Treesa Peter v. C.C. Michael and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930** **FAO.No. 187 of 2003** - **----------------------------OS.789/1991 OF PRL.MUNSIFF COURT, CHERTHALA.** **....................** ## **APPELLANT/ 5TH RESPONDENT/ 5TH DEFENDANT:** **--------------------------------------------------------------------------** **TREESA PETER, CHIRAYIL, ERAMALLOOR MURI, EZHUPUNNA VILLAGE, CHERTHALA.** **BY ADV. SRI.J.OM PRAKASH.** ## **RESPONDENTS/ APPELANT RESPONDENTS 1 TO 4 & 6 TO 12/ PLAINTIFF, DEFENDANTS 1 TO 4 AND 6 TO 12:** **------------------------------------------------------------------------------------------** **1. C.C.MICHAEL, CHIRAYIL HOUSE, MARUTHORVATTOM MURI, THANNEERMUKKOM VADAKKU VILLAGE, MARUTHORVATTOM P.O, CHERTHALA.** **2. C.C.PETER, CHIRAYIL HOUSE, ERAMALLOOR MURI, EZHUPUNNA VILLAGE, ERAMALLOOR P.O. CHERTHALA.** **3. C.C.MANUEL, DO. DO. DO.** **4. C.C.XAVIER, ANADAYIL HOUSE, MATHILIL P.O. PERINAD, KOLLAM.** **5. C.C.JHOSEPH, CHIRAYIL HOUSE, KUZHIYIL LANE, MARKET WARD, PUNALOOR P.O. KOLLAM.** **6. THRESSIAMMA FRANCIS, CHIRAYIL, ERAMALLUR P.O. CHERTHALA.** **7. SUJATHA FRANCIS, DO. DO. DO.** **F.A.O.NO.187/2003:** ## **8. DEVANAND FRANCIS, DO. DO. DO.** ## **9. VIMALA FRANCIS, DO. DO. DO. DO.** ## **10. KAMALAKSHY AMMA, INDIRAKUTTY AMMA,** **DO. DO. DO.** **11. VIRONI XAVIER, PUTHUPPALLIL, PALARIVATTOM, VENNALA, ERNAKULAM.** **12. SUSHAMMA JOSEPH, KONATTU, NEAR KAILSAM, EZHUPUNNA SOUTH PO, CHERTHALA.** **R1 BY ADV. SRI.SAIGI JACOB PALATTY,** **R 10 BY ADV. SRI.C.K.SAJEEV, R6 TO R9 & R.12 BY ADV. SRI.K.G.UNNIKRISHNAN NAIR.** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **M.N.KRISHNAN, J ===================== FAO No.187 OF 2003** ## **=====================** ## **Dated this the 12th day of December 2008** ## **JUDGMENT** This first appeal is preferred against the judgment of the Sub Court, Cherthala in A.S.No.32 of 1997. The said appeal was preferred against the judgment of the Prl.Munsiff's Court, Cherthala in O.S.No.789 of 1991. The suit is one for partition filed by one of the sons of Mr.Chandy. It is his contention that Chandy died in the year 1963 and he had a total extent of 51 cents of property. According to him, out of that 51 cents, 10 cents was gifted to the 5[th] defendant. The remaining portion of 41 cents is shown as the plaint schedule property. So far as this appeal is concerned, the challenge is made by the 5[th] defendant in the suit. The 5[th] defendant would contend that she has got a kudikidappu right over 10 cents of property and so the property covered by the purchase certificate in favour of the 5[th] defendant has to be excluded from the partition. I am not dealing with the other aspects for the reason that it is not the subject matter of this appeal. The learned trial Judge held that the 5[th] defendant had been issued a certificate of purchase by the competent Tribunal and Exts.B1,B2 and B17 FAO 187/2003 -:2:- will prove the same and therefore it is a property which is to be treated as her individual property, that is liable to be excluded from the ambit of partition. The suit was dismissed on the ground that it is bad for partial partition as well. In appeal, the learned Sub Judge held that the plaintiff has to be given an opportunity to amend the plaint and directed the court to consider the matter afresh. The appellate court did not agree with the trial court on the question of validity of the certificate of purchase issued by the Land Tribunal in favour of the 5[th] defendant and held that it is a document that has been obtained by playing fraud and therefore it is liable to be ignored and the matter to be proceeded with. It is against that decision, the present appeal is filed by the 5[th] defendant. 2. Learned counsel for the 5[th] defendant would contend before me that when a certificate of purchase is issued under the provisions of the Kerala Land Reforms Act it is a conclusive proof of tenancy or kudikidappu as the case may be and the remedies available to the person aggrieved is by way of an appeal under Section 102 of the Kerala Land Reforms Act and thereafter a revision under Section 103 of the K.L.R.Act. 3. I had perused the order passed by the Tribunal which is marked as Ext.B2 in this case. The Land Tribunal, Pattanakkad in O.A.No.995/1971 had found that the applicant, viz., the 5[th] defendant herein is entitled to FAO 187/2003 -:3:- purchase kudikidappu right. The appellate court found that there had been really no proper service of any notice on the present plaintiff and the whole proceeding of the Tribunal is not proper and the certificate of purchase obtained is by practising fraud and therefore it is not binding on the plaintiff. I find from Ext.B2 order that the 6[th] respondent therein, the name is shown as Sri.Micle (Dakka Military Service) absolutely there is no address of this person. I had perused the order which does not specifically state anything regarding the service or non-service of notice on the party and therefore one cannot find out from Ext.B2 document that the plaintiff has been served with a notice in the case. Learned counsel had cited before me the decision of the Apex Court reported in Dhruv Green Field Ltd. v. Hukam Singh(2002) 6 SCC 416). In that case the Apex Court held that “if there is express provision in any special Act barring the jurisdiction of a civil court to deal with matters specified thereunder the jurisdiction of an ordinary civil court shall stand excluded”. It also held that even in cases where the jurisdiction of a civil court is barred expressly or impliedly, the court would nonetheless retain its jurisdiction to entertain and adjudicate the suit provided the order complained of is a nullity. So what will be the legal impact of an order, which is passed without notice is a matter to be considered and decided by the court below. As early as in 1980 in the FAO 187/2003 -:4:- decision reported in Sree Karikad Devaswom v. Wandoor Jupiter Chits (1980 KLT 760) a learned Judge of this Court was considering the question whether a purchase certificate issued without notice to the owner, if operates against him and whether it can declare invalid a purchase certificate obtained by fraud. It was held that “a purchase certificate issued in proceedings where individual notice is not issued to the landowner cannot operate against him in spite of S.72K(2), even if a public notice has been issued under sub-section(1) of S.72F. A purchase certificate would not conclude matters if the same is “inaccurate on its face, or has been obtained by fraud or collusion”. A reference was also made to the decision reported in Velappan v. Thomas(1979 KLT 412), where the court held that “the civil court can go into the question of validity of order of Land Tribunal when it is proved that the order was got by fraud or collusion”. The court also held that it is necessary to put a harmonious construction to S.72F(2) and (3). It is necessary for Courts, with S.72F(3) on the statute book, which cannot be struck down as being violative of natural justice to read it down and to hold that it will come into operation only when individual notices contemplated in S.72F(2) becomes impracticable in the manner provided under the general law. Otherwise, the wide manner in which S.72F(3) is worded would give room for unscrupulous persons in charge of litigations and even FAO 187/2003 -:5:- Tribunals invested with the power to decide to resort to dishonest methods to secure orders dishonestly under the circumstances with which can better be imagined than stated. The Apex Court also in the decision reported in Mathew and others v. Taluk Land Board(1979 KLT 601) while dealing with the conclusive nature of proof of certificate of purchase issued under Section 72K it held that if it is inaccurate on the face of the record, certainly it is a matter that can be gone into by even the Land Board when the jurisdiction to decide the tenancy is given to the Land Tribunal. Any statutory act requires genuine compliance of the procedure laid down and especially when a right of a party is affected without proving that notice is served on him it may not be proper to decide the question regarding the correctness of that document. A mere look at the address in Ext.B2 would reveal that no notice could have been taken to a person in that address. What is stated in Ext.B2 is Sri.Micle (Dakka military service). By no stretch of imagination one can think that a notice gone to such a person and therefore it is to be decided regarding the service of notice. 4. So far as this case is concerned, the learned Munsiff drew lot of presumptions under Section 114 of the Evidence Act even when a lot of inaccuracies were on the face of the record. If the learned Munsiff had turned to the address portion of the order, I am certain that she could not FAO 187/2003 -:6:- have jumped to the conclusion regarding the validity of the service. So far as the appellate Judge is concerned, since he was attempting to find out whether notice had been served on him, without finally deciding and arriving at a correct conclusion whether notice has been served or not it may not be possible to arrive at a decision that the said order is binding or not binding on the party. Therefore I feel an opportunity has to be given in this case to the 5[th] defendant to establish that Ext.B2 order was passed in substantial compliance with the provisions of the KLR Act and if the 5[th] defendant is able to establish the same then as rightly contended by the learned counsel for the appellant the remedial measure for the party would have been either to file an appeal against that order or to canvass the correctness of the same on the ground of fraud or other grounds known to law. So the basic question whether Ext.B2 order is passed with proper service of notice is very much germane for consideration and therefore I hold that the trial court is expected to look into that before arriving at a decision regarding the property covered by Ext.B2. I am not disturbing the other findings regarding the appellate judgment. So far as Exts.B2 and B17 certificates of purchase are concerned, I direct the trial court to consider the correctness of the same thereby meaning that whether those orders and pattayam are issued after due compliance of the provisions of the KLR Act. FAO 187/2003 -:7:- For that purpose, the 5[th] defendant as well as the other parties are permitted to produce documentary as well as oral evidence in support of their respective contentions. With these observations, the FAO is disposed of. ## **M.N.KRISHNAN, JUDGE** **Cdp/-**