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State of Karnataka Vs. Annegowda by Lrs. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberI.A.I. in C.P. No. 121 of 1985 in R.F.A. No. 23 of 1973
Judge
Reported inILR1985KAR2121; 1985(2)KarLJ67
ActsLimitation Act, 1963 - Sections 5
AppellantState of Karnataka
RespondentAnnegowda by Lrs.
Appellant AdvocateN. Santosh Hegde, Adv. General
Respondent AdvocateV. Krishnamurthi and ;Tarakaram, Advs.
DispositionReview petition admitted
Excerpt:
.....move like a quartz watch. there is a red-tape which causes inevitable delay in the functioning of government offices...the state has moved quickly when suspected entries in the revenue records have been detected. the state cannot be held guilty of negligence or inaction having regard to the peculiar circumstances of the case. there is sufficient cause for the belated application for review of judgment of this court. - bangalore development authority (disposal of corner sites & commercial sites) rules, 1984. rules 6(2) & (3): [huluvadi g. ramesh, j] right of auction purchaser - writ petition seeking directions to b.d.a. to confirm the auction sale in favour of petitioners and accept balance of site value - held, b.d.a. can regulate the manner in which it will auction its sites. an..........was as to the genuineness and validity of the entries in the revenue records pertaining to the suit property. on that question, this is what this court observed:'9. it was however urged for the appellants that these extracts of revenue records are not genuine and therefore no reliance could be placed on them. similar contention urged before the trial court was rejected, if we may say so, for a very good reason. except the allegation that those records were not genuine, the defendants have not produced any evidence to lend support to the allegations.... as seen earlier, the restoration of the khata in favour of the plaintiff is borne out from exts. p-9, p-10, d-2 and d-3. it is found to have been recorded both in the index of lands and also in the record of rights. section 133 of the.....
Judgment:
ORDER

Jagannatha Shetty, J.

1.The State has filed the Civil Petition to review the Judgment in R.F.A. No. 23 of 1973. The appeal was disposed of by this Court on October 25, 1979. On March 25, 1981, the review petition was filed. There is thus a delay of 547 days in filing the review petition. The first question herein is whether the State has shown sufficient cause to condone the delay.

2. There are five affidavits filed by three officers of the State giving the explanation for the said delay. There are three counter affidavits from the respondents.

For a proper appreciation of the cause shown by the State for condonation of the delay, it will be necessary to have regard to the matter involved in the appeal. A land bearing survey No. 88 of Komarahalli village, Sakleshpur Taluk, measures 339 acres 19 guntas with valuable trees worthCrores ofrupees. It originally belonged to an Englishman called Brooks Market. He left that property with his trustees and left the country never to return. The trustees appointed an attorney called Eric Herbert Young who managed the property till 1934. What happened thereafter is in dispute. One Annegowda claimed that property as his own. In support of his title, he depended upon an entry in the record of rights of the year 1934. It was termed as 'Varga Vargi Rajinama' which indicated that the original owner gave up occupancy rights in respect of the property in favour of Annegowda.

3. The case of the Government, however, was that the property was resumed to Government in 1935-36 for non-payment of land revenue and it remained as Government property. It had not been restored to Annegowda or to any other person. Annegowda, on the other hand, contended that after the Government resumed the property, he paid all the arrears of land revenue and the Government thereupon restored the khata of the property in his name in 1967. In support thereof, he relied upon some entries in the index of lands and record of rights. But the State did not accept those entries as genuine. During the period, there was a thick forest growth with valuable trees on the land. At one stage, the State prosecuted Annegowda in a criminal case for trespass on the properly. But the prosecution failed for want of proof and Annegowda was acquitted with a benefit of doubt.

4.Annegowda filed Original Suit No. 23 of 1970 in the Court of the Civil Judge, Hassan for declaration of his title to the said property and for injunction. The State and the Divisional Forest Officer were the only two defendants in that suit. The suit was resisted by the State reiterating the contention that the suit land was resumed to Government for non - payment of assessment and it was never restored in favour of Annegowda. But there was no acceptable evidence produced on behalf of the State on that contention. One Clerk from the Taluk Office, Sakleshpur produced some documents. He had no personal knowledge of the facts of the case. Perhaps, he was summoned to produce those documents.

5. The suit, however, was decreed. Annegowda was declared to be the owner in possession of the property. That decree was challenged by the State in this Court in R.F.A. No. 23 of 1973. One of the questions raised in the suit and also in the appeal was as to the genuineness and validity of the entries in the revenue records pertaining to the suit property. On that question, this is what this Court observed:

'9. It was however urged for the appellants that these extracts of revenue records are not genuine and therefore no reliance could be placed on them. Similar contention urged before the Trial Court was rejected, if we may say so, for a very good reason. Except the allegation that those records were not genuine, the defendants have not produced any evidence to lend support to the allegations.... As seen earlier, the restoration of the khata in favour of the plaintiff is borne out from Exts. P-9, P-10, D-2 and D-3. It is found to have been recorded both in the Index of Lands and also in the Record of Rights. Section 133 of the Karnataka LandRevenue Act, 1964 provides that an entry in the Record of Rights and an entry in the Register of Mutations, shall be presumed to be true until the contrary is proved or a new entry is lawfully substitutedthere for. When the defendants have not produced any evidence to doubt the correctness of the said entries in the Record of Rights, the Court has to raise a presumption about its correctness and the mere allegations that they are not genuine are set sufficient to rebut that presumption.'

So stating, this Court dismissed the appeal.

6. Annegowda died during the pendency of the suit. His sons were brought on record. They prosecuted the suit. It appears, Annegowda had agreed to sell the trees on the suit land to a third party. That agreement was the subject matter of another suit. After this Court dismissed the appeal, the sons of Annegowda appear to have entered into a settlement with the purchaser of the trees. That purchaser filed an application before the District Forest Officer for permission to cut and remove the timber from the land. The District Forest Officer transmitted that application to the Special Deputy Commissioner, Hassan for his remarks. B.K. Vishwanathan was then the Special Deputy Commissioner. He received that application on March,1981.

7. Interrupting the narration, we have to state one another fact. After the disposal of R.F.A. No. 23 of 1973, the Advocate General as usual, forwarded a copy of the Judgment to the Law Department. The Law Department, upon perusal of the Judgment, took a decision not to prefer appeal to the Supreme Court. That decision was taken on January 7, 1980.

8. On February 4, 1981, some M.L.As. raised the matter before the State Legislature by a Call Attention Noticealleging that the State would be losing timber worth several Crores of rupees by the fraudulent decree obtained byAnnegowda with the connivance of some revenue officials. The Government then assured the Assembly that the matter would be thoroughly examined and decision would be taken.

9. Let us now proceed from the Assembly to the Office of the Special Deputy Commissioner, Hassan. B. K.Vishwanathan was all set to have a thorough probe into the matter. He closely scrutinised every exhibit produced in the suit filed by Annegowda and compared it with the original records. For the first time, he was able to discover what according to him the fraudulent entries in the original records as well as in the certified copies obtainedtherefore. In the first affidavit filed in these proceedings, B.K. Vishwanathan states :

'In the course of examination of the said original records, I could make out that the original entries in the revenue records, which had been marked as Exhibits D-1, D-2 and D-3 and Exhibits D-3(a) and (b) were clearly forged and concocted entries. On 18-3-1981, I obtained a certified copy of the sale deed, which has been marked as Exhibit P-3I and which contains a reference to the alleged power of attorney executed in favour of one Mr. Young, who is supposed to have executed the varga vargi transfer in respect of the suit property in favour of late Mr. Annegowda. From these records, I found that certain material which was available had not been pointedly brought to the notice of the Courts and as a result thereof, certain errors apparent on the face of the record had crept in. Besides, I noticed that in the said registers produced before theCourt, certain other entries which were relevant had not been discovered....'

B.K. Vishwanathan has filed two more amplified affidavits. In the second affidavit, he has narrated the nature of the fraudulent entries discovered by him. He states as follows :

'........At page 58 (Ex. D-2 - Index of lands), there is a purported entry in respect of Section No. 88 of the right hand half portion of page 58, which makes manifest that the said sheet was printed on 6-5-1944, whereas, the other sheets bear the date 3-3-1936. If in fact, the said entry had been made in 1936 itself, it could not have been made in a sheet printed in May 1944.....'

Exhibit P-8 is a document relied upon by Annegowda as to the restoration of khata of survey No. 88 in his favour That was the sheet anchor of his case. In regard to that document, Mr. Vishwanathan explains :

'That Ex. P-8, upon which the plaintiff has relied to establish that a application for restoration of khata was made by him on 30-12-1936, is not a genuine document, and that it is not the copy furnished to the plaintiff by the office of the Deputy Commissioner, Hassan, on 28-6-1963, will be manifest from a careful examination of Ex. P-8 as well as the entry at Sl. No. 38, in the copy application register for the year 1963-64 and 1964-65 maintained at the office of the Deputy Commissioner, Hassan Pislrict. Ex. P-8 produced in the Court contains the number of the application filed by the plaintiff as 'CAR 38/63-64', but a persual of the relevant entry at Sl. No. 38 shows that Annegowda had applied for a copy of Jarmabandi register extract of SDO, Sakaleshpur in respect ofKumbaraballi village on 25-6-63, and that he had received the copy of 28-6-63 after paying copying fee of Re. 1/- and comparing fee of Re. 0.25 (Twenty five paise). A perusal of Ex. P-8 will show that half portion ofthe above certified copy that was granted to Annegowda has been torn and is its place, a purported copy of the current register of petitions is substituted and both the portions have been joined together by pasting a paper throughout the middle of Ex.P-8 at the back of the Ex. P-8. It is therefore clear that the entries found in the other half of Ex. P-8 are concocted and fabricated and that Ex. P-8 is not the same certified copy that was granted by the Office of the Deputy Commissioner, Hassan on 28-6-1963.'

In the third affidavit, Mr. Vishwanathan states :

'...... The nature of the fraud and fabrication is such as to deceive even the most vigilant eye and could not have been discovered with reasonable diligence by anyone except those who were very familiar with the maintenance of revenue records only after a very painstaking and thorough examination, I crave leave of this Hon'ble Court to produce the Government file bearing No. LAW 154 LMY 72 in support of the contention that the fraud played by the plaintiff-Respondents was not discovered at any point of time earlier than March 1981, when for the first time after a very deep and close examination of the original records, 1 was able to discover the fraud in so far as Exhibit D-2 is concerned.'

10. There are two other affidavits, one filed by D.L. Nagarajaiah who is a Section Officer in the Law Department, and another by P.Vasudevan who was the Special Deputy Commissioner, Hassan in 1982- The affidavit ofD.L. Nagarajaiah contains the following averments :

'5. The Special Deputy Commissioner, Hassan District, Hassan addressed a detailedreport, on 14-3-1981 in the matter to the Law Secretary with a request to reconsider the decision already taken in the matter and communicate the order of Government. In the said circumstances the matter was re-examined on 17-3-81 by the Government and the decision is taken to file review petition on 19-3-81 and Government order authorising the Advocate General, to file review petition is ordered on 23-3-81 and this review petition is filed, on 25-3-81,'

Vasudevan in his affidavit has substantially corroborated the allegations made by B.K. Vishwanathan. He has stated that since the Special Deputy Commissioner was not a party to the suit filed by Annegowda, the illegal and forgeddocuments could not be discovered and brought to the notice of the Court at the trial of the suit.

11. It will be seen from the affidavits filed on behalf of the State that op March 12, 1981, B.K. Vishwanathan was able to find out the alleged fraudulent or false entries in the revenue records which formed the basis for the decreeobtained by Annegowda. On March 14, 1981, he brought it to the notice of the Law Department, On March 17, 1981, the Law Department re-examined the matter. On March 19, 1981, the Government took a decision to move this Court to review the judgment in R.F.A. No. 23 of 1973. On March 25, 1981, the Review Petition has been filed in this Court.

12. On these averments, Learned Advocate General passionately pleaded for condoning the delay in filing the Review Petition. He urged that the matter is of great public importance. It involves forest growth with valuable timber worth inCrores of rupees. It is a Government forest. It covers an area of 339 acres 19 guntas in the Malnad area. Annegowda really had no title to the property. He was trying to knock off the property by manipulation of the revenue records. Even the original records weresurreptitiously replaced and the manipulation was an act of a master mind. It was apparently by connivance of some of the revenue officials then in charge of the records.Unfortunately, the issues at stake in the suit filed by Annegowda were little explored. The Special Deputy Commissioner who was in charge of the revenue records was not eonomine party to the suit. Learned Advocate General also urged that the officers in charge of the records did not bring out the nugget of truth tothe notice of the Court obviously for oblique motives and the public interest would greatly suffer if the delay in filing the Review Petition is not condoned.

13. Mr. V. Krishnamurthi, Learned Senior Advocate for the Respondents, depending upon three counter affidavits filed by the legal representatives of Annegowda, urged that the reasons given for condonation of delay are untenable and presumptive. They are, at best, new arguments relating to the same documents produced in the Court. The different argument regarding the same matter is not sufficient to condone the delay or for reviewing the judgment. TheLearned Counsel further urged that the State was a party to the suit filed by Annegowda. The State was inactive or negligent after the dismissal of the appeal by this Court till February 1981. It was only when the matter was raised in the Assembly by a Call Attention Notice, the Special Deputy Commissioner of Hassan became active in his attempt to probe into the matter and, therefore, there is no sufficient cause for condonation of delay.

14. We gave our anxious consideration to these rival contentions. We are not concerned, at this stage, with the submission that if the suit had been properly conducted or differently argued, the result would have been different That part of the submission may be reserved for later consideration. We are only concerned, for the present, with the sufficiency of the cause shown by the State. In construing 'sufficient cause' within the scope of Section 5 of the Limitation Act, the Court must give a liberalconstruction to the said words. Each case has to be judged in the, context of the subject matter involved. The Legislature has for the best of all reasons left those words undefined. It has conferred judicial power and discretion to Courts to condone the delay. The approach of Courts in considering the cause shown should, therefore, be consonant with truth and justice with a view to advance substantial justice. They are the fundamental principles for which Courts have been established. If Courts fail to adhere to these principles, the people will lose confidence in Courts and the law may fall into disrepute.

15. In Ramlal and Ors. - v. - Rewa Coalfields Ltd., : [1962]2SCR762 , the Supreme Court observed:

'In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not belight heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately confer-red on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna vs. Chathappan, ILR 13 Mad. 269. 'Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well under-stood ; the words 'sufficient cause' receiving liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.'

These principles have been reiterated by the Supreme Court in Shakuntala Devi Jain - v. - Kuntal Kumari and Ors., : [1969]1SCR1006 and also in State of West Bengal -vs- the Administrator, Howrah Municipality and Ors., : [1972]2SCR874a .

In State of U. P. - v. - Bahadur Singh and Ors., : 1983ECR1556D(SC) the Supreme Court while dealing with the question of laches in moving the Court under Article 226 of the Constitution has observed at page 846 :

'Not that the departmental authorities charged with a duty to implement the law should not be vigilant ; but one aspect cannot he overlooked that a departmental authority may delay the moving of higher court for oblique motives and the public interest may suffer if such cause is thrown out merely on the ground of some delay which is also explainable. These are relevant considerations which must enter judicial verdict before rejecting such cause on the ground of delay.'

16. We do not think that Mr. Krishnamurthi was right in his contention that the State being a party to the litigation was guilty of negligence or inaction after the dismissal of the appeal by this Court. The State might be a party, but the Government is an impersonal body. The Government does not move like a Quartz watch. Nor it acts as quickly as in the case of individuals. There is a red tape which causes inevitable delay in the functioning of Government offices. Apart from that, the present case is some what disquieting. It has several disturbing features. We cannot help being left with the suspicion that there was soft pedalling at the trial of the suit. It is perhaps unfortunate that the issues at stake were little explored. The State at last through B.K..Vishwana than has been able to discover something substantial. He appears to be a silver lining in the dark clouds. He was not eonomine party to the suit. Nor any other responsible revenue official who was in charge of the records pertaining to the property was a party to the suit. The State has moved quickly when suspected entries in the revenue records have been detected by B.K. Vishwanathan. We have already referred to the relevant dates in para 11 of this order. In our opinion the State cannot be held guilty of negligence or inaction having regard to the peculiar circumstances of the case. There is sufficient cause for the belated application for. review of the Judgment of this Court. It is adequately supported by the averments in the five affidavits referred to earlier. We, therefore, condone the delay.

17. In the view that we have taken, it is unnecessary to consider the other contention urged by the Learned Advocate General as to the application of Section 17 of the Limitation Act to the facts of the case. We express no opinion on that contention.

18.Considering the facts and circumstances of the case, in the light of the new material brought to our notice, we think that the review petition deserves to be admitted and is accordingly admitted.


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