DEVAKI Vs. STATE OF KERALA

JUDGEMENT

(1.) Defendants 4 to 6 are the appellants in this appeal. They are faced with a concurrent decree. The plaintiff was granted a declaration that Ext. A13 was not binding. Ext. A13 is dated 30.7.1973 where as the suit was instituted in the year 1988. It was contended by defendants 4 to 6 that the suit was belated and beyond the period provided for in Art. 58 of the Limitation Act. That contention was negatived. It was also contended that as Ext. A13 had been challenged in O. P. 7073/82 by the plaintiff himself and failed, the suit was hit by the principles of res judicata. That was also not accepted. Therefore, this second appeal mainly raising substantial questions of law centered around limitation and the plea of res judicata.

(2.) Few facts are necessary to decide the questions of law in one way or other. The plaintiff was a kudikidappukaran under the predecessor in interest of defendants 4 to 6. This is an admitted fact. The predecessor in interest will be described as landlord here in after and the plaintiff will be described as kudikidappukaran. The kudikidappukaran is no more. His legal representatives are on record and they are also respondents herein along with the State of Kerala and its officers. The landlord did have only less than one acre of land when Act 35 of 1969 amending the Kerala Land Reforms Act was brought into force. The landlord did have a privilege to shift the kudikidappu by resorting for acquisition of ten cents of land as provided for in S.75(3) of the Kerala Land Reforms Act, 1963. Such an application was made by the landlord and that was allowed by Ext. A13. This Order was passed by the R.D.O. On the basis of Ext. A13, the landlord deposited the necessary amount for acquisition of land. The land was acquired. After the completion of land acquisition proceedings, a notice was issued on 3.7.81 to the kudikidappukaran asking him to shift to the new site acquired. At that time the kudikidappukaran filed O.P.No. 7073/82 before this Court. In the meantime this Court had in the judgment reported in George v. State of Kerala ( 1981 KLT 224 ) held that as per S.75(3) only Government can consider an application for shifting and not a Revenue Divisional Officer. Earlier than that there was another pronouncement by this Court in Sathi Bai Kamath v. Sub Collector, Tellichery ( 1977 KLT 644 ) that RDO could have ordered shifting. In this case, the shifting was ordered on 30.4.73, when there was no doubt as to the competence of the RDO. Inspite of that the kudikidappukaran challenged Ext. A13 order dated 30.4.73 only when a notice was issued on 3.7.81. This Court as per Ext. B1 judgment repelled the challenge holding that "the petitioner had not raised the question of jurisdiction before the Revenue Divisional Officer at any time before the passing of Ext. P1 order. Ext. P1 is nothing other than Ext. A13 herein this Court also noticed that there was consistent precedents that a person who fails to raise the question of jurisdiction before a quasi judicial authority and tries to take the chance of obtaining a favourable decision from that authority cannot later turn round and urge, in proceedings under Art.226 at least, that authority had no jurisdiction. This Court also, after noticing the decision in George's case held that;

(3.) Art.58 of the Limitation Act, 1963 reads as follows: