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2021 DIGILAW 38 (KER)

Anu Kumar v. State of Kerala

2021-01-13

C.S.DIAS

body2021
JUDGMENT : C.S. Dias, J. 1. The appellant is the plaintiff in O.S. No. 368 of 2015 of the Court of the Munsiff, Alappuzha (Trial Court) and the appellant in A.S No. 9/2020 of the Court of the District Judge, Alappuzha (lower Appellate Court). The respondents in the appeal were the defendants in the suit and respondents in the first appeal. The parties are, for the sake of convenience, referred to as per their status in the original suit. 2. The plaintiff had sought a decree of perpetual injunction restraining the defendants and their men from initiating revenue recovery proceedings against the plaint schedule property belonging to the plaintiff. 3. The case of the plaintiff, in a nutshell, is that he had purchased the plaint schedule property and has been in possession and enjoyment of the same after effecting mutation. The plaintiff has been conducting a hotel named "Alakapuri" and the movables in the building belong to him. The 2nd defendant had issued a notice calling upon the plaintiff to show case why the mutation in respect of the plaint schedule property should not be cancelled. Even though the plaintiff had filed a written objection to the notice stating that he was not liable to pay the alleged dues under the notice, the 2nd defendant threatened to take coercive proceedings against him. Hence the suit. 4. The defendants filed a joint written statement, inter alia, contending that the suit is barred by virtue of Section 72 of the Kerala Revenue Recovery Act, 1968 (in short "the Act"). The erstwhile owner of the plaint schedule property is a necessary party to the suit. The erstwhile owner had defaulted payment of dues to the Toddy Wokers' Welfare Board. Thus, revenue recovery proceedings has been initiated against the erstwhile owner and the plaint schedule property. The plaintiff is a relative of the erstwhile owner. Hence the suit may be dismissed. 5. The Trial Court by judgment and decree dated 28.11.2019 dismissed the suit holding it to be hit by Section 44 of the Act and was not maintainable in view of Section 72 of the Act. 6. Assailing the judgment and decree passed by the Trial Court, the plaintiff preferred A.S 9/2020 before the lower Appellate Court. The lower Appellate Court, after re-appreciating the pleadings and materials on record, by the impugned judgment confirmed the judgment and decree of the Trial Court. 7. 6. Assailing the judgment and decree passed by the Trial Court, the plaintiff preferred A.S 9/2020 before the lower Appellate Court. The lower Appellate Court, after re-appreciating the pleadings and materials on record, by the impugned judgment confirmed the judgment and decree of the Trial Court. 7. It is challenging the concurrent findings of the courts below that the appellant/plaintiff is before this Court in Second Appeal. 8. Heard Sri. K.S. Hariharaputhran, the learned counsel appearing for the appellant. 9. The learned counsel appearing for the appellant argued that the courts below have committed grave error in holding that the suit is hit by Section 72 of the Act. The plaintiff is a bona fide purchaser of the plaint schedule property and he is not a defaulter of arrears of land revenue to the Government. Hence, revenue recovery proceedings initiated against the plaintiff's property is bad in law. He has also pointed out that the lower Appellate Court, although found that the suit is hit by Section 72 of the Act, has gone into the merits of the dispute and held that the transfer of the property by the erstwhile owner to the plaintiff is hit by Section 44 of the Act, which is erroneous. He hence prayed that the Second Appeal may be admitted and all further proceedings may be stayed. 10. Undisputedly,, the plaintiff has sought for a decree of perpetual prohibitory injunction to restrain the defendants and the persons claiming under them from initiating revenue recovery proceedings against the plaint schedule property belonging to the plaintiff. 11. Section 72 of the Kerala Revenue Recovery Act, 1968 reads as follows: "72. 10. Undisputedly,, the plaintiff has sought for a decree of perpetual prohibitory injunction to restrain the defendants and the persons claiming under them from initiating revenue recovery proceedings against the plaint schedule property belonging to the plaintiff. 11. Section 72 of the Kerala Revenue Recovery Act, 1968 reads as follows: "72. General bar to jurisdiction of Civil Courts [xxxx] (1) Except as otherwise expressly provided in this Act, every question arising between the Collection or the authorised officer and the defaulter or his representative or any other person claiming any right through the defaulter, relating to the execution, discharge or satisfaction of a written demand issued under this Act or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such demand, shall be determined not by suit, but by order of- (i) the [Commissioner of Land Revenue], where the Collector is a party to the question; (ii) the Collector, in other cases: (2) No Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled decided or dealt with or to be determined by the Government, or the Commissioner of Land Revenue or the Collector or any officer or authority under this Act.]" 12. Section 72 (2) of the Act, extracted supra, explicitly ousts the jurisdiction of the Civil Court from entertaining a suit. Ext. A2 was issued by the Tahsildar invoking the provisions of the Act. As the Act is a self contained enactment, the plaintiff ought to have invoked the remedies provided under the Act, and could not have filed a suit in view of the specific bar in Section 72. 13. The courts below have rightly arrived at the conclusion that the suit is hit by Section 72 of the Act. I do not find any error committed by the courts below in arriving at the above conclusion. 14. Nevertheless, I find force in the contention of the learned counsel appearing for the appellant that once the courts below have found the suit to be hit by Section 72 of the Act, the courts below ought not to have delved into the merits of the disputes, but left it to the statutory authorities concerned to deal with the same. 15. 15. On an appreciation of the impugned judgments and the materials on record, I am of the definite opinion that there is no question of law involved in the appeal, much less any substantial question of law. Resultantly, I dismiss the Second Appeal, which would be without prejudice to the rights of the plaintiff to invoke the remedies provided under the Act before the competent statutory authorities de hors the finding rendered by the courts below on the merits of the transfer of property.