Posted On by &filed under High Court, Kerala High Court.

Kerala High Court
State Of Kerala vs Narayanan Unni on 5 September, 2007




AS No. 366 of 1997(E)

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  :SRI.TKM.UNNITHAN

The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :05/09/2007

 O R D E R
                      A.S. NO. 366 OF 1997
          Dated this the 5th day of September, 2007.

                          J U D G M E N T

Kurian Joseph, J.

An extent of 6.23 acres of land was sought to be proceeded

against in distress sale under the provisions of the Kerala

Revenue Recovery Act. The bonafide purchaser, however, was

physically delivered only 4.73 acres of land. There was only

symbolic delivery for the rest-1.50 acres.

Whether the auction purchaser is entitled to compensation

in respect of the property admittedly not delivered? This is the

simple question arising for consideration in this appeal filed at

the instance of the defendants-State.

2. Plaintiff is the respondent. One Prasanna Chandran

Pillai, Thennala Bunglow, Karunagappally was a defaulter of

abkari arrears, sales tax dues etc. 6.23 acres of land belonging

to him was proceeded against under the provisions of the Kerala

Revenue Recovery Act. The auction was held on 29.08.1978

after complying with the required procedural formalities. The

sale was confirmed on 29.09.1978.

A.S. 366/1997 2

3. It is admitted in the written statement as well as the

appeal memorandum that “…….only 4.73 acres of land was

delivered over to the plaintiff”. It is also the admitted case of the

appellants that 1.50 acres of land in Sy. No. 111/6 of Sooranadu

village, 35 cents of land in Sy. No. 448/4 and 15 cents in

Sy. No. 448/5 of the same village were not physically delivered.

4. It has come out in evidence that one acre of land in

Sy. No. 111/6 had already been transferred by the said Prasanna

Chandran Pillai on 26.05.1977 and transferees had instituted

O.S. No. 29/1979 before the Sub Court, Pathanamthitta for a

declaration that the sale in respect of the said extent held on

29.08.1978 is void. The suit was decreed. The matter was

pursued in appeal and second appeal unsuccessfully leading to

Exhibit A1 judgment in S.A. 668/85. It was declared that the

sale in favour of Sri. Janardhana Kurup was valid since the

condition under Section 44(2) of the Kerala Revenue Recovery

Act had not been satisfied. As far as the remaining 50 cents of

the disputed one acre and 50 cents of land also, DW1 has

admitted in evidence that the same was not delivered in view of

other pending disputes. Thus it is the admitted case that an

A.S. 366/1997 3

extent of 4.73 acres of land alone was physically delivered to the

respondent-plaintiff, out of the 6.23 acres sold in auction.

5. It was in such circumstances, O.S. No. 455/1992 was

filed for compensation claiming an amount of Rs. 1,50,000/-, as

the market value of the land prevailing during 1980-81. It was

contended before the trial court that the entire extent of 6.23

acres of land had been symbolically delivered to the plaintiff and

mutation had also been effected. Further contention was that the

suit was not maintainable.

6. The trial court repelled both contentions and held that,

for the only reason that there was symbolic delivery, an auction

purchaser cannot be deprived of his right to own and enjoy the

entire physical extent of the property offered for sale and

purchased by him. Regarding the maintainability, it was held

that since the sale itself was void ab initio in respect of part of

the property, the suit was maintainable, as held by this Court in

S.A. 668/1985, relating to the very same sale held on


7. Learned Government Pleader strenuously contended that

the property having been symbolically delivered and the mutation

A.S. 366/1997 4

having been effected, the plaintiff is not entitled to claim any

compensation in respect of the property not physically delivered.

It is also contended that the suit is not maintainable in view of

the bar under Section 72 of the Kerala Revenue Recovery Act.

8. As already noted by us, it is the admitted case of the

State that out of 6.23 acres of property offered for auction sale,

only 4.73 acres alone was physically delivered. As far as one

acre of property is concerned, this Court has already declared

that the transfer made by the defaulter is valid and that has

become final in view of the judgment in S.A. No. 668/1985. That

property was also included in the sale proclamation.

9. As far as 35 cents of property is concerned, DWI has

admitted that the same is covered by a purchase certificate

issued under Section 72 of the Land Reforms Act. However, that

was also included in the sale proclamation. DW1 has further

admitted that 15 cents of property also was not delivered in view

of various other disputes. Thus, on the evidence of the State

itself and going by the admitted case of the appellants-State, the

sale proclamation and sale in respect of atleast 1.35 acres of

property was illegal, since the property was not physically

available for distress sale.

A.S. 366/1997 5

In such circumstances, there is no bar in instituting the civil

suit for compensation and the bar under Section 72 of the Kerala

Revenue Recovery Act will not apply. That question was squarely

answered by this Court in S.A. No. 668/1985. The plaintiff only

claimed compensation to the tune of Rs. 1 lakh for the loss

sustained on account of non-delivery of one acre of land

comprised in Sy. No. 111/6 of Sooranadu village and

Rs. 50,000/- as compensation for non-delivery of 50 cents of

land in Sy. No. 448/4. There is no dispute on the quantum. The

property having admittedly not been physically delivered to the

auction purchaser/plaintiff/respondent, the court below is

justified in granting the relief. We thus see no merit in this

appeal and it is accordingly dismissed.



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