IN THE HIGH COURT OF KERALA AT ERNAKULAM AS No. 366 of 1997(E) 1. STATE OF KERALA ... Petitioner Vs 1. NARAYANAN UNNI ... 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 KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ----------------------------------------- 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.