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SUPREME COURT OF INDIA
G.S. Singhvi, Sudhansu Jyoti Mukhopadhaya, JJ.
B.T. Purushothama Rai - Petitioner
Versus
K.G. Uthaya and others - Respondents
SLP(C) No. 22377 of 2004 with SLP(C) No. 24892 of 2004
Decided On : 22-11-2011
Land Reforms Act - Section 48A - Claim of compensation – Tenant - Quashing the order - Suit was decreed after contest by judgment and decree directing defendants in suit to execute the sale deed with respect to the suit properties in favor of plaintiffs, including petitioner herein in terms of sale agreement - During course of judgment court took note of fact that a tenancy claim was pending with regard to A Schedule lands decree stated thus regarding the Schedule -A properties; which included – Held, It is axiomatic that condo nation of delay is a matter of discretion of Court - Section 5 of Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit - Length of delay is no matter, acceptability of the explanation is only criterion. Sometimes delay of the shortest range may be un condonable due to a want of acceptable explanation whereas in certain other, delay of a very long range can be condoned as the explanation thereof is satisfactory - Once the Court accepts explanation as sufficient it is result of positive exercise of discretion and normally superior Court should not disturb such finding much less in provisional jurisdiction, unless exercise of discretion was on wholly untenable grounds or arbitrary or perverse - But it is a different matter when first Court refuses to condone delay - In such cases, the superior Court would be free to consider the cause shown for delay afresh and it is open to such superior Court to come to its own finding even un trammeled by conclusion of lower Court - In present case learned Single Judge noticed that petitioner was bonfire in pursuing matter before different courts which have no jurisdiction and that consent order was obtained from Land Tribunal by suppressing facts and thereby playing fraud upon Tribunal Division Bench also approved the approach of learned Single Judge, who considered matter in proper perspective - Since condo nation of delay is a matter of discretion of Court and discretion so exercised is not perverse interference with order of Division Bench is not called for - Court find no merit in this petition – petition dismissed
JUDGMENT :
SLP (C) No. 22377/2004
1. Application for substitution is allowed.
2. This is a Special Leave Petition for setting aside the judgment dated 29.6.2004 of the Division Bench of the Karnataka High Court, Bangalore whereby the writ appeal preferred by the appellant (petitioner herein) was dismissed and the order passed by the learned Single Judge was affirmed.
3. The petitioner was the third respondent in Writ Petition No. 28821 of 1998 preferred by the first respondent herein. The Writ Petition was preferred by the first respondent after about 21 years to set aside the order dated 25.10.1975 and 10.8.1977 passed by the Land Tribunal, Somwarpet, in so far as it granted occupancy rights in regard to Sy. Nos. 166 (8A. 60 cents) and 164 (2A. 80 cents) of Attur Nallar Village, Suntikoppa Talum, Somwarpet. The writ petition was allowed in part, quashing the order dated 10.8.1977 passed by the Land Tribunal, Somwarpet in so far as Sy. No.166 (8A. 60 cents).
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 against 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 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:
5. In the meantime, the petitioner's father - Thyampanna Rai, claiming to be the tenant of K.S. Appachu, filed an application under Section 48A of the Karnataka Land Reforms Act, 1961, in Form No. 7, praying for the grant of occupancy rights regarding eight items of land i.e. wet lands bearing Sy. No. 171, 167, 170, 168 and 166 and Jungle lands bearing Sy. No. 163, 164 and 183. In the said proceedings, the said Thyampanna Rai was represented by the petitioner (his son) as his power of attorney holder. An affidavit dated 24.10.1975 was filed by Thyampanna Rai to the following effect:
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