THANUVAN APPUKUTTAN Vs. P N GOPALA PILLAI
HIGH COURT OF KERALA
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(1.) THIS appeal by the defendant arises out of a suit for recovery of the plaint building with arrears of rent at the rate of one rupee per month from October, 1962 on the basis of an oral entrustment of the building by the plaintiff to the defendant. The land along with the plaint building was sold in revenue auction evidenced by Ext. P4 on 11-7-1116 and it was delivered to the auction-purchaser on 11-10-1116 evidenced by Ext. P5. The auction-purchaser sold his rights to ammukutty Amma in 1122 evidenced by Ext. P6 and she in turn executed Ext. P1 sale deed in favour of the plaintiff on 27-9-1951.
(2.) THE main contention of the defendant is that the building was contructed by him and it was not sold in revenue auction. This contention was concurrently overruled by the courts below. But they disallowed the claim of the plaintiff for recovery of the building because of the finding that the defendant is a kudikidappukaran. The plaintiff's claim for arrears of rent was decreed. The defendant challenges the correctness of the decrees for rent in the second appeal. A memorandum of cross-objection has been filed by the plaintiff objecting to the finding that the defendant is a kudikidappukaran within the meaning of Act 7 of 1963. The learned counsel for the respondent has filed C. M. P. 2055 of 1965 in the second appeal stating that the appeal is barred by limitation and has to be dismissed on that ground. The High Court office proceeded to register the appeal under the belief that it was filed in time. In view of the objection raised by the respondent it is necessary to consider the question whether the second appeal was presented before this Court within the period of limitation.
(3.) THE decree and judgment of the lower appellate court are dated 21-12-1963 and the time for filing the appeal expired on 29-3-1964. The application for copies of judgment and decree of the lower court was made there only on 4-6-1964 and the second appeal was filed on 3-8-1964. In the memorandum of appeal it is stated that the judgment and decree of the lower appellate court were amended by the order dated 16-3-1964. passed in I. A. 241 of 1964 filed in the appeal and the period of limitation for filing the appeal will run only from 16-3-1964 as the second appeal is filed against the amended decree and judgment and there is therefore no delay in filing the second appeal. The decretal portion of the judgment of the lower appellate court before it was amended read as follows:-" in the result, in allowing the appeal in part, the suit so far as it relates to the recovery of the building together with the easements attached thereto is hereby stayed under Act VII of 1963 and in other respects, the appeal is dismissed permitting the plaintiff to recover arrears of rent in accordance with law. Both parties will suffer the costs of the appeal. ";
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