARS, S/O.LATE K.RAMA NAYAK,SANTHI NIVAS, KARANDAKAD, ADKATHBAIL VILLAGE,KASARAGOD P.O., KASARAGOD DISTRICT BY ADV. SRI.PAUL MATHEW (PERUMPILLIL) SRI.PRASUN.S RESPONDENT(S): --------------- SRIMAD ANANTHESHWARA TEMPLE,MANJESHWAR REP.BY THE PRESIDENT OF COUNCIL OF TRUSTEES, HOSABETTU VILLAGE,P.O.MANJESHWAR, KASARAGOD DISTRICT-PIN-671323 ADV. SRI.R.LAKSHMI NARAYAN FOR R1 SMT.R.RANJINI FOR R1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 713 of 2011(O) ------------------------ PETITIONER'S EXTS: EXT.P1:- COPY OF THE PLAINT IN O.S.NO.431 OF 2004 BY THE RESPONDENT BEFORE THE PRL.MUNSIFF'S COURT, KASARAGOD. EXT.P2:- COPY OF THE WRITTEN STATEMENT IN O.S.NO.431 OF 2004 BY THE PETITIONER HEREIN BEFORE THE PRL.MUNSIFF'S COURT, KASARAGOD EXT.P3:- COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER BEFORE LAND TRIBUNAL, KASARAGOD. EXT.P4:- COPY OF REPORT FILED BY THE SPECIAL REVENUE INSPECTOR BEFORE THE LAND TRIBUNAL, KASARAGOD. EXT.P5:- COPY OF OBJECTIONS TO THE REPORT OF THE SPECIAL REVENUE INSPECTOR BEFORE THE LAND TRIBUNAL, KASARAGOD, FILED BY THE RESPONDENT HEREIN. EXT.P6:-COPY OF OBJECTIONS TO THE REPORT OF THE SPECIAL REVENUE INSPECTOR BEFORE THE LAND TRIBUNAL, KASARAGOD FILED BY THE PETITIONER HEREIN DT.10.12.2008. EXT.P7:- COPY OF I.A.NO.32 OF 2010 FILED BY THE PETITIONER BEFORE THE LAND TRIBUNAL, KASARAGOD. EXT.P8:-COPY OF COUNTER TO I.A.NO.32 OF 2010 FILED BY THE RESPONDENT HEREIN BEFORE THE LAND TRIBUNAL, KASARAGOD. EXT.P9:- COPY OF ORDER DTD.26.4.2010 IN I.A.NO.32/2010 PASSED BY THE LAND TRIBUNAL, KASARAGOD. EXT.P10:-COPY OF I.A.NO.73/2010 FILED BY THE PETITIONER BEFORE THE LAND TRIBUNAL, KASARAGOD. EXT.P11:- COPY OF COUNTER TO I.A.NO.73 OF 2010 FILED BY THE RESPONDENT HEREIN BEFORE THE LAND TRIBUNAL, KASARAGOD. EXT.P12:- COPY OF ORDER DTD.13.12.2010 IN I.A.NO.73/2010 PASSED BY THE LAND TRIBUNAL, KASARAGOD. RESPONDENT'S EXTS: NIL /TRUE COPY/ P.A.TO JUDGE K.T.SANKARAN, J. ------------------------------ O.P(C)No.713 OF 2011 ------------------------------ Dated this the 27th day of May, 2011 JUDGMENT The respondent instituted O.S.No.431 of 2004 on the file of the Court of the Principal Munsiff of Kasaragod against the petitioner for eviction from the petition schedule building. The petitioner herein contended that he is a cultivating tenant and that the question of tenancy should be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The trial court rejected the prayer for reference. That order was challenged by the petitioner in W.P.(C) No.18649 of 2005, which was dismissed by the judgment dated 24th November, 2006. This court held thus: O.P(C)No.713 OF 2011 2 “Whatever evidence he has produced relates to the building only. Even Exhibit P6 produced by the petitioner in this Court also relates only to the building. Further, if he was actually a cultivating tenant, there was no necessity to execute a lease deed like Exhibit P4 in 1985. After having executed a lease deed in respect of the building in question in the year 1985, without even mentioning that the same is a continuation or renewal of any earlier lease, the petitioner cannot now contend that he is a cultivating tenant of the land other than the building as a continuation of any earlier lease prior to 1964. According to me Exhibit P4 lease deed itself is more than sufficient to negative the claim of the petitioner that a question of tenancy arises in the suit.” 2. Thereafter the petitioner/defendant filed an application to amend the written statement raising a claim of kudikidappu. The question whether the petitioner is a kudikidappukaran was referred to the Land Tribunal. The petitioner filed I.A.No.32 of 2010 in R.C.No.2/2007 before the Land Tribunal, Kasaragod to appoint a Commissioner to ascertain O.P(C)No.713 OF 2011 3 the value of the building. That application was dismissed by Ext.P9 order dated 26.4.2010. The Land Tribunal held thus: “In consideration of the arguments of the respondents side I am of the view that the I.A. is only to be dismissed for the time being. It is also made clear that the petitioner is free to move this court with such an application and to reopen the I.A. if the respondent fails to prove the value of the house at the time of construction with documentary evidences.” 3. Thereafter, the petitioner filed I.A.No.73 of 2010 to reopen I.A.No.32 of 2010 and to appoint an Advocate Commissioner. The Land Tribunal dismissed I.A.No.73 of 2010 by Ext.P12 order dated 13th December, 2010, which is under challenge in this Original Petition. 4. The learned counsel for the petitioner submitted that the finding of the Land Tribunal that O.P(C)No.713 OF 2011 4 an Advocate Commissioner is not an expert and therefore, no inspection could be made by him, is illegal and unsustainable. He also submitted that the Commissioner can, after inspection of the building file a detailed report, which would be useful for the Land Tribunal to adjudicate upon the disputed questions involved in the case. 5. The learned counsel for the respondent submitted that documents were produced before the Land Tribunal to show that the building was constructed by the Devaswom. Those documents included the estimate for the construction, resolution passed by the Devaswom Committee etc. It is submitted that when an estimate is prepared and the construction is made by the Devaswom, it cannot be said that the cost of construction would be O.P(C)No.713 OF 2011 5 different from the figures mentioned in the estimate or any other records relating to the construction. The counsel submitted that it is not necessary to appoint an Advocate Commissioner . 6. It is true that the documents produced by the Devaswom before the Land Tribunal would be relevant for determination of the disputes involved in the case. At the same time, if some additional materials can be produced in the form of a Commission report, that would also be useful for deciding the disputes involved in the case. It is also possible for the Commissioner to ascertain the nature and cost of construction of the building with reference to the documents produced by the Devaswom and also with reference to the report of the village officer and the PWD Engineer which are O.P(C)No.713 OF 2011 6 said to be produced before the Land Tribunal. It is not proper to shut out evidence on the ground that the Advocate Commissioner may not be an expert. Even if a report is submitted by the Advocate Commissioner that does not mean that his findings and observations are conclusive. It is for the Land Tribunal to consider the report and to decide whether the report is liable to be accepted or not. In the facts and circumstances of the case, the Land Tribunal was not justified in dismissing the application for appointment of a Commissioner. Accordingly, the Original Petition is allowed. The order dated 13th December, 2010 in I.A.No.73 of 2010 in I.A.No.32 of 2010 in R.C.No.2 of 2007 is set aside. The Land Tribunal shall appoint an experienced Advocate Commissioner for inspection of O.P(C)No.713 OF 2011 7 the disputed building and for filing a report and sketch. The Land Tribunal shall issue directions to the Commissioner to file the report as expeditiously as possible. After filing the report, the Land Tribunal shall expedite the proceedings. K.T.SANKARAN, JUDGE. cms