JUDGMENT : 1. The petitioners have approached this Court challenging Ext.P12 order through which the 1st respondent has determined that the respondents 4 and 5 are the persons entitled to compensation under LAC Nos. 621/20 and 621/ 20A before that officer. It is the case of the petitioners that respondents 4 and 5 had purchased the property from out of the property allotted to defendants 24 to 26 in O.S. No. 84 of 1986 on the file of the Munsiff Court, Payyoli. O.S. No. 84 of 1986 was a suit for partition. The preliminary decree in the suit for partition was issued on 24.01.1987. Ext.R4(a) final decree was issued on 30.09.1997. The petitioners, who are defendants 11 and 19 in Ext.R4(a) final decree, contend in main that, they were minors at the time when the preliminary decree was issued and they were represented by their mother in the said proceedings. It is their case that owing to a collusion between their mother and one of her brothers, the fact that the property which is subject matter of LAC Nos. 621/20 and 621/ 20A was allotted to petitioners by virtue of a registered partition deed executed in the year 1981, was not brought to the notice of the Court which issued the preliminary decree/final decree. According to the petitioners, this constitutes a fraud, which vitiates the preliminary decree as well as the final decree. 2. It is submitted by Adv. B. Krishnan, the learned counsel for the petitioners that even without filing any separate suit challenging the preliminary decree and the final decree, it is open to the petitioners to contend that the respondents 4 and 5, who claim under defendants 24 to 26 cannot be found entitled to compensation as determined by Ext.P12 order. The learned counsel appearing for the petitioners places substantial reliance on the judgment of the Supreme Court in Asharfi Lal vs. Smt. Koili (Dead) by LRs. AIR 1995 SC 1440 in support of his contentions. It is submitted that the proceedings of the 1st respondent determining that respondents 4 and 5 are entitled to receive compensation on the basis of the final decree in O.S. No. 84 of 1986, cannot be sustained and the matter has to be referred to the competent Court under the provisions of Section 3H(4) of the National Highways Act, 1956. 3. Adv. 3. Adv. P.K. Suresh Kumar, the learned Senior Counsel appearing for respondents 4 and 5, on the instructions of Adv. Sreenath Girish, would contend firstly that the petitioners cannot seek to avoid the final decree in O.S. No. 84 of 1986 on the ground that they were minors, since, considering the age of the petitioners as disclosed in the writ petition, both of them had attained the age of majority at the time when the final decree was issued. It is submitted that the limitation for filing a suit to nullify a decree is 3 years from the date on which the enabling facts came to the knowledge of the plaintiff [Article 59 of the Schedule to the Limitation Act]. It is submitted that following Ext.R4(a) final decree, the property was delivered to defendants 24 to 26 in the suit as early as in the year 1998 and thereafter, by registered deed executed in the year 2002, respondents 4 and 5 obtained the properties from them. It is pointed out that even in Ext.R4(a) final decree, the petitioners have not been recorded as minors. The learned senior counsel placed reliance on the judgment of a Full Bench of this Court in Kesava Bhat vs. Subraya Bhat, 1979 KLT 766 as also the judgment of a learned Single Judge of this Court in Kaprat Family Trust and Others vs. Union of India and Others, 2022 (2) KLT Online 1220, to contend that a reference under Section 3H of the National Highways Act, 1956 can only be made if a dispute arises. In other words, it is his contention that merely on account of the fact that some person raises a claim to receive compensation, a dispute does not ‘arise’ for the purposes of a reference under Section 3H of the National Highways Act, 1956. It is submitted that the petitioners were parties to Ext.R4(a) final decree and since the 1st respondent has only relied on that final decree, which has not been challenged in any manner known to law, there is absolutely no illegality in the 1st respondent proceeding to award compensation to respondents 4 and 5 finding that they are the rightful owners, entitled to compensation, on account of the acquisition. The aforesaid contentions are supported by the learned Government Pleader and the learned counsel for the National Highways Authority. 4. The aforesaid contentions are supported by the learned Government Pleader and the learned counsel for the National Highways Authority. 4. Having heard the learned counsel, as above, I am of the opinion that there is considerable merit in the contentions taken for the respondents. I find that the petitioners are not entitled to any relief for the following reasons: (1) The petitioners were not minors at the time when Ext.R4(a) final decree was issued on 30.09.1997. (2) The limitation for setting aside a decree, on account of nullity is 3 years from the date on which the enabling facts came to the knowledge of the plaintiff. Here the final decree was issued on 30.09.1997. On that date, admittedly, the petitioners were under no disability whatsoever to challenge that decree. Having not done so, they cannot be heard to contend, nearly 25 years after, that they are entitled to avoid the decree as it is a nullity. (3) Paragraphs 14 and 15 of the judgment of the Supreme court in Asharfi Lal (supra) read as follows: “14. The question for consideration is whether, apart from filing a separate suit for setting aside a decree on the ground of gross negligence on the part of his next friend, it is permissible for a minor to avoid a decree, if relied upon in a subsequent proceeding, on the ground that the said decree was obtained on account of gross negligence on the part of his next friend in the previous suit. This would be permissible only if Section 44 of the Evidence Act can be invoked. As pointed out earlier, the Privy Council in Talluri Venkata Seshayya vs. Thadikonda Kotiswara Rao, AIR 1937 PC 1 supra has laid down that Section 44 of the Evidence Act cannot be extended to cases of gross negligence. But in the said case the Privy Council has observed that the Court cannot treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts. In other words, in cases where an inference of fraud or collusion can be drawn from the negligence or gross negligence of the next friend it would be permissible for a minor to avoid the judgment or decree passed in the earlier proceeding by invoking Section 44 of the Evidence Act without taking resort to a separate suit for setting aside the decree or judgment. 15. In the present case, the consolidation authorities have found gross negligence on the part of Smt. Budhna, the next friend of the appellant, in prosecuting the earlier declaratory suit filed by her in the name of the appellant inasmuch as Smt. Nanki, the mother of the appellant, was not examined as a witness and material documents were not produced although the said evidence was available. The question is whether an inference of fraud or collusion can be drawn from the said negligence on the part of Smt. Budhna, the next friend of the appellant. The Deputy Director (Consolidation) did not examine the case from this aspect. He has proceeded on the basis that gross negligence on the part of the next friend of the appellant entitles him to avoid the decree passed in the earlier declaratory suit. The High Court has set aside the said order of the Deputy Director (Consolidation) on the view that a decree obtained against a minor due to negligence of the guardian is not void but voidable and the decree passed in the earlier declaratory suit was binding unless it was avoided by filing a suit in an appropriate court and that the consolidation authorities were not competent to grant the declaration of adjudication on validity or otherwise of the decree. The High Court has taken note of the provisions contained in Section 44 of the Evidence Act but has held that the same were not of any assistance to the appellant. In taking the said view the High Court, with respect, has failed to note that if a judgment falls within the ambit of Section 44 of the Evidence Act it can be avoided in the proceedings in which it is sought to be relied upon and it is not necessary to have it set aside by instituting independent proceedings in a competent court. What was required to be considered was whether the judgment in the earlier declaratory suit fell within the ambit of Section 44 of the Evidence Act and for that purpose it was necessary to examine whether an inference of fraud or collusion could be drawn from the gross negligence on the part of Smt. Budhna, the next friend of the appellant, in conducting the earlier declaratory suit. Since the matter has not been examined from this aspect, we consider it appropriate that the matter be remitted to the Deputy Director (Consolidation) for considering whether in view of the finding recorded by him there was gross negligence on the part of Smt. Budhna in prosecuting the earlier declaratory suit filed, an inference of fraud or collusion can be drawn so as to attract the provisions of Section 44 of the Evidence Act. If he finds that such an inference can be drawn he would not be bound by the judgment in the earlier declaratory suit but if he finds that such an inference cannot be drawn he would be bound by the said judgment till it is set aside by the competent court in an appropriate proceeding.” A reading of the judgment of the Supreme Court in Asharfi Lal (supra), in my view does not lead to the conclusion that whenever a decree is pressed into service for the purpose of establishing title or any other right, a party opposing it can by simply raising an objection that certain documents were not brought to the notice of the Court passing the decree, seek to avoid it by applying the principle contained in Section 44 of the Indian Evidence Act, 1872. A reading of the judgment of the Supreme Court suggests that if the failure to bring to the notice of the Court passing the decree, a pertinent document or fact, was a case of negligence, the party to a decree cannot seek to avoid it by relying on the principle contained in Section 44 of the Indian Evidence Act, 1872, unless that negligence is purposeful and a product of fraud. The decree which is sought to be avoided, in this case, does not fall within Section 44 of the Indian Evidence Act, 1872. The remedy of the party aggrieved by the final decree in such cases would be to challenge that final decree in a manner known to law. In the facts and circumstances of this case, it is not disputed before me that there is absolutely no challenge to the final decree at the instance of the petitioners. The remedy of the party aggrieved by the final decree in such cases would be to challenge that final decree in a manner known to law. In the facts and circumstances of this case, it is not disputed before me that there is absolutely no challenge to the final decree at the instance of the petitioners. Even if the petitioners were to challenge the final decree, they could have done so only within three years from the date of knowledge of the decree in terms of Article 59 of the schedule to the Limitation Act, 1963. There is absolutely no pleading in the writ petition, which even minutely suggests that the petitioners were not aware of Ext.R4(a) final decree, on the date it was issued. (4) The property, which is the subject matter of Ext.R4(a) decree contained in plot E was delivered to defendants 24 to 26 in the suit as early as in the year 1998. Nearly 24 years have passed after the delivery of the property pursuant to Ext.R4(a) final decree. It does not lie in the mouth of the petitioners to contend at this distance of time that they are entitled to avoid the consequences of Ext.R4(a) final decree. A Full Bench of this Court in, Kesava Bhat (supra), a case arising under the Kerala Land Reforms Act, 1963, held that a reference under Section 125 of the Land Reforms Act cannot be made merely for a reason that a claim is made and a dispute must actually arise for such a reference to be made. Paragraph 11 to 13 of the judgment of the full bench in Kesava Bhat (supra) reads as follows: 11. Counsel for the appellant contended, on the strength of the decisions in Noor Mohammad Khan vs. Fakirappa, AIR 1978 SC 1217 and Bhimjai vs. Dundappa, AIR 1966 SC 166 that the question of tenancy arises as soon as the plea was raised by the defendant that he was a tenant, and therefore the matter had to be referred to the Land Tribunal. We do not think this extreme position taken up by counsel for the appellant will be justified. A statement in such wide and comprehensive terms is to be found in the Full Bench decision in Lissy vs. Kuttan, 1976 KLT 571 . We do not think this extreme position taken up by counsel for the appellant will be justified. A statement in such wide and comprehensive terms is to be found in the Full Bench decision in Lissy vs. Kuttan, 1976 KLT 571 . The Full Bench observed: “The only matter to be considered in the court is whether any question regarding the rights of a tenant or a kudikidappukaran including the question as to whether a person is a tenant or a kudikidappukaran arises in a suit or proceeding. This, the court will have to examine and for this purpose what will have to be examined are the pleadings and we consider, nothing else. Whether the plea is frivolous or sustainable or prima facie true or not are all foreign to the scope of the enquiry before court. We are in complete agreement withthe decision in Sankaran vs. Rajammal, 1974 KLT 486 where all the decisions on the subject on an analogous provision of previous enactments have been reviewed. The view has been taken in the decision that S.125 (3) has barred any consideration by the court of the question even for the purpose of finding out whether a prima facie case has been established.” We consider that the principle has been very widely and broadly stated in the above passage. We cannot accept the statement of the law as correct. Unless the question actually “arises” for consideration, there is no obligation under S.125 (3) to make a reference to the Land Tribunal. The mere incorporation of an unnecessary or irrelevant plea of tenancy into the written statement which has no relation whatever to the material averments and the reliefs sought in plaint, cannot attract the bar of S.125 (1), or the provisions of S.125 (3). It follows that the statement of the principle in Sankaran vs. Rajammal, 1974 KLT 488 which was approved by the Full Bench in Lissy vs. Kuttan, 1976 KLT 571 must also be overruled. That decision stated that S.125 (3) bars any consideration by the court of the question even for the purpose of finding out whether a prima facie case has been established. We consider this an overstatement of the principle. It is only if the question arises for consideration that the obligation to refer under S.125(3) also arises. That decision stated that S.125 (3) bars any consideration by the court of the question even for the purpose of finding out whether a prima facie case has been established. We consider this an overstatement of the principle. It is only if the question arises for consideration that the obligation to refer under S.125(3) also arises. We do not think it can be the intention of the Legislature to make the reference to the Land Tribunal dependent upon a plea in the written statement which has got no relation to the claim made in the plaint, and which would not, having regard to the frame of the plaint, or to other legal obstacles in raising the defence, call for any adjudication at all. 12. We may refer to the decision of the Supreme Court in Topandas v. M/s. Gorakhram Gokalchand, AIR 1964 SC 1348 . The suit was there instituted in the City Civil Court, Bombay, for a declaration that the defendants were not entitled to remain in possession of a certain shop in Greater Bombay and for a permanent injunction restraining them from entering the shop. The defence was that the relationship between the parties was not that of licensor and licensee but of landlord and tenant and that under S.28(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, read with S.29-A thereof the suit was exclusively triable by the Court of Small Causes and not by the City Civil Court. This defence was overruled. S.28 gave exclusive jurisdiction over suits or proceedings between landlord and tenant relating to recovery of rent or possession to the Small Cause Court; and S.29-A provided that nothing in S.28 (or 29) would bar a party to a suit in which a question of title to premises arises, from suing in a competent court to establish his title to the premises. S.K. Das J. speaking for himself and Hidayatullah J. who formed the majority, observed: “It is to be noticed that the operative part of the subsection refers to two matters (a) any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provision of Part II apply and (b) any application made under the Act or any claim or question arising out of this Act or any of its provisions. What is the true effect of sub-section (1) of S.28 with regard to the aforesaid two matters? Does it mean that if the defendant raises a claim or question as to the existence of a relationship of landlord and tenant between him and the plaintiff, the jurisdiction of the City Civil Court is ousted even-though the plaintiff pleads that there is no such relationship, and the only court which has exclusive jurisdiction to try the suit is the Court of Small Causes, Bombay? That is the question before us.” (p. 1352) The learned Judges then referred to the Full Bench decision of the Allahabad High Court in Ananti vs. Channu (ILR. 52 All. 501) and proceeded: “Having regard to the general principle stated above we think that the view taken by the High Court in this case is correct. S.28 no doubt gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II apply; it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its provisions - all this notwithstanding anything contained in any other law. The argument of learned counsel for the appellants is that the section in effect states that notwithstanding any general principle, all claims or questions under the Act shall be tried exclusively by the courts mentioned in the section, e.g. the Court of Small Causes in Greater Bombay, and it does not matter whether the claim or question is raised by the plaintiff or the defendant. The argument is plausible, but appears to us to be untenable on a careful scrutiny. We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. It does not invest those courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under S.28 depends, we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go. The interpretation canvassed for by the appellants will give rise to anomalous results; for example, the defendant may in every case force the plaintiff to go to the Court of Small Causes and secondly, if the Court of Small Causes finds against the defendant's plea, the plaint may have to be returned for presentation to the proper court for a second time.” (pp. 1352 and 1353) 13. Counsel on both sides expatiated on the meaning of the expression “arise.” The decision in Wood v. Ward (40 Chancery Division 555) was cited. Cotton LJ there stated that a question which “arises” for consideration is something which will necessarily have to be decided. Much the same thing was said by Lindley, L. J. and Lopes L. J. Being a plain and simple suit for injunction on the averment that the defendant was only the plaintiff's agent, we do not think any question regarding the rights of a tenant “arise” so as to attract S.125(3) of the Act. Attention was called to the decision of a learned Judge of this Court in George vs. Chakkunni, 1977 KLT 865 . Our learned Brother Bhaskaran J. very rightly noticed that the legislature had guardedly used the expression “arising” instead of “raised.” It was observed that to invoke the Section it is not sufficient that a dispute regarding the right of tenancy is raised, and that the question should, on the other hand, “arise” in the proceedings. The learned Judge was of the view that if, as a matter of fact, the plea is barred by the operation of the principles of res judicata, the Court trying to proceed has no jurisdiction to try that question over again, and in that view, the question does not really “arise” for decision. The learned Judge was of the view that if, as a matter of fact, the plea is barred by the operation of the principles of res judicata, the Court trying to proceed has no jurisdiction to try that question over again, and in that view, the question does not really “arise” for decision. We give our assent to this exposition of the principle by the learned Judge.” A learned Single judge of this Court in Kaprat Family Trust and Ors (supra) considered the law laid down by the Full Bench in Kesava Bhat (supra) in the context of a reference under the provisions of Section 3H of the National Highways Act, 1956 and held as follows: “10. As I have already said above, going by the statutory scheme and stipulations of Section 3H of the “NH Act” once the amounts under the Awards are deposited by the Central Government, the owners of the acquired properties must produce the documents in support of their title and if there is no dispute, then disbursement of the eligible sums will have to be proceeded with. However, as and when anybody impels a contest as to the title of the individual owner or as to his/her entitlement to the compensation, the CALA certainly become obliged to consider whether a dispute “arises” within the ambit of Section 3H(4) and if it is concluded so, then to make a reference to the competent Civil Court. 11. Perspicuously, therefore, it is not sufficient that a person merely projects a contest but will have to establish before the CALA that this leads to “arising” of a dispute, as has been well settled by a learned Larger Bench of this Court in Kesava Bhat vs. Subraya Bhat, 1979 KLT 766 . 12. To paraphrase, it is not enough that someone approaches the CALA and asserts that he has a dispute with respect to the entitlement of the owner of the property to receive the eligible compensation, but it is imperative for him to establish that said imputation given rise to a valid dispute. Thus a mere trifle allegation would be not sufficient, but it will have to be supported by some cogent evidence or material. Thus a mere trifle allegation would be not sufficient, but it will have to be supported by some cogent evidence or material. Coming to the submission of Shri P. Viswanathan, learned Senior Counsel, that Appeals have been filed before the competent Authority against the “Pattas” I must certainly say that mere pendency of such cannot be a ground for anyone to hold that a dispute has arisen, unless the title of the owner is shown to be, at least, prima-facie vitiated.” 5. I am in complete agreement with the view taken by the learned Single Judge with reference to the provisions of the National Highways Act, 1956 relying on the law laid down by Full Bench of this Court in Kesava Bhat (supra). 6. For all these reasons, the writ petition fails and it is accordingly dismissed.