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2012 DIGILAW 1053 (KER)

Lekshmy Sukesini Devi v. L. Sumathy

2012-12-04

K.VINOD CHANDRAN

body2012
Judgment : After more than 30 years litigation, that too, before various forums, the first revision petitioner seeks to advance a totally new case and seeks re-opening of the entire proceedings on the allegation of fraud. The first revision petitioner also puts forward a case in opposition to the second revision petitioner. The revision petitioners, Sukesini and Maheswari Amma were the landlords and the deceased first respondent, Sumathi was the applicant for 'kudikidappu' under the Kerala Land Reforms Act, 1963 (hereinafter referred to as the KLR Act). Sumati and Sukesini were sisters and Prasanna Kumari, the formers daughter, was impleaded on the death of her mother. 2. Sumathy and Sukesini were residing respectively in T.C 24/1263 and T.C 24/1262. The claim of Sumathy for 'kudikidappu' was based on her continued occupancy of T.C 24/1263 from 1960. She claimed that she came to the possession of the land from Eswaran Thampi, father of Maheswari Amma, the original land owner, with his permission and erected a hut therein. Sukesini, her sister was impleaded as the landlord since the property in which T.C 24/1263 was alleged to be situated, being 3.75 cents, was in the ownership and possession of Sukesini at the time of filing of the application. 3. The Land Tribunal originally by order dated 9.6.1981 in O.A No.618/1980 allowed the claim. After more than 3 years Sukesini approached the appellate authority by A.A No.1257/1984. Her contention was that she did not contest the O.A as the building did not belong to her. The appellate authority condoned the delay and remanded the matter to the Land Tribunal. The case of Sukesini, recorded by the appellate authority was that she along with her sister Sumathy and Pachan Panicker their father, were residing in T.C 24/1263 on rent and the owner was one Maheswari Amma. It was also contended that Sukesini purchased 3 ¾ cents of land together with building T.C 24/1262 and she had no rights on T.C 24/1263. The order of the appellate authority though challenged by Sumathy in C.R.P No.901 /1988, the remand was confirmed. 4. On remand, the Tribunal by order dated 30.7.1990 rejected the claim of Sumathy. After remand, Maheswari Amma, the alleged owner of the land, was also impleaded in the proceedings. The order of the appellate authority though challenged by Sumathy in C.R.P No.901 /1988, the remand was confirmed. 4. On remand, the Tribunal by order dated 30.7.1990 rejected the claim of Sumathy. After remand, Maheswari Amma, the alleged owner of the land, was also impleaded in the proceedings. Before the Tribunal, Sukesini contended that Sumathy was her direct sister, who was given permission to reside in a room adjacent to the building, in which she was living along with her husband. Looking at the extracts of the Tax Register, Sukesini was found to be in exclusive possession and enjoyment of the property and the building thereon and on the premise that a part of the building cannot be construed as 'kudikidappu', the claim stood rejected. Sumathy, being unsuccessful before the appellate authority too, was before this Court in CRP No.2520/2002. The CRP and a writ petition, W.P(C) NO.4329/2005 were disposed of by this Court on the same day. 5. I have called for the judges papers of the CRP and the WP(C). The CRP is one originally filed by deceased Sumathy and after her death, prosecuted by her daughter. While admitting the said revision this Court had granted an injunction, from being dispossessed. The writ petition was filed by the daughter when, subsequently, Sukesini obtained an injunction in a suit, against the second respondent and her two daughters from entering into the alleged kudikidappu. The writ petition alleged that the injunction order was granted in the suit only because the injunction order passed by this Court in revision was suppressed. Ext.P1 in the said writ petition is the First Information Report No.222/05 by the second respondent herein, alleging theft of about Rs. 10,000/-from the house and also demolition of the house, immediately after Sumathy's death. Ext.P3 in the said writ petition was the injunction order passed in O.S No.179/2005, the plaint of which is produced as Ext.P4. It is very pertinent that in the plaint produced as Ext.P4, filed by Sukesini, the specific averment is that she had permitted her sister Sumathy to reside in a portion of the house in which herself and her husband were residing. 6. This Court on obtaining report from the learned Munsiff, was satisfied that the injunction order in the revision was suppressed in the suit. 6. This Court on obtaining report from the learned Munsiff, was satisfied that the injunction order in the revision was suppressed in the suit. Hence, the injunction order in the suit was vacated and the suit was directed as standing adjourned till the appellate authority passes fresh orders, since the revision itself was disposed of by a remand order. In the revision also Sukesini's contention was that Sumathy being her direct sister, could not claim any 'kudikidappu'. The question whether the deceased Sumathy could have claimed kudikidappu and also whether a person could claim such rights against her own sister were remanded for de novo consideration to the appellate authority. The claim that Sumathy's daughter Prasannakumari had other properties and will not hence, be entitled to any kudikidappu right, was specifically negatived. 7. Hence what was required to be considered by the appellate authority, on remand, was only Sumathy's entitlement to 'kudikidappu'. Since such rights were heritable and alienable, that was held as devolving upon the daughter of Sumathy, irrespective of the latter's individual holdings. The appellate authority, by the impugned order, allowed the claim raised by the deceased Sumathy. Reliance was placed on two reports of the Revenue Inspector and a Commission report at the instance of Sukesini. With respect to the question whether a person could claim 'kudikidappu' from her own sister; the decision reported in 1998(2)KLT 71, Ouseph Anna V. Mathai Thomas was referred to and distinguished on facts. 8. The learned counsel for the revision petitioner contends that in another suit filed earlier, with Sumathy as defendant, numbered as O.S 647/94, Sukesini had obtained a declaration in her favour with respect to the title of the 3.75 cents. The learned counsel would also strenuously urge that the entire proceedings before the lower authorities were vitiated by fraud. It is contended that T.C 24/1263 was not comprised in the 3.75 cents purchased by Sukesini and that it is situated in the property alloted in partition to Maheswari Amma, who was in possession of the adjacent 3.75 cents, lying to the east. It was also contended that certain documents were produced before the appellate authority which were refused to be looked into and those documents are produced herein by way of I.A No.691 of 2010. It was also contended that certain documents were produced before the appellate authority which were refused to be looked into and those documents are produced herein by way of I.A No.691 of 2010. It is contended that Sumathy and her daughter had fraudulently obtained ration card in a building number, which was not in existence in the records of the local authority. The order of the Lok Ayukta, and the answers to queries, received from the local authority under the Right to Information Act, were advanced as clearly establishing the fraud. 9. Foremost, it is contended that the property purchased by Sukesini, belongs to the brother of Maheswari Amma, as is evidenced by the title deed of 1971. It is also contended that, with respect to her title she had already obtained a declaration from the Civil Court in O.S 647/94. The learned counsel also relies on A.V Papayya Sastry v. Govt. of Andra Pradesh(2007(4) SCC 221) to urge that fraud has been consistently held to vitiate all actions; even judicial, and a judgment, decree or order obtained by fraud has to be treated as a nullity, whether it be by the Court of first instance or by the final Court. There can be no quarrel to the said proposition. But definitely the facts have to be gone into, to examine whether fraud has been practiced and whether the order passed was based on such fraudulent material and if that was eschewed from the consideration whether the conclusions would have been different. On the mere plea of 'fraud' being raised, it cannot be said that the Court immediately throws up its hands and throw to the winds every principle of judicial restrain, self-imposed and mandated by the limitations of the specific jurisdiction conferred by statute. 10. On remand, before the Tribunal, and then in appeal, even according to Sukesini; herself, Sumathy and their father were residing in the property owned by Easwaran Thampi; in T.C 24/1263. The building or 'Charthu' bearing No.TC.24/1263 was contended as being a part of TC 24/1262. Sukesini also contended that she purchased 3.75 cents of property in which the buildings were situated, in 1971. Her claim was specifically that after purchase, she permitted her sister to continue occupation of T.C 24/1263. This was rightly found by the appellate authority to be far divorced from the facts available in Ouseph Anna (supra). Sukesini also contended that she purchased 3.75 cents of property in which the buildings were situated, in 1971. Her claim was specifically that after purchase, she permitted her sister to continue occupation of T.C 24/1263. This was rightly found by the appellate authority to be far divorced from the facts available in Ouseph Anna (supra). In the instant case, admittedly, Sumathy was in occupation of T.C 24/1263 before the purchase by her sister. After purchase also, she continued in occupation and her claim of 'kudikidappu' against the original landlord would subsist against the subsequent landlord too and the fact that the subsequent purchaser was her sister does not at all whittle down her claim. 11. O.S. 647/1994 was one filed for prohibitory injunction against Sumathy and for declaration of title. While the declaration of title sought for was granted, the prohibitory injunction was declined, specifically on the finding that Sumathy is residing within the property and noticing the fact that proceedings under the KLR Act were pending. In the said suit also, the plaintiff's contention was that the kudikidappu now claimed by her sister was in fact a lean-to (Charthu) of the residence in which herself and her family were residing. Through out it was the contention of Sukesini that the kudikidappu claimed was only a permissive occupation of the portion of the building, which would not generate a valid claim under the KLR Act. 12. While all along, it was the contention of Sukesini that T.C 24/1263 was only a part of T.C 24/1262, now she does a volte-face and contends that they are separate and are situated in two separate plots alloted to different people. In fact, the revision itself is filed by Sukesini and Maheswari Amma together. It was specifically contended in ground 6 of the revision as follows:- The same building in which the family resided bears two TC numbers viz., 24/1262 and 24/1263. The owner of the building was one L. Maheswari Amma from whom, subsequently the appellant purchased the entire property of 3 ¾ cents together with the building on 16.9.1971 and after that the appellant began to reside in the room TC 24/1262 and the respondents with family continued to reside in the adjacent room bearing No.24/1263. The owner of the building was one L. Maheswari Amma from whom, subsequently the appellant purchased the entire property of 3 ¾ cents together with the building on 16.9.1971 and after that the appellant began to reside in the room TC 24/1262 and the respondents with family continued to reside in the adjacent room bearing No.24/1263. It is evident that the TC 24/1263 in which they resided is a part of the building which is owned by the petitioner and therefore it can be concluded that the respondent has no independent possession of the building, but has only permission of her sister-the petitioner to reside there. 13. A totally different case, is now sought to be set up by the first revision petitioner herein, which does not even find a place in the memorandum of revision. It is contended strenuously by the learned counsel on the strength of the ground raised as ground No.2 that various documents received by the revision petitioner; from the Government and the authorities under the Right to Information Act, were attempted to be produced before the appellate authority which was met with a bland refusal. Despite the said contention, these documents were not produced along with the revision. They were produced three years later by I.A 691/2010 dated 9.3.2010. On a bare glance through the documents it is seen that most of them were received after the appellate authority passed the impugned order on 10.9.2007, belying the contention that the appellate authority failed to look into these. Further these were all documents that could have been applied for and produced before the fact finding authorities and there is no explanation why it was not done. 14. Fraud is specifically alleged against the issuance of ration cards in the name of Sumathy in a fictitious building number. Though the copy of ration cards were produced before the lower authorities, the order of the Appellate authority places no reliance on such ration cards. Even if the said cards are obtained fraudulently, the mere production of such fraudulent documents before the authority cannot by itself lead to a conclusion that the order, which concluded the proceedings, is vitiated and is to be treated as non est. The order should be based on such fraudulent material and such material should have influenced the mind of the authority to arrive at the findings recorded. The order should be based on such fraudulent material and such material should have influenced the mind of the authority to arrive at the findings recorded. This Court, has, hence, rejected I.A No.691/2010 filed by the revision petitioner. 15. It is pertinent that Sukesini chose not to produce her title deed before the fact finding authorities. Again that would not have altered the situation at all, going by the specific case pleaded by her noticed above. The case now set up by Sukesini was not advanced before the fact finding authorities, where the matter has been pending for more than 30 years. The contours of the jurisdiction conferred on this Court under Section 103 also does not persuade this Court to look into such documents, to examine a totally new case set up by the revision petitioner; who has not even pleaded so in the memorandum of revision. 16. Sukesini took up the plea at the first instance that she had no right over building T.C 24/1263. After remand, the consistent stand of the revision petitioner was that her sister had been occupying the lean-to adjacent to her own residence. Before this Court, revision petitioner urges that she had in fact, purchased 3.75 cents from the brother of L.Maheswari Amma. Though this is urged for the first time; let us assume this to be correct. That, in the opinion of this Court, would not in any manner alter the situation. Sumathy had claimed residence in the property from 1960 onwards. That was resisted by Sukesini, who purchased the property subsequently in 1971; on the sole ground that her sister was permitted to reside in the lean-to. The residence of Sumathy and the occupation before 1971is admitted. That Sumathy continued in occupation as mandated by the Act also cannot be disputed. 17. The claim of Sumathy was resisted on the ground of permissive occupation to a sister and the very same contention was taken up before the Civil court. Lean-to in which Sumathy was said to be residing was never contended as being in any other property. Parties to a litigation cannot be permitted to approbate and reprobate. 17. The claim of Sumathy was resisted on the ground of permissive occupation to a sister and the very same contention was taken up before the Civil court. Lean-to in which Sumathy was said to be residing was never contended as being in any other property. Parties to a litigation cannot be permitted to approbate and reprobate. The Hon'ble Supreme Court in Joint Action Committee of Airlines Pilots Association of India v. Director General of Civil Aviation (2011(5)SCC 435) reiterated the principle of the doctrine of election based on the principle of estoppel: "The doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily." (Para 12) 18. In Mumbai International Airport P. Ltd., v. Golden Chariot Airport (2010(10)SCC 422), Hon'ble Judges paused themselves the questions whether a litigation is akin to a game of chess and whether a litigant could be allowed to change its stance to his convenience to prolong litigation on 'prevaricated pleas'. Restating the principle the Supreme Court quoted with approval the decision of a Division Bench of Calcutta High Court in Dwijendra Narain Roy V. Joges Chandra De(AIR 1924 Cal 600). This wholesome doctrine, the Hon'ble Judge held, applies not only to successive stages of the same suit, but also to another suit than the one in which the position was taken up, provided that the second suit grows out of the judgment in the first (Para 50). 19. In the instant case, the consistent case of Sukesini was that building No. T.C 24/1263 was in the 3.75 cents purchased by her in 1971. She claimed it to be part of her residence T.C 24/1262 and asserted mere permissive occupation to her sister. Declaration of title was sought for and granted in a suit wherein the pleadings were similar. 20. She claimed it to be part of her residence T.C 24/1262 and asserted mere permissive occupation to her sister. Declaration of title was sought for and granted in a suit wherein the pleadings were similar. 20. The entire submissions made before this Court is on the premise that the kudikidappu claimed by Sumathy is in the adjacent property. It is the case of Sukesini that 15 cents of property was divided into four plots of 3.75 cents each lying west to east. Sukesini's property which she professes to have purchased from the brother of Maheswari Amma lies at the western extremity and to the east, lies Maheswari Amma's property of 3.75 cents. The revision petitioner contends that T.C 24/1262 is in her property and T.C 24/1263 is in Maheswari Amma's property. Looking at the report of the Revenue Inspector, dated 4.4.1981, it is seen that the kudikidappu is lying to the west of T.C 24/1262. The rough sketch which accompanied the report also showed the kudikidappu to be on the western boundary of the landlord's property; clearly belying Sukesini's contention that T.C. 24/1263 was lying on another property to the east. This is further confirmed by the subsequent report of the Revenue Inspector as also the Commission Report. The Commission report specifically states that T.C 24/1263 is a separate and independent hut constructed adjacent to the veranda of T.C 24/1262. This would indicate that the kudikidappu claimed was within the 3.75 cents purchased by Sukesini in 1971; whether purchased from Maheswari Amma or her brother. 21. What remains to be considered is whether the claim for assignment has been established before the fact finding authorities. More particularly, having claimed to have put up a homestead in the property, on the permission of the original land owner. The claim is one under sub-clause(a) of Section 2(25). It is contended that having claimed that she had erected a homestead it was incumbent upon the claimant to prove and establish such construction having been made by her, that too with the permission of the landlord. Even if Explanation IIA is taken note of, it is the contention that if the dwelling house is not found to be constructed by the claimant or the predecessor-in-interest, then, the proviso dis-entitles any person from claiming the benefit of the deeming explanation. 22. Even if Explanation IIA is taken note of, it is the contention that if the dwelling house is not found to be constructed by the claimant or the predecessor-in-interest, then, the proviso dis-entitles any person from claiming the benefit of the deeming explanation. 22. On a perusal of the application, it is crystal clear that the claim raised by the applicant was that she had erected a homestead having come into the lawful possession of the land from the original landlord, Easwaran Thambi. Tracing the history of the legislation, it is to be noticed that this Court had originally held that to claim benefit under the Act as a 'kudikidappukaran', the possession should be lawful and the permission so granted should be shown to have continued till the coming into effect of the KLR Act; as per Explanation II as it existed initially. By KLR (Amendment) Act, 1969, Explanation II was substituted with a proviso, to deem any person found in occupation, as on 16.8.1968 and having continued till the relevant date; as having continued with permission. Even then, it was held that the original induction should be with permission, and, it is obligatory that the initial possession is lawful. It was to get over the said binding precedents, that Explanation IIA was brought in, by the KLR (Amendment) Act, 1972. Explanation IIA has a non-obstante clause and provided that any person who was in occupation on 16.8.1968 and continued till 1.1.1970 shall be deemed to be a kudikidappukaran, whether the dwelling house which was in occupation was constructed by him or by his predecessors-in-interest or belonged to any other person. Hence, the stipulation that the dwelling house should be constructed by the kudikidappukaran himself was not mandatory to get the benefit of the deeming provision. It was so laid down by the Hon'ble Supreme Court in Vasantha Kumari v. Balamani (1988(1) KLT 498 SC). It was categorically held that a restricted interpretation cannot be given to the definition under Explanation IIA. True, a limitation is provided by the proviso, that the construction if not made by the person in occupation, then if the construction cost exceeded Rs.750/-or the rental value exceeded Rs.5/-he could not avail himself of the deeming provision. In this case, the Revenue Inspector's report at the first instance itself, i.e., on 4.4.1981, shows that the construction cost was only Rs.300/-. 23. In this case, the Revenue Inspector's report at the first instance itself, i.e., on 4.4.1981, shows that the construction cost was only Rs.300/-. 23. This Court looked into the facts, though conscious of the limited jurisdiction under Section 103, in view of the allegations of fraud raised on behalf of the revision petitioner. Having looked at the evidence in its entirety it cannot at all be said that the appellate authority has relied on any material which was irrelevant or has failed to consider any relevant material. The various documents produced three years after the filing of the above revision, in the opinion of this Court are not at all material. In addition to the fact that there is no satisfactory explanation as to why these documents could not have been produced before the lower authorities, this Court has no hesitation to come to the conclusion that the appellate authority's findings do emanate from the evidence available in the records. It cannot be said that the appellate authority has failed to consider any question of law or erroneously considered one. A totally new case now set up by the revision petitioner is one which is directly in conflict and contrary to the specific admitted case of the revision petitioner before the fact finding authorities. The Civil Revision Petition is dismissed with costs.