M.A.YOUSUF Vs. STATE OF KERALA

JUDGEMENT

(1.) The issue involved in this writ petition has got a chequered history. One Sri. Abbas, father of the petitioner and maternal grandfather of respondent No. 5, was assigned with land having an extent of 0.53 Acres comprised in Resurvey No. 139/3 of Thekkil Village in Kasaragod Taluk. The order of assignment was issued on 18/02/1967 by the 4th respondent Tahsildar. After the lapse of about 34 years, the 5th respondent filed an appeal challenging the assignment, before the 3rd respondent. The appeal was filed when an application for assignment of the same land, submitted by the 5th respondent during the year 2001, was rejected for the reason that land in question stands already assigned in favour of Sri. Abbas. Contentions raised in the appeal was that, Sri. Abbas had executed a Gift Deed in the year 1964 in favour of the 5th respondent and his siblings, transferring property having an extent of 0.75 Acres comprised in RS No. 139/2 and 0.53 Acres in RS No. 139/4. According to the 5th respondent the property of 0.53 Acres in RS No. 139/3, which was assigned in favour of Sri. Abbas, is situated in the middle of the properties gifted and the said property was in the possession of the donees even at the time when the assignment was made in favour of Sri. Abbas. It seems that the assignment was challenged on the ground that the assignee was not having possession over the land at the relevant time.

(2.) Originally, the appeal was dismissed through Ext. P1 finding that the 5th respondent was having only the age of 7 years at the time when the assignment was made, and therefore he cannot be said to be in beneficial enjoyment of the land at that time. It was also found that the 5th respondent has got 1.28 Acres of land in his ownership and therefore no assignment can be made in favour of him. Ext. P1 order was taken up in revision before the 2nd respondent. The revisional authority had remanded the matter through Ext. P2 order, observing that the Appellate Authority had not decided the issue on the basis of relevant factual and legal positions. The 3rd respondent was directed to dispose of the appeal afresh, after hearing both sides and after examining the case with reference to relevant provisions in the Kerala Land Assignment Rules, 1964, especially to R.8(3) (mistakenly mentioned as R.8(2) in Ext. P2 order). The matter was considered afresh and disposed of by the 3rd respondent through Ext. P3 order. The 3rd respondent found that the assignment was after execution of the Gift Deed with respect to properties comprised in RS No. 139/2 and 139/4. Hence it was found that the assignment was ordered without properly verifying the possession. Observations in Ext. P3 is to the effect that, the assigned plot must have situated sandwiched in between the properties gifted. The 3rd respondent had arrived at a conclusion, on the basis of a site inspection conducted, in which it is observed that a portion of the RCC residential building of the 5th respondent falls within the assigned land. It is further found that the land in question contains Bore well, Pump shed, Coconut trees and Jack trees claimed to be in possession of the 5th respondent and therefore there is evidence to show that the land is in the possession of the 5th respondent. The 3rd respondent had remanded the case back to the 4th respondent Tahsildar "to revise the case", after considering all facts in strict conformity with the Kerala Land Assignment Rules. The petitioner challenged Ext. P3 order in revision before the 2nd respondent. Through a cryptic order (Ext. P4), the revision was disposed of finding that the 3rd respondent was convinced that the issue is complicated enough to warrant detailed re - examination and therefore the order of the 3rd respondent has to be complied with. This writ petition is filed challenging Ext. P3 which is confirmed through Ext. P4.

(3.) In the counter - affidavit filed by the 5th respondent it is contended that the impugned assignment was not within the knowledge of the 5th respondent. The assigned property is situated between properties comprised in RS 139/4 and RS 139/2, and the entire properties are lying as a compact plot surrounded by common boundary in the possession and enjoyment of the 5th respondent and his brothers and sisters. According to the 5th respondent, the assignment in favour of Sri. Abbas was obtained by suppressing facts and by misrepresenting the authorities. It is contended that there is no infirmity with respect to Exts. P3 and P4 orders.