IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 RSA.No. 537 of 2009() --------------------- AS.104/2003 of SUB COURT,NEYYATTINKARA OS.136/2001 of PRL.M.C.,NEYYATTINKARA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------ A.P.MAJEEDKHAN, S/O.ALISON MOHAMMED, VELLAMKULATHALA VEEDU, ATHIYANOOR VILLAGE, NEYYATTINKARA. BY ADV. SRI.G.S.REGHUNATH RESPONDENT: REPRESENTEDS/DEFENDANTS -------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. THE TAHSILDAR, REVENUE RECOVERY, NEYYATTINKARA. 3. THE VILLAGE OFFICER, VILLAGE OFFICE, NEYYATTINKARA. 4. JOINT REGIONAL TRANSPORT OFFICER, OFFICE OF THE SUB-REGIONAL TRANSPORT OFFICE, NEYYATTINKARA. BY GOVT.PLEADER SRI.L.G.SURESHBABU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO.1191 OF 2009 IN R.S.A. NO. 537 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 19.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 537 of 2009 ---------------------------------------- Dated this the 19th day of June, 2009 JUDGMENT The Second Appeal is directed against the decree and judgment in A.S. No. 104/2003 on the file of the Sub court Neyyattinkara which arises from the decree and judgment in O.S. 136/2001 on the file of the Principal Munsiff's Court, Neyyattinkara. The trial court dismissed the suit and the same was confirmed in appeal by the lower appellate court. The plaintiff in O.S No. 136/2001 is the appellant herein Hence this Second Appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. The suit was filed for permanent injunction. 2. The plaintiff is the registered owner of a goods vehicle bearing Reg.No.KLB 8634. On 19.8.2000 the plaintiff received 2 notices issued by the 2nd defendant under Section 7 and 34 of the Revenue Recovery Act stating that the properties of the plaintiff would be attached and sold for realisation of Rs. 16,335/- with penal interest towards arrears of tax for the above said vehicle for the period from 30.6.1985 to 31.12.1988. The plaintiff submitted that the Revenue Recovery notices issued were arbitrary, illegal and void as the recovery of the amount claimed is barred by the law of limitation. It is submitted that the vehicle was dismantled in the year 1985 and therefore the demand of tax arrears for the period from R.S.A. No. 537 of 2009 -2- 30.6.1985 to 31.12.1985 is unenforceable According to the plaintiff the Revenue Recovery proceedings have been initiated by the defendants as a result of fraud, collusion and misrepresentation and that they have no right to realise the amount which has been barred by limitation. Hence the suit. 3. Exts.A1 and A2 are the demand notices dated 26.4.2000 issued by the 2nd respondent. . Ext.A3 is another notice issued by the Village Officer on 31.1.2001. The plaintiff also submitted that the suit has been filed within time i.e. on 15.2.2001 and was not barred by limitation. According to the plaintiff the cause of action arose only when he received Ext.A3 notice on 31.1.2001 4. The defendants contended that as per Section 81(2) of the Revenue Recovery Act ,the Civil court shall not take cognizance of any suit as provided for under the Act ,unless such suit has been instituted within 90 days from the time at which the cause of action arose. Another contention raised by the defendants is that the suit is hit by Section 72 of the Revenue Recovery Act. According to them Section 72 creates a general bar to jurisdiction of Civil courts except where fraud is alleged. 5. The trial court after scrutinising Ext.A1 and A2 notices and Ext.A3 reminder, held that the cause of action to file the suit under the provisions of the Revenue Recovery Act would arise from the date of service of Ext.A1 notice on the plaintiff . The trial court also found that Ext.A1 notice was served on the plaintiff on 19.8.2000 and since the suit R.S.A. No. 537 of 2009 -3- was filed on 15.2.2001, the filing was beyond the period of 90 days. The trial court concluded that the suit was barred by limitation and liable to be dismissed. 6. On going through the averments in the plaint, I find that the courts below rightly held that there is no allegation of commission of fraud by the defendants and the averment in the plaint to the effect that “the proceedings initiated by the defendants against the plaintiff are the result of fraud, coercions and misrepresentation” is not enough to prove the particulars of fraud. Therefore the courts below concluded that the suit is not maintainable under Section 72 of the Revenue Recovery Act. 7. The fact finding courts also held that there was no evidence to show that the vehicle was dismantled in the year 1985 and the burden is on the plaintiff to prove that he was not liable to pay tax arrearsfor the period from 30.6.1985 to 31.12.1988 for the reason that the vehicle was dismantled in the year 1985 . The crux of the case is as to whether the alleged vehicle was dismantled in the year 1985 or not. The plaintiff has not even cared to enter the box and to tender oral evidence in this regard. Having failed to do so, there is every justification for the fact finding courts to hold that there was no evidence to show that the vehicle was dismantled in the year 1985. In the light of the findings recorded by the trial court which was confirmed by the lower appellate court on the basis of evidence on record and the bar of jurisdiction of Civil courts under Section R.S.A. No. 537 of 2009 -4- 72 of the Revenue Recovery Act, the dismissal of the suit and appeal are justified on facts and law. I find that there is no reason to interfere with the findings recorded by the courts below. No question of law much less any substantial question of law arises for consideration in this appeal. There is also no scope for invoking Section 100 of the C.P.C. This appeal fails and accordingly dismissed (HARUN-UL-RASHID, JUDGE) es HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 537 of 2009 ---------------------------- JUDGMENT 19th June , 2009