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2024 DIGILAW 676 (KER)

Narayanan v. Sankaran

2024-06-19

C.PRATHEEP KUMAR

body2024
JUDGMENT : 1. This Second Appeal has been preferred under Section 100 of the Code of Civil Procedure by the additional second appellant in A.S.No.240/2005 on the file of the District Judge, Kottayam, who is the defendant in O.S.No.334/1994 on the file of the Munsiff's Court, Vaikom against the judgment and decree dated 19.8.2011 dismissing the appeal. For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial Court. 2. The plaintiff filed the Suit for a declaration that the purchase certificate obtained by the defendant in respect of plaint schedule item No.2 consisting of 2½ cents of land and a building therein is void, for declaring the plaintiff's title over the said property, a mandatory injunction for directing the defendant to dismantle and remove the building and also for recovery of the same. According to the plaintiff, the plaint schedule item No.1 consisting of 15 cents of landed property and the building therein was purchased by him as per Ext.A1 sale deed No.3238/1959 from one Narayanan Nair. At the time of purchase of the property, there were two small thatched shop rooms abutting the road on the eastern side which were rented out to the defendant Narayanan for a monthly rent of Rs.2/-. Even after the purchase of the property by the plaintiff, the defendant continued as a tenant in plaint schedule item No.2 under the plaintiff. About 20 years back, when the above shop room collapsed, the defendant was allowed to renovate the same. In 1985, the rent was enhanced to Rs.30/-. The defendant defaulted payment of rent after February 1989. On 9.4.1994, when the defendant pulled down the shop room and collected materials for the construction of a new building, without the consent of the plaintiff, he filed a suit as O.S.No.180/94 seeking injunction against construction of new building and sought for some urgent reliefs. In response, the defendant contended that he had obtained purchase certificate from the Land Tribunal, Vaikom in respect of plaint schedule item No.2 property. Therefore, the plaintiff withdrew the above suit and filed the present suit. He had no knowledge about the proceedings before the Land Tribunal. The defendant and Revenue officials colluded with each other, prepared a false report and mislead the Tribunal to get a purchase certificate. Therefore, the plaintiff withdrew the above suit and filed the present suit. He had no knowledge about the proceedings before the Land Tribunal. The defendant and Revenue officials colluded with each other, prepared a false report and mislead the Tribunal to get a purchase certificate. The real owner, namely the plaintiff, was not made a party in the above proceedings and the purchase certificate was obtained after playing fraud upon the Court. Vasudevan Sreekumaran Namboothiri, who was made as respondent in the proceedings before the Land Tribunal, was not the owner of the scheduled property. 3. The defendant filed written statement refuting the allegations in the plaint. The trial Court decreed the suit declaring that Ext.A3 purchase certificate is invalid and the plaintiff was allowed to recover the plaint schedule item No.2 property on the strength of title, after pulling down and removing the unauthorized construction. The 1st Appellate Court confirmed the finding of trial Court and dismissed the appeal. Dissatisfied with the above judgment and decree of the 1st Appellate Court, the defendant preferred this second appeal raising various contentions. 4. At the time of admission, this Court formulated two substantial questions of law. However, after the appearance of the respondent/plaintiff and hearing both sides, this Court found that modification is required in the substantial questions of law already formulated. Accordingly, the following substantial question of law was re-formulated for consideration :- “Whether the suit filed for declaring Exhibit A3 purchase certificate as void is maintainable, when a specific Forum is provided under the Kerala Land Reforms Act for challenging the same ?” 5. Both sides were heard in detail on the above substantial question of law re-formulated by this Court. 6. The plaintiff filed this suit for setting aside Ext.A3 purchase certificate on the ground that it was obtained behind his back and also that it was obtained fraudulently. The learned counsel for the defendant relying upon Sections 102 and 125 of the Kerala Land Reforms Act, 1963 (in short the KLR Act) would argue that specific forum is provided under the KLR Act to redress the grievance of the plaintiff, if any, and hence a separate suit in that respect is not maintainable. On the other hand, the learned counsel for the plaintiff would argue that since the defendant obtained the purchase certificate by playing fraud, a civil suit to set aside the sale certificate is maintainable. On the other hand, the learned counsel for the plaintiff would argue that since the defendant obtained the purchase certificate by playing fraud, a civil suit to set aside the sale certificate is maintainable. 7. In support of the argument, the learned counsel for the plaintiff relied upon the decisions in Makeeriyamnal C.K. Thankam Thamburatty and Others v. Kayyath Moolayil Ravindran and Others, 2009 KHC 1224 and Unneema v, Cheriyamu Haji, 2015 (4) KLT 110 . 8. It is true that Section 125(1) of the KLR Act bars the jurisdiction of Civil Courts with respect to any question or to determine any matter required to be dealt with or to be determined by the Land Tribunal. Subsection (2) of Section 125 states that no order of the Land Tribunal or the Appellate Authority or the Land Board [or the Taluk Land Board] or the Government or an officer of the Government made under this Act shall be questioned in any Civil Court, except as provided in this Act. More over, Section 102 of the KLR Act provides for appeal to Appellate Authority against a decision of the Land Tribunal and Section 103 provides for Revision to the High Court against the order passed in an appeal against order of the Land Tribunal or any final order passed by the Land Board or the Taluk Land Board. 9. In the decision in Makeeriyamnal (supra) a Single Bench of this Court had occasion to consider the jurisdiction of the Civil Court to decide the question whether a purchase certificate obtained by fraud and or collusion is barred under Section 125 of the KLR Act. After considering several decisions and various provisions under the Code of Civil Procedure and the KLR Act, the learned Single Judge held that when there is an allegation that a purchase certificate was obtained by fraud and or collusion, the jurisdiction of the Civil Court is not barred by Section 125 of the KLR Act, in the following words :- “...........In Velappan v. Thomas, 1979 KHC 220: 1979 KLT 412 : AIR 1979 Ker. 194 : 1979 KLT SN 54 it was held that the Civil court can go into the question of validity of the order of the Land Tribunal when it is proved that the order was got by fraud or collusion. 194 : 1979 KLT SN 54 it was held that the Civil court can go into the question of validity of the order of the Land Tribunal when it is proved that the order was got by fraud or collusion. It was held that the ouster of jurisdiction under S.125 of the Kerala Land Reforms Act is limited to matters which are by or under the Act required to be settled, decided or dealt with by the Land Tribunal and that a dispute which cannot be decided by the statutory authorities constituted under the Land Reforms Act can be decided by the Civil Court under S.9 of the Code of Civil Procedure. In Velappan's case it was held thus: 'Now to wind up my discussion, the conclusion that I arrive at is that the ouster of jurisdiction of Civil Courts contained in S.125(1) and (2) of the Act does not extend to questions relating to fraud and collusion. To reiterate what has been said before, most solemn proceedings can be vitiated if fraud and collusion are present. Both statutory and judicial recognition are available to this principle. To say that a Tribunal or statutory authority can hear a case involving fraud, to which fraud the authority itself is a party, is shocking to judicial conscience. To say that an order based on fraud or collusion cannot be challenged in Civil Court is to shake the foundation of our legal system. The Kerala Land Reforms Act cannot be deemed to lay down any such wide jurisdiction on the Land Tribunals. If the contention of the appellants counsel is to be accepted one will have to hold that orders of Land Tribunals upholding tenancy even vitiated by fraud and collusion and orders by which purchase certificates are issued, be it in the most unwholesome manner, are even above Art.141 of the Constitution of India. My considered opinion is that S.44 of the Evidence Act contains inbuilt safeguards to salvage orders obtained by fraud and collusion. 10. My considered opinion is that S.44 of the Evidence Act contains inbuilt safeguards to salvage orders obtained by fraud and collusion. 10. The decision in Velappan's case was followed by Justice M.P. Menon in Sree Karikad Devaswom v. Wandoor Jupiter Chits (P) Ltd., 1980 KHC 111 : 1980 KLT 760 , wherein it was held that Velappan's case, 1979 KHC 220 : 1979 KLT 412 : AIR 1979 Ker.194 : 1979 KLT SN 54 is an authority for the proposition that a court could declare invalid the order of a Tribunal or the purchase certificate issued by it.” 10. In the decision in Unneema (supra), another Single Bench of this Court also held that when fraud is alleged in respect of the proceedings by which purchase certificate was obtained, the said contention cannot be adjudicated by the Land Tribunal and it is for the Civil Court to decide such proceedings. 11. From the above decisions it is clear that, the bar under Section 125 of the KLR Act does not apply in case there is an allegation that the purchase certificate was obtained by fraud or collusion. In case there is a bona fide allegation that the purchase certificate was obtained by fraud or collusion, the Civil Court has got every right to look into those allegations and if it is found that there is merit in those allegations, the Civil Court can set aside the purchase certificate obtained accordingly. 12. It was argued by the learned senior counsel Sri. T.M.Mohamed Youseff who appeared for the defendant that in this case there is no specific pleadings regarding fraud and hence the dicta laid down in the above decisions do not apply to the facts of this case. On the other hand, the learned counsel for the plaintiff invited my attention to the pleadings in paragraph 9 of the plaint and argued that there is sufficient pleadings regarding the allegation of fraud in obtaining Ext.A3 purchase certificate. 13. In paragraph 9 of the plaint it is pleaded that, though the plaintiff is the owner of the schedule property, the defendant obtained Ext.A3 purchase certificate without making him a party in the proceedings before the land Tribunal. 13. In paragraph 9 of the plaint it is pleaded that, though the plaintiff is the owner of the schedule property, the defendant obtained Ext.A3 purchase certificate without making him a party in the proceedings before the land Tribunal. It is also pleaded that the defendant along with the Revenue Inspector who had prepared the local report conspired together, that he prepared and produced a false report before the Land Tribunal with the intention to play fraud upon the Court, that by suppressing material facts and without impleading the plaintiff in the proceedings obtained the purchase certificate and as such it is liable to be set aside. 14. On a perusal of the above pleadings in paragraph 9 of the plaint, it can be seen that the plaintiff specifically pleaded that though he is the owner of the plaint schedule property, the defendant conspired along with the Revenue Inspector, who prepared local report to prepare and file such a false report, and obtained the purchase certificate by playing fraud upon the Court and also without impleading the owner of the land in the party array. Since the plaintiff has raised an allegation in the plaint that the defendant along with Revenue Inspector conspired together, prepared a false report, produced before the Land Tribunal and obtained the purchase certificate by playing fraud upon the Court and without giving notice to the land-lord, those allegations are sufficient enough to raise the claim that the purchase certificate was obtained by playing fraud. Therefore, the contention of the learned counsel for the defendant that in the plaint there is no sufficient pleadings to disclose fraud in obtaining purchase certificate is devoid of any merit. 15. Ext.A3 is the proceedings dated 22.6.1976 of the Land Tribunal, Vaikom finding that the defendant is a cultivating tenant entitled to get purchase certificate in respect of 2½ cents of property comprised in Sy.No.615/4B of Velloor village. It is based on the above proceedings of the Land Tribunal the purchase certificate was issued in favour of the defendant. Though in the judgment of the trial Court Ext.A3 is referred to as purchase certificate, it is only the proceedings as per which purchase certificate was later on issued to the defendant. Ext.A2 is the report of the Revenue Inspector dated 21.6.1976 relied upon by the Land Tribunal to issue Ext.B3 proceedings. Though in the judgment of the trial Court Ext.A3 is referred to as purchase certificate, it is only the proceedings as per which purchase certificate was later on issued to the defendant. Ext.A2 is the report of the Revenue Inspector dated 21.6.1976 relied upon by the Land Tribunal to issue Ext.B3 proceedings. The fact that Ext.A2 report of the Revenue Inspector is dated 21.6.1976 and Ext.A3 proceedings of the Land Tribunal is dated 22.6.1976 and there is no time gap between the report of the Revenue Inspector and the proceedings of the Land Tribunal was highlighted by the learned counsel for the plaintiff to substantiate the fraud alleged against issuance of the purchase certificate in favour of the defendant. 16. It was argued by the learned counsel for the defendant that the purchase certificate was not issued on 22.6.1976, but on a subsequent date and hence according to him, the Land Tribunal issued the purchase certificate only after complying all the legal formalities. It was argued by the learned counsel for the defendant that it was a suo motu proceedings initiated by the Land Tribunal and hence the defendant cannot be blamed for not impleading the plaintiff in the proceedings before the Land Tribunal. 17. It is true that Ext.A3 is a suo motu proceedings initiated on the basis of Ext.A2 report of the Revenue Inspector. Section 72 of the KLR Act deals with vesting of landlords' rights in Government. Section 72C of the KLR Act deals with suo motu proceedings. As per the KLR Act and Kerala Land Reforms (Vesting and Assignment) Rules, 1970 (in short the Rules), several formalities are to be complied before issuing a purchase certificate. Rule 5 deals with suo motu proceedings initiated by the Land Tribunal. Rule 7 deals with public notice. Rule 7A deals with requisition by the Land Tribunal to the village committee. Rule 7B , 7C, 7D and 7E deal with the proceedings to be followed by the village committee and rule 7F deals with advice of the village committee to the Land Tribunal. Rule 8 deals with application by intervener and Rule 9 deals with adjudication of the dispute about tenancy or vesting by the Land Tribunal. Rule 10 deals with further proceedings for assignment and determination of compensation, purchase price etc. Rule 8 deals with application by intervener and Rule 9 deals with adjudication of the dispute about tenancy or vesting by the Land Tribunal. Rule 10 deals with further proceedings for assignment and determination of compensation, purchase price etc. It was argued by the learned counsel for the defendant that the Land Tribunal passed Ext.A3 order after complying all these formalities and after giving individual notice to the affected parties and as such, the plaintiff cannot take a contention that he was not aware of the proceedings before the Land Tribunal. 18. It is true that the KLR Act and the Rules provides for various steps to be followed by the Land Tribunal before issuing purchase certificate to the cultivating tenant. However, as revealed from Exts.A2 and A3, it can be seen that on 21.6.1976 the Revenue Inspector prepared Ext.A2 report and on the very next day, ie, on 22.6.1976, the Land Tribunal passed Ext.A3 proceedings and decided to issue purchase certificate to the defendant. Therefore, the contention of the plaintiff that the proceedings contemplated under the KLR Act and the Rules referred above, were not complied with, before issuing the purchase certificate in favour of the defendant, appears to be well founded. 19. The plaintiff produced Ext.A1 to prove his claim that he is the owner of the plaint schedule property, a portion of which is scheduled as item No.2, which is involved in Ext.A3. As per Ext.A1 sale deed, the plaintiff obtained 4 cents of property comprised in Sy.No.615/4A and 11 cents in 615/4B. The property involved in Ext.A3 is 2½ cents comprised in sy. No.615/4B. The plaintiff was not made a party to Ext.A3. One Vasudevan Sreekumaran Namboothiri, Ampalappallil Vallyaillathu, Mevelloor, Velloor, is the sole respondent in the proceedings before the Land Tribunal. The plaintiff produced Ext.A18 Thandaper account in the name of the above Sreekumaran Namboothiri, which shows that he had no property in Sy.No.615/4B. Ext.A1 sale deed not only shows that the plaintiff obtained 11 cents in 615/4B, but it also states that the defendant is in possession of the shops situated therein. It was in the above circumstance, the trial Court as well as the 1st Appellate Court found that Ext.A3 purchase certificate of the Land Tribunal obtained without making the plaintiff as a party does not bind him and also that it was obtained by fraud and collusion. It was in the above circumstance, the trial Court as well as the 1st Appellate Court found that Ext.A3 purchase certificate of the Land Tribunal obtained without making the plaintiff as a party does not bind him and also that it was obtained by fraud and collusion. The above concurrent findings of the trial Court as well as the 1st Appellate Court on facts cannot be interfered with by this Court in Second Appeal. Since it is evident that Ext.A3 proceedings of the Land Tribunal was vitiated by fraud and collusion, the present Suit to set aside the same is perfectly maintainable and the bar under Section 125 of the KLR Act does not stand in the way of the Civil Court in entertaining such a Suit. The substantial question of law formulated is answered accordingly. No other substantial questions of law were raised by the defendant/appellant at the time of argument. 20. In the light of the above finding on the substantial question of law formulated, it can be seen that there is absolutely no irregularity or illegality in the findings of the 1st Appellate Court so as to call for any interference and hence this appeal is liable to be dismissed. In the result, this appeal is dismissed with costs.