High Court of KeralaSingle Judge2014-02-12Regular Second Appeal No. 583 of 2008 dismissed...

Rasheeda v. State of Kerala represented by the District Collector, Malappuram, and Tahsildar, Revenue Recovery, Manjeri

Case / Petition Number:RSA No. 583 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2014-02-12
Court Decision / Holding: Appeal dismissed; the judgment and decree of the lower appellate court are confirmed. The plaintiff retains the right to file objections to the initiation of proceedings within two months before the competent authority, and such objections shall be considered in accordance with law. Revenue recovery proceedings shall be kept in abeyance pending such objections.
Final Disposition: Regular Second Appeal No. 583 of 2008 dismissed; lower court's judgment/decree upheld; two-month window for objections before competent authority; revenue recovery proceedings stayed pending objections.

Parties to the Case

Appellants / Petitioners

Rasheeda, D/o. Kodumbadan Veerankutty, Ernad Taluk, Keezhupparamba Amsoom, Desom Keezhupparamba (P.O.)

Respondents

State of Kerala represented by the District Collector, Malappuram
Tahsildar, Revenue Recovery, Manjeri

Legal Representation & Advocates

Counsels for Petitioners

• M.V. Thamban

Counsels for Respondents

• Smt. Lilly Lesle

Case Synopsis & Summary

Rasheeda, the plaintiff in O.S. 536/1994 before the Munsiff Court, Manjeri, challenged revenue-recovery proceedings initiated against the property assigned to her. The trial court held in her favor, issuing an injunction restraining further recovery actions, but the lower appellate court reversed, ruling that the suit was barred by Section 72 of the Revenue Recovery Act and also by Section 44 of the Act, and that Exts.B1–B9 could be considered despite lack of formal proof. It was found that the demand notice (Ext.A2) was served after the property had already been transferred to the plaintiff (Ext.A1), making the claim unenforceable against the property. The State and Revenue Recovery authorities argued that the suit was barred, and that Exts.B1–B9 should be admissible as public documents. The High Court held that Exts.B1–B9 are public documents under Section 74 of the Evidence Act and admissible under Sections 63 and 65; it held that the arrears were due before the assignment, as evidenced by Ext.A2. While distinguishing or distinguishing similar precedents cited by the appellant (notably Kerala Small Industries Development Corporation Ltd. v. Prakasan and Gourikutty Amma v. District Collector, Alleppey), the court confirmed the lower appellate court’s conclusions. It stayed the revenue proceedings while granting the plaintiff a two-month window to file objections before the competent authority, which would be considered in accordance with law.

Provisions of Law Cited

Section 72 of the Revenue Recovery ActSection 44(1) of the Revenue Recovery ActSection 44(2) of the Revenue Recovery ActSection 44(3) of the Revenue Recovery ActSection 46 of the Revenue Recovery ActSection 74 of the Indian Evidence ActSection 65 of the Indian Evidence ActSection 63 of the Indian Evidence Act

Legal Doctrines & Maxims

Public documents are admissible under Section 74 of the Indian Evidence Act; secondary evidence rules (Sections 65, 63) apply to documentary evidence
Presumption that transfer to a near relative or for grossly inadequate consideration was intended to defeat or delay recovery (Section 44(3))
Burden is on the plaintiff to establish the legality of the transfer
Section 72 of the Revenue Recovery Act operates as a bar to filing suits challenging proceedings
Judicial distinction of authorities; precedents may be distinguished based on facts (as applied to Prakasan and Gourikutty Amma)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the lower appellate court erred in holding the suit barred by Sections 72 and 44 of the Revenue Recovery Act and that Exts.B1–B9 are inadmissible. They argue that the transfer occurred prior to the demand and that Ext.A2 shows arrears due before the assignment; hence the suit should not have been dismissed; Exts.B1–B9 are public documents under the Evidence Act and should be considered in evaluating the validity of the recovery notice. The reliance on Prakasan and Gourikutty Amma is misplaced and those decisions do not apply to the facts here; relief under Article 226 was not at issue, and the remedy lies in statutory rights rather than in a general challenge to the proceedings.

Contentions of Respondents

The respondents argue that the suit is barred by Section 72 and Section 44 of the Revenue Recovery Act, as the transfer was made after the public revenue due had fallen due, and the transfer to a near relative (the plaintiff’s husband) indicates an intention to defeat or delay recovery. They contend that Exts.B1–B9 are admissible as public documents and that the arrears were due prior to the assignment, making the claim against the property actionable only against the defaulter’s estate. They maintain that the lower appellate court correctly reversed the trial court’s decree and that the High Court should affirm the bar to the suit.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kerala Small Industries Development Corporation Ltd. v. Prakasan	2011 (3) KLT 893	Distinguished	Court notes the decision is not applicable to the facts here and distinguishes it on the basis that the issue was whether Section 72 bars a challenge to proceedings, whereas the present case concerns the enforceability of a transfer prior to assignment.
Gourikutty Amma v. District Collector, Alleppey	1974 KLT 103	Distinguished	Court refers to the decision but states the principle has no bearing on these facts, distinguishing it as dealing with Article 226 relief under Section 46 and not applicable to the facts of the Revenue Recovery Act proceedings.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 12TH DAY OF FEBRUARY 2014/23RD MAGHA, 1935** **RSA.No. 583 of 2008 ( )** **-----------------------AGAINST THE JUDGMENT IN AS 7/2005 of SUB COURT, MANJERI DATED 30-03-2007 AGAINST THE JUDGMENT IN OS 536/1994 of MUNSIFF COURT, MANJERI DATED 29-09-1998** **------** ## **APPEELLANT/RESPONDENT/PLAINTIFF:** **--------------------------------** **RASHEEDA, D/O. KODUMBADAN VEERANKUTTY, ERNAD TALUK, KEEZHUPARAMBA AMSOM, DESOM KEEZHUPARAMBA (PO)** **BY ADV. SRI.M.V.THAMBAN** ## **RESPONDENTS/APPELLANT/DEFENDANT:** **-------------------------------** **1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, MALAPPURAM.** ## **2. TAHSILDAR, REVENUE RECOVERY** - **MANJERI.** **R1& R2 BY GOVERNMENT PLEADER SMT.LILLY LESLE** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **RSA.No. 583 of 2008 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **ANNEXURE A1: COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE DR.P.K. ASHOKAN, CHIEF CONSULTANT AND INTERVENTIONAL CARDIOLOGIST OF FATHIMA HEART FOUNDATION, FATHIMA HOSPITAL, KOZHIKODE.** ## **RESPONDENT'S ANNEXURES :** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **P.BHAVADASAN, J.** ## **-----------------------------------------------Regular Second Appeal No.583 OF 2008 ------------------------------------------------Dated this the 12[th] day of February, 2014.** ## **J U D G M E N T** The plaintiff in O.S.No.536/1994 before the Munsiff Court, Manjeri is the appellant. A suit for injunction against the revenue recovery proceedings was decreed by the trial court which was reversed in appeal. 2. The property which belonged to her husband was assigned to the plaintiff as per Ext.A1 dated 26.11.1992. On 24.10.1994, she was served with a notice Ext.A2 whereby there was a claim for arrears due from her husband and the property of her husband was sought to be proceeded against. She approached the trial court pointing out that by the time demand notice was served on her, the property has already been transferred and revenue recovery proceedings could not be initiated against her property. On the basis of these allegations, suit was laid. **R.S.A No.583/2008** **2** 3. The defendants resisted the suit mainly pointing out that the suit is not maintainable and also that the transfer is made fraudulently. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and the documents marked as Exts.A1 and A2 on the side of the plaintiff. Exts.B1 to B9 were marked on the side of the defendants. 5. The trial court was of the view that Exts.B1 to B9 cannot be looked into by the court because they have not been proved and the mere production of documents does not amount to proof of those documents and therefore the documents were discarded. Relying on Ext.A2 which was served on 24.10.1994, trial court went on to hold that the service of demand notice was long after the property has been assigned in favour of the plaintiff as per Ext.A1 and therefore the claim could not be enforced as against the property. The suit was accordingly decreed. 6. The State took up the matter in appeal as A.S.No.7/2005. The lower appellate court was of the view that the suit is barred due to Section 72 of the Revenue Recovery Act **R.S.A No.583/2008** **3** and also under Section 44 of the Act. The lower appellate court was also of the view that the finding of the trial court that Exts.B1 to B9 cannot be looked into has no sanction of law. Holding so, the lower appellate court reversed the finding of the trial court and allowed the appeal. 7. Assailing the findings of the lower appellate court and relying on the decisions in _**Kerala Small Industries Development Corporation Ltd.** vs._ _**Prakasan**_ (2011 (3) KLT 893) and in _**Gourikutty Amma** vs._ _**District Collector, Alleppey**_ (1974 KLT 103), learned counsel appearing for the appellant pointed out that the finding of the lower appellate court that the suit is barred due to Section 72 of the Revenue Recovery Act cannot be sustained. It is also pointed out that Section 44 of the Act can have no application to the facts of the case for the simple reason that the demand notice was served long after the assignment was made in favour of the plaintiff. It was also pointed out that the lower appellate court was not justified in relying on Exts.B1 to B9 and was also not justified in taking a different view from the view taken by the trial court. It is **R.S.A No.583/2008** **4** therefore contended that the lower appellate court's judgment and decree are not sustainable in law. 8. Though the argument may look attractive at the first blush, on a careful scrutiny, it can be found that it is without any basis. The question is if Exts.B1 to B9 documents are admissible in evidence in the light of Section 74 of the Evidence Act which prescribes what are the public documents. Going by the said provision, there can be no doubt that Exts.B1 to B9 are public documents. Section 65 of the Evidence Act deals with applicability of secondary evidence and Section 63 of the Act also fortifies the finding of the lower appellate court that Exts.B1 to B9 documents are admissible in evidence. If that be so, the lower appellate court was perfectly justified in coming to the conclusion that the demand was made against the husband of the plaintiff long before the assignment. 9. Apart from the above fact, even going by Ext.A2 produced by the plaintiff, it can be seen that arrears were due from 28.03.1991 in respect of which notice was issued. As per Ext.A2, it is clear that arrears had fallen due long before the **R.S.A No.583/2008** **5** assignment in favour of the plaintiff. The decisions relied on by the learned counsel for the appellant cannot have any application for the simple reason that in _**Kerala Small Industries Development Corporation Ltd.** vs._ _**Prakasan**_ (2011 (3) KLT 893), what was considered was whether Section 72 of the Revenue Recovery Act was a bar to a suit which challenges proceedings on the ground that it was in violation of the provisions of the Act. Therein this Court held that when challenge is made regarding procedure which is in violation of the Act, Section 72 of the Act is not a bar. In the decision in _**Gourikutty Amma** vs._ _**District Collector, Alleppey**_ (1974 KLT 103), the question considered was whether relief under Article 226 of the Constitution of India can be availed of in view of Section 46 of the Act. Therein this Court held that Section 46 of the Act is not a bar. The principle laid down therein can have no application to the facts of the case for the simple reason that there is no grievance that the proceedings initiated are in violation of the provisions of any Act. Section 72 of the Act is therefore a clear bar in filing of a suit as rightly noticed by the **R.S.A No.583/2008** **6** lower court. 10. The trial court has referred to an O.P in its judgment as O.P. No.8338/1997. On getting records, it is seen that that was an O.P filed by the husband of the plaintiff wherein he pointed out that he had filed a representation before the authority concerned and till that representation is disposed of, revenue recovery proceedings cannot be continued. It was held therein that till representation filed by the plaintiff's husband is disposed of, revenue recovery proceedings cannot be continued. 11. Coming back to the provisions of the Revenue Recovery Act, Sections 44(1) and 44(2) of the Act deals with two different situations. Section 44 (1) of the Act deals with a situation where assignment is made after demand notice is served. Section 44(2) of the Act deals with an entirely different situation and it seems that transfer of immovable property made by the defaulter after public revenue due to any land from him has fallen in arrears. Section 44(3) of the Act also points out that it shall be presumed that transfer to a near relative or for grossly inadequate consideration was to defeat or delay recovery of such arrears. In **R.S.A No.583/2008** **7** the case on hand, transfer is in favour of the wife of the defaulter and it is clear that the arrears fell due long before. The burden is on the plaintiff to show that transfer was put in law. 12. The lower appellate court was therefore justified in its conclusion that suit may not be maintainable. However, the plaintiff has statutory remedies available to him which cannot be denied to him even assuming that the suit is not maintainable. While confirming the judgment and decree of the lower appellate court, it is made clear that the plaintiff shall have the right to file objection to the initiation of proceedings within a period of two months from today before competent authority which shall be considered in accordance with law and appropriate orders will be passed. Till such time, revenue recovery proceedings shall be kept in abeyance. Sd/- ## **P.BHAVADASAN JUDGE** smp // True Copy // P.A. To Judge.