IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 OP.No. 29639 of 2000(C) ----------------------- PETITIONER(S): --------------- K.DAMODARA NAYAK @ K.LAKSHMANA NAYAK, ADOPTED SON OF K.SREENIVASA NAYAK, REPRESENTED BY POWER-OF-ATTORNEY HOLDER K.ANANDA NAIK, RESIDING AT KOIPADY VILLAGE, KUMBLA, KASARGOD. BY ADV. SRI.S.V.BALAKRISHNA IYER SRI.P.B.KRISHNAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVT., GOVT. SECRETARIAT, TRIVANDRUM. 2. THE COMMISSIONER, LAND REVENUE, TRIVANDRUM. 3. THE REVENUE DIVISIONAL OFFICER, KASARGOD. 4. THE SPECIAL TAHSILDAR (A), KUMBLA, KASARGOD DISTRICT. 5. AITHAPPA NAIK, S/O.GOVINDA NAIK, BALILAPADAVU HOUSE, ENMAKAJE VILLAGE, P.O. PERLA, KASARAGOD. ADV.T.SETHUMADHAVAN FOR R5 GOVERNMENT PLEADER SRI DILIP MOHAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.29639/2000. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE APPLICATION BEFORE R3, DTD.20.9.1988. P2. COPY OF THE COUNTER FILED BY R5 BEFORE R3 DTD.11.8.84. P3. COPY OF THE ORDER OF R3 IN D.DIS.8597/96(A.A.86/88) 15.11.96. P4. COPY OF THE ORDER PASSED BY R2 IN LR(J)2.35174/96/D.DIS DATED 20.2.1999. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 29639 of 2000 ================== 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 2 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 3 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 4 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 5 S.SIRI JAGAN, J. ================== O.P.No. 29639 of 2000-C ================== J U D G M E N T 23rd July, 2009