KUNHAMINA UMMA Vs. KRISHNAN

JUDGEMENT

(1.) In this revision under S.103 of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969 (for short, the Act), two questions of law have been raised by Sri T. P. Kelu Nambiar, the counsel for the revision petitioner: (1) Limitation Act, 1908, (Act IX of 1908) as a whole, having been repealed by the Limitation Act, 1963 (Act XXXVI of 1963) which came into force on 1st January 1964, S.5 of the repealed Act by itself did not survive for being incorporated into the Act (Act 1 of 1964) which came into force on 1st April 1964; and therefore a person invoking S.108 of the Act, in effect, is not entitled to pray for the condonation of delay in filing the application, revision, etc.; and (2) even assuming, without conceding, that S.5 of the Limitation Act is applicable to the proceedings under the Act, it could not be availed of in the case of an application under S.16 controlled by S.18 of the Act. He has also submitted that Appellate Authority did not consider the case for resumption on its merit, though it was in issue before it.

(2.) On 29th June 1970 respondents 1 and 2 herein filed an application under S.16 of the Act for resumption of an extent of 3.73 acres of land held by the revision petitioners under them. Subsequently, sometime in 1971 having realised that in accordance with the conditions laid down in S.18 of the Act, no application for resumption under S.16 could be made after a period of one year from the commencement of the Act, which came into force on 1st April 1964, an application purported to be under S.148 and 151 of the Code of Civil Procedure was also filed by them for the purpose of getting the time for making the application for resumption extended, and the delay in the matter condoned, the reason stated being that till this Court pronounced the judgment in S. A. No. 1030 of 1964 on 12th January 1970, they considered the revision petitioners to be mortgagees, not tenants, in respect of the land, and the question of resumption could not be thought of. The revision petitioners, as well as respondents 3 and 4 herein, opposed the main application and the interlocutory application. The Land Tribunal allowed the application for resumption, condoning the delay in filing it, treating the application filed for that purpose under S.148 and 151 C. P. C. as one filed under S.5 of the Limitation Act. The Appellate Authority having confirmed the order for resumption, the revision has been preferred.

(3.) The first submission made by Sri Kelu Nambiar is that, even taking it for granted that it was within the power of the Land Tribunal to treat the application filed under S.148 and 151 C. P. C. as one filed under S.5 of the Limitation Act, the Land Tribunal and the Appellate Authority were in error in proceeding on the assumption that respondents 1 and 2 herein were entitled to invoke S.5 of the Limitation Act, 1963, overlooking the fact that it was a section of an Act, which was no longer in force, that has been sought to be made applicable under S.108 of the Act, inasmuch as the Limitation Act, 1908 (as a whole) referred to in S.108 of the Act stood repealed on 1st January 1964 with the coming into force of the Limitation Act, 1963, whereas the Act (Act 1 of 1964) came into force only on 1st April 1964. According to the counsel, the real position, therefore, is that in effect S.5 of neither the Limitation Act of 1908, nor of the Limitation Act of 1963, could be availed of by anyone for getting extension of the period prescribed in the matter of filing application, revision, etc. Reliance was placed by him on the following passage in Chacko v. Catholic Bank of India Ltd. ( 1963 KLT 1068 DB) wherein, speaking for the Bench, Madhavan Nair, J., in Para.8 at page 1070, has stated as follows: