IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 31ST JULY 2008 / 9TH SRAVANA 1930 LA.App..No. 235 of 2006() ------------------------- LAR.14/2003 of SUB COURT, KASARAGOD .................... APPELLANTS: CLAIMANTS A TO E: ------------------------------------ 1. RABIYA, W/O. LATE ANDULLAH, BEHIND C.P.C.R.I., BEACH ROAD, KUDLUR VILLAGE, KASARAGOD DISTRICT. 2. MUHAMMED KUNHI, S/O. LATE ABDULLA, DO. DO. 3. ZOOHARA, D/O. LATE ABDULLAH, DO. DO. 4. MOIDEEN KUNHI, S/O. LATE ABDULLA, DO. DO. 5. MARIYAMBI, D/O. LATE ABDULLAH, DO. DO. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENTS:RESPONDENTS: ---------------------------------- 1. THE DISTRICT COLLECTOR, KASARAGOD. 2. THE DEPUTY CHIEF ENGINEER, CONSTRUCTION, SOUTH RAILWAY, KANNUR. R1 BY GOVT. PLEADER SMT.LATHA T.THANKAPPAN THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - L.A.A. No.235 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 31st July, 2008 JUDGMENT This is an appeal by the claimants who are aggrieved by the award of the reference court declining their claim for enhanced land value in full and claim for value of improvements in part. 2. I have heard the submissions of Mr.Kodoth Pushparajan, counsel for the appellants and Smt.Latha T.Thankappan, learned Government Pleader. 3. I was taken by Mr.Kodoth Pushparajan through the judgment of the reference court in full. Mr.Pushparajan drew my attention to paragraph 4 in the statement of facts in the appeal memorandum and he submitted that having dismissed the commission application filed by the appellants, it was not at all proper on the part of the learned Subordinate Judge to have blamed the appellants in not taking out a commission. 4. The records reveal that the appellants did file I.A.No.586/05 for issuance of a commission. But that I.A. was dismissed by the learned Subordinate Judge on 24.8.2005, obviously the day to which the case stood posted for hearing. The reason stated in the order dismissing the commission application is that the application has been LAA No.235/06 - 2 - filed at a belated stage and therefore the same is without bona fides. Whatever be the reason, I am of the view that the learned Subordinate Judge is not justified in blaming the appellants for not taking out a commission, even on terms the application could have been allowed by the learned Subordinate Judge. 5. Under the above circumstances, I am inclined to remit the matter back to the reference court directing that court to allow I.A.No.586/05. Since the matter is being remitted to the reference court, that court will grant opportunity to both sides to adduce whatever further evidence they have at their command for substantiating their rival claims. Accordingly allowing the appeal I set aside the judgment and decree under appeal and remand LAR No.14/2003 back to the Subordinate Judge's Court, Kasaragod. That court will pass revised judgment in the light of the evidence coming on record after allowing the commission application (I.A.No.586/05) and after allowing opportunity to both sides to adduce further evidence. The reference court will pass revised judgment within six months of receiving this order of remand. Refund the full court fee paid on the appeal memorandum to the counsel for the appellants. srd PIUS C.KURIAKOSE, JUDGE LAA No.235/06 - 3 -