IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 29639 of 2000(C)
1. K. DAMODARA NAYAK
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :23/07/2009
O R D E R
S.SIRI JAGAN, J.
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O.P.No. 29639 of 2000
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Dated this the 23rd day of July, 2009
J U D G M E N T
The predecessor-in-interest of the petitioner filed
O.S.No.68/1974 before the Subordinate Judge’s Court, Kasargode, for
recovery of possession of the property allegedly involved in this
original petition, from the 5th respondent and another. During the
pendency of the suit, the 5th respondent raised a claim that he is a
cultivating tenant of the property which was referred for decision to
the Land Tribunal under Section 125(3) of the Kerala Land Reforms
Act. In the meanwhile, the 5th respondent also filed O.A.No.18/1972
before the Land Tribunal for assignment of the land in question under
the Kerala Land Reforms Act. That original application was dismissed.
Subsequently, the reference to the Land Tribunal was answered in
favour of the predecessor-in-interest of the petitioner. Pursuant to the
same, the Subordinate Judge’s Court decreed the suit on 28.11.1984.
The appeal filed by the 5th respondent as an indigent person was
dismissed as time barred. The petitioner submits that, thereafter, the
5th respondent filed an application for assignment of the land in
question under the Kerala Land Assignment Act and Rules. The 4th
respondent assigned the land allegedly involved in the suit, in favour
of the 5th respondent, as per the order in L.A.No.260/87/Enmakaje on
18.1.1988. On 15.5.1988, the petitioner came to know of the
assignment in favour of the 5th respondent and, immediately the
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petitioner obtained a copy of the order of assignment on 18.6.1988. In
the meanwhile, the said K.Sreenivasa Nayak, who was the predecessor
-in-interest of the petitioner, died. The petitioner inherited the
property in question. The petitioner filed an appeal under Section 21
of the Kerala Land Assignment Rules before the 3rd respondent on
20.9.1988. The petitioner filed an appeal against the assignment along
with an application to condone delay in filing the same. By Ext.P3
order, the 3rd respondent dismissed the appeal and the petitioner’s
revision before the 2nd respondent was rejected by Ext.P4. The
petitioner is challenging the assignment in favour of the 5th respondent
and Exts.P3 and P4 orders of the 3rd and 2nd respondents respectively,
rejecting the appeal and revision of the petitioner. In Ext.P1 appeal the
petitioner has explained reasons for the delay in filing the appeal. The
same has been rejected by the 3rd respondent stating that the
appellant has no satisfactorily explanation for the delay. The
petitioner, therefore, seeks the following reliefs:
“(i) call for the records relating to LA 206(sic)/1987/Enmakaje from
the file of the 4th respondent herein and quash the assignment
order therein granted in favour of the 5th respondent and the form
of registry issued in favour of the 5th respondent by the issue of a
writ of certiorari or any other order or direction;
(ii) call for the records relating to A.A.86/1988 on the file of the 3rd
respondent and quash the order Ext.P3 dated 5.11.1996
dismissing the appeal by the issue of a writ of certiorari or any
other appropriate writ, order or direction;
(iii) call for the records relating to Ext.P1 from the 2nd respondent and
quash the same by the issue of a writ of certiorari or any other3
appropriate writ, order or direction;
(iv) issue a writ of mandamus directing respondent No.4 herein to take
up the Application filed by the petitioner’s predecessor-in-interest
(K.Sreenivasa Nayak) for assignment and registered as
DR.11554/58-59 and pending before the 4th respondent herein;
(v) order stay of operation and enforcement of the order of
assignment and form of registry granted by the 4th respondent
herein in LA. 260/87/Enmakaje in favour of the 5th respondent,
pending disposal of the above Original Petition.”
2. According to the petitioner, the petitioner had, in Ext.P1,
sufficiently explained the reasons for the delay in filing the appeal. The
same has been rejected by the 3rd respondent merely by stating that
the appellant has no satisfactory explanation for the delay. The
petitioner would further contend that Ext.P4 order of the 2nd
respondent does not show any application of mind to the facts of the
case. According to him, in both Exts.P3 and P4 orders, the effect of the
civil court decree has not been properly adverted to.
3. The 5th respondent contends that the property involved in
the suit and the property assigned in favour of the 5th respondent are
two entirely different properties. Therefore, the civil court decree
cannot have any effect whatsoever on the question of assignment of
the subject property to the 5th respondent . He would also contend that
the explanation furnished by the petitioner for the delay is not at all
sufficient for condonation of the long delay.
4. I have considered the rival contentions in detail.
5. From Ext.P1, I find that the petitioner had furnished some
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explanation for the delay, which cannot be stated to be totally
insufficient for the purpose of condonation of delay. Even otherwise, I
am of opinion that the appeal of the petitioner merits a second look at
the hands of the 3rd respondent afresh notwithstanding delay.
Accordingly, I set aside Exts.P3 and P4 orders. The 3rd respondent is
directed to restore the appeal filed by the petitioner against the orders
of the Special Tahsildar (A), Kumbla in L.A.260/87/Enmakaje dated
18.1.1988 and to dispose of the same afresh on merits after
condoning the delay and affording an opportunity of being heard to the
petitioner as well as the 5th respondent by a speaking order after
considering, whether the civil court decree relied on by the petitioner is
in respect of the same property involved in the assignment
proceedings and if it is, whether in view of that decree the assignment
is sustainable. The same shall be done within a period of two months
from the date of receipt of a certified copy of this judgment. But I
hasten to add that I have not considered the contentions of the parties
with regard to the issue involved in the appeal on merits and it is for
the 3rd respondent to adjudicate the same.
The original petition is disposed of as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
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S.SIRI JAGAN, J.
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O.P.No. 29639 of 2000-C
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J U D G M E N T
23rd July, 2009