B.T. Purushothama Rai vs K.G. Uthaya & Ors

4. Sy. No. 166 of Athur Nallur village measuring 8 acres 60 cents originally belonged to one Subbaiah, grand father of first respondent and 12th respondent. The said Subbaiah had two sons, namely, K.S. Ganapathi and K.S. Appachu. The first respondent is the son of K.S. Ganapathi and the 12th respondent - K.A. Kuttayya, is the son of K.S. Appachu. According to first respondent -writ petitioner, the said Subbaiah executed a gift deed in respect of said Sy. No. 166 and some other survey numbers in favour of his son K.S. Ganapathi. However, as K.S. Appachu, the other brother did not accept the validity of the said gift deed, there were negotiations between the two brothers K.S. Ganapathi and K.S. Appachu, and by way of a settlement, an agreement of sale was executed by K.S. Appachu in favour of K.S. Ganapathi on 12.12.1968 with regard to half portion of the wet lands (Sy. No. 166 and other lands) and half that of Bane lands and the land surrounding the plaintiff's house (as described in Schedule A, B and C respectively). On the death of K.S. Ganapathi, his widow K. Devaki and his two sons - (first respondent -

K.G.Uthaya and his brother K.G. Chengappa) filed a suit vide O.S. No. 17/1976 before the Civil Judge, Coorg, Mercara agaist K.S. Appachu and his son, (the 12th respondent herein) for specific performance of the said agreement of sale. The suit was decreed after contest by judgment and decree 3 dated 16.7.1977 directing the defendants in the suit, to execute the sale deed with respect to the suit properties in favour of the plaintiffs, including the petitioner herein, in terms of the sale agreement. During the course of judgment, the court took note of the fact that a tenancy claim was pending with regard to the `A' Schedule lands. The decree stated thus regarding the Schedule -A properties; which included Sy. No. 166:

8. The first respondent was posted as an Army Officer when all these proceedings took place. He took voluntary retirement in 1996. He was later informed that his decree for specific performance in respect of Sy. No. 166 6 was frustrated by virtue of collusive proceedings initiated by the petitioner and K.S. Appachu before the Land Tribunal resulting in the order dated 10.8.1977. He filed O.S. No. 84/1982 against the petitioner seeking a declaration that his right with regard to Sy. No. 166 was not affected by order of the Land Tribunal dated 10.8.1977. The suit was dismissed on 16.7.1982 on the ground that the Civil Courts had no jurisdiction to grant relief. The first respondent challenged the said decree in R.A. No. 7/1983 which was also dismissed on 7.8.1985. Thereafter, the first respondent was advised to file one more suit for possession. The O.S. No. 247/1989 filed against the petitioner, was dismissed on 4.1.1993 as being barred by Section 132 and 133 of the Karnataka Land Reforms Act. The R.A. No. 110/1993 preferred by the first respondent against the said order was also dismissed on 7.3.1995 and affirmed by the Second Appellate Court vide order dated 20.9.1995 in R.S.A. No. 740/1995. The Special Leave Petition filed before this Court was also rejected.

10. Before the Division Bench, the afore stated facts were not disputed and the Division Bench being satisfied with the grounds accepted the view taken by the learned Single Judge in entertaining the writ petition after some delay.

14. In the present case, learned Single Judge noticed that the petitioner was bonafide in pursuing the matter before the different courts which have no 9 jurisdiction and that the consent order dated 10.8.1977 was obtained from the Land Tribunal by suppressing facts and thereby playing fraud upon the Tribunal. The Division Bench also approved the approach of the learned Single Judge, who considered the matter in the proper perspective. Since condonation of delay is a matter of discretion of the Court and the discretion so exercised is not perverse, interference with the order of the Division Bench is not called for. We find no merit in this petition. The Special Leave Petition is accordingly dismissed.

Application for substitution is allowed.

In view of the order passed in SLP(C)No. 22377/2004 this petition is also dismissed.