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Judgment
Venkataraman, J.—Some of the Defendants in the suit have preferred this second appeal. The suit was brought by the Plaintiff for
declaration of his title in respect of three items of properties and for recovery of possession thereof from the Defendants. In respect of items 1 and
2 there was an Oodukoor award under Travancore Oodukoor Settlement Proclamation, 1122. The Plaintiff prayed for cancellation of the
Oodukoor award regarding items 1 and 2 as a necessary step before getting the relief which he asked for. The learned District Munsif who tried
the suit decreed the suit in favour of the plantiff in respect of items 1 and 2 and dismissed it regarding item 3. The Defendants preferred an appeal
in respect of items 1 and 2 and the Plaintiff filed cross objections in respect of item 3. The learned District Judge of Kanyakumari who heard the
appeal, upheld the finding of the learned District Munsif regarding item 1, but so far as item 2 was concerned he upheld the finding of the learned
District Munsif only in respect of 29 cents in item 2 and allowed that appeal of the Defendants in respect of the balance of 19 cents. He dismissed
the cross objections. The second appeal has been preferred by Defendants in respect of item 1 and in respect of 29 cents of item 2. The Plaintiff
has preferred cross objections in respect of item 3 and in respect of the 19 cents of item 2 his claim to which was decided adversely to him by the
learned District Judge.
Sri Anantakrishna Nayar, the learned Counsel for the Appellants argued the question with regard to item 1 first. The property is S. No. 2715-B
of a total extent of A-5-20. The Plaintiff traces his title from a purchase by one Neelan Nadar Arumuga Kannu Nadar in a Court sale in execution
proceedings in Original Suit No. 74 of 1072 on the file of the District Munsif''s Court of Padmanabhapuram. The sale certificate issued to the
purchaser is exhibit A-13, dated 6th August 1074 M.E. that is, roughly 1899 A.D. This sale certificate mentions the dimensions of three sides of
the property, namely, northern, eastern and the western but not that of the southern side (see the Commissioner''s plan, exhibit A-4). The
measurements are given in terms of hazhas. Thus the measurements of the northern boundary is given as 291/2 kazhas, the western boundary is
given as 91/2 kazhas, and the eastern boundary is given as 121/2 kazhas. What the extent of a kazhas is, however, not stated in this sale
certificate. In the delivery receipt marked as exhibit B-2 evidencing delivery to the Court auction purchaser, it is, however, stated that one kazha is
one 10 human feet and roughly a human foot is taken to be 9 inches in length so that one kazha would approximately be equal to 7$ feet. The court
auction purchaser sold the property to one Picha Kodikatti the predecessor in title of the Plaintiff, actually his paternal grandfather, under exhibit
A-14, dated 3rd January 1076 and in this document the northern, western and eastern boundaries are given as 29 1/2 kazhas, 9 1/2 kazhas and
29 1/2 kazkas while the southern boundary is given as 29 kazhas. It is further stated that one kazha is four carpenter''s poles and it is common
ground that one carpenter''s pole is 21/2 feet so that according to this one kazha would be 10 feet. The Plaintiff claims title to and possession of the
property in dispute only on the basis of the computation as per exhibit A-14 and on that basis the extent of the property purchased by his
grandfather Picha Kodikatti would be 73 cents and in that the Plaintiff would be entitled to a half, that is 361/2 cents, the other half belonging to the
other branch represented by Defendants 28 and 29. On the contrary> the Defendants contend that the standard of measurement should be taken
as in the delivery receipt exhibit B-2 and on that basis, the extent of the property purchased under the Court auction sale and delivered to the
Court auction purchaser would only be 40 cents and not 73 cents. Both the Courts have, on a consideration of the entire evidence bearing on this
point, accepted the Plaintiff''s case, and it is on that basis relief has been given to the Plaintiff in respect of item 1. It will be seen that the question
involved is entirely one of fact, and even assuming for the sake of argument and argument only, that the finding of the lower appellate Court is
erroneous, that will not justify interference by me in second appeal having regard to the decision on the point u/s 100 of the CPC and particularly
the recent decision of the Supreme Court in Deity Pattabhiramaswamy v. S. Hanymayya AIR 1959 S.C. 57, 59. Their Lordships quoted with
approval the observation of the Privy Council in Durga Chowdhrani v. Jewahir Singh Chowdhri ILR (1890) Cal. 23 (P.C.) to the following effect:
There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact however gross or inexcusable the error may seem to
be.
Their Lordships referred further to the following observations in Midnapur Zamindari Co., Ltd. v. Uma Charan AIR 1923 P.C. 137.
If the question to be decided is one of fact, it does not involve an issue of law merely because documents which are not instruments of title or
otherwise the direct foundation of rights but are merely historical documents, have to be construed.
They further say:
Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact.
It seems to me that applying this criteria the question involved must be held to be one of fact, the finding on which is binding on me. Sri
Anantakrishnan, the learned Counsel for the Appellants has cited a decision of the Patna High Court in Shyamsundar Pd. Gupta and Others Vs.
Darbhangi Rai and Others, . The decision was rendered after the above decision of the Supreme Court. The learned Judges of the Patna High
Court say:
Anyway, assume that the findings of the Courts below are erroneous, an erroneous finding of fact is not ground for upsetting the decrees of the
Courts below, unless it is unsupported by evidence or unreasonable and perverse in nature, which is not the case here.
The learned Counsel urges that this passage would show that this Court could interfere in second appeal if the finding can be said to be
unreasonable. But these words have to be understood against the observation of their Lordships of the Privy Council and the Supreme Court that
an erroneous finding of fact however gross the error may seem to be does not justify interference in the second appeal. In other words, it would
seem that the word unreasonable used by the Judges of the Patna High Court must be more or less akin to perverse. I am not prepared to say in
this case that the findings are unreasonable in that sense. These observations will apply equally to the findings with respect to items 2 and 3 as well.
Accordingly there is no reason for interference with the finding of title and possession regarding those items. They are findings of fact which cannot
be interfered with.
The next point which is argued by the learned Counsel for the Appellants is however one of law, and it is whether the suit was filed within time,
having regard to the provisions of Section 29 of Oodukoor Settlement Proclamation, 1122 which runs thus:
The award passed by the Settlement Officer shall be final and binding on all the shareholders and other persons interested in the holding unless it is
cancelled or modified by the decree of a civil Court of competent jurisdiction in a suit instituted for the purpose within one year from the date of the
award by any person interested in the holding.
It will be convenient to refer also to Rule 35 of the rules framed under the Proclamation. The relevant portion of the rule runs thus:
On passing of an award by the Settlement Officer, a notice in Form K shall be issued to all the parties in the case intimating the purport of the
decision.
The Oodukoor Award in this case was passed on 15th June 1955 (exhibit A-7). The suit was filed on 22nd July 1957 beyond the period of one
year from 15th June 1955. The Plaintiff sought to get over the delay by saying that he had not been served with a copy of the Oodukoor Award
and that he came to know of it only in June 1957. He gave evidence to that effect. P.W. 5 the clerk of the Oodukoor Settlement Officer, stated
that he could not say from the records whether intimiation of the award was sent to the Plaintiff. The learned District Judge observes:
It is admitted that no such K notice had been issued to the Plaintiff. It is only when the intimating of this K notice about the passing of an award, the
one year''s time begins to run. So, in the absence of that, I hold that the Oodukoor Award, Exhibit A-7 is not a bar to the Plaintiff claiming his 36
1/2 cents in item 1.
The learned Counsel for the Appellants has canvassed the above findings of the learned District Judge. He urges that the evidence of the Plaintiff
on this point is interested and that the evidence of P.W. 5 is inconclusive. He suggests that a finding may be palled for. I, however, see no
justification for this request. The Esakki evidence of P.W. 5 shows that he brought all the Krishnan available records and those records did not
show that venkataraman a notice had been served on the Plaintiff. It may probably be felt difficult by some to accept the Plaintiff''s words when he
says that he was not aware of the Oodukoor award at all till June 1957. But the lower appellate Court was entitled to accept the evidence and it
has actually accepted the evidence, and it further observed that it was admitted that no such K notice had been issued to the Plaintiff. The finding is
one of fact which is binding on me in second appeal. I, therefore, proceed on the footing that the suit was filed within one year from the date of the
Plaintiff''s knowledge of the Oodukoor award, though not within one year from 15th June 1955. The question is whether it is beyond time under
Clause 29. That again turns upon the question as to what is meant by the words from the date of the award, whether it means 15th June 1955 or
the date when the Plaintiff first came to know of the award. Consideration of justice would demand that limitation should not start before the date
when the Plaintiff first came to know of the award or must be deemed to have come to know of the award, that is to say, from the date of notice,
either actual or constructive. If we remember that in this case we must proceed on the footing that the Plaintiff did not know of the Oodukoor
award prior to June 1957, it would plainly be unreasonable to require him to file a suit even before he came to know of it. Yet that is what the
literal construction of Clause 29 would lead us to if we take 15th June 1955 as the starting point. In this connection it is necessary to remember
that Rule 35 makes it obligatory on the Settlement Officer to issue notices in Form K to all the parties in the case intimating the purport of the
decision. That only confirms the view which is apparent on consideration of justice that limitation cannot start till the Plaintiff has had notice of the
award actual or constructive. The matter is really concluded, by the highest authority, namely the decision of the Supreme Court in Raja Harish
Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, .
The award in that case was. made, signed and filed in the office by the Land Acquisition Officer on March 25, 1951, as required by Sections 11
and 12 (1) of the Land Acquisition Act. u/s 12 (2), it is obligatory on the Collector to give immediate notice of the award to the persons interested
as are not present personally or by their representatives when the award is made. The Appellants before the Supreme Court who were persons
interested in the award were admittedly not present in person or by representatives when the award was made. They alleged that they came to
know of it only on or about 13th January 1953; and on 24th February 1953 they filed an application u/s 18 of the Act to the Deputy Land
Acquisition Officer to make a reference to the Court regarding the amount of compensation due to them. The Deputy Land Acquisition Officer
rejected this application as out of time having regard to the proviso to Section 18 which says:
(a) If the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of
the Collector''s award; and
(b) in other cases within six weeks of the receipt of the notice from the Collector u/s 12 (2), or within six months from the date of the Collector''s
award which ever shall first expire.
The Appellants of the Supreme Court filed a writ petition in the High Court. The writ petition was allowed by Mehrotra J., who held that the
application was in time. On appeal, the division Bench of the High Court took a different view, namely that under clause(b) of the proviso the
period of six months from the date of the Collector''s award was an absolute period, and that consequently the application which was filed beyond
that period was out of time. The appeal to the Supreme Court was against this decision. Their Lordships differing from the decision of the Patna
High Court, held that the date of the Collector''s award would not be the date, March 25, 1951, when he made, signed and filed the award that
the date of the award would depend on when the parties, that is to say the Appellants therein, had notice actual or constructive of the award, and
that otherwise their right to have the reference made might be entirely lost altogether. They held that the above view which would follow on ground
of reason and justice was reinforced by Section 12 (2) of the Act requiring the issue of an immediate notice of the award to such of the persons
interested as were not present personally or by their representatives when the award was made. They observed that the award would only be an
offer made by the Government to the party and would not become effective at all if it was not communicated to the party concerned. Their
Lordships quoted with approval (at page 1504) the observations of the Bench of this Court in Muthia Chettiar v. Commissioner of income tax,
Madras ILR (1951) Mad. 815, 818, to the following effect:
If a person is given a right to resort to a remedy to get rid of an adverse order within a prescribed time limitation should not be computed from a
date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be
presumed to have the knowledge of the order.
Their Lordships of the Supreme Court then says (at page 1505):
These decisions shows that where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy
by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or
constructive communication of the said order to the party concerned.
Applying these observations to the findings in this case, it has necessarily to be held that the suit was within time. Accordingly the appeal and the
cross-objections are dismissed, but in the circumstances there will be no order as to costs.