IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 SA.No. 865 of 1998(C) ---------------------------------- AS.145/1990 of IST ADDL. DISTRICT COURT, KOLLAM OS.386/1986 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT(S): APPELLANT/PLAINTIFF --------------------------------------------------------- SANKARAN NAMBOOTHIRI SETHUNATHA SHARMA, VADASSERI ILLAM, CLAPPANA THEKKU PERUNAD VILLAGE. BY ADVS. SRI.B.KRISHNA MANI SRI.V.PREMCHAND SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): RESPONDENT/DEFENDANTS -------------------------------------------------------------------- *1. SANKARAN NAMBOOTHIRI SANKARANARAYANA SARMMA S.UTSN SHARMA OF DO. FORMERLY EMPLOYED AND WERE RESIDING AT SNCO'S MESS, NO.14, WINCR, AIR FORCE, C/O.99, APO AND NOW RETIRED AND RESIDING AT PARAYILPUTHEN VEEDU, P.O., EDANAD CHENGANNOOR. (RECORDED) *IT IS RECORDED AT THE RISK OF THE APPELLANT THAT LRS OF IST DEFENDANT ARE NOT NECESSARY PARTIES IN THE APPEAL, AS PER ORDER DT. 24.9.07 IN SA. 2. KOCHUKALI OMANA. CHETTISSERI VEEDU, KOTTACKUPURAM MURI, ATHINADU VADAKKU KULASEKHARAPURAM VILLAGE. 3. SREEDHARAN RAJAN, SANOJ BHAVAN, ATHINADU VADAKKU, KOTTACKUPPURAM MURI, KULASEKHARAPURAM VILLAGE, FROM CHOVASSERIL VEEDU, ATHINADU VADAKKUM MURI, KULASEKHARAPURAM VILLAGE. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SMT.T.B.MINI, SRI.C.K.SAJEEV SRI.P.J.JOSEPH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 865 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of February, 2011. JUDGMENT The plaintiff, who lost before the lower appellate court, is the appellant. 2. The suit was one for declaration that the purchase certificate obtained by the second defendant is vitiated by fraud and collusion. 3. The plaint consists of two items of property, which are alleged to have belonged to the family temple of the plaintiff and the first defendant, namely, Vallikkavu Bhagavathy temple. The allegation is that the second defendant in collusion with the first defendant caused to file an application before the Land Tribunal concerned as O.A. 331 of 1972 claiming fixity of tenure over the suit property. Even though the first defendant, as power of attorney holder of the Karanavathi of the Illom, filed objections on behalf of the Karanavathi of the Illom, he did not further S.A.865/1998. 2 seriously contest the matter and let an order be passed in favour of the second defendant. The allegation is that it was as a result of fraud and collusion between the first and second defendants that the purchase certificate happened to be issued and had the first defendant properly contested the proceedings, that would not have happened. On the basis of these allegations, the suit was laid. 4. The first defendant remained ex-parte and second defendant contested the suit. It is pointed out that there is absolutely no basis for the allegations and it is made with the intention to get over the order passed in her favour by the Land Tribunal. It was pointed out by her that the Devaswom was properly represented in the proceedings and they had filed objections contending that the second defendant is not a cultivating tenant. It was after following the necessary procedures and after obtaining Revenue Inspector's report that the purchase certificate was issued. It was pointed out that if the plaintiff or the members of the Illom is aggrieved by the order, they should have to resort to S.A.865/1998. 3 appropriate remedies available to them under law and the present suit is not maintainable. On the basis of these contentions, she prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and Exts.A1 to A5 from the side of the plaintiff. The contesting defendant did not adduce any evidence. 6. The trial court, by a curious reasoning, set aside the purchase certificate, directed the Land Tribunal to implead the plaintiff in the suit in the proceedings and re-try the proceedings and thus disposed of the suit. The aggrieved plaintiff carried the matter in appeal as A.S. 145 of 1990 and the contesting defendant chipped in with a cross-objection. The lower appellate court, after an elaborate consideration, found that the suit itself was not maintainable and dismissed the appeal and allowed the cross-objection. That brings the plaintiff before this court. 7. Notice is seen issued on the following questions of law: S.A.865/1998. 4 “i) Is it not clear that Et.A3 order is vitiated by fraud and collusion especially when even the lease deed produced by the 2nd defendant before the Land Tribunal to sustain his claim as a cultivating tenant relates to some other properties? ii) Is it not clear that Exts. A3, A4 and A5 are the outcome of fraud and collusion? iii) Whether the lower appellate court was justified in its interpretation of Section 72(K) of the Kerala Land Reforms Act? iv) Was the lower appellate court right in holding that the suit itself is not maintainable? v) Whether the lower appellate court was justified in allowing the Memorandum of cross-objection of defendants 2 and 3? vi) After having found that the proceedings before the Land Tribunal are vitiated by fraud and collusion, was the trial court justified in denying the relief of recovery of possession? vii) Is it not clear that the plaintiff is entitled to decree as prayed for?” S.A.865/1998. 5 8. Learned counsel appearing for the appellant contended that the lower appellate court was not justified in setting aside the judgment and decree of the trial court which had found that the the order culminating the purchase certificate was not sustainable due to various reasons. It is contended that the lower appellate court has not gone into the evidence in depth and that has resulted in miscarriage of justice. On the merits of the order culminating in issuance of purchase certificate, learned counsel pointed out that there was no acceptable evidence adduced by the applicant before the Land Tribunal to show that she was paying rent to the jenmi or that she had actually been cultivating the property. It is evident, according to learned counsel, that the first defendant had colluded with the second defendant and that had resulted in issuance of purchase certificate. According to learned counsel, it was a clear case of fraud and collusion. Therefore, it is contended that the finding of the lower appellate court that the suit is not maintainable is not sustainable in law. It is also contended that the lower S.A.865/1998. 6 appellate court has erred in law in holding that the suit by the plaintiff as a co-owner is not maintainable, since the Kerala Joint Hindu Family System (Abolition) Act, 1975 had come into force. It was thus contended that the decree be set aside. 9. Though the argument may look very attractive, they are without any basis whatsoever. The proceedings before the Land Tribunal evidenced by Exts.A3 and A4 clearly show that the applicant before the Land Tribunal had made the jenmi as a respondent in her application. It is seen from the records that the jenmi had filed objections also. The Land Tribunal had obtained the Revenue Inspector's report, which was in favour of the applicant. The applicant had also produced the lease deed, on the basis of which she laid the claim. It has been specifically pointed out that the lease was taken from the Illom by her father and after his death the property devolved on her. She had given sufficient evidence before the Land Tribunal and the Land Tribunal was impressed by the evidence available on record S.A.865/1998. 7 along with the Revenue Inspector's report and was convinced that the applicant before the Land Tribunal was a cultivating tenant entitled to fixity of tenure. Accordingly, the purchase certificate was granted. 10. One must notice that the purchase certificate was issued as early as in 1974 and the suit is filed in 1986 alleging fraud and collusion. Except for a vague statement that it is vitiated by fraud and collusion, no details of fraud or collusion as such is mentioned in the plaint. Except for the evidence of P.W.1, there is no other evidence to establish any fraud or collusion. The Land Tribunal issued the purchase certificate to the second defendant after following the procedures contemplated under law. The burden is heavy on the plaintiff to show that it is vitiated by fraud and collusion. 11. The reasoning given by the trial court is rather strange. The trial court was of the view that since the plaintiff was interested in the property and since he was not a party before the Land Tribunal, the grant of purchase S.A.865/1998. 8 certificate is vitiated. The reason, to say the least, is perverse. The application was filed in 1972, when the Kerala Joint Hindu Family System (Abolition) Act had not come into force and the Karanavathi of the Illom was made a party to the proceedings, who represented the members of the Illom. Therefore, it was unnecessary for the second defendant to implead the present plaintiff as a party to the proceedings. 12. It is also significant to notice that before the Land Tribunal the jenmi was represented by her power of attorney holder, who had filed objections. The contention now taken that he had not properly conducted the proceedings does not take the plaintiff anywhere. At any rate, the second defendant is not to be blamed even if all that had happened due to the conduct of the power of attorney holder of the respondent in the O.A. proceedings before the Land Tribunal. If the plaintiff was aggrieved, he had to pursue the other statutory remedies available before the appropriate forum. S.A.865/1998. 9 13. The lower appellate court has considered this aspect in considerable detail and has found that a collateral attack is not warranted. The lower appellate court has clearly observed that the plaintiff has to to approach the appropriate forum, if he is entitled to do so, and seek appropriate remedies, if any. The lower appellate court was justified in holding so. Assuming that there might have been some negligence, that is far from saying that the procedure is vitiated by fraud and collusion. The lower appellate court has given cogent and convincing reasons as to why the suit is not maintainable. It cannot be said that the findings are either perverse or unwarranted or unjustified in law. The lower appellate court was therefore justified in allowing the cross-objection. One must notice that the lower appellate court has observed that the proper thing for the plaintiff to do is to approach the appropriate forum, if he is entitled to so under the Kerala Land Reforms Act. 14. This court is unable to find that the judgment and decree of the lower appellate court suffers from any S.A.865/1998. 10 error. The lower appellate court has made it clear that the proper course open to the plaintiff is to seek appropriate remedies, if available, under the Kerala Land Reforms Act before the appropriate forum. It is made clear that this judgment will not stand in the way of the plaintiff seeking appropriate remedies before the appropriate forum. With this observation, this Second Appeal is dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.