P. V. Chandran and P. V. Gangadharan v. A. Samikkutty and A. Rajan

## **CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **RFA.No.160 OF 2015** **AGAINST THE JUDGMENT AND DECREE IN OS 683/2011 OF III ADDITIONAL SUB COURT, KOZHIKODE** ## **APPELLANTS:** **1 P.V.CHANDRAN AGED 73 YEARS S/O. LATE P.V.SAMI, KERALA KALA, VALAYANAD AMSOM, KOZHIKODE TALUK - 673 007. 2 P.V. GANGADHARAN S/O. LATE .V. SAMI, KERALA KALA, VALAYANAD AMSOM, KOZHIKODE TALUK - 673 007** **BY ADVS. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR** ## **RESPONDENTS:** **1 A.SAMIKKUTTY S/O. IMBICHIKKUTTY, ARAMBACHALIL HOUSE, VELLAIKODE, KOZHIKODE. 2 A. RAJAN S/O. IMBICHIKUTTY, VARAYIL HOUSE, VALAYANAD, KOZHIKODE - 673 007. R1-2 BY ADV. SRI.K.RAMAKUMAR SR. R1-2 BY ADV. SMT.AMMU CHARLES R1-2 BY ADV. SMT.JINNU SARA GEORGE R1 BY ADV. SRI.M.MANOJKUMAR CHELAKKADAN R1-2 BY ADV. SRI.T.RAMPRASAD UNNI R1-2 BY ADV. SMT.ASHA BABU R2 BY ADV. SRI.C.DINESH R2 BY ADV. SRI.S.M.PRASANTH THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RFA.No.160 OF 2015 2** ## **JUDGMENT** Presented in this appeal is a very riveting factual and forensic scenario. 2. At first blush, it comes across as a quotidian litigative effort of the appellant to seek possession of certain properties from the respondents, who are alleged to be in its illegal occupation, but then immediately unfurls various legal concepts – based on assertions and counter assertions of the parties – that lends it myriad colours. 3. At the core of the legal march of the appellants against the respondents is the plea that the title claimed by the latter over the properties in question is null, since the documents for such purpose relied upon by them have been obtained committing fraud upon the court. 4. The pivotal contention of the appellants is that fraud on court unravels everything, including their document of title – which is admittedly a Certificate of ## **RFA.No.160 OF 2015 3** Purchase obtained by the respondents from the Land Tribunal, Kozhikode ('the Land Tribunal' for brevity) under the provisions of the Kerala Land Reforms Act, 1963 ('the Act' for brevity) - and, therefore, that they are entitled to a mandatory injunction to evict the respondents/defendants from the property in question. 5. The preface above would serve no cause unless the facts involved are looked into carefully, which I will do now. 6. The appellants are claiming to be the sons of late P.V.Sami and late Madhavi, who were residing at Kozhikode Taluk. Going by the plaint averments, the plaintiffs - who are the appellants herein - stake that the respondents/defendants executed a Kychit (receipt) dated 28.01.1964, in favour of late Madhavi with respect to the property described in plaint A schedule, as if it had been leased to them. They say that in the ceiling proceedings before the Taluk Land Board, ## **RFA.No.160 OF 2015 4** Kozhikode ('the Land Board' for brevity), namely TLB No.19/1985, initiated under the Act against the family of late Madhavi, in which the respondents/defendants were also parties, the alleged tenancy claimed by them was found to be void and plaint A schedule property was thus included as an accountable land in her name. The appellants assert that the respondents did not prefer any appeal against this order and hence that same has become final. For the record, I must state at this time that this order issued by the Land Board has been placed on record as Exhibit A2. 7. The appellants further contend that, suppressing Exhibit A2 order of the Land Board, finding the tenancy against the respondents, they managed to secure a favourable order from the Appellate Authority (Land Reforms), Kannur ('the Appellate Authority' for brevity), which is on record as Exhibit A4; and that consequent thereto, they obtained a Pattayam (Certificate of Purchase) ## **RFA.No.160 OF 2015 5** for an extent of 11.88 acres, which property has been described as plaint B schedule. The appellants aver that since the order of the Appellate Authority, namely Exhibit A4; and the consequent Pattayam issued by the Land Tribunal - which has not been produced on record by either side - having been obtained by them fraudulently, are not binding on them, such order being _non est_ in the eye of law. 8. On such basis, the appellants assert that the respondents can only be seen to be in derivative permissive possession of plaint A schedule property and since such possession cannot be adverse to them – the alleged lease being void from its inception – it can only be construed as a licencee, which is terminated by filing of the suit itself. They further aver in the plaint that the cause of action for the suit arose on 04.01.2007, when the respondents obtained illegal Pattayam for plaint B schedule property and thereafter within the jurisdiction of the Trial Court, ## **RFA.No.160 OF 2015 6** where the property situates. 9. Before moving forward, I must notice that, originally, the suit was laid with a prayer to declare that the Pattayam issued by the Land Tribunal, in favour of the respondents with respect to plaint B schedule property, is void having been obtained by fraudulent suppression of the orders of the Land Board and for consequential recovery of possession of plaint A schedule property on the strength of title with mesne profits. However, presumably, being confronted with the liability to pay large court fee, an amendment was sought to the plaint, giving up the afore prayers and substituting them with a new one, to the effect that ' _**An injunction be issued directing the respondents to vacate plaint A schedule property and restraining them and their men and supporters from peaceful enjoyment of plaint A schedule property**_ '. When this amendment was allowed by the Trial Court, it was challenged by the respondents before ## **RFA.No.160 OF 2015 7** this Court in C.R.P.No.1333/1987, which was, however, dismissed; and consequently the amendments were allowed to be carried out. 10. Therefore, as matters now stand, the only prayer in the suit is for issuance of the afore sought injunction, which is in the nature of a mandatory one and nothing else. 11. I notice from the records that the suit was taken to trial, treating it as being one for mandatory injunction and Exhibits A1 to A4, on the side of the plaintiffs; and Exhibits B1 to B32, on the side of the defendants were marked. However, marking of the documents on the side of the respondents was objected to by the plaintiffs and consequently, they have been marked subject to proof. 12. After analysing the materials and pleadings on record, the Trial Court dismissed the suit, holding that Exhibit A4 order of the Appellate Authority, cannot be construed to be one obtained by the ## **RFA.No.160 OF 2015 8** respondents committing fraud on it; and further that even if it is found that any such fraud has been committed, the appellants themselves are responsible since they also did not bring it its notice that the Land Board had, through Exhibit A2 order, earlier found the lease granted in favour of the latter to be without any legal sanctity. 13. The Trial Court further proceeded to hold that there is no evidence to prove intentional suppression of any document by the respondents and that once a Pattayam had been issued by the Land Tribunal, consequent to Exhibit A4 order of the Appellate Authority, the statutory presumptive force of its validity attaches to it, as provided under Section 72K of the Act. The Trial Court finally concluded that the suit is not worthy of being decreed, since the findings in Exhibit A2 order of the Land Board had been set aside by this Court, through the judgment in C.R.P.No.1333/1987, with a direction to the ## **RFA.No.160 OF 2015 9** Land Board to reconsider the tenancy; and that, subsequently, reports had been filed before the said Authority sanctifying the lease in question. 14. It is this judgment and decree of the Trial Court which are impugned in this appeal. 15. I have heard Sri.B.G.Bhaskar, learned counsel appearing for the appellants and Sri.K.Ramakumar, learned Senior Counsel, instructed by Sri.Ramaprasad Unni, learned counsel for the respondents. 16. For the sake of convenience, I will hereinafter refer to the parties either by their names or as they are arrayed in the suit. 17. Sri.B.G.Bhaskar, learned counsel for the appellants, asserted in vehement opposition to the impugned judgment and decree by contending that Exhibit A2 order of the Land Board has not been set aside by this Court in the order in C.R.P.No.1333/1987 and **RFA.No.160 OF 2015 10** that by holding so, the Trial Court has committed an elementary mistake. The learned counsel submitted that he will be able to establish before this Court that Exhibit A2 still remains in force, as far as the tenancy claimed by the defendants is concerned; and therefore, that when they approached the Appellate Authority - after their earlier proceedings before the Land Tribunal had been found against them - suppressing the factum of the Land Board's findings, it amounts to a fraud on the court. He thus predicates that Exhibit A4 order subsequently passed by the Appellate Authority is null, void and _non est_ in the eye of law. 18. In support of the afore proposition, Sri.B.G.Bhaskar cited several precedents, including **Kesava Bhat v. Subraya Bhat** (1979 KLT 766), **S.P.Chengalvaraya Naidu v. Jagannath** ((1994) 1 SCC 1), **Gowrishankar and Another v. Joshi Amba Shankar Family Trust and Others** ((1996) 3 SCC 310), **State of Maharashtra v.** ## **RFA.No.160 OF 2015 11** **Pravin Jethalal Kamdar (Dead) by LRS.** ((2000) 3 SCC 460), **Ram Chandra Singh v. Savitri Devi and Others** ((2003) 8 SCC 319), **Gram Panchayat of Village Naulakha v. Ujagar Singh and Others** ((2000) 7 SCC 543), **State of A.P. and Another v. R.Suryachandra Rao** ((2005) 6 SCC 149) and **Shivakumar K.V. and Others v. National Institute of Mental Health and Neuro Sciences (Deemed University), Bangalore and Others** (2017 KHC 3945). 19. After arguing as afore and maintaining that Exhibit A2 is still in force; and consequentially that Exhibit A4 order is void, Sri.B.G.Bhaskar then continued to make his next limb of argument, that when the lease claimed by the defendants is found to be null and void, their possession over plaint A schedule property can only be seen to be as a simplicitor licencee, under the rigor of Section 52 of the Indian Easements Act. He maintains that, therefore, the appellants were well within their rights to have sought for a ## **RFA.No.160 OF 2015 12** mandatory injunction, after terminating this licence; and seeking that the defendants be evicted from the property in question. In support of this, he cited **Sant Lal Jain v. Avtar Singh** (1985 2 SCC 332) and **Joseph Severance and Others v. Benny Mathew and Others** ((2005) 7 SCC 667). 20. Sri.B.G.Bhaskar then proceeded to contend that once the Land Board had expressly found against the tenancy to be legally invalid, the subsequent proceedings before the Appellate Authority and the Land Tribunal are hit by the principles of _res judicata_ , since all these Authorities have concurrent jurisdiction to decide the question of tenancy; and consequently, that the findings of one of them will operate as _res judicata_ when the other takes up a subsequent cause. In support of this, the learned counsel cited **Gopalan v. Gopalan Chettiar** (1984 KLT 609) and then fortified his arguments by saying that it has been decided by a Full Bench of this Court ## **RFA.No.160 OF 2015 13** that even if a Pattayam is issued under Section 72K of the Act, it would not become unassailable, when it is found that the foundational order under Section 72F was vitiated, null and void. The Full Bench judgment which the learned counsel was referring to is, obviously, **Muhammad Haji v. Kunhunni Nair** (1993 (1) KLT 227). 21. Presumably, anticipating an argument that a person who commits fraud cannot be heard to seek the benefit of the same and being certainly aware of the maxim _ex dolo_ _malo non oritur actio_ , Sri.B.G.Bhaskar cited **Mohammed v. Rukkiya** (1994 (2) KLT 722) and read paragraph 12 thereof to show that even assuming that the party seeking a benefit had committed fraud, if the relief in the suit was not founded on such, but on his title, he would be entitled to recovery of the property, as also to mesne profits; and he argues that this has been so emphatically declared in paragraph 14 of the said judgment. **RFA.No.160 OF 2015 14** 22. Sri.B.G.Bhaskar closed his submissions by calling my attention to the principle of _in pari delicto_ because he said that his clients are aware of the contra assertions of the defendants which have been found favour by the Trial Court that even if it is held that they have committed any fraud, are that if they are found to have committed fraud, then the same position would apply to the appellants also, since neither did they bring it to the notice of the Appellate Authority or of the Land Tribunal that the Land Board had issued Exhibit A2 order. The learned counsel very strongly submitted that, even though this allegation cannot be found to be true - since Exhibit A4 order crystally shows that none of the appellants had been impleaded therein but only their mother - even assuming that this principle can apply against the appellants, it would be of no consequence unless it is also established by the defendants that late Madhavi or the appellants ## **RFA.No.160 OF 2015 15** had obtained any benefit out of Exhibit A4 order of the Appellate Authority. He then pointed out that in Exhibit A2 order of the Land Board, the 10 acres - which is described in plaint A schedule - has been accounted in the name of late Madhavi, but still concluding that she had no excess land to be surrendered. 23. Sri.B.G.Bhaskar thus submits that, therefore, the rigor of the maxim _in pari delicto potior est conditio possidentis_ would not operate against the appellants, for which he cited a judgment of the Hon'ble Supreme Court in **Waman Shriniwas Kini v. Ratilal Bhagwandas and Co.** (AIR 1959 SC 689) and those of the Madras High Court, Bombay High Court and of this Court, namely, **K.Tirupathi Mudali v. T.Lakshmana Mudali and Another** (AIR 1953 Mad 545), **Kakubhai and Co (M/s.) v. Nathmal Kisanlal** (AIR 1980 Bom 25) and **Velayudha Kurup Narayana Kurup v. C.K.Govindan** (1965 KLT 849) respectively; that these judgments declare that unless a benefit has accrued to the ## **RFA.No.160 OF 2015 16** person seeking relief on account of the alleged fraud, the concept of _in pari delicto_ will not come to lay and he would be entitled to recover property based on title. The learned counsel finally submitted that, therefore, the appellants, being the legal heirs of late Madhavi, are the owners of plaint A schedule property and are, consequently, entitled to seek issuance of a mandatory injunction, since possession of the respondents over it is only in the position of licencees, which licence has been cancelled through the averments in the plaint. He, therefore, prays that the impugned judgment be vacated and the suit be decreed as prayed for. 24. In answer to the contentions of Sri.B.G.Bhaskar as afore, the learned Senior Counsel, Sri.K.Ramakumar began, on behalf of the defendants, by saying that the present prayer in the suit consequent to its amendment, would not justify the grant of any relief by this Court, since what has been ## **RFA.No.160 OF 2015 17** sought by the plaintiffs is only an injunction seeking that the respondents be evicted from plaint A schedule property and not from plaint B schedule property. The learned Senior Counsel submitted that, going by the plaint averments, the allegations of fraud are confined only to the 'Pattayam' for plaint B schedule property and therefore, that without seeking any relief against the said document, the prayer for mandatory injunction as against plaint A schedule property can never be maintained. 25. Sri.K.Ramakumar, thereafter, argued that this Court is bound by the pleadings on record and that the allegation of fraud asserted by the learned counsel for the appellants is not discernible from the same. He read out to me paragraphs 3 to 7 of the plaint to say that, on one hand, the appellants accuse the defendants of having managed to secure an order from the Appellate Authority as regards plaint A schedule ## **RFA.No.160 OF 2015 18** property of 10 acres; but on the other, they say that the cause of action arose on 04.01.2007, when the defendants obtained Pattayam for plaint B schedule property. He submitted that, therefore, no fraud has been alleged as against plaint A schedule property, and predicated that the Trial Court has, thereafter, rightly dismissed the suit, since no mandatory injunction can be issued against the defendants to vacate from the said property. 26. The learned Senior Counsel then cited **Subramoniam v. Nagaramma** (1962 KLT 1019) to contend that, even if an order or a decree of a court is obtained by one side employing fraud, the proper remedy for the other side is to challenge the same through a fresh motion and cannot unilaterally assert that same is not binding on the parties. The learned Senior Counsel submitted that, in fact, the declarations of law in the said judgment is to the emphatic effect that even this is not a ## **RFA.No.160 OF 2015 19** sufficient ground which would justify a party, whose predecessor in interest in title was party to a legal suit, to bring a subsequent suit for setting aside the decree in the former suit. 27. Sri.Ramakumar then proceeded to show that a Bench judgment of this Court in **Saviour v. E.V.Mathai and Others** (2008 (1) KHC 849) has affirmed the afore principle, that a court cannot act upon a mere and vague averment regarding fraud and that such a plea must be stated specifically and substantiated with both evidence and materials. 28. On the facts involved, the learned Senior Counsel then tried to impress upon me that, at no point of time prior to the institution of this suit, had the plaintiffs assailed the Certificate of Purchase obtained by his clients from the Land Tribunal, consequent to Exhibit A4 order; and that as is evident from Exhibit B13 objection filed by them before the said Tribunal, their only case ## **RFA.No.160 OF 2015 20** was that the defendants are only entitled to 10 acres and not 11.88 acres. Sri.K.Ramakumar then cited the judgment of this Court in **Rajan A. and another v. T.K.Kumari** (2010 (2) KHC 688) saying that this arose from another suit filed by Smt.Kumari Kamalam, who is the sister of the plaintiffs, namely O.S.No.33/2008, wherein she sought a prohibitory injunction against the defendants from entering into plaint B schedule property, but it has been held by this Court that such a prayer is incompetent, when there was no 'whisper of any fraud in the issuance of a Purchase Certificate by the Land Tribunal'. The learned Senior Counsel submitted that he is citing this judgment also to show the factum of Smt.Kumari Kamalam, as also the plaintiffs herein, in having approached the Land Tribunal against the Pattayam solely against the extent therein being recorded as 11.88 acres, but conceding that the defendants are entitled to 10 acres as ordered by the Appellate Authority ## **RFA.No.160 OF 2015 21** in Exhibit A4 order. As a continuation of this argument, the learned Senior Counsel submitted that the present suit filed by the plaintiffs without their sister Smt.Kumari Kamalam on the party array, is vitiated on account of non impleadment of necessary parties; and therefore, that the Trial Court ought to have dismissed it on that ground, even without entering into the merits of the case. Sri.K.Ramakumar thus pleads that this appeal be dismissed and the judgment and decree of the Trial Court be confirmed. 29. The dialectical contentions of the parties being so recorded, it becomes inevitable that the appellants/plaintiffs will be entitled to any relief in the suit or in this appeal only if the order of the Land Board, namely Ext.A2, is still in force. This is vital because Shri.K.Ramakumar, learned Senior Counsel, asserts that this order has been subsequently set aside by this Court in C.R.P.No.1333 of 1987; and therefore, that ## **RFA.No.160 OF 2015 22** tenancy has been found in favour of his clients. 30. The admitted background facts are that a 'Kychit' (receipt) was issued by the defendants in favour of Late Madhavi on 28/01/1964, claiming their possession as tenants under her from 1960. This Kychit covered 10 Acres of land, which is described in plaint 'A' schedule, based on which, the defendants applied for purchase of the landlord's rights under the provisions of the Act, before the Land Tribunal, by filing O.A.No.2844 of 1976. The Tribunal conducted an enquiry through the Revenue Inspector, but found the “Kychit” to be fraudulent and therefore, held hat they are not entitled to a purchase certificate. The Land Tribunal thus dismissed O.A.No.2844 of 1976 on 10/07/1985, which is evidenced through Ext.A1 order. 31. It transpires that Ext.A1 order was challenged by the defendants by filing a statutory appeal before the Appellate ## **RFA.No.160 OF 2015 23** Authority, which was later numbered as A.A.No.128/1997. However, soon thereafter, the Land Board, initiated suo motu proceedings, under Section 85(7) of the Act, against Late P.V.Sami and his wife Late Madhavi, thus scrutinizing the tenancies executed by Late Madhavi in favour of: (a) Pandeerankavu High School Committee (of an extent of 35 Acres); (b) Smt.Kumari Kamalam (of an extent of 8.5 Acres); (c) Shri.Rajan, Shri.Raghavan, and Smt.Prema as one group (of a total extent of 15 Acres); and (d)relating to the defendants herein (of an extent of 10 Acres). 32. It is ineluctable from Ext.A2 order issued by the Land Board that the tenancy asserted by the defendants were unequivocally rejected holding as under: _”Report reveals that the claimants are brothers, they jointly acquired an extent of 10 Acres from Smt.Madhavi as per 'Verum Pattam' 'Kychit' executed on 28/01/1964. They have no supporting records._ _On examination of the file O.A.No.2844_ ## **RFA.No.160 OF 2015 24** _of 1976 of L/T/Beypore, it is also reveal that the claim of tenancy has been rejected. The circumstantial evidence referred to in this Spl. Dy. Tahsildar's report also go against the claimants. Moreover the Spl. Dy. Tahsildar has clearly reported that the land came into possession of these tenants after 1964. Therefore, the Taluk Land Board finds no provision to delete this item from this case. The objection is overruled.”_ 33. However, as regarded the tenancies claimed by the other persons mentioned above, the Land Board approved the same; but finally holding as under: ' _the assesse's family consisting of two members as on 01/01/1970, Shri.P.V.Sami and his wife Smt.Madhavi is found holding the following land of property as on 01/01/1970._ _After the exemption the family was having only 10 Acres equivalent to 10 Std. Acres as on 01/01/1970. The family consisting of two members is entitled to retain 10 Std. Acres subject to minimum of 12.00 and a maximum of 15.00 ordinary Acres. Therefore there is no excess land in this case'._ 34. It is then revealed that the State of Kerala thereafter challenged Ext.A2, however, solely against the claims of the entity, persons mentioned in Ext.A2, in whose favour claims of tenancy have been found, but not as against the findings ## **RFA.No.160 OF 2015 25** against the defendants. This becomes without doubt when one examines the judgment in C.R.P.No.1333 of 1987, wherein the final directions read as under:- _'With regard to 35 Acres of land in Survey No.50/2B and 66/1A and 8.5 Acres in R.S.50/2A, 50/2B and 66/A in Olavanna Village, the finding of the Taluk Land Board is set aside and the matter is remanded for fresh consideration. The parties will be free to adduce evidence also. The Taluk Land Board may pass fresh orders according to law on the basis of evidence before it.'_ 35. It is thus luculent that this Court only directed the Land Board to reconsider the tenancies claimed by Pantheerankavu School Committee and Smt.Kumari Kamalam but confirmed its earlier findings as regards the other three persons, namely Shri.Rajan, Shri.Raghavan and Smt.Prema. To ingeminate, the findings against the defendants were not even adverted to, much less interfered with, by this Court because, as stated earlier, the State of Kerala never challenged it, the same being to their benefit. ## **RFA.No.160 OF 2015 26** 36. For some ineffable reason, even though the findings in the judgment in C.R.P.No.1333 of 1987 are specifically as afore, the defendants appeared to take the stand that Ext.A2 order had been completely set aside and that subsequently, all tenancies had been approved by the Taluk Land Board though their later order, namely Exhibit A3. I am afraid that this stand of the defendants are completely in deviation of the truth, since the findings against them in Ext.A2 had not been challenged either by them or by the State of Kerala before this Court; and consequently, they have been left undisturbed all through, which position continues even today. 37. Hence, as matters now stand, there can be little doubt that Ext.A2 is even now in force and that the tenancy asserted by the defendants, based on the alleged “Kychit” executed by them in favour of Late Madhavi in the year 1964, has been found to ## **RFA.No.160 OF 2015 27** be null, void and contrary to the provisions of Section 74 of the Act, which prohibits future tenancies after 01/04/1964. 38. Since the defendants did not challenge Ext.A2 order of the Land Board, obviously, any claim of their's based on the “Kychit” would have absolutely no legs to stand on thereafter; but without bringing this to the notice of the Appellate Authority-before which their appeal against Ext.A1 order of the Land Tribunal had been earlier filed-they were able to obtain Ext.A4 order, as per which, the tenancy asserted by them was found to be valid and the Land Tribunal directed to issue a Purchase Certificate for an extent of 10 Acres. Interestingly, through the same order the defendants were also permitted to seek issuance of Purchase Certificate for 11.88 Acres, if they had made any such request before the Land Tribunal earlier. ## **RFA.No.160 OF 2015 28** 39. On such basis, the Land Tribunal appears to have, thereafter, issued a Purchase Certificate-the copy of which, however, not having been produced on recordfor an extent of 11.88 Acres, which property has been described in 'B' schedule to the plaint. 40. At this juncture, I must certainly notice the contentions of Shri.K.Ramakumar, learned Senior Counsel, that Ext.A4 has been issued by the Appellate Authority with the full concurrence, knowledge and consent of the plaintiffs. As seen earlier, the appeal which led to this order had been filed by the defendants therein; while the land owners are shown to be a certain Shri.Prabhu Kartha and Smt.Madhavi. The plaintiffs are certainly not in the party array in the said proceedings; and Shri.B.G.Bhaskar submits that by the time the Appellate Authority had taken up the matter for consideration, Mahdavi had died. However, I cannot take ## **RFA.No.160 OF 2015 29** cognizance of this submission, since there is absolutely nothing on record to show that Madhavi had so died. Therefore, this court will be enjoined to presume that Ext.A4 order had been issued with Late Madhavi on the party array, but it further shows that she had neither appeared nor engaged a counsel on her behalf. 41. Hence, though the assertions of Shri.Ramakumar, learned Senior Counsel, that the plaintiffs were on the party array in A.A.No.128 of 1997-which led to Ext.A4 order-cannot be found to be accurate, it will require to be presumed that their predecessor-in-tittle, Late Madhavi had knowledge of the said proceedings. 42. That said, Ext.A4 indubitably shows that the Appellate Authority had issued it without being aware of Ext.A2 order of the Land Board and hence the acme question is whether, even if Late Madhavi is taken to ## **RFA.No.160 OF 2015 30** have collaborated with the defendants in suppressing the same, it could grant any legitimacy to Exhibit A4 order. 43. It is here the submissions of Shri.B.G.Bhaskar, learned counsel for the plaintiffs, come into operation. He asserts, and that too very vehemently, that Ext.A4 is the result of a fraud committed on the Court and therefore, that it will have to be construed as being null and void, even assuming Late Madhavi had actively collaborated with the defendants at that stage. 44. Obviously, Shri.B.G.Bhaskar is contending for the proposition that an order or a judgment or a decree obtained from a Court by committing fraud on it, is a nullity for all purposes; and therefore, that his clients do not have to challenge it directly but can disregard the same and assail it other proceedings under the well ## **RFA.No.160 OF 2015 31** recognised principles of collateral challenge/attack. 45. On the question of the impact of fraud on judicial proceedings, the law is now too well settled for requirement of restatement. However, since it has been argued by Shri.K.Ramakumar, learned Senior Counsel, that even if fraud on Court is assumed, in the absence of a specific challenge against the order obtained through such, no Court can take cognizance of it, compels me to consider how the concept of fraud has evolved and how it has been explained by the Courts over the years. 46. The legal maxim which is often cited in cases of fraud on Court is _frans et jus nunquam cohabitant_ _**,**_ which means fraud and justice can never dwell together. 47. Fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of ## **RFA.No.160 OF 2015 32** another. It is a deception in order to gain by another's loss. It is a cheating, intended to get an advantage and it is now well established that fraud vitiates every solemn act. 48. Though it is not permitted to show that the Court was mistaken, it may certainly be shown that it was misled. Where the Court has been intentionally misled or fraud committed upon it to procure an order, it will certainly vitiate its judgment. 49. These principles have been spoken about by Courts in England as early as in the 16[th] and 17[th] Centuries and the locus classicus is _**Fermor's case [(1602) 3 Co.**_ _**77a],**_ in which it was formerly declared: “The common law doth so abhor fraud and covin, that all acts as well judicial as others, and which of themselves are just and lawful, yet being mixed with fraud and deceipt, are in judgment of law wrongful and unlawful: _quod alias bonum et justum est, si per vim vel fraudem petatur, malum et. injustum efficitur._ 50. Subsequently, in the year 1755, in **RFA.No.160 OF 2015 33** ## _**Taylor Vs. Horde [(1755) 1 Keny. 143, 233]**_ Lord Mansfield postulated: “ _All acts by fraud and covin are void. A common recovery, which the parties had no power to suffer by right, shall not be supported by wrong and fraud”_ ## 51. These declarations have stood the test of time and in _**Grama Panchayat of**_ _**Village Naulakha (Supra)**_ the Hon'ble Supreme Court went through the nuances of the concept of 'Fraud' and held: _“_ in order to contend in the latest suit or proceeding that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit for a declaration as to its collusive nature or for setting it aside, as a condition precedent to it. _”_ 52. After saying so, the Hon'ble Court went on to hold as under in Paragraph 7 of the said judgment: _“The law in England also appears to be the same, that no independent suit is necessary. In Spencer Bower and Turner on Res Judicata (2nd Edn., 1969) it is stated (para 359) that there are exceptions to the principle of res judicata. If the party setting up res judicata as an estoppel has alleged all the elements of an estoppel (i.e. ingredients of res judicata), it is still open to the latter (the opposite party) to defeat the estoppel by_ ## **RFA.No.160 OF 2015 34** _setting up and establishing certain affirmative answers. Of these there are four main classes - fraud, cross estoppel, contract and public policy. The authors clearly say that no active proceedings for “rescission” of the earlier judgment are necessary”. The state (para 370) as follows:-_ _“The avoidance of a judicial act on the ground of fraud or collusion is effected not only by active proceedings for rescission … but also by setting up the fraud as a defence to an action on the decision, or as an answer to any case which, whether by way of estoppel or otherwise, depends for its success on the decision being treated as incontrovertible”_ 53. Similar views have been reiteratingly made by the Hon'ble Supreme Court in _**State of Maharashtra v. Pravin**_ _**Jethalal Kamdar (Supra)**_ which reads as below:- _“The contention urged on behalf of the plaintiff and which has been accepted is that the suit is basically for possession of the property based upon title and the sale deed dated 23.8.1976 and the order dated 26.5.1976 being void ab initio and without jurisdiction, a plea about its invalidity can be raised in any proceedings and it is not necessary to claim any declaration and thus Art.65 which deals with suit for possession based on title would be applicable from the date, the possession of the defendant becomes adverse to the plaintiff. The High Court held that in view of the order and the sale deed being null and void and without jurisdiction, the same have no existence in the eye of the law and the plea about invalidity of these documents can be raised in any_ ## **RFA.No.160 OF 2015 35** _proceedings and no separate declaration is necessary to be sought.”_ 54. In _**State of A.P. and Another v.**_ _**T.Suryachandra Rao (Supra),**_ suppression of material documents to illegally induce the Court to deliver judgment in a particular manner was found to be an egregious act of fraud and the observations in the said judgment make very interesting reading: _“A 'fraud' is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is cheating intended to get an advantage. [See S.P. Chengaivaraya Naidu v. Jagannath (1994 (1) SCC 1)]._ _'Fraud' as is well known vitiates very solemn act. Fraud and justice never dwell together. Fraudis a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensures therefrom although the motive from which the_ ## **RFA.No.160 OF 2015 36** _representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh v. Savitri Devi (2003 (8) SCC 319)].”_ 55. On a corollary question, as to whether the principles of _res judicata_ would apply to a subsequent proceedings on account of an earlier judgment or decree, which was obtained by fraud, in _**Ram Chandra**_ ## _**Singh v. Savitri Devi and Others (Supra),**_ the Hon'ble Supreme Court in Paragraphs 33 and 35, affirmatively held to the contrary saying as infra:- _“Once it is held that a judgment and decree has been obtained by practising fraud on the court it is trite that the principles of res judicata shall not apply. The High Court, therefore, in our opinion committed a serious error in referring to the earlier orders passed by it so as to shut the doors of justice on the face of appellant for all time to come. We, therefore, are of the opinion that the impugned judgment dated 10.12.1998 cannot be sustained._ ## **RFA.No.160 OF 2015 37** _The consent order, as is well known, is an agreement between the parties with the seal of the Court superadded to it. The appellant herein in the Review application categorically stated that the parties to the appeal had suppressed the auction sale as also the confirmation thereof. The effect of the events appearing subsequent to the filing of the First Appeal resulting in creation of a third party right was bound to be taken into consideration by the High Court. A third party right cannot be set at naught by consent. The High Court, therefore, was required to consider the contention of the appellant in their proper perspective. The High court, in our opinion, was obligated to address itself on these questions for the purpose of reviewing its order.”_ 56. In _**S.P.Chengalvaraya Naidu V.**_ _**Jagannath and Others (Supra),**_ the Hon'ble Supreme Court had again an occasion to see the nature of a Court order obtained by practising fraud on it and it was held that the plaintiff has a duty to come to Court with a true case and to prove it by due evidence and that the principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud at the hands of dishonest litigants. **RFA.No.160 OF 2015 38** 57. The legal effect of a decree, seen to have been obtained by fraud committed on the Court, was further explained by the Hon'ble Supreme Court in _**Gowrishankar and**_ ## _**Another v. Joshi Amba Shankar Family Trust**_ _**(Supra)**_ holding that _'since it is rendered null and void in the eyes of law, deem to have never existed at all, a plaintiff will be fully empowered to collaterally challenge it in a subsequent suit.'_ 58. The Karnataka High Court in _**Shivakumar K.V. and Others v. National Institute of Mental health and Neuro Sciences (Supra)**_ and the full bench of this Court in _**Kesava Bhat v. Subraya Bhat (Supra)**_ had held exactly as afore, declaring that decrees which are obtained by fraud committed on the Court are not merely void, but are null, without any effect on any one, including the litigants to the same. **RFA.No.160 OF 2015 39** 59. The apercus total of the law declared by the various Courts, including the Hon'ble Supreme Court, as purveyed above would make it irrefragibly clear that fraud vitiates every solemn act and that _“truth is integral to justice”_ . This has been restated by the Hon'ble Supreme Court in _**S.P.Chengalvaraya Naidu V.**_ _**Jagannath [1993 Supp. 3 SCR 422]**_ to the effect that a judgment obtained by fraud is a nullity and _non est_ in the eye of law and that such judgment will have to be treated as a nullity by all Courts–lowest to the highest. An identical view was taken in _**A.V.Papayya Sastry and Others v**_ _**State of Andra Pradesh [AIR 2007 SC 1546]**_ holding that, once it is established that an order has been procured from a Court by fraud committed on it, the same is rendered a nullity and nothing else. 60. In the case at hand, as I have already seen above, Ext.A2 order of the ## **RFA.No.160 OF 2015 40** Land Board still holds the field, it having been never set aside or disturbed as regards the defendants. Obviously, therefore, when they proceeded with the statutory appeal before the Appellate Authority against the earlier order of the Land Tribunal rejecting their Purchase Certificate, they were bound, both in law and in equity, to produce the same before the said Authority and to have disclosed that the Land Board had found the tenancy claimed by them to be void. 61. It is indubitable that it was solely because this information was suppressed from the Appellate Authority that Ext.A4 order was issued under Section 72F of the Act: and therefore, this order is rendered as being null and void in the eye of law. 62. Resultantly, the statutory protection to a Purchase Certificate under ## **RFA.No.160 OF 2015 41** the Act – through Section 72K thereof – would not apply in a case of this nature, since it is only if the precedent order, under Section 72F, is found to be legally valid, that the subsequent certificate would obtain such protection. 63. Though no support for this proposition is now required - it having been already firmly established - I will, for the sake of completeness, refer to _**Mohammed Haji v. Kunhunni Nair (Supra),**_ wherein a Full Bench of this Court has conclusively held so in Paragraph 23, which is as under:- “Appellant's counsel Mr. Govinda Wariyar submitted that even if the order passed by the Land Tribunal in O.A.No.17732 of 1976 under S.72F of the Act holding that the appellants are tenants and so entitled to the purchase of the right of the landlord and intermediaries in proceedings under S.72B of the Act, is illegal or a nullity, it will not have the effect of annulling the certificate of purchase issued to the appellants under S.72K of the Act. It was argued that a certificate of purchase issued under S.72K of the Act is conclusive proof of the assignment to the tenant of the right, title and interest of the landowner and the intermediaries ## **RFA.No.160 OF 2015 42** over the holding. We are unable to accept this plea on the facts of this case. We have held that the order passed by the Land Tribunal under S.72F of the Act in O.A.No.17732 of 1976 is illegal, without jurisdiction and a nullity. It is only in consequence of a valid order passed under S.72F of the Act, wherein the determination of the purchase price is made, the Land Tribunal shall issue a certificate of purchase of the cultivating tenant. Existence of a valid order under S.72F of the Act is a prerequisite or a sine qua non, for passing the consequential order under S.72K of the Act, whereby a certificate of purchase is issued. We have held that the order passed under S.72F of the Act is without jurisdiction and a nullity and so of no legal effect. In the result, the consequential order passed under S.72K of the Act should also share the same fate. We hold so.” ## **(Emphasis supplied)** 64. It is thus indubitable that existence of a valid order under Section 72F of the Act is a prerequisite _sine qua_ _non_ to support a subsequent Purchase Certificate issued under Section 72K of the Act; and once the former is rendered as null, no statutory protection will, thereafter, inure to such a certificate. 65. Further, as has been held in _**Gopalan v** ._ _**Gopalan Chettiar (Supra)**_ once the Land Board decided against the **RFA.No.160 OF 2015 43** tenancy, the Appellate Authority - which is one holding co-extensive jurisdiction in matters relating to such under the - Act could not have disregarded the same, and ought to have followed it; but no fault can be placed on the said Authority in this case because it is conceded that the factum of Ext.A2 order was kept away from it, while Ext.A4 order had been issued. 66. Once thus I find that Ext.A4 order is a nullity in the eye of law, the adjuvant question is whether the plaintiffs are entitled to seek recovery of plaint 'A' schedule property through the mechanism of a mandatory injunction aginst the defendants. 67. Before I answer this, I must first ascertain the nature of the possession that the defendants can assert on the plaint A schedule property, once ## **RFA.No.160 OF 2015 44** the title asserted by them is found null. 68. The only provision in law that can apply to cases of this nature is Section 52 of the Indian Easements Act - which defines “licence” to mean _“the_ _right to do or continue to do in or upon the immovable property of the granter,_ _something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the right is called a licence.”_ 69. Pertinently, Shri.Ramakumar, learned Senior Counsel, does not have a case that his client is a trespasser or an interloper on plaint A schedule property; and on the contrary, his specific case is that they are entitled to hold on it on the strength of title, which is exclusively asserted through Ext.A4 order of the Appellate Authority **RFA.No.160 OF 2015 45** and the consequential Purchase Certificate issued by the Land Tribunal. 70. In such scenario, it is needless to say that when the title of the defendants are found against them, their continuation and possession of plaint 'A' schedule property can only be deemed to be in the position of licensees. Hence, when the plaintiffs, through the averments in the plaint, assert that they have terminated such licence, then they certainly obtain the right to seek that the defendants be vacated, by issuance of a mandatory injunction. 71. I do not need to labour much on this any further, since the Hon'ble Supreme Court in _**Sant Lal Jain v. Avtar Singh [1985 (2) SCC 332]**_ and a learned Judge of this Court in _**Abraham Mathew and Others v. Mariamma Yohannan [2014 (3) KLJ**_ _**71]**_ have held unequivocally that in case **RFA.No.160 OF 2015 46** where a licence is terminated, the granter becomes entitled to obtain eviction of the grantee from recovery of the property through a mandatory injunction. 72. In fact, in _**Sant Lal Jain (Supra)**_ the Hon'ble Supreme Court referred to an earlier judgment delivered by the Hon'ble High Court of Jammu and Kashmir in _**Milka Singh v. Diana [AIR 1964**_ _**J and K 99]**_ to affirm the principle that: “a licencee is always a licencee”; and further that once the licence is terminated the licencee's possession does not become that of a trespasser but continues to be of the same nature when the licence was in force. 73. The Hon'ble Court in the afore judgment also quoted with approval the opinion of the High Court of Jammu and Kashmir, in Paragraph 6 thereof, which I **RFA.No.160 OF 2015 47** extract herein: 'After t _he termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compel to discharge this obligation, buy way of mandatory injunction under Section 55 of the Specific Relief Act.”_ 74. The only note of caution voiced by the Hon'ble Supreme Court in this context, as also by a learned single Judge of this Court in **Abraham Mathew** _**(surpa)**_ was that the grantor of the licence must act with promptitude and without delay in seeking eviction of the grantees in possession, once the licence is terminated. In this case, there is no question of delay at all since the termination has been effected through the averments in the plaint itself and obviously, thus, such termination and institution of the action for recovery are co-terminus and simultaneous. **==> picture [318 x 10] intentionally omitted <==** ## **RFA.No.160 OF 2015 48** primary issues involved, there are certain adscitious issues that I will have to deal with, culled out from the submissions of the learned Senior Counsel - Sri.K.Ramakumar. 76. The primary among such submissions of Sri.K.Ramakumar is that if fraud is alleged against his clients, the position of the plaintiffs is, therefore, no different, since their mother - Late Madhavi - must also be seen to be equally at fault; the doctrine of _in pari delicto_ would formerly apply, thus dissuading this Court from granting any relief to them. **==> picture [318 x 10] intentionally omitted <==** instances where in _pari delicto_ is established, Courts will generally refrain from granting any relief to any side and leave them where they are. This is the true implication of the maxim _in pari_ _delicto potior est conditio possendentis_ . However, this would apply in a case of ## **RFA.No.160 OF 2015 49** this nature only if it is shown that by the fraudulent act, either Late Madhavi or the plaintiffs had obtained undue benefits; or that they actively conspired with the defendants in doing so, so as to either defeat the processes of law or imperative statutory prescriptions or equity. 78. In this case, as I have already said above, in Ext.A2 order of the Land Board, plaint A schedule property, comprised of 10 Acres of land, has been included in the account of Late Madhavi but it has been still found expressly that she would not require to surrender any extent out of it, she being entitled to hold it as a family, along with her husband and children. Perspicuously, therefore, no benefit has been occasioned to the plaintiffs or to their sister - Smt.Kumari Kamalam, in allowing Ext.A4 order to be issued by the Appellate ## **RFA.No.160 OF 2015 50** Authority-even if it is assumed that they were aware of the said proceedings - because their mother Late Madhavi was entitled to own and possess this extent, it being found therein that it was not necessary for her to surrender any land under the provisions of the Act. I, therefore, cannot find the rigour of _in pari delicto_ to be attracted in this case because, to impose any detriment on the plaintiffs-even if it is to be held that they have actively collaborated with the defendants before the Appellate Authority leading to Ext.A4 order - it must also be established that they have derived some benefits out of it, which was legally impermissible. 79. The above being said, as I have indicated above, the proceedings before the Appellate Authority does not show that the plaintiffs were parties therein; but that Late Madhavi had been arrayed as a ## **RFA.No.160 OF 2015 51** respondent, along with the earlier “Janmam” right holder. I, therefore, cannot find favour with the submissions of Sri.K.Ramakumar on this contention, especially being aware of the judgment of the Hon'ble Supreme Court in **Mohammed** _(supra)_ wherein, the principles of _ex dolo malo non oritur actio_ was also considered, leading to the opinion that when a person asserts title and but seeks no relief based on an earlier fraud, to which, he may have been a party, would not deter the Courts from granting him any relief. The observations of the Hon'ble Court in paragraphs 12 and 14 of the said judgment, make compelling reading, for which purpose, I reproduce them as below: _“12. Viewed in the light of the principles settled, it is clear that if the plaintiff had sued for recovery merely on the basis of the letting, a transaction hit by S.74 of the Kerala Land Reforms Act, the Court would not have assisted her in obtaining any relief. But the plaintiff in the present case has sued on the strength of her title. In_ ## **RFA.No.160 OF 2015 52** _founding the cause of action on title the plaintiff is not relying on any illegal act or any transaction prohibited by law. The property belongs to the plaintiff and the possession of the same has found its way to the defendant and the illegal transaction is not part of the cause of action of the plaintiff, even though it could could be said that the plaintiff lost possession on the basis of the illegal transaction. As observed by the Buckley LJ in Garden (1908 – 10 AER Reprints 192). “It is certainly the law that the Court will refuse to enforce an illegal contract or obligation, arising out of an illegal contract, and I agree that the doctrine is not confined to the case of contract. A plaintiff who cannot establish his cause of action without relying upon an illegal transaction must fail and nonetheless is this true if the defendant does not rely upon the illegality. If the Court learns of the illegality it will refuse to lend its aid.”_ _If the transaction of lease entered into by the plaintiff with the defendant is part of the cause of action of the plaintiff suing on title then certainly the courts will refuse to assist the plaintiff to get back that property. But to succeed on title the plaintiff need not rely upon the illegal transaction entered into by her with the defendant and it is the defendant who has to rely on that transaction to deny the claim for recovery by the plaintiff. Under these circumstances the principle enunciated by Lord Mansfield C.J in Holman v. Johnson could_ ## **RFA.No.160 OF 2015 53** _not be applied to deprive the plaintiff of a decree if she established her little to the suit property and the defendant fails to establish any ground which would standing the way of her getting recovery of possession._ _14. As regards claim for future profits: the plaintiff in normal circumstances having succeeded in her claim for recovery of possession on the strength of title would normally be entitled to profits from the date of suit till the date of delivery of possession in terms of O.20 R.12 of the Code of Civil Procedure. Is the claim of the plaintiff for future profits in this case founded on any illegal transaction?. The possession of the defendant was on the basis of an invalid lease' created by the plaintiff. To that extent, the plaintiff was also in pari delicto with the defendant and I have already held that the plaintiff cannot found a cause of action on the illegal transaction. But since the plaintiff is found entitled to recover possession of the property on the strength of her title the question is whether he will be entitled to future profits notwithstanding the fact that the defendant went into possession under an illegal transaction to which the plaintiff was also a party. The right to future profits in this case is an incident of the right to recover on the strength of title. Since in filing the suit on the title the plaintiff is not obliged to rely on any part of the illegal transaction entered into by her, it cannot be said that the right to future_ ## **RFA.No.160 OF 2015 54** _profits would also be affected by the illegality of the lease created by her. “_ 80. Very interestingly, in this case, even mesne profits were granted, holding that such claim is also based on title and not an action against which the accusation of fraud had been made. 81. The next issue for me to consider is whether nonjoinder of Smt.Kumari Kamalam, the sister of the plaintiffs, would be fatal to this case, as contended by Sri.K.Ramakumar, learned Senior Counsel. I am of the firm view that this would not be because, Smt.Kumari Kamalam is admittedly a co-owner of the property, along with the plaintiffs; and obviously, therefore, even if this Court is to find in favour of the plaintiffs, it would inure to the benefit of Smt, Kumari Kamalam also. Hence, since she will suffer no prejudice through the orders of this Court, her absence on the party array would be irrelevant and immaterial. ## **RFA.No.160 OF 2015 55** 82. When I say this, I am certainly cognizant that Sri.K.Ramakumar, learned Senior Counsel, has also a contention that the plaintiffs have deliberately kept away Smt.Kumari Kamalam from the party array, since she had filed an earlier suit, namely O.S.No.33/2007 on the files of the Munsiff Court, Kozhikode, challenging the Certificate of Purchase obtained by the defendants, solely contending that they could have been granted it solely for 10 Acres and not for 11.88 Acres, as is presently done. However, it is also on record, as is evident from Ext.B6 - which has been produced by the defendants themselves - that Smt.Kumari Kamalam had withdrawn O.S.No.33/2007 and had, on 22.03.2008, filed O.S.No.260/2008 before the Munsiff Court, Kozhikode, seeking that Ext.A4 order of the Appellate Authority and the subsequent 'Pattayam' be declared to be null and void and also seeking ## **RFA.No.160 OF 2015 56** recovery of the property covered by it. 83. Even though Exhibit B6 has been marked subject to proof, since it has been produced by the defendants, this Court will certainly be justified in examining the same, when it is also relied upon by the plaintiffs, who objected to its marking. 84. This is an additional factor why the absence of Smt.Kumari Kamalam on the party array in this case would be of no consequence because, she appears to have independently, challenged Ext.A4 and the Certificate of Purchase issued by the Land Tribunal, through O.S.No.260/2008, which is stated to be still pending before the Munsiff Court, Kozhikode. 85. With the afore aspects now being so answered, I proceed to consider the relief that can be granted to the plaintiffs. While doing so, I must certainly remind myself that the ## **RFA.No.160 OF 2015 57** provisions of Order XLI Rule 33 of the Code of Civil Procedure vests this Court with full power to do what the Trial Court ought to have done. 86. As I have indited above, the sole relief sought for by the plaintiffs is for a mandatory injunction to direct the defendants to vacate from plaint A schedule property and nothing else. 87. Sri.K.Ramakumar, learned Senior Counsel, of course, submits that since there is no prayer as regards plaint B schedule property and since fraud is only alleged as regards the Certificate of Pattayam with respect to that extent, this Court may not grant any relief to the plaintiffs. 88. I am afraid that I cannot accede to this because, it is virtually conceded that plaint A schedule property is part of plaint B schedule property-the only difference between them being that the ## **RFA.No.160 OF 2015 58** former is the extent in Ext.A2 order of the Land Board; while the latter is the extent in the Certificate of Purchase obtained by the defendants, consequent to Ext.A4 order of the Land Tribunal. 89. Be that as it is, since the plaintiffs had only sought for the issuance of a mandatory injunction against the defendants directing them to vacate from the Plaint A schedule property, that is all that this Court need to grant and nothing more. Therefore, the contention that plaint B schedule property is different from plaint A schedule etc., would be of no relevance to this Court, since the prayer is only as above mentioned. 90. In the compendium of my observations and holdings afore, it is apodictic that this Court is now enjoined to allow the suit as prayed for by the plaintiffs. ## **RFA.No.160 OF 2015 59** Consequentially, this appeal is allowed and the judgment and decree of the Trial Court dated 20.02.2015 are set aside; resultantly, decreeing O.S.No.683/2011 on the files of the III Additional Subordinate Court, Kozhikode, thus issuing a mandatory injunction directing the respondents to vacate themselves from plaint A schedule property. The appellants are also entitled to costs in this appeal from the defendants. ## **DEVAN RAMACHANDRAN** ## **JUDGE** ## **MC/RP/**