Dayanandan @ Mohanan v. Raghava Menon and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 15TH DAY OF MARCH 2018 / 24TH PHALGUNA, 1939** **RSA.No. 318 of 2013** **AGAINST THE JUDGMENT & DECREE DATED 03-07-2012 IN AS 55/2010 of I ADDITIONAL DISTRICT COURT, ERNAKULAM** **AGAINST THE JUDGMENT & DECREE DATED 21-08-2009 IN OS 1165/2007 of II ADDL.MUNSIFF COURT, ERNAKULAM** ## **APPELLANTS/APPELLANTS/PLAINTIFFS** - **1 DAYANANDAN @ MOHANAN, S/O.P.K.KAIMAL, AGED 67 YEARS INDUKRISHNA NEDUVELIL HOUSE, RAVIPURAM ROAD, ERNAKULAM 682 016.** - **2 AJITHKUMAR MENON, AGED 53 YEARS** - **S/O.P.K.KAIMAL, INDUKRISHNA NEDUVELIL HOUSE, RAVIPURAM ROAD, ERNAKULAM - 682 016, REPRESENTED BY THE 1ST PLAINTIFF DAYANANDAN, BY POWER OF ATTORNEY NO.270/05 DATED** - **31/01/2005, CONSULATE TORONTO.** - **3 INDIRA MANGHAT, W/O.DAYANANDAN, AGED 66 YEARS** - **INDUKRISHNA NEDUVELIL HOUSE, RAVIPURAM ROAD, ERNAKULAM** - **682 016.** - **BY ADV.SRI.K.G.CLEETUS** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1. RAGHAVA MENON, GOPALA MENON, AGED 80 YEARS, KRISHNA SUDHA, 2763 A, TAGORE NAGAR, PONNETH TEMPLE ROAD, KOCHI 682 020.** **2. V.T.K. ESTATE REPRESENTED BY MANAGER,** - **V.T.K. ESTATE, KALIKKOTTA PALACE, TRIPUNITHURA, ERNAKULAM DISTRICT.** **3. MALATHY AMMA, W/O.RAGHAVA MENON, AGED 73 YEARS KRISHNA SUDHA, 2763 A TAGORE NAGAR, PONNETH TEMPLE ROAD, KOCHI- 682 020.** **4. RAVEENDRANATHAN, S/O.RAGHAVA MENON, AGED 55 YEARS XXIII/2356, ROHINI GEETHANJALI ROAD, HIGHWAY AVENUE, VYTTILA, KOCHI - 682 019.** **2** **RSA.No. 318 of 2013** **5. SUDHA DEVI, D/O.RAGHAVA MENON, AGED 51 YEARS KRISHNAKRIPA 3015 A, NEDUVELIL, TAGORE NAGAR, PONNETH TEMPLE ROAD, KADAVANTHARA, KOCHI- 682 020.** **R1,R3-R5 BY ADVS. SRI.S.SREEKUMAR (SR.)** **SRI.P.MARTIN JOSE SRI.P.PRIJITH** **R2 BY ADV. SRI.JOSEPH FRANKLIN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J.** ## **------------------------------R.S.A.No.318 of 2013** **---------------------------------------------Dated this the 15[th] day of March, 2018** ## **JUDGMENT** Heard the learned counsel for the appellants and respondent. 2. Plaintiffs are the appellants. Suit carries the following prayers: a. Declaring that the plaintiffs and their predecessors have been in possession of the plaint schedule properties ever since the 2[nd] defendant's sale deed No.966 of 1113 M.E. and that they have perfected their title by their long and adverse possession. b. Declaring that defendants 1, 3, 4 and 5 are not entitled to any right or possession under the void certificate of purchase obtained by the 1[st] defendant, or otherwise. c. A consequential decree of injunction restraining the defendants from interfering with the possession and enjoyment of the plaint schedule properties by the plaintiffs in any manner whatsoever. **RSA No.318 of 2013** **2** - d. Granting such other reliefs that are just and necessary. - e. Awarding costs to the plaintiffs. 3. The courts below dismissed the suit mainly finding that the claim in the plaint is barred by res judicata by virtue of the proceedings under Kerala Land Reforms Act, 1963 (in short, the KLR Act). 4. Brief facts are as follows: Properties scheduled as items A, B and C in the plaint belonged to Kallyanikutty Amma, mother of plaintiffs 1 and 2 and mother-in-law of the 3[rd] plaintiff. By virtue of registered documents, she transferred plaint A schedule property to the 1[st] plaintiff, B schedule property to the 2[nd] plaintiff and C schedule property to the 3[rd] plaintiff. These properties, along with another property, measuring 2 acres and 68 cents comprised in Sy.No.652 of Elamkulam Village, was acquired by Chandramathy Amma, mother of Kallyanikutty Amma. It was obtained from the 2[nd] defendant by a registered deed of the year 1113 M.E. Chandramathy Amma and her husband Gopala Menon executed a settlement deed of all those properties in the year 1123 M.E. In that document, plaint B schedule was allotted to Kallyanikutty **RSA No.318 of 2013** **3** Amma. Plaint schedule property is Item No.4 in the said B schedule property. 5. 2 acres and 68 cents and the plaint schedule properties were enjoyed by Kallyanikutty Amma and Chandramathy Amma, as one plot. The properties are part of a water logged area which was once a padasekharam. Kallyanikutty Amma had transferred sites occupied by kudikidappukars. One Damodaran was in occupation of a portion of the reclaimed land in Sy.No.651. Kallyanikutty Amma, by way of a registered document, in the year 1976, transferred three cents to the said kudikidappukaran. It is the case of the plaintiffs that there was a mistake in the survey number, which was discovered only later. The mistake was rectified by a registered document of the year 1990 executed by the parties. The 2[nd] defendant has no direct possession of the properties. It is later understood by the plaintiffs that 1[st] respondent caused to initiate a suo motu proceedings by the Land Tribunal, Ernakulam, under Section 72(F) of the KLR Act, claiming to be a cultivating tenant under the 2[nd] defendant. In that proceedings, the 2[nd] defendant was the sole respondent. The plaintiffs were not made parties to the proceedings, nor notices were issued to **RSA No.318 of 2013** **4** them. According to the 1[st] defendant, he got the property under a Will executed by his father Gopala Menon, who was alleged to be a tenant under the 2[nd] defendant. Without taking any evidence, the Land Tribunal granted a certificate of purchase to the 1[st] defendant, by order dated 29.5.1995. He then transferred his rights in respect of the property to defendants 3 to 5. On understanding the real facts, the plaintiffs filed appeals before the Land Reforms Appellate Authority, Alappuzha. By a common order dated 9.2.2007, the appeals were dismissed. Thereupon, the appellants/plaintiffs filed Civil Revision Petitions before this Court and by a common judgment dated 9.8.2007, the revision petitions were dismissed. 6. It is the case of the plaintiffs that by virtue of the Will executed by Gopala Menon, no property was obtained by the 1[st] respondent. The Will was not proved in S.M.proceedings. Defendants 3 to 5 had filed appeal against the decision of Special Tahasildar, Kanam Tenancy Abolition Act, granting pattas to the plaintiffs, before the District Court, Ernakulam. The appeal was allowed by the District Court and the finding has become final. According to the averments in the plaint, the tenancy right claimed by the 1[st] respondent and purchase certificate issued by **RSA No.318 of 2013** **5** the Land Tribunal are fraudulent and therefore void. Hence the reliefs are claimed in the suit. 7. The contesting defendant/1[st] respondent filed a written statement opposing the plaint averments. According to the written statement, plaint schedule property never belonged to Kallyanikutty Amma and she had no transferable right over the property. Late Gopala Menon and his wife Chandramathy Amma had seven children including the 1[st] defendant and the mother of the plaintiffs. Chandramathy Amma and her husband executed a settlement deed in the year 1124 M.E. settling some of their properties in favour of their daughters. No properties were allotted to the sons as per the said deed. Late Gopala Menon was the owner of 62 cents of land in Survey No.651 of Ernakulam Village held under a lease from V.T.K.Estate. During the life time of Gopala Menon, he executed a registered document in the year 1961. Thereby all the remaining properties left by him on his death devolved upon the 1[st] defendant and the Will came into force. Gopala Menon executed the Will at his own volition and without any coercion or compulsion. There was a kudikidappukaran in the property. The Land Tribunal, in 1995, issued purchase certificate in respect of **RSA No.318 of 2013** **6** 62 cents of land in favour of the 1[st] respondent. It was issued after conducting a proper enquiry. Three cents of land assigned to kudikidappukaran was also purchased by the 1[st] defendant in the year 1996. 8. The challenge made by the plaintiffs against the Land Tribunal proceedings was dismissed throughout and the finding has become final. The plaintiffs have no right or title over the property and not entitled to get any declaration. 9. Before the trial court, three witnesses were examined on the side of the plaintiffs and one witness on the side of the 1[st] respondent. Exts.A1 to A20 and B1 to B20 were considered by the court below. 10. The trial Judge raised an issue regarding res judicata on the basis of the contention that the suit claimed is barred by the finality attained in the proceedings under the KLR Act. That issue was considered at length and found that the suit claimed is barred by res judicata. 11. The trial court considered the right of the plaintiffs to claim reliefs and entered a finding that the plaintiffs are not in possession of the property scheduled to the plaint and declined the relief. **RSA No.318 of 2013** **7** 12. Dissatisfied with the above findings, the plaintiffs had approached the lower appellate court. The appellate Judge, after considering the rival contentions, agreed with the trial court and dismissed the appeal. 13. Learned counsel for the appellants strongly contended that the lower appellate court seriously erred in finding that the claim in the plaint is barred by res judicata. It is true that in paragraph 15, the lower appellate court had entered a finding erroneously that the appellants' contention regarding insufficiency of notice in the Land Tribunal proceedings had been decided by the appellate authority and therefore, they are precluded from raising it over again. This observation may not be legally sound. But, on the whole, the observations in paragraph 15 would show that the lower appellate court has considered the effect of the proceedings before the Land Tribunal and also the finality attained in the proceedings. 14. It is true that for obtaining purchase of janmam right under Section 72 B of the KLR Act, a person must fall within the definition of 'cultivating tenant' under Section 2(8) of the KLR Act. 'Tenant' has been defined in Section 2(57) of the KLR Act. Learned counsel for the appellants submitted that at no point of **RSA No.318 of 2013** **8** time, the 1[st] respondent was in possession of the property as a cultivating tenant. It is strongly contended by the learned counsel for the appellants that the 1[st] respondent's father (plaintiff's grand father) was a landlord in that area and he could not have been depicted as a cultivating tenant as done in the Land Tribunal Proceedings. These contentions cannot be raised over and again in the light of conclusion of the proceedings initiated against the appellants in the Kanam tenancy proceedings (Exts.B10 to B12). The prayer in the suit is for a declaration that the 1[st] defendant is not entitled to possess the property by virtue of a void purchase certificate. 15. Learned counsel for the appellants strongly relied on the decision of a learned Judge in **Sree Karikad Devaswom v. Wandoor Jupiter Chits (P) Ltd. [1980 KLT 760]** where the following proposition is laid down: A purchase certificate issued in proceedings where individual notice is not issued to the landowner cannot operate against him in spite of S.72K(2), even if a public notice has been issued under Sub-section (1) of S.72F. A purchase certificate would not conclude matters if the same is “inaccurate on its face, or has been obtained by fraud or collusion”. When a Land Tribunal issues a purchase certificate **RSA No.318 of 2013** **9** on the strength of a tenancy admittedly created in 1969, and at a time when S.6C was not even on the legislative anvil, it has to be inferred that its proceedings consisted of an empty formality and a make-believe, with inaccuracy writ large on the face of the certificate issued by it. Coupled with the circumstance that no notice was issued to the Devaswom, inference of fraud is irresistible. A court could declare invalid the order of a Tribunal or the purchase certificate issued by it under circumstances similar to those here established. This proposition is indubitable. The question here is whether the appellants are entitled to get notice. 16. In the light of the findings in the appellate proceedings under the Kanam Tenancy Act, the appellants are precluded from claiming that they were in possession of the property at the material time. 17. Further, the frame of suit itself is bad. It is true that in some paragraphs of the plaint it is mentioned that purchase certificate obtained by the 1[st] respondent is vitiated by fraud and misrepresentation. But, going by the law in Section 19 of the Contract Act, a document obtained by fraud or misrepresentation can only be a voidable document and it should have been avoided **RSA No.318 of 2013** **10** in a manner known to law. 18. The reliefs claimed in the plaint are highly insufficient. The averments in the plaint do not show any specific instances of fraud or misrepresentation. This has to be considered in the light of the fact that the purchase certificate issued in favour of the 1[st] respondent has become final by successive pronouncements by competent authorities. Having regard to the facts and circumstances and also after hearing the learned counsel on both sides, I find no substantial question of law arising in this appeal. The appeal is devoid of merits and hence, it is dismissed. All pending interlocutory applications will stand dismissed. Sd/- **A. HARIPRASAD JUDGE** JV