IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 OP.No. 15839 of 2001(I) ----------------------- PETITIONER(S): --------------- 1. C.H.ABDURAHIMAN, S/O CHOLATTUKKAL MOHAMMED MUNDAKOLLI, NENINI AMSOM AND DESOM, POST MOOKUTHU KUNNU, WYNAD DISTRICT. 2. K.M. DANIAL, S/O MATHAN, NENMINI AMSOM AND DESOM, POST MOOKUTHIKUNNU, WYNAD DISTRICT. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S): --------------- 1. THE COMMISSIONER OF LAND REVENUE, TRIVANDRUM 2. DISTRICT COLLECTOR, WYNAD, KALPETTA. 3. ADMINISTRATIVE OFFICER, AMBALAVAYAL, WYNAD. *(DIED) 4. K.SANKARAN NAMBIAR, S/O KORAN NAMBIAR, NENMINI AMSOM AND DESOM, POST CHEERAL, WYNAD DISTRICT ADDL.RESPONDENTS 5. PARVATHY AMMA, W/O. LATE SANKARAN NAMBIAR, MULAVANKOLLY, CHEERAL P.O., WYNAD - 673 595. 6. KAMALA, D/O LATE SANKARAN NAMBIAR, MULAVANKOLLY, CHEERAL P.O., WYNAD - 673 595. 7. VALLY, D/O LATE SANKARAN NAMBIAR, MULAVANKOLLY, CHEERAL P.O., WYNAD - 673 595. 8. THANKAMMA, D/O LATE SANKARAN NAMBIAR, MULAVANKOLLY, CHEERAL P.O., WYNAD - 673 595. 9. MOHANDAS, S/O LATE SANKARAN NAMBIAR, MULAVANKOLLY, CHEERAL P.O., WYNAD - 673 595. 10.USHA, D/O LATE SANKARAN NAMBIAR, MULAVANKOLLY, CHEERAL P.O., WYNAD - 673 595. 11.PRASANNA, D/O LATE SANKARAN NAMBIAR, MULAVANKOLLY, CHEERAL P.O., WYNAD - 673 595. 12.SATHYANARAYANAN, S/O LATE SANKARAN NAMBIAR, MULAVANKOLLY, CHEERAL P.O., WYNAD - 673 595. R1 TO R3 BY GOVT. PLEADER SMT.SANJEETHA * ADDITIONAL RESPONDENTS 5 TO 12 ARE IMPLEADED AS PER ORDER DATED 23.03.2007 IN IA NO:2961/07. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/11/2011, ALONG WITH OP NO. 28730 OF 2001 THE COURT ON 03/12/2011 DELIVERED THE FOLLOWING: BKA OP.No. 15839 of 2001(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF JUDGMENT OF THIS HON'BLE COURT IN OP NO.1767/1973 DATED 31.08.1976. EXT.P2 COPY OF JUDGMENT OF SUB COURT, KOZHIKODE DATED 24.09.1984 IN OS NO.91/1981. EXT.P3 COPY OF ORDER OF THE 2ND RESPONDENT DATED 27.06.1989 TO THE PETITIONERS. EXT.P4 COPY OF REVISION PETITION FILED BY PETITIONERS TO THE 1ST RESPONDENT. EXT.P5 COPY OF REVISION PETITION FILED BY THE PETITIONERS TO THE BOARD OF REVENUE - 1ST RESPONDENT DATED 20.10.1989. EXT.P6 COPY OF ORDER DATED 01.12.1989 OF THE 1ST RESPONDENT TO THE PETITIONERS COUNSEL SRI. K.K.SANDARA GANAKAN. EXT.P7 COPY OF THE JUDGMENT DATED 18.12.1998 IN S.A. NO.438/90 OF THIS HON'BLE COURT. EXT.P8 COPY OF PROCEEDINGS NO.LR(H)1-138/2000/D.DIS DATED OF THE 1ST RESPONDENT. EXT.P9 COPY OF THE DECREE DATED 18.12.1998 IN S.A.NO.438/90 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// PA TO JUDGE BKA ANTONY DOMINIC, J. ---------------------------------------------- OP NO. 15839 OF 2001 & OP NO. 28730 OF 2001 ---------------------------------------------- Dated this the 3rd day of December, 2011 J U D G M E N T Issues raised in these cases are common and therefore, these cases are heard together and are disposed of by this common judgment, treating OP No:15839/2001 as the leading case. 2. Under the provisions of the Wynad Colonisation Scheme, 'patta' was issued to the 1st petitioner on 06.12.1973 assigning him 5 acres of dry land in Survey No: 2283 and 2 acres of wet land in Survey No: 683/1 of Nenmeni Village. Soon thereafter, the 4th respondent filed OS No:35/74 before the Munsiff's Court praying for decree of injunction, claiming that he was in possession of the wet OP NO. 15839 OF 2001 ..2.. land assigned to the 1st petitioner. The suit was decreed by the Munsiff's Court finding that the plaintiff was in possession of the land. 3. 1st petitioner filed AS No:340/75 before the District Court. Subsequently, the appeal was made over to the Sub Court and was renumbered as AS No:229/75. The Sub Court finally set aside the decree and judgment and remanded the case for fresh disposal to the trial court. Accordingly, trial court considered the matter as fresh, and by judgment and decree rendered on 02.12.1978, dismissed the suit. 4. While matters stood thus, on 27.01.1979, the 1st petitioner assigned the land to the 2nd petitioner. Meanwhile, 4th respondent filed AS No:40/79 against the trial court decree and the appellate court set aside the judgment and decree, and remanded the matter again for OP NO. 15839 OF 2001 ..3.. fresh consideration. The trial court again considered the suit, and by judgment and decree rendered on 19.07.1980, the suit was decreed. 5. Meanwhile, OP No:1767/1973 was filed by 4th respondent challenging the 'patta' granted to the 1st petitioner. That original petition was heard by this Court, and by Ext.P1 judgment rendered on 31.08.1976, the original petition was dismissed. There was no appeal against the said judgment and this judgment attained finality. 6. Subsequently, on the strength of the 'patta' issued in favour of the 1st petitioner and Ext.P1 judgment dismissing OP No:1767/73 filed by the 4th respondent, petitioners filed OS No:91/81 before Sub Court, Kozhikode, for recovery of possession of the land from the 4th respondent. During the pendency of the suit, on 25.03.1982, based on the judgment OP NO. 15839 OF 2001 ..4.. and decree in OS No:35/74, the Administrative Officer issued 'patta' in respect of the wet land to the 4th respondent, canceling the 'patta' that stood in favour of the 1st petitioner. 7. Aggrieved by this, petitioner filed revision petition to the Board of Revenue, which by order dated 08.04.1988 set aside the assignment in favour of the 4th respondent and remanded the matter for fresh consideration by the District Collector. Accordingly the Collector, considered the matter fresh and Ext.P3 order rendered on 27.06.1999, upholding the 'patta' in favour of the 4th respondent. Against this order of the District Collector, petitioner filed Ext.P4 revision to the Board of Revenue along with the application for stay. The stay petition was rejected by order dated 16.09.1989 and review petition filed was also rejected. These orders of the Board of Revenue were challenged before this Court in OP No:780/90 filed by the petitioners. OP NO. 15839 OF 2001 ..5.. 8. In the meanwhile, the 4th respondent filed AS No:318/84, aggrieved by judgment and decree in OS No:91/81. The appeal was dismissed and thereupon, SA No:438/90 was filed before this Court. OP No: 780/90 and SA No:438/90 were considered together and were disposed of by Ext.P7 judgment. The second appeal was dismissed. Original petition was disposed of directing the Land Revenue Commissioner to dispose of Ext.P4, revision petition, filed by the petitioners. Accordingly, the land revenue commissioner considered the matter fresh and passed Ext.P8 order. In Ext.P8 order, the Land Revenue Commissioner held that the assignments in favour of the 1st petitioner and 4th respondent were invalid, and canceling the assignments, he remitted the matter back to the District Collector for fresh consideration. It is aggrieved by this order of the Land Revenue Commissioner, petitioners filed this writ petition. 4th respondent has also filed OP OP NO. 15839 OF 2001 ..6.. No.28730/2001 challenging the very same order of the Land Revenue commissioner. 9. While the learned senior counsel appearing for the petitioner in OP No.15839/2001 relied on Exts.P7 and P1 judgments of this Court, the petitioner in OP No:28730/2001 relied on the judgment and decree in OS No:35/74 and the 'patta' issued in his favour on 29.03.1982. 10. I have considered the submissions made. As already seen, in so far as OP No:15839/2001 is concerned, it was by Ext.P7 judgment of this Court that the Land Revenue Commissioner was directed to dispose of the revision petition filed by the petitioners. In that judgment, this Court specifically directed that the revision shall be disposed of in accordance with law and in the light of judgment in OP No:1767/73 and also taking into account the decree in OS No:91/81. These documents are Exts.P1 OP NO. 15839 OF 2001 ..7.. and P2 in OP No:15839/2001. In spite of such clear directions, reading of Ext.P8, the order passed by the Land Revenue Commissioner, show that this order has been passed without even referring to the aforesaid two judgments. For that reason itself, the order passed by the Land Revenue Commissioner is vitiated and cannot be sustained. 11. In so far as OP No:28730/2001 is concerned, this original petition has been filed by the 4th respondent in OP No:15839/2001 challenging the order of the Land Revenue Commissioner, placing reliance on the assignment in favour of the petitioner therein and the decree and judgment in OS No:35/1974. As far as the judgment and decree of the Civil Court is concerned, that is only one of injunction based on possession and such a judgment even if it became final, cannot prevent the petitioners in OP No:15839/2001 from working out their remedies on the strength of the judgment OP NO. 15839 OF 2001 ..8.. and decree in OS No:91/81, which has been confirmed by this Court in Ext.P7. Therefore, the said judgment and decree cannot be of much assistance to the petitioners. The assignment in his favour, also cannot improve his case in any manner. 12. On an overall consideration of the order passed by the Land Revenue Commissioner (Ext.P8 in OP No:15839/2001), I am satisfied that this order has not been passed in compliance with the directions of this Court in OP No:780/90. Therefore, Ext.P8 order in OP No:15839/2001, which also has been produced as Ext.P4 in OP No:28730/2001 is set aside. 13. The Land Revenue Commissioner is directed to issue notice to the parties herein and pass fresh orders on Ext.P4 revision filed by the petitioner in OP No:15839/2001. This shall be done as expeditiously as possible and, at any OP NO. 15839 OF 2001 ..9.. rate, within three months of receipt of a copy of this judgment. In the result, OP No:15839/2001 is disposed of as above and OP No:28730/2001 is dismissed. ANTONY DOMINIC, JUDGE bka/-