High Court Kerala High Court

K. Damodara Nayak vs State on 23 July, 2009

Kerala High Court
K. Damodara Nayak vs State on 23 July, 2009
       

  

  

 
 
  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 other

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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