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2025 DIGILAW 2273 (KER)

M. A. Joseph, S/o Alexander v. State Of Kerala

2025-08-23

M.A.ABDUL HAKHIM

body2025
ORDER : M.A.ABDUL HAKHIM, J. 1. This Review Petition is filed by the appellant in RSA No.614/2022 to review the judgment dated 08.08.2024 by which the RSA was dismissed, answering the substantial questions of law against the appellant. The Review Petitioner has filed I.A. No.1/2025, producing Annexure AIV to AXIII, seeking to accept the said documents under Order XLI Rule 27 CPC. 2. The Review Petition is opposed by the Respondent No.5/Corporation of Kochi by filing a counter affidavit. 3. I heard the learned Senior Counsel for the Review Petitioner, Sri. P. Santhalingam, instructed by Adv. Smt. Sindu Santhalingam, and the learned Senior Counsel for Respondent No.5, Sri. V.V. Sidharthan, instructed by Adv. Sri. D.G. Vipin. 4. The Review Petitioner, who was the plaintiff in a suit for declaration, is the appellant in this appeal. Declaration of title was sought with respect to the plaint B schedule property of 1 acre covered by Exts.B1 and B2 Relinquishment executed by the plaintiff in favour of the Defendant No.5 on the ground that the relinquishment is invalid. Plaint B schedule property was part of the plaint A schedule property, which is having an extent of 3 acres 78 cents belonged to the plaintiff per Exts.A1 and A2 title deeds. It is the case of the plaintiff that the plaintiff executed Exts.B1 and B2 on the assurance of the Defendant No.5 that they would fill up the remaining land of 2.78 acres belonging to the plaintiff; that the Defendant No.5 filled up only 60% of the land, and that too illegally and without any authority. 5. The Trial court dismissed the suit on the ground that the suit is time-barred; that the relinquishment made by the plaintiff was unconditional and that in view of the decision of this Court in Natarajan R. v. Village Officer, Kanayannur Taluk and Others [ 2013 (2) KHC 26 ] , when an unconditional relinquishment is made even though the proceedings are not complete, it operates as complete against the landowner. Though the plaintiff filed an appeal before the First Appellate Court, the First Appellate Court confirmed the judgment and decree of the Trial Court. This Court dismissed the RSA, answering the substantial questions of law against the appellant as per the impugned judgment. 6. Though the plaintiff filed an appeal before the First Appellate Court, the First Appellate Court confirmed the judgment and decree of the Trial Court. This Court dismissed the RSA, answering the substantial questions of law against the appellant as per the impugned judgment. 6. The learned Senior Counsel for the Review Petitioner contended that the Respondent No.5 obtained Exts.B1 & B2 relinquishment of land by committing fraud on the Review Petitioner. The transaction between the Review Petitioner and the Respondent No.5 is hit by Section 23 of the Indian Contract Act, 1872. The Review Petitioner agreed to relinquish the plaint B schedule property of 1 acre since the Respondent No.5 assured the reclamation and filling up the remaining 2.78 acres of land. The purpose of the relinquishment of 1 acre is for constructing the Perumpadappu Bus Terminal as revealed from Ext.B1. The land included in Ext.B1 is admittedly a wetland. Going by the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008, the reclamation of wetland is clearly prohibited. The Respondent No.5 did not have the necessary permission to reclaim the said land. The Review Petitioner was defrauded by the Respondent No.5 misrepresenting that the property could be legally reclaimed and filled up by the Respondent No.5. It is clear from the Vigilance Enquiry Report produced along with I.A. No.1/2025 that the Respondent No.5 did not have any right or authority to reclaim or fill up the aforesaid property of the Review Petitioner. The respondents have suppressed the material documents with respect to the same from the notice of this Court and thus committed fraud on this Court. Fraud vitiates everything. If this Court had knowledge about the fraudulent nature of Exts.B1 and B2, this Court would not have passed the impugned judgment dismissing the appeal, rejecting the contention of the Review Petitioner. The Revenue Divisional Officer has no right or authority to accept the wetland by way of relinquishment. Fraud vitiates everything. If this Court had knowledge about the fraudulent nature of Exts.B1 and B2, this Court would not have passed the impugned judgment dismissing the appeal, rejecting the contention of the Review Petitioner. The Revenue Divisional Officer has no right or authority to accept the wetland by way of relinquishment. The learned Senior Counsel relied on the decision of the Hon’ble Supreme Court in A.R. Antulay v. R.S. Nayak [ AIR 1988 SC 1531 ] in which it is held that even the Supreme Court, by its direction, could not confer the jurisdiction on the High Court to try any case when it did not possess such jurisdiction; that no man could suffer because of the mistake of the court; that rules and procedures are the hand- maids of justice and not the mistress of justice; that when it is brought to the notice of the Supreme Court that a man is denied his rights under the Constitution and the laws, even if there are technicalities, the Supreme Court should not feel shackled and decline to rectify that injustice or otherwise injustice noticed will remain forever a blot on justice. The learned Senior Counsel contended that the Respondent No.5 has been claiming valuable property belonging to the Review Petitioner on the basis of an illegal and fraudulent relinquishment. The learned Senior Counsel relied on the decisions of the Hon’ble Supreme Court in A.V. Papayya Sastry and Others v. Government of A.P. and Others . [(2007) 4 SCC 221] and in Vishnu Vardhan @ Vishnu Pradhan v. State of Uttar Pradesh [2025 0 Supreme (SC) 1103] in support of his contentions. In A.V. Papayya Sastry (supra), it is held that a judgment or decree obtained by playing fraud is a nullity and non est in the eyes of law; that such a judgment or decree - by the first court or by the highest court - has to be treated as nullity by every court, whether superior or inferior, and that it can be challenged in any court, even in collateral proceedings. The Hon’ble Supreme Court followed the principle - fraud and justice never dwell together. In Vishnu Vardhan (supra), the Hon’ble Supreme Court followed the principle laid down by Chief Justice Edward Coke of England that fraud avoids all judicial acts, ecclesiastical or temporal. The Hon’ble Supreme Court followed the principle - fraud and justice never dwell together. In Vishnu Vardhan (supra), the Hon’ble Supreme Court followed the principle laid down by Chief Justice Edward Coke of England that fraud avoids all judicial acts, ecclesiastical or temporal. Learned Senior Counsel concluded his arguments by praying to allow the Review Petition, setting aside the impugned judgment. 7. On the other hand, learned Senior Counsel for the Respondent No.5 contended that there is no error apparent on the face of the court to review the impugned judgment. No fraud is involved in the matter. Neither the proceedings of this Court nor the relinquishment proceedings are vitiated by fraud. The Review Petitioner executed Exts.B1 and B2 relinquishment form and declaration fully understanding its legal consequences. The respondents have not played any kind of fraud to obtain Exts.B1 and B2 from the Review Petitioner. The Review Petitioner himself had admitted in his deposition that he executed Exts.B1 and B2 with full consent. It is admitted in his evidence that 70% of the remaining 2.78 acres of land was filled up by the respondents and thus the Review Petitioner had derived benefit out of the transaction. This court rightly relied on the Division Bench judgment of this Court in Natarajan R. (supra), in which it is held that when an unconditional relinquishment is made, even though the proceedings are not complete, it operates as complete against the landowner. The Review Petitioner has not made any ground to receive additional evidence in I.A. No.1/2025. The learned Senior Counsel relied on the decisions of the Hon’ble Supreme Court in M/s Northern India Caterers (India) Ltd. v. LT. Governor of Delhi [ (1980) 2 SCC 167 ] , Sow Chandra Kante and Others v. Sheikh Habib [ (1975) 1 SCC 674 ] and Lily Thomas and Others v. Union of India and Others [(2000) 6 SCC 224] to substantiate the limited scope of Review. 8. I have considered the rival contentions. 9. The Review Petitioner is alleging that the proceeding of this Court in RSA No.614/2022 is vitiated by fraud and hence the impugned judgment, which is the product of fraud, is liable to be set aside. The contention is that material documents with respect to the relinquishment of land as per Exts.B1 and B2 are suppressed by the respondents. 9. The Review Petitioner is alleging that the proceeding of this Court in RSA No.614/2022 is vitiated by fraud and hence the impugned judgment, which is the product of fraud, is liable to be set aside. The contention is that material documents with respect to the relinquishment of land as per Exts.B1 and B2 are suppressed by the respondents. If those materials were produced by the Respondent No.5, this Court would not have passed the impugned judgment dismissing the second appeal. The Respondent No.5 fraudulently misrepresented the Review Petitioner and obtained Exts.B1 and B2 form for relinquishment of land, making the Review Petitioner to believe that they have the authority to fill up and reclaim the land. A wetland cannot be used for the purpose of the construction of a bus terminal in view of the provisions contained in the Kerala Conservation of Paddy Land and Wetland Act, 2008. I am unable to accept the aforesaid contentions of the learned Senior Counsel for the appellant. In RSA No.614/2022, this Court had only considered the legality of the judgments and decrees passed by the Trial Court and the First Appellate Court with reference to the substantial questions of law formulated in the appeal. Exts.B1 and B2 are dated 12.03.2008. The said relinquishment was made before the introduction of the Kerala Conservation of Paddy Land and Wetland Act, 2008, on 12.08.2008. It is clear from Ext.X1(a) dated 01.03.2008 that Respondent No.5 accepted the offer of the Review Petitioner to give one acre of land in favour of Respondent No.5. It is also decided to deposit the sand removed from the backwater in the remaining property of the Review Petitioner. The Review Petitioner, in his evidence, admitted that 70% of the property was filled up by the respondents. The aforesaid facts would reveal that there could not be any fraudulent misrepresentation to the Review Petitioner, as the Kerala Conservation of Paddy Land and Wetland Act was not in force when Exts.B1 and B2 were issued by the Review Petitioner to Respondent No.5. The Review Petitioner with all his consent, executed Exts.B1 and B2 in favour of the Respondent No.5. The Review Petitioner changed his mind at a later point of time when Vigilance enquiry was initiated with respect to the filling of the land, alleging that it is unauthorised and thereby preventing further filling up of the property. The Review Petitioner with all his consent, executed Exts.B1 and B2 in favour of the Respondent No.5. The Review Petitioner changed his mind at a later point of time when Vigilance enquiry was initiated with respect to the filling of the land, alleging that it is unauthorised and thereby preventing further filling up of the property. The Review Petitioner wanted to withdraw from the relinquishment. Hence, the Review Petitioner filed the suit for declaration that the Review Petitioner is the absolute owner of the plaint B schedule property, which is covered by Ext.B1 and B2 relinquishment. The suit was dismissed, holding that it is barred by limitation and that the relinquishment is complete as against the Review Petitioner in view of the Division Bench judgment of this Court in Natarajan R. (supra) . The First Appellate Court dismissed the appeal filed by the Review Petitioner, confirming the judgment and decree passed by the Trial Court. This Court in the impugned judgment found that the relinquishment as against the Review Petitioner is complete, relying on the aforesaid Division Bench judgment in Natarajan R. (supra) . This court also found that the declaration sought for is barred by limitation. This court answered the substantial questions of law in favour of the respondents. This Court considered the legal effect of Exts.B1 and B2 relinquishment letters and entered a finding thereon. There was no argument that the proceedings of this Court are vitiated by fraud. This Court considered the legality of the judgments and decrees passed by the Trial Court and the First Appellate Court in light of the materials available before this Court, and hence, there is no question of any fraud in the proceedings of this Court. The Review Petitioner has not made out any case of fraud, even in this Review Petition. Hence, the impugned judgment is not liable to be reviewed on the ground of fraud. There is no error apparent on the face of the records. Accordingly, this Review Petition is dismissed.