P.Divakaran Vs. P.Kamalam - Court Judgment

SooperKanoon Citationsooperkanoon.com/1016777
CourtKerala High Court
Decided OnJul-23-2013
JudgeHONOURABLE MR.JUSTICE P.N.RAVINDRAN
AppellantP.Divakaran
RespondentP.Kamalam
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice p.n.ravindran tuesday, the 23rd day of july 2013 1st sravana, 1935 crp(lr).no. 382 of 201.() --------------------------- against the order in o.a. no. 145/1974 of land tribunal, badagara dated 25 02-1976 ----------------------------- revision petitioner/2nd petitioner/2nd appellant : --------------------------------------------------------------------------------- p.divakaran, aged 6 years, s/o.devaki, valiyaparambathu hosue, nadakuthazha amsom, puthur desam, near puthur vishnu temple, nut street, vatakara, kozhikode dist-pin-673104. by advs.sri.p.s.krishna pillai smt.s.anjusha respondent(s)/respondents 1 to 9 & 11 to 25.respondents 1 to 9 & 11 to 2.: ----------------------------------------- 1. p.kamalam, aged 6 years, d/o.devaki, 184 karuppakkal colony, near avanashi road fly over , combatore-641018.2. k sudarshanan, aged 4 years, business, s/o.kamalam, 184 karuppakkal colony, near avanashi road fly over, coimbatore-641018.3. indulekha vidya, aged 4 years, d/o.kamalam, employed, 'nirmalyam', door no 9/7, maraboyan street, rathnainpura, coimbatore, tamil nadu, pin-641027.4. sushil kumar, aged 4 years, s/o.kamalam, business, 184 karuppakkal colony, near avanashi road fly over, combatore-641018.5. v p rajendran, aged 5 years, s/o.devaki, puthur desam, nadakuthazha amsam, valiyaprambath, near puthur vishnu temple, nut street, vatakara, kozhikode dist., pin-673104 6. v p vasanthakumar, aged 5 years, d/o. devaki, muttungal amsam, muttungal desam, 'basand', near msup school, muttungal west vadakara-673106, kozhikode dist. ns 2/- -2- crp(lr).no. 382 of 201.() 7. bindu, aged 3 years, d/o.vasanthakumari, muttungal amsam, muttungal desam 'basand', near msup school, muttungal west, vadakara-673106, kozhikode dist.8. sandeep,aged 3 years, s/o.vasanthakumari, muttungal amsam, muttungal desam, 'basand', near msup school, muttungal west, vadakara-673106, kozhikode dist 9 v p rama, aged 5 years, d/o.devaki, vadakara amsam, desam'ganga', punathil, pazhankavu, vatakara-673104, kozhikode district.10. v p indira devi, aged 4 years, d/o.devaki, iringal desam, payyoli amsam, 'kalyan', kottakkal post, via iringal vila kolavipalam, kozhikode dist,pin-673521.11. v p rajamohanan, aged 4 years s/o.devaki, puthur desom, nadakuthazha amsam, valiyaparambath, near puthur vishnu temple, nut street, vatakara, kozhikode district. pin-673104.12. v.p.jagannathan, , aged 4 years, s/o.devaki now having address at k.d. packers buildings, 4th floor, behind royal park hotel, nagar road, vayoli, pune, pin-412207.13. narayani, aged 6 years w/o.gopalan, vatakara amsam desam, cheeramveettil, narayana nagar, vatakara-673101, kozhikode district.14. kamala, aged 4 years d/o.gopalan, employed, vatakara amsam desam cheeramveetil, narayana nagar, vatakara-673101. kozhikode district.15. vanaja, aged 4 years d/o.gopalan, vatakara amsom desam, cheeramveettil narayana nagar, vatakara-673101, kozhikode dist.16. vasantha , aged 4 years d/o.gopalan, vatakara amsam desam, cheeramveettil narayana nagar, vatakara-673101, kozhikode dist 17 sumathi, aged 3 years d/o.gopalan, vatakara amsam desam, cheeramveettil narayana nagar, vatakara-673101, kozhikode dist 18 malathi, aged 3 years, d/o.gopalan, vatakara amsam desam, cheeramveettil, narayana nagar, vatakara-673101, kozhikode dist ns 3/- -3- crp(lr).no. 382 of 201.() 19. vilasini, aged 3 years, d/o.gopalan, vatakara amsam desam, cheeramveettil, narayana nagar, vatakara-673101, kozhikode dist, 20. umesh kumar, aged 3 years s/o.gopalan, employed, vatakara amsam desam, cheeramveettil, narayana nagar, vatakara-673101 kozhikode dist.21. biju , aged 3 years, s/o.gopalan, vatakara amsom desom, cheeramveettil narayana nagar, vatakara-673101, kozhikode dist 22 sreenivasan,aged 6 years s/o.pokkan, pallinde keezhil, puduppanam desom and nadakkuthazha amsam,(via) kottakadavu, vatakara-673105, kozhikode dist.23. arunkumar, aged 3 years, s/o.sreenivasan, pallinde keezhil puduppanam desom and nadakkuthazha amsam,(via) kottakadavu, vatakara-673105, kozhikode dist 24 archana sreenivasan, aged 2 years, d/o.sreenivasan, pallinde keezhil, puduppanam desam and nadakkuthazha amsam, (via) kottakadavu, vatakara-673105, kozhikode dist. addl. 25th respondent is impleaded 25 state of kerala, represented by the chief secretary, government of kerala, government secretariat, thiruvananthapuram. additional 25 h respondent is impleaded in crp.as per order dated 23 07.2013 in i.a. no.1875 of 2013.this crp (land reforms act) having come up for admission on 23-07-2013, the court on the same day passed the following: ns p.n.ravindran, j.----------------------------------------- c.r.p.(lr).no.382 of 2013 ----------------------------------------- dated this the 23rd day of july, 2013 order the son of the respondent in o.a.no.145 of 1974 on the file of the land tribunal, vatakara, has filed this civil revision petition challenging the order passed by the appellate authority (lr), kannur on 10.4.2013 dismissing i.a.no.168 of 2008 in a.a.no.56 of 2008, an application to condone the delay in filing a.a.no.56 of 2008. the petitioner and his mother had in a.a.no.56 of 2008 challenged the order passed by the land tribunal, vadakara on 25.2.1976 in o.a.no.145 of 1974 allowing the predecessor-in- interest of respondents 13 to 21 to purchase the kudikidappu right in respect of 5 cents of land situate in r.s.no.270/11 of vadakara village, vadakara taluk, kozhikode district. along with the appeal they filed i.a.no.168 of 2008 to condone the delay of 33= years in filing the appeal. in the affidavit filed in support of i.a.no.168 of 2008 to condone the delay in filing the appeal the petitioner's mother, who was the first appellant, had averred as follows:- "application filed under section 102(2) of the klr act by the appellants to condone the delay c.r.p.(lr)no.382/2013 -:2:- involved in filing the above appeal and to receive it on file. the oa above was filed by the applicant late gopalan against the first appellant claiming kudikidappu right over the property comprised in rs 270/11 and shown in the application. though the applicant was having property in his name stretched on three plots in vadakara municipality at the time of filing the application the land tribunal, vadakara setting aside the objections raised by the first appellant granted kudikidappu right to the applicant because the applicant's properties were remaining joint and undivided with the result that he had not at the time of the order either acquired or had been allotted any share or specific property to and for his share so as to attract proviso to explanation iia of section 2(25) of the klr act. that being the position of law then as declared by the kerala high court, no appeal was preferred against that order, there being no purpose in filing such an appeal at that time. but subsequently in 1978 a suit for partition of the joint properties of late gopalan was filed before the court of the subordinate judge, vadakara as os 46/78 in which the said gopalan was the second defendant. in that suit preliminary decree for partition of the three landed properties comprised in the suit was passed on and pursuant thereto application for final decree thereof was filed c.r.p.(lr)no.382/2013 -:3:- as i.a.1074/80 and final decree thereof was passed on 7.3.1984 by which 8.53 cents of land specified in item not c1 plot b was allotted to separate and exclusive share of the applicant. this property is located within a radius of 3 kilometers from the kudikidappu. with this allotment the applicant gopalan had ceased to be a kudikidappukaran on account of the disqualification above said being attracted and thus the forfeiting the right and status of kudikidappukaran as defined in the act section 75 (1)(iv), upon which the above impugned purchase certificate was issued to him. but the appellants were not aware of the above and the allotment of share therein to the said gopalan. the first appellant had filed a partition suit in the court of the subordinate judge, vatakara for partitioning her thavazhi and family properties as os 94/86 fdia 1747 88 in 1986 wherein the said property other than kudikidappu was listed in the 'b' schedule of the preliminary decree. the final decree proceedings are on and the new advocate commissioner, inspected 'b' schedule property with the taluk surveyor on 18.02.2008 and took measurement. it was found that the legal heirs of late gopalan, the holder, owner of the purchase certificate has encroached the land adjoining the kudikidappu over and above 5 cents stipulated in the purchase certificate. to cover up and regularise the c.r.p.(lr)no.382/2013 -:4:- above encroachment the legal heirs of gopalan on 10.04.2008 filed a suit os 93/08 and an ia 790/2008 in the munsiff court, vadakara, against the entry of appellants in their own land and claiming ownership right over 6.75 cents of land including 5 cents already obtained by the purchase certificate. copy of the suit and ia are attached. in that suit the second appellant is appearing for himself. for filing written statement and gather information for arguments the second appellant seeking enquiry got news on 10.06.08 of the final decree and allotment of share to the deceased gopalan on the partition suit concerning his family property. with the help of some of his friends the second appellant traced out, collected the number and details of that case. copy of the written statement filed on 14.7.08 is attached along with the appeal. we applied for a certified copy of the decree on 17.6.08 and received it on 16.7.08. certified copy of the final decree, share list and plan are attached with the appeal memo. on 14.7.08 we approached the land tribunal, calicut with a prayer for cancellation of purchase certificate no.133/76. but we are advised to prefer an appeal with the appellate authority. copy of the letter signed and issued on 24.7.08 is attached with the appeal. on 3.5.02 the first appellant obtained a c.r.p.(lr)no.382/2013 -:5:- certified copy of the order made in oa/145/74 on 25.2.'76. this appeal is filed against that order. we respectfully submit that klr act was enacted to protect the interest of landless tillers not to safeguard the interest of those who own land and dwell on others land to claim kudikidappu. the purchaser applicant and his wife have properties inherited in their name. that is not self acquired. late gopalan's wife has over 10 cents of land in her name. today in the kudikidappu land and the encroached land stands a two storeyed building, a bathroom, a toilet and a shed to store firewood. all these structures are later built and are part of the residence belonging to the legal heirs of the erstwhile kudikidappukaran. we having taken prompt steps for obtaining copy thereof from sub court, vadakara and land tribunal, calicut and thereupon filing the appeal, we have taken all due diligence and care in filing the appeal on the earliest available date with full interest and bonafides. if the impugned purchase certificate is allowed to stand, it would be a gross abuse of relevant provision of the klr act and miscarriage of justice so far as the appellants and the owners are concerned. as such the only cause and remedy that is available and open to us to redress our grievances c.r.p.(lr)no.382/2013 -:6:- in the above matter and to recover the property that is lawfully due to us is by filing the appeal above said. hence we pray that the delay in filing the appeal caused by the above special and peculiar circumstances, for which the applicants are in no way responsible, may kindly be condoned and the appeal may be received on file, otherwise the appellant's right in the impugned property would be irrevocably lost thus the appellants would be put to irreparable loss and injuries." 2. shorn of details, the principal contention raised in the application to condone the delay is that late gopalan who claimed kudikidappu right in respect of 5 cents of land in r.s.no.270/11 by filing o.a.no.145 of 1974 was in possession of other lands, that his wife was also in possession of more than 10 cents of land in her name and this fact was suppressed in the application for purchase of kudikidappu right. the appellate authority considered the said application and dismissed it on the ground that the delay of 33= years in filing the appeal has not been satisfactorily explained. from a reading of the affidavit filed in support of the application to condone the delay, it cannot be said that the order passed by the appellate authority is perverse or that it has not c.r.p.(lr)no.382/2013 -:7:- decided or failed to decide or it has erroneously decided a question of law. apart from vaguely alleging that the predecessor-in-interest of respondents 13 to 21 was in possession of other parcels of land which disentitled him to apply for purchase of the kudikidappu right, the particulars of the lands held by him (late gopalan) had not been set out in the affidavit filed in support of the application or even in the memorandum of appeal. though in the instant original petition an attempt has been made to furnish the details of the land held by late gopalan and it is contended that gopalan's family was in possession of over 22 cents of dry land as on 22.10.1974, prior to the date on which o.a.no.145 of 1974 was filed, there is no material whatsoever to indicate that as on the date on which late gopalan filed o.a.no.145 of 1974, he was in possession and enjoyment of any other parcel of land, either as a tenant or as owner. in such circumstances i am in agreement with the appellate authority that no grounds have been made out to condone the long delay of 33= years in filing the appeal. the appellants before the appellate authority have no case that they had no notice of the proceedings. they have no case that they were unaware of the c.r.p.(lr)no.382/2013 -:8:- order passed by the land tribunal. the case now put forward is one touching upon the eligibility to apply for purchase of the kudikidappu right. in the absence of any cogent material to show that as on the date of the application the applicant was in possession of other lands, either as a tenant or as owner, i find no grounds to entertain the challenge to the impugned order. the civil revision petition fails and is accordingly dismissed. p.n.ravindran, judge. ahg. p.n.ravindran, j.--------------------------- c.r.p.(lr).no.382 of 2013 ---------------------------- order 23rd july, 2013
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN TUESDAY, THE 23RD DAY OF JULY 2013 1ST SRAVANA, 1935 CRP(LR).NO. 382 OF 201.() --------------------------- AGAINST THE ORDER IN O.A. NO. 145/1974 OF LAND TRIBUNAL, BADAGARA DATED 25 02-1976 ----------------------------- REVISION PETITIONER/2ND PETITIONER/2ND APPELLANT : --------------------------------------------------------------------------------- P.DIVAKARAN, AGED 6 YEARS, S/O.DEVAKI, VALIYAPARAMBATHU HOSUE, NADAKUTHAZHA AMSOM, PUTHUR DESAM, NEAR PUTHUR VISHNU TEMPLE, NUT STREET, VATAKARA, KOZHIKODE DIST-PIN-673104. BY ADVS.SRI.P.S.KRISHNA PILLAI SMT.S.ANJUSHA RESPONDENT(S)/RESPONDENTS 1 TO 9 & 11 TO 25.RESPONDENTS 1 TO 9 & 11 TO 2.: ----------------------------------------- 1. P.KAMALAM, AGED 6 YEARS, D/O.DEVAKI, 184 KARUPPAKKAL COLONY, NEAR AVANASHI ROAD FLY OVER , COMBATORE-641018.

2. K SUDARSHANAN, AGED 4 YEARS, BUSINESS, S/O.KAMALAM, 184 KARUPPAKKAL COLONY, NEAR AVANASHI ROAD FLY OVER, COIMBATORE-641018.

3. INDULEKHA VIDYA, AGED 4 YEARS, D/O.KAMALAM, EMPLOYED, 'NIRMALYAM', DOOR NO 9/7, MARABOYAN STREET, RATHNAINPURA, COIMBATORE, TAMIL NADU, PIN-641027.

4. SUSHIL KUMAR, AGED 4 YEARS, S/O.KAMALAM, BUSINESS, 184 KARUPPAKKAL COLONY, NEAR AVANASHI ROAD FLY OVER, COMBATORE-641018.

5. V P RAJENDRAN, AGED 5 YEARS, S/O.DEVAKI, PUTHUR DESAM, NADAKUTHAZHA AMSAM, VALIYAPRAMBATH, NEAR PUTHUR VISHNU TEMPLE, NUT STREET, VATAKARA, KOZHIKODE DIST., PIN-673104 6. V P VASANTHAKUMAR, AGED 5 YEARS, D/O. DEVAKI, MUTTUNGAL AMSAM, MUTTUNGAL DESAM, 'BASAND', NEAR MSUP SCHOOL, MUTTUNGAL WEST VADAKARA-673106, KOZHIKODE DIST. NS 2/- -2- CRP(LR).NO. 382 OF 201.() 7. BINDU, AGED 3 YEARS, D/O.VASANTHAKUMARI, MUTTUNGAL AMSAM, MUTTUNGAL DESAM 'BASAND', NEAR MSUP SCHOOL, MUTTUNGAL WEST, VADAKARA-673106, KOZHIKODE DIST.

8. SANDEEP,AGED 3 YEARS, S/O.VASANTHAKUMARI, MUTTUNGAL AMSAM, MUTTUNGAL DESAM, 'BASAND', NEAR MSUP SCHOOL, MUTTUNGAL WEST, VADAKARA-673106, KOZHIKODE DIST 9 V P RAMA, AGED 5 YEARS, D/O.DEVAKI, VADAKARA AMSAM, DESAM'GANGA', PUNATHIL, PAZHANKAVU, VATAKARA-673104, KOZHIKODE DISTRICT.

10. V P INDIRA DEVI, AGED 4 YEARS, D/O.DEVAKI, IRINGAL DESAM, PAYYOLI AMSAM, 'KALYAN', KOTTAKKAL POST, VIA IRINGAL VILA KOLAVIPALAM, KOZHIKODE DIST,PIN-673521.

11. V P RAJAMOHANAN, AGED 4 YEARS S/O.DEVAKI, PUTHUR DESOM, NADAKUTHAZHA AMSAM, VALIYAPARAMBATH, NEAR PUTHUR VISHNU TEMPLE, NUT STREET, VATAKARA, KOZHIKODE DISTRICT. PIN-673104.

12. V.P.JAGANNATHAN, , AGED 4 YEARS, S/O.DEVAKI NOW HAVING ADDRESS AT K.D. PACKERS BUILDINGS, 4TH FLOOR, BEHIND ROYAL PARK HOTEL, NAGAR ROAD, VAYOLI, PUNE, PIN-412207.

13. NARAYANI, AGED 6 YEARS W/O.GOPALAN, VATAKARA AMSAM DESAM, CHEERAMVEETTIL, NARAYANA NAGAR, VATAKARA-673101, KOZHIKODE DISTRICT.

14. KAMALA, AGED 4 YEARS D/O.GOPALAN, EMPLOYED, VATAKARA AMSAM DESAM CHEERAMVEETIL, NARAYANA NAGAR, VATAKARA-673101. KOZHIKODE DISTRICT.

15. VANAJA, AGED 4 YEARS D/O.GOPALAN, VATAKARA AMSOM DESAM, CHEERAMVEETTIL NARAYANA NAGAR, VATAKARA-673101, KOZHIKODE DIST.

16. VASANTHA , AGED 4 YEARS D/O.GOPALAN, VATAKARA AMSAM DESAM, CHEERAMVEETTIL NARAYANA NAGAR, VATAKARA-673101, KOZHIKODE DIST 17 SUMATHI, AGED 3 YEARS D/O.GOPALAN, VATAKARA AMSAM DESAM, CHEERAMVEETTIL NARAYANA NAGAR, VATAKARA-673101, KOZHIKODE DIST 18 MALATHI, AGED 3 YEARS, D/O.GOPALAN, VATAKARA AMSAM DESAM, CHEERAMVEETTIL, NARAYANA NAGAR, VATAKARA-673101, KOZHIKODE DIST NS 3/- -3- CRP(LR).NO. 382 OF 201.() 19. VILASINI, AGED 3 YEARS, D/O.GOPALAN, VATAKARA AMSAM DESAM, CHEERAMVEETTIL, NARAYANA NAGAR, VATAKARA-673101, KOZHIKODE DIST, 20. UMESH KUMAR, AGED 3 YEARS S/O.GOPALAN, EMPLOYED, VATAKARA AMSAM DESAM, CHEERAMVEETTIL, NARAYANA NAGAR, VATAKARA-673101 KOZHIKODE DIST.

21. BIJU , AGED 3 YEARS, S/O.GOPALAN, VATAKARA AMSOM DESOM, CHEERAMVEETTIL NARAYANA NAGAR, VATAKARA-673101, KOZHIKODE DIST 22 SREENIVASAN,AGED 6 YEARS S/O.POKKAN, PALLINDE KEEZHIL, PUDUPPANAM DESOM AND NADAKKUTHAZHA AMSAM,(VIA) KOTTAKADAVU, VATAKARA-673105, KOZHIKODE DIST.

23. ARUNKUMAR, AGED 3 YEARS, S/O.SREENIVASAN, PALLINDE KEEZHIL PUDUPPANAM DESOM AND NADAKKUTHAZHA AMSAM,(VIA) KOTTAKADAVU, VATAKARA-673105, KOZHIKODE DIST 24 ARCHANA SREENIVASAN, AGED 2 YEARS, D/O.SREENIVASAN, PALLINDE KEEZHIL, PUDUPPANAM DESAM AND NADAKKUTHAZHA AMSAM, (VIA) KOTTAKADAVU, VATAKARA-673105, KOZHIKODE DIST. ADDL. 25TH RESPONDENT IS IMPLEADED 25 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADDITIONAL 25 H RESPONDENT IS IMPLEADED IN CRP.AS PER ORDER DATED 23 07.2013 IN I.A. NO.1875 OF 2013.THIS CRP (LAND REFORMS ACT) HAVING COME UP FOR ADMISSION ON 23-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: NS P.N.RAVINDRAN, J.

----------------------------------------- C.R.P.(LR).No.382 of 2013 ----------------------------------------- Dated this the 23rd day of July, 2013 ORDER

The son of the respondent in O.A.No.145 of 1974 on the file of the Land Tribunal, Vatakara, has filed this Civil Revision Petition challenging the order passed by the Appellate Authority (LR), Kannur on 10.4.2013 dismissing I.A.No.168 of 2008 in A.A.No.56 of 2008, an application to condone the delay in filing A.A.No.56 of 2008. The petitioner and his mother had in A.A.No.56 of 2008 challenged the order passed by the Land Tribunal, Vadakara on 25.2.1976 in O.A.No.145 of 1974 allowing the predecessor-in- interest of respondents 13 to 21 to purchase the kudikidappu right in respect of 5 cents of land situate in R.S.No.270/11 of Vadakara Village, Vadakara Taluk, Kozhikode District. Along with the appeal they filed I.A.No.168 of 2008 to condone the delay of 33= years in filing the appeal. In the affidavit filed in support of I.A.No.168 of 2008 to condone the delay in filing the appeal the petitioner's mother, who was the first appellant, had averred as follows:- "Application filed under section 102(2) of the KLR Act by the appellants to condone the delay C.R.P.(LR)No.382/2013 -:2:- involved in filing the above appeal and to receive it on file. The OA above was filed by the applicant late Gopalan against the first appellant claiming kudikidappu right over the property comprised in RS 270/11 and shown in the application. Though the applicant was having property in his name stretched on three plots in Vadakara Municipality at the time of filing the application the Land Tribunal, Vadakara setting aside the objections raised by the first appellant granted kudikidappu right to the applicant because the applicant's properties were remaining joint and undivided with the result that he had not at the time of the order either acquired or had been allotted any share or specific property to and for his share so as to attract proviso to explanation IIA of section 2(25) of the KLR Act. That being the position of law then as declared by the Kerala High Court, no appeal was preferred against that order, there being no purpose in filing such an appeal at that time. But subsequently in 1978 a suit for partition of the joint properties of late Gopalan was filed before the court of the Subordinate Judge, Vadakara as OS 46/78 in which the said Gopalan was the second defendant. In that suit preliminary decree for partition of the three landed properties comprised in the suit was passed on and pursuant thereto application for final decree thereof was filed C.R.P.(LR)No.382/2013 -:3:- as I.A.1074/80 and final decree thereof was passed on 7.3.1984 by which 8.53 cents of land specified in item not C1 plot B was allotted to separate and exclusive share of the applicant. This property is located within a radius of 3 kilometers from the kudikidappu. With this allotment the applicant Gopalan had ceased to be a kudikidappukaran on account of the disqualification above said being attracted and thus the forfeiting the right and status of kudikidappukaran as defined in the Act section 75 (1)(IV), upon which the above impugned purchase certificate was issued to him. But the appellants were not aware of the above and the allotment of share therein to the said Gopalan. The first appellant had filed a partition suit in the Court of the Subordinate Judge, Vatakara for partitioning her Thavazhi and family properties as OS 94/86 FDIA 1747 88 in 1986 wherein the said property other than kudikidappu was listed in the 'B' schedule of the preliminary decree. The final decree proceedings are on and the new Advocate Commissioner, inspected 'B' schedule property with the Taluk Surveyor on 18.02.2008 and took measurement. It was found that the legal heirs of late Gopalan, the holder, owner of the purchase certificate has encroached the land adjoining the kudikidappu over and above 5 cents stipulated in the purchase certificate. To cover up and regularise the C.R.P.(LR)No.382/2013 -:4:- above encroachment the legal heirs of Gopalan on 10.04.2008 filed a suit OS 93/08 and an IA 790/2008 in the Munsiff Court, Vadakara, against the entry of appellants in their own land and claiming ownership right over 6.75 cents of land including 5 cents already obtained by the purchase certificate. Copy of the suit and IA are attached. In that suit the second appellant is appearing for himself. For filing written statement and gather information for arguments the second appellant seeking enquiry got news on 10.06.08 of the final decree and allotment of share to the deceased Gopalan on the partition suit concerning his family property. With the help of some of his friends the second appellant traced out, collected the number and details of that case. Copy of the written statement filed on 14.7.08 is attached along with the appeal. We applied for a certified copy of the decree on 17.6.08 and received it on 16.7.08. Certified copy of the final decree, share list and plan are attached with the appeal memo. On 14.7.08 we approached the Land Tribunal, Calicut with a prayer for cancellation of purchase certificate No.133/76. But we are advised to prefer an appeal with the Appellate Authority. Copy of the letter signed and issued on 24.7.08 is attached with the appeal. On 3.5.02 the first appellant obtained a C.R.P.(LR)No.382/2013 -:5:- certified copy of the order made in OA/145/74 on 25.2.'76. This appeal is filed against that order. We respectfully submit that KLR Act was enacted to protect the interest of landless tillers not to safeguard the interest of those who own land and dwell on others land to claim kudikidappu. The purchaser applicant and his wife have properties inherited in their name. That is not self acquired. Late Gopalan's wife has over 10 cents of land in her name. Today in the kudikidappu land and the encroached land stands a two storeyed building, a bathroom, a toilet and a shed to store firewood. All these structures are later built and are part of the residence belonging to the legal heirs of the erstwhile kudikidappukaran. We having taken prompt steps for obtaining copy thereof from Sub Court, Vadakara and Land Tribunal, Calicut and thereupon filing the appeal, we have taken all due diligence and care in filing the appeal on the earliest available date with full interest and bonafides. If the impugned purchase certificate is allowed to stand, it would be a gross abuse of relevant provision of the KLR Act and miscarriage of justice so far as the appellants and the owners are concerned. As such the only cause and remedy that is available and open to us to redress our grievances C.R.P.(LR)No.382/2013 -:6:- in the above matter and to recover the property that is lawfully due to us is by filing the appeal above said. Hence we pray that the delay in filing the appeal caused by the above special and peculiar circumstances, for which the applicants are in no way responsible, may kindly be condoned and the appeal may be received on file, otherwise the appellant's right in the impugned property would be irrevocably lost thus the appellants would be put to irreparable loss and injuries." 2. Shorn of details, the principal contention raised in the application to condone the delay is that late Gopalan who claimed kudikidappu right in respect of 5 cents of land in R.S.No.270/11 by filing O.A.No.145 of 1974 was in possession of other lands, that his wife was also in possession of more than 10 cents of land in her name and this fact was suppressed in the application for purchase of kudikidappu right. The appellate authority considered the said application and dismissed it on the ground that the delay of 33= years in filing the appeal has not been satisfactorily explained. From a reading of the affidavit filed in support of the application to condone the delay, it cannot be said that the order passed by the appellate authority is perverse or that it has not C.R.P.(LR)No.382/2013 -:7:- decided or failed to decide or it has erroneously decided a question of law. Apart from vaguely alleging that the predecessor-in-interest of respondents 13 to 21 was in possession of other parcels of land which disentitled him to apply for purchase of the kudikidappu right, the particulars of the lands held by him (late Gopalan) had not been set out in the affidavit filed in support of the application or even in the memorandum of appeal. Though in the instant original petition an attempt has been made to furnish the details of the land held by late Gopalan and it is contended that Gopalan's family was in possession of over 22 cents of dry land as on 22.10.1974, prior to the date on which O.A.No.145 of 1974 was filed, there is no material whatsoever to indicate that as on the date on which late Gopalan filed O.A.No.145 of 1974, he was in possession and enjoyment of any other parcel of land, either as a tenant or as owner. In such circumstances I am in agreement with the appellate authority that no grounds have been made out to condone the long delay of 33= years in filing the appeal. The appellants before the appellate authority have no case that they had no notice of the proceedings. They have no case that they were unaware of the C.R.P.(LR)No.382/2013 -:8:- order passed by the Land Tribunal. The case now put forward is one touching upon the eligibility to apply for purchase of the kudikidappu right. In the absence of any cogent material to show that as on the date of the application the applicant was in possession of other lands, either as a tenant or as owner, I find no grounds to entertain the challenge to the impugned order. The Civil Revision Petition fails and is accordingly dismissed. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J.

--------------------------- C.R.P.(LR).No.382 of 2013 ---------------------------- ORDER

23rd July, 2013