P.K. Thankam Ammal Gurukrepa v. Narayana Swami and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 06TH DAY OF DECEMBER 2019 / 15TH AGRAHAYANA, 1941** ## **AS.No.214 OF 1999(C)** **AGAINST THE JUDGMENT IN OS 286/1992 DATED 27-11-1997 OF ADDITIONAL SUB COURT, PALAKKAD** ## **APPELLANT/1ST DEFENDANT** **P.K.THANKAM AMMAL GURUKREPA, CHINNAMMAL STREET, K.K.PUDUR, COIMBATORE** **BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.P.K.MOHANAN(PALAKKAD)** ## **RESPONDENTS(PLAINTIFF AND DEFENDANTS 3 TO 5)** |**1**|**NARAYANA SWAMI**| |---|---| ||**S/O.SESHA IYER, RESIDING AT PUDUGRAMAM, KOLLENGODE,**| ||**CHITTUR TALUK, PALAKKAD DIST, (NOW CLAIMING TO BE**| ||**KOLLENGODE PUDUGRAMAM SREE VISWANATHA SWAMI DEVASWAM,**| ||**MANAGING TRUSTEE.**| |**2**|**P.G.VAIDYANATHAN,**| ||**S/O.P.N.GANAPATHI IYER, VINULAL PARLIAMENT STREET,**| ||**MARSHEL HOUSE, KANARA BANK, CIRCLES OFFICE, I.C. AND**| ||**I.F.SECTION, NEW DELHI-110001.**| |**3**|**P.G.SIVARAMAKRISHNAN,**| ||**S/O.GANAPATHI IYER, RESIDING AT ERNAKULAM TOWN, THE**| ||**NEDUNGADI BANK, ERNAKULAM DISTRICT.**| |**4**|**P.G.NEELAKANDAN,**| ||**S/O.P.N.GANAPATHI IYER, AKSHA COLONY PLOT NO. 13/14,**| ||**WEST EXTENSION, ANNA NAGAR MADRAS, TAMIL NADU.**| ||**R1 BY ADV. SRI.T.SETHUMADHAVAN (SR.)**| ||**R1 BY ADV. SRI.T.C.SURESH MENON**| ## **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05-09-2019, THE** **COURT ON 06-12-2019 DELIVERED THE FOLLOWING:** A.S.214/1999 2 ## **JUDGMENT** Dissatisfied with the judgment and decree in O.S. No. 286 of 1992 on the file of the Subordinate Court, Palakkad, the 1[st] defendant has come up with this appeal. The suit was filed by the 1[st] respondent/ plaintiff for declaration and recovery of possession. By the impugned judgment and decree dated 27[th] November, 1997, the suit was decreed declaring the title and possession of the 1[st] respondent over the plaint schedule property and the buildings therein. 2. For the sake of convenience, the parties are referred to as per their status in the original suit. 3. The case of the 1[st] respondent/plaintiff/Devaswom is that the plaint schedule property is a school building, the school compound and the furniture and fittings of the school. The school belonged to the plaintiff Devaswom. The property was purchased by the plaintiff on 6.3.1891 and the school building was constructed by the plaintiff and maintained with fencing encircling A.S.214/1999 3 the same. The management of the school was done by the Kizhikaran for and on behalf of the Devaswom trustees. The school building which was a thatched one, was renovated later and the entire income from the property was being taken by the plaintiff. One Sri. Venkitachala Pattar was the Kizhikaran of the Devaswom and he was managing the school in that capacity and he was also the teacher of the school. He was the grandfather of the appellant/1[st] defendant. He later entrusted the job of the 'Kizhikaran' to his son P.V. Krishna Iyer as he was not in a position to manage the school due to his old age. While so, the Kerala Education Rules came into force and thus the Kizhikaran became the Manager of the school. While the school was thus under his management, he colluded fraudulently with the 2[nd] defendant, the Managing Trustee of the school, and obtained patta from Kollamkode Land Tribunal with respect to the plaint schedule school. In the year 1988 the plaintiff took charge of the Managing Trustee of the School. Only after the death of P.V. Krishna Iyer, the A.S.214/1999 4 plaintiff came to know about the patta issued in the name of P.V. Krishna Iyer. On 15.2.1992 the plaintiff issued a notice to the defendants demanding surrender of the school. But they did not surrender and a contention was raised through the reply notice that, the Devaswom has no right over the school and Venkitachala Pattar took the property on pattam about 95 years back on the strength of a lease amount of rupee one and on an agreement for administering the school. In fact, there was no such lease arrangement and the patta was obtained by P.V. Krishna Iyer fraudulently and hence it is a nullity. Therefore, the suit for declaration of title and for recovery of possession on the strength of title. 4. The 1[st] defendant resisted the plaintiff's claim inter alia contending that Venkitachala Pattar, his grandfather was a teacher of the school and he had taken the land on lease about 95 years ago for a lease amount of Rs.1/- per annum and it was an oral lease. Thereafter he constructed the building and started the A.S.214/1999 5 school in that building. In the year 1966 the Management of the school was entrusted with P.V. Krishna Iyer with necessary consent from the Education Department. The Land Tribunal proceedings were conducted after making necessary enquiry and there was no fraud or collusion as alleged by the plaintiff. Venkitachala Pattar was the lessee of the property and after his death, the school was managed by P.V. Krishna Iyer and hence the patta was issued in his name. Devaswom had no right over the property and after the death of P.V. Krishna Iyer, the 1[st] defendant got right over the property. 5. The 2[nd] defendant had contended that Krishna Iyer was the Manager of the school, but he was never appointed as Kizhikaran. The pattayam in his name has no validity and he never colluded with him to secure Pattayam in his name. The 2[nd] defendant was the Managing Trustee of the school. When the 2[nd] defendant was laid up, Krishnamoorthy the Clerk-cum-Secretary was managing the school and its property and actually there was A.S.214/1999 6 no collusion between this defendant and Krishna Iyer. 6. Before the court below, plaintiff was examined as PW 1 and Exts. A1 to A15 were marked. For the defendants, DW1 and DW2 were examined and Exts. B1 to B17 were marked. The court below after evaluating the evidence adduced by the respective parties concluded that the purchase certificate issued by the Land Tribunal, Kollamkode in favour of P.V. Krishna Iyer was a nullity and declared the title of the plaintiff over the plaint schedule property and allowed the plaintiff to recover possession of the plaint schedule school and its furniture from the 1[st] defendant. Challenge is with respect to the said verdict of the court below. 7. Heard Adv. T. Krishnanunni, the learned Senior Counsel appearing for the appellant and Adv. T. Sethumadhavan, the learned Senior Counsel appearing for the respondents. 8. The plaintiff Devaswom has sought for recovery of possession of the plaint schedule property, an extent of 16 cents with a school, its furniture, other movables etc. on the strength of A.S.214/1999 7 Ext. A1 sale deed and also for declaration that Ext.B2 purchase certificate in favour of P.V. Krishna Iyer, the predecessor of the first defendant, is a nullity. 9. Venkitachala Pattar was the Kizhikaran of the Devaswom and he was entrusted with the management of the School owned by the Devaswom was the case pleaded by the plaintiff. When KER came into force he became the Manager of the School. He was succeeded by Sri. P.V. Krishna Iyer, the kizhikaran and he was functioning as the Manager of the School on the death of Venkitachala Pattar. But he fraudulently managed to obtain Ext.B2 purchase certificate over the property as a cultivating tenant behind the back of the Devaswom, colluding with the 2[nd] defendant, the old Managing Trustee of the Devaswom, is the definite case put forth by the plaintiff. 10. The second defendant who is the old managing trustee on the other hand though filed written statement refuting the contention raised by the plaintiff that he colluded with P.V A.S.214/1999 8 Krishna Iyer and the Land Tribunal Officials, contended that he came to know about the purchase certificate obtained by P.V.Krishna Iyer only at the time of filing of the suit and the pattayam has no validity at all. He has further contended that while he was the managing trustee of Devaswom, the management of the school was done by one Krishna Moorthy who was the then clerk-cum- secretary. He has also contended that he was laid up from May 1973 for about 1 ½ years due to heart ailments and the Assistant Commissioner of HR & C.E Board visited him and then took over, the charge of the managing trustee. Therefore, it is admitted by him that he has not participated in the proceedings before the Land Tribunal Kollengode in the application filed by P.V.Krishna Iyer and that be so, it could correctly be presumed that the proceedings were made behind the back of the plaintiff. It is further to note that the allegation of the plaintiff that Ext.B2 is the result of the fraud committed by P.V Krishna Iyer in the Land Tribunal, Kollengode, is fully supported by him. Though he filed A.S.214/1999 9 written statement no independent evidence was adduced by his legal heirs impleaded as the defendants 3 to 5 on his death. They remained ex-parte, during trial. 11. It is also relevant to state that under the Land Reforms Act special provision is made with respect to holdings by a religious or charitable institutions, under Section 65 of the Land Reforms Act . Section 66 deals with the procedure of vesting rights of religious, charitable or educational institutions in Government and for determination of annuity. It is not evident that such a procedure was followed in the instant case and there was payment of annuity as per Section 65 of the Land Reforms Act. Since there is no evidence to prove that the procedure under Section 66 and 67 of the Act have been complied with, the validity of Ext.B2 is under serious challenge. 12. As revealed from the records, the property is having only an extent of 16 cents and a School is situated in the entire property. At present, it is an aided lower primary school. As P.V. A.S.214/1999 10 Krishna Iyer, the Manager of the school has obtained Ext.B2 as a cultivating tenant, it is necessary to look into the provisions of the Kerala Land Reforms Act ('KLR Act' for short) where a cultivating tenant is defined under Section 2(8) as follows: “ **2(8) “cultivating tenant** ” means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding;” Cultivate is defined in Section 2(7) as “7. “cultivate” with its grammatical variations means cultivate either solely by one's own labour or with the help of the members of his family or hired labourers or both, or personally direct or supervise cultivation by such members or hired labourers or both, provided that such members or hired labourers have not agreed to pay or to take any fixed proportion of the produce of the land they cultivate as compensation for being allowed to cultivate it or as remuneration for cultivating it [ and in the case of a member of the Armed Forces or a seaman, “cultivation” includes cultivation on his behalf by any other person.” Section 72B of the KLR Act deals with cultivating tenant's right to assign land. It is useful to reiterate the relevant portion of Section 72B. A.S.214/1999 11 “ **72B. Cultivating tenant's right to assignment.** - (1) The cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest: Provided that- (a) no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of a holding under this section if he, or if he is a member of a family, such family, owns an extent of land not less than the ceiling area; (b) where the cultivating tenant or, if he is a member of a family, such family does not own any land or owns an extent of land which is less than the ceiling area, he shall be entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the land, if any, owned by him or his family, as the case may be, be equal to the ceiling area. Explanation.- In calculating the extent of land owned by the cultivating tenant or, where he is a member of a family, by such family, for the purposes of clauses (a) and (b) of the foregoing proviso, the portion of the land owned by such cultivating tenant or by the family, which is liable to be assigned to the cultivating tenants holding under him or such family, shall not be taken into account. - (2) xxxxxx - (3) xxxxxx - (4) xxxxxx A.S.214/1999 12 (5) Where a cultivating tenant is entitled to the assignment of the right, title and interest in respect of only a portion of the holding held by him, he may indicate in the application under sub-section (3) his choice of the portion to which the assignment shall relate.” This Court in **Lekshmi** v. **Hendry** (1981 KLT SN 71 Case No. 128) observed that a cultivating tenant is a person in possession entitled to cultivate the land comprised in the holding. It reads as follows: “A cultivating tenant as per its definition must be a person in possession entitled to cultivate the land comprised in the holding. The expression “cultivate” as defined in the Act makes out the intention of the legislature that the cultivation is relating to land for the purpose of raising the produce of the land. From a reading of Ext. A2 it is clear that the purpose of the lease in the present case, is not for cultivation and the tenant is not a cultivating tenant within the meaning of the Act. It is only the right, title and interest of the landlord in respect of a holding held by a cultivating tenant that would vest in the Government, and it is only in respect of such rights vested that a cultivating tenant is entitled to assignment. Since I find that the tenant in this case is not a cultivating tenant, the right, title and interest of the landlord do not vest in the Government and the tenant is not entitled to apply for assignment of the same.” In **M.D.Seminary** v. **P.J. John** (1987 KHC 570) also this Court dealt with the same question as follows; A.S.214/1999 13 “9. …...... Who is a cultivating tenant? Going by the definition in S.2(8) he is one who is in actual possession of and is entitled to cultivate the land comprised in his holding. The word 'cultivate' is defined in S.2(7). Interpreting the definition, this Court in Lakshmi v. Hendry-CRP No. 1513/79E-(1981 KLT Short Notes 71 Case No. 128) has held that “the cultivation done in the land is for the purpose of raising the produce from the land”. Such a person alone is a cultivating tenant. As observed by the Full Bench of this Court in V.N. Narayanan Nair and others v. State of Kerala and others (1970 KLT 659 FB para 39) “there must always be a cultivating tenant on agricultural land that has been leased out.” That means that the tenant who claims the benefit of S.72B must be a tenant of the holding which belongs to the category of land called 'agricultural land'. The question therefore is can the tenants in these cases be called cultivating tenants as defined under S.2(8) of the Act. On a perusal of the pleading as also the recitals in the documents, it could be seen that the tenants are not persons cultivating agricultural lands for the purpose of raising any produce therefrom. May be that they have planted some trees on the land. According to the counsel for the petitioners, they cannot plant trees or raise any other improvement except to put up buildings for their occupation. The tenants however, have a case that they are entitled to make improvements on the property. I do not propose to pronounce upon this aspect of the case, because, the holdings admittedly are interspersed between buildings and building sites within the municipal area. The tenants therefore cannot be heard to say that A.S.214/1999 14 they are cultivating tenants within the meaning of the KLR Act, entitled to obtain the reliefs provided for under S.72B. 10. The Full Bench in Narayanan Nair's case has observed thus:- “It is the purpose for which the land is held, not its accidental use at a particular point of time, that determines whether it is agricultural land or not. If the land is held for purposes of agriculture or for purposes ancillary thereto (such as for pasture or for the residence of cultivators of land, agricultural labourers or village artisans) it is agricultural land.” 13. From the materials on record produced by both sides, it could be seen that the school of the Devaswom by name 'Puthugramam devasom school' was functioning in the plaint schedule property, having an extent of 16 cents and later when Kerala Education Rules came into force ,the name of the school was changed as aided lower primary school. It is also revealed from Ext.A1 sale deed that the sale deed was executed by the owners of the land in favour of the Devaswom and Venkitachala Pattar had acted as the purchaser of the property only on behalf of the Devaswom. The records would further reveal that, the entire area of 16 cents was covered by the school and no land is left for A.S.214/1999 15 effecting any kind of cultivation so as to claim any right by P.V. Krishna Iyer as the cultivating tenant of the land. There is no evidence or indications that any portion of the land was used for cultivation. According to the plaintiff, P.V. Krishna Iyer was managing the School as the Manager of the Devaswom and was functioning as such on the death of his father Venkitachala Pattar. After his death, on 15.2.1992 the Devaswom had issued Ext.A2 notice to the 1[st] defendant to surrender possession of the School with all the furniture and movables within a period of 15 days. Devaswom had issued such a notice when it was revealed that without the knowledge of the Devaswom, the predecessor of the first defendant had obtained certain false documents so as to claim right over the school and its' properties and hence demanded to surrender possession of the school and its premises. But to Ext. A2, the 1[st] defendant had sent Ext. A3 reply stating that Venkitachala Pattar had taken the property on lease for one rupee and constructed the school building and thus he was administering the A.S.214/1999 16 school and during his old age the management was entrusted to P.V. Krishna Iyer and then to the 1[st] defendant. 14. The case of the 1[st] defendant that the school building was constructed by Venkitachala Pattar was denied with all vehemence by the plaintiff and produced Ext.A5 to A15 to substantiate the case that the school building was constructed by the Devaswom. 15. Before dealing with the details of the evidence adduced by the plaintiff, to prove the fact that the school building was constructed by the Devaswom as per the decision taken in the meeting, as well the periodical maintenance was also carried out by the Devaswom, it could be seen that the title of the property was disputed. Therefore, it is necessary to deal with Ext. B2 purchase certificate relied on by the 1[st] defendant, the daughter of P.V. Krishna Iyer to contend that the plaintiff is not entitled to recover possession of the plaint schedule property with utmost circumspection. Ext.B2 is the purchase certificate issued by the A.S.214/1999 17 Land Tribunal, Kollengode on 9.10.1975 in favour of P.V. Krishna Iyer,the tenant . Exts. B3 and B4 are the notices issued by the Special Tahsildar to the 2[nd] defendant. In the proceedings, the land owner's name is shown as the 2[nd] defendant, who was the Managing Trustee of the Devaswom but part H of B4 was kept unfilled thereby it was not stated that the owner was a religious charitable or educational institution, applied for annuity or annuity was determined by the Land Tribunal before 30.9.1970. Ext. B5 is the notice issued to the 2[nd] defendant in the application submitted for purchase certificate. Ext.B6 is the acknowledgement issued by the Tahsildar for receipt of the purchase money dated 25.2.1976 evidencing payment of the purchase price from P.V.Krishna Iyer, the Manager of the school. Section 66 of the KLR Act deals with the procedure for vesting of rights of religious,charitable or educational institutions in Government and for determination of annuity. Proviso to Section 67 of KLR Act says that no annuity shall be paid if the purchase price in respect of that holding has been A.S.214/1999 18 paid or deposited in pursuance of sub section 8 of Section 63. There is no evidence to show that annuity was fixed for this proprty. On receipt of the purchase certificate, the Devaswom represented by the then Managing Trustee had challenged the order before the appellate authority in A.A. 25 of 1992. But the appeal was dismissed by an order dated 14.2.1995 as evidenced by Ext.B1.Therefore , according to the defendants, as purchase certificate was obtained by P.V. Krishna Iyer as the legal heir of Venkitachala Pattar, the 1[st] defendant is entitled to have right over the plaint schedule property. The definite case of the plaintiff is that fraud has been committed by the predecessor of 1[st] defendant in obtaining Ext.B2 purchase certificate. It is well settled that the validity of a purchase certificate can be examined by a civil court only if fraud and collusion are proved in issuance of the same. 16. Learned counsel for the defendants also contended that the decision of the appellate authority wherein the issuance of A.S.214/1999 19 the purchase certificate was challenged, will operate as res judicata and the civil court is not competent to decide the question and to substantiate the said contention they have relied on the decision in **Govindan Gopalan** v. **Raman Gopalan** of this Court (1978 KLT 315). In this decision a Full Bench of this Court has observed that the question whether a prior decision of the Land Tribunal will operate as res judicata was for the first time raised and considered by this Court in the Full Bench decision in **Koran** v. **Kamala Shetty** [1977 KLT 358 (FB)] and concluded that Tribunals are also invested with the task of deciding the important right and have to do so on principles of natural justice and fair play. In these circumstances, rules of res judicata are applicable to them. 17. In **Raj Lakshmi Dasi** v **Banamali Sen** ( AIR 1953 SC 33) it was held that a plea of res judicata can be successfully taken in respect of judgments of courts of exclusive jurisdiction like Revenue Courts, Land Acquisition Courts, Administration Courts etc. though these courts are not entitled to try a regular suit and A.S.214/1999 20 they only exercise special jurisdiction conferred on them by the Statute. 18. On the other hand, the learned counsel for the plaintiff had argued that as fraud and collusion had been pleaded in the case and the validity of Ext. B2 had been questioned on the ground of fraud, the applicability of the principle of res judicata does not stand in the way of examining the validity of the document. 19. Reliance is placed on the decision reported in **Velappan** V. **Thomas** (1979 KLT 412). In **Velappan's case** (supra), it has been observed in paragraph no. 32 as follows: “32. 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 A.S.214/1999 21 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 appellant's 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 Ar.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. According to me, the validity of the order in O.A. No. 140 of 1978 can be questioned on the ground of collusion. The Appellate Judge was right in directing the Trial Court to rehear the matter.” ## 20. In **Unneema** v. **Cheriyamu Haji** (2015 (4) KLT 110), this Court had held that when fraud is alleged in respect of a proceedings, the question has to be decided by the civil court and the contention that the civil court has no jurisdiction is not correct and the jurisdiction of the civil court is not excluded. ## 21. In **Subramonian** v. **Anandanarayanan** (1985 KHC 54), it was held that a decision of the Land Tribunal would operate as res judicata between the same parties in a subsequent A.S.214/1999 22 proceedings if only the order is passed within the meaning of the expression heard and finally decided by the court in the former suit under Section 11 CPC. 22. Here, Ext.B1 was not passed deciding the controversy between the parties finally within the meaning of Section 11 of CPC and therefore does not operate as res judicata. No doubt the parties were distinct and the claim in the earlier litigation was also distinct. Hence, the principle under Section 11 CPC would not apply. It is also to be noted that there is specific allegation of fraud as contemplated under Order VI Rule 4 of CPC in the pleadings especially in paras 4, 5, 6 and 7 of the plaint. The relief sought for is to declare Ext.B2, the purchase certificate, as a nullity as it is vitiated by fraud. When the purchase certificate is vitiated by fraud, the question of res judicata is not applicable as pointed out earlier. The specific allegation raised by the plaintiff is that P.V. Krishna Iyer, who succeeded his father Venkitachala Pattar, had colluded with the 2[nd] defendant, the then Managing Trustee of A.S.214/1999 23 the Devaswom and managed to obtain the purchase certificate in his favour. It has clearly come out in evidence that Venkitachala Pattar was the Kizhikaran of the Devaswom who was managing the affairs as entrusted by the Devaswom. When the school was established, he was managing the school as Manager and he was also a teacher of the School. At his old age, the management was taken over by P.V. Krishna Iyer and on the coming into force of the Kerala Education Rules, he continued as the Manager of the School and only on his death, the plaintiff came to know about the purchase certificate obtained by him in collusion with the 2[nd] defendant, the then Managing Trustee of the Devaswom. 23. A perusal of Ext.B4 notice, leaves no room for any doubt, that no enquiry as contemplated under Rule 12 of KLR (Vesting and Assignment) Rules 1970 was conducted and without complying with the statutory formalities, Ext.B2 was issued treating P.V.Krishna Iyer as a cultivating tenant. There is also no cogent and reliable evidence as to show that Ext.B2 will create any right in favour of A.S.214/1999 24 P.V.Krishna Iyer in respect of the suit property. Hence, it still vests with the Devaswom. 24. Furthermore, in order to prove that the school building was constructed by the plaintiff, Exts. A5 to A15 Janasabha diary and account books have been produced by the plaintiff. Earlier, the building was a thatched one and it is evident from Exts.A5 and A6 that the Devaswom had taken decision to renovate the building and it was also resolved by the Devaswom to spent Rs.150/- for construction of the school as per the request of the Manager. So, these documents would show that in 1068 M.E. itself decision was taken by the Devaswom and the same have been endorsed in Exts. A5 and A6 diaries maintained by the Devaswom. These documents would also reveal the fact that on 22.9.1936 the same were produced before the Malabar District Court and endorsement was affixed for receipt of the same by the court. The authenticity of these documents pertaining to the period from 1062 M.E. to 1072 M.E. and 1072 M.E. to 1084 M.E. respectively A.S.214/1999 25 cannot be challenged and it has to be held admissible under Section 90 of the Evidence Act being records maintained by the Devaswom, kept under proper custody and the documents are more than 30 years old. A perusal of Ext. A8 would further reveal that there was an observation by the then authorities that the hike made by the Devaswom regarding the fees of the students perusing their studies may be a reason for the students to leave the school and so the fee shall be fixed considering the benefits and welfare of the students. The documents would further reveal that the Devaswom was taking decisions with regard to the management of the school and all those decisions were implemented through the kizhikaran/Manager and during the relevant time Venkitachala Pattar was the kizhikaran of the Devaswom and he was managing the school for and on behalf of the Devaswom. Exts. A7 to A12 are also the account books of the school which would show that the expense for the renovation of the school building was met by the Devaswom and all the details A.S.214/1999 26 regarding the same have been recorded in this book. So, Exts. A5 to A15 also establish the fact that the school was managed by the Devaswom and the renovation of the building which includes the thatching works, fencing of compound wall and such other maintenance works were done by the Devaswom with its funds and all the works were entrusted and implemented through the Manager of the school. Exts. A5 to 15 produced by the plaintiff would establish that the school was run by the Devaswom and so, the contention raised by the 1[st] defendant that the property was taken on lease by Venkitachala Pattar from the Devaswom and thus his son who applied for purchase certificate as a cultivating tenant derived title over the property could not be correct and acceptable in the wake of the peculiar facts and circumstances of the case. 25. The school building covers the entire 16 cents of land and nothing is left back, apart from the school and the connected buildings attached thereto ,so as to get the status or any benefit as a cultivating tenant. A.S.214/1999 27 26. In **Shambhogue** v. **State of Kerala** (1988 KHC 370) wherein it has been held that the benefits under Section 72B of the KLR Act cannot be extended when there are many buildings on the land and the remaining land has been leased out to the party. It has been observed that the lease deed cannot be split up and the applicants therein cannot be considered as cultivating tenants so far as the buildings are concerned. When the lease is mainly pertaining to a building and includes incidentally to some land, it cannot be said that the person claiming right over the land, as a cultivating tenant under the provisions of the Land Reforms Act. 27. The 1[st] defendant also contended that a partition deed was executed by the legal heirs of Venkitachala Pattar including the school property and the school was set apart to the share of P.V.Krishna Iyer. Ext. B9 will deed was also produced by the 1[st] defendant to show that P.V. Krishna Iyer had executed a will deed and by that will deed he had assigned the plaint schedule property to the 1[st] defendant. The inclusion of the property in the A.S.214/1999 28 partition deed and in the will deed, will not give any valid right to claim the plaint schedule property as by the documents produced by the plaintiff, it has been amply proved that the property belongs to the Devaswom and Venkitachala Pattar as well P.V. Krishna Iyer had just managed the affairs of the school as the Managers of the school. So also the documents issued by the Educational Department to Venkitachala Pattar and P.V. Krishna Iyer were only in their capacity as Managers of the School and Exts. B10 and B11 will not confer any exclusive right over the school as claimed by them. Exts. B11 to B16 have nothing to do with the matter in dispute. 28. The school which was functioning in the building was managed by Venkitachala Pattar who was also a teacher of the school as entrusted by the Devaswom. When the Kerala Education Act came into force in the year 1950, P.V.Krishna Iyyer as the son of Venketachala Pattar, the kizhikkaran, became the manager of the school and when the school turned as an aided school, the name A.S.214/1999 29 was changed as Aided Lower Primary School. Till that it was known as Puthugramam Devaswom School. Section 2(2) of the Kerala Education Act defines educational agency as any person or body of persons permitted to establish and maintain any private school under the Act. As per Rule 3 chapter III of Kerala Education Rules, the management of every aided school is vested with the manager who would be responsible to the department for management of the institution. As per Rule 6 of chapter III also correspondence relating to the management of an aided school shall be carried out by the manager or by a person appointed by him and approved by the Director. Evidently Exts.B5 to B17 documents indicate that the correspondence made by Krishna Iyer with the educational authority, will not confer any exclusive right for him, over the school, and his actions were only as the manager of the school, in compliance with the Kerala Education Rules. Therefore, the documents will not show that P.V Krishna Iyer or his predecessor had any exclusive right or they exercised any right other than the A.S.214/1999 30 manager of the school as entrusted by the Devaswom. Ext.B17 dated 16.7.1966 would clearly shows that due to the oldage of Venketachala Pattar, the management was handed over to P.V Krishna Iyer and that could only be as approved by the educational authority as per the provisions of the K.E.R. In short, from the evidence on record, it could be seen that the fraud pleaded by the plaintiff against P.V. Krishna Iyer in collusion with the 2[nd] defendant, the then Managing trustee of the Devaswom stands amply proved and established, by the aforementioned evidence. 29. Considering all these facts, it could be concluded that the court below evaluated the evidence correctly and found that the patta obtained by P.V. Krishna Iyer was by playing fraud on the authorities and the Land Tribunal without complying the statutory formalities and without making any proper enquiry under Rule 12(3) of the KLR (Vesting and Assignment) Rules, granted Ext.B2 patta in favour of P.V Krishan Iyer though he was acting as the manager of the school. As Ext.B2 patta is the result of fraud and A.S.214/1999 31 collusion, it has to be treated as nullity in the eyes of the law and hence, the plaintiff is entitled to recover possession of the plaint schedule property with the school and furnitures and other movables from the possession of the first defendant as prayed for. In view of the above discussion, I find that there is absolutely no justifiable or valid ground or error to interfere with the findings of the court below. Resultantly, the appeal fails and therefore, it is liable to be dismissed. The parties are directed to bear their respective costs. Sd/- SHIRCY V JUDGE 06.12.2019. sb