IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 SA.No. 76 of 1994(A) -------------------- AS.205/1990 of I ADDL. DISTRICT COURT, PALAKKAD OS.216/1983 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANTS:APPELLANTS:PLAINTIFFS: ------------------------------------------------------------- 1. MICHAEL, S/O.AROGGA MANIYAKARAN, RESIDING AT PUDUSSERY AMSOM, PUDUSSERY EAST VILLAGE, WALAYAR, CHANDRAPURAM, PALGHAT TALUK.(D I E D) – LRS IMPLEADED: 2. SOOSAYAPPAN, S/O.AROGGAMANIYAKARAN, RESIDING AT ..DO..DO.... *ADDL.APPELLANTS ARE IMPLEADED: A3. ANNIE, W/O.LATE SOOSIYAPPAN, PUDUSSERY AMSOM, CHANDRAPURAM, WALAYAR DAM P.O.,PALAKKAD. A4. ALPHONSA MARY (MINOR), AGED 7, D/O.LATE SOOSIYAPPAN, REPRESENTED BY GUARDIAN MOTHER ANNIE. (*ADDL.APPELLANTS 3 & 4 ARE IMPLEADED AS THE LRS OF THE DECEASED SECOND APPELLANT AS PER ORDER DTD. 8/03/01 ON C.M.P.NO.458/2001) BY ADV. SRI.K.K.MOHAMED RAVUF SRI. SAJAN VARGHESE (ADDL.APPELLANTS) RESPONDENTS: ------------------------- 1. KANIKKAMARIYA AMMAL, W/O.MICHAEL SOURIYAR, RESIDING AT CHANDRAPURAM, PUDUSSERY EAST VILLAGE, WALAYAR, PALAKKAD TALUK. Kss ..2/- ...2.... S.A.NO.76/1994 2. JOSEPH, S/O.SANTHAPPAN, RESIDING AT PAMPAMPALLAM, WALAYAR, PUDUSSERY EAST VILLAGE, PALAKKAD TALUK. **3. GEORGE, S/O.PAPPY, RESIDING AT PANIKKANTHARA BUILDING, KOITHARA BRIDGE ROAD, PERUMANUR AMSOM & DESOM, ERNAKULAM DISTRICT. ( D I E D) – LR'S IMPLEADED: 4. KALLAMPLIYAN JAMES, S/O.NALLATHAMPI, RESIDING AT CHANDRAPURAM, WALAYAR, PUDUSSERY EAST VILLAGE, PALAKKAD TALUK. ***ADDL.RESPONDENTS TO BE IMPLEADED: R5. ELIYAMMA GEORGE, W/O.LATE P.P.GEORGE, PANIKKANTHARA BLDG, KOITHARA BRIDGE ROAD, PERUMANOOR DESOM, PERUMANOOR, ERNAKULAM. R6. ROY P.GEORGE, S/O.LATE P.P.GEORGE IN ..DO..DO... R7. RAJANI THOMAS, D/O.LATE P.P.GEORGE IN ..DO..DO.... R8. MARIYAM, D/O.LATE P.P.GEORGE IN ..DO...DO..... ***ADDL.RESPONDENTS 5 TO 8 ARE IMPLEADED AS THE LRS OF DECEASED RESPONDENTS 3 AS PER ORDER DTD. 17/02/97 IN C.M.P.NO.124/97. ** ADDL.R9 TO R11 ARE IMPLEADED: R9. RUBY P. GEORGE, D/O.LATE P.P.GEORGE AND W/O.JACOB GEORGE, THENUMKAL, KOLENCHERY. R10. RANI P.GEORGE, D/O.LATE P.P.GEORGE AND W/O.PRINCY MATHEW, CHIRAKKARAYIL, OORUMANA MOOVATTUPUZHA. Kss ...3/- ...3... S.A.NO.76/1994 R11. RENU P.GEORGE, D/O.LATE P.P.GEORGE AND W/O. JOJI PANNIKUZHIYIL HOUSE, KOLENCHERY. (**ADDL.R9 TO R11 ARE IMPLEADED AS THE LRS OF THE DECEASED R3 AS PER ORDER DTD. 8/03/01 ON CMP.NO.631/97). BY ADV. SRI.D.KRISHNA PRASAD SMT.O.K.SANTHA THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2008 ALONG WITH SA NO. 85 OF 1994 AND SA NO. 87 OF 1994, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... S.A.Nos. 76, 85 & 87 OF 1994 ............................................ DATED THIS THE 8th DAY OF JANUARY, 2008 JUDGMENT Plaintiffs in O.S.216 of 1983, 16 of 1988 and 769 of 1988 on the file of Munsiff Court, Palakkad are the appellants. Respondents are the defendants. O.S.216 of 1983 was filed seeking a decree for permanent prohibitory injunction restraining respondents from trespassing into the plaint B schedule property. Plaint B schedule property is an extent of about five cents having measurement of 30 X 60 feet in R.S.1428/1, 1428/2, 1428/7 and 1428/10 of Puthussery Village. Plaint A schedule property was originally shown as the property comprised in 1428/1. It was subsequently got amended and substituted as two items consisting of 14.71 acres being the southern portion of Poolampara estate and 15.71 acres excluding the acquired portion for National Highway in R.S.1428/1, 1428/2, 1428/7, 1428/8 and 1428/10. Appellants contended that plaint A schedule property was obtained by Arogya Maniyakaran their father, as per Ext.A1 sale deed in the name of first respondent, the daughter-in-law as he was in debts at that time and first respondent was only a binami for the father in law and SA 76/94 & CONN. 2 the property belonged to Arogya Maniyakaran and on his death, it devolved on all his children and on behalf of them, appellants are managing the property and first respondent has no right or possession over the property. When a portion of the property was acquired for National Highway, it was the appellants who received compensation. Third respondent purchased the property of Pazhanichamy Gounder situated on the eastern side of the property. There is a fence in between A schedule property and the property purchased by third respondent. On 26.5.1983, respondents with their workers, trespassed into the plaint schedule property and blasted rocks and B schedule property is part of A schedule property which was trespassed upon by respondents. Appellants contended that respondents are to be restrained by a permanent prohibitory injunction. The suit was resisted by respondents contending that appellants have no right or possession to the plaint schedule property. It was contended that plaint A schedule property was purchased by first respondent paying consideration and it was not purchased by Arogya Maniyakaran and therefore appellants cannot claim any right or title or possession to the property. It was also contended that subsequently first respondent purchased jenmom SA 76/94 & CONN. 3 right from the Land Tribunal as per order in O.A.56 of 1977 and though appellants filed appeal as A.A.157/1979 before Land Tribunal, that appeal was dismissed and the claim of appellants is barred by adverse possession and respondents are not entitled to the decree sought for. Subsequently respondents 1 and 3 filed additional written statement after the plaint was amended. It was contended that the property in the possession of first respondent after acquisition was assigned by first respondent to third respondent and his wife and children as per document 4984/1986 of Palakkad SRO and they have been in possession of the property. It was also contended that in LAR 117/1982, appellants procured signature of first respondent, under the guise that they are helping her in the proceedings and when she noticed the fraud, she sent a registered notice to the Advocate who was engaged by appellants on behalf of first respondent and in LAR 121/1972 where first respondent and appellants were parties, entire compensation was received by first respondent and therefore claim of appellants is barred by resjudicata. It was also contended that claim that Ext.A1 is a binami transaction is hit by the provisions of Binami Transaction Prohibition of right to recovery of the property ordinance 2/83 and the suit is only to SA 76/94 & CONN. 4 be dismissed. 2. Learned Munsiff originally granted a decree in favour of appellants in O.S.216 of 1983. When the appeal filed against the judgment was pending, appellants filed O.S.16 of 1988 seeking a decree for permanent prohibitory injunction in respect of plaint B schedule property therein which is plaint A schedule property in O.S.216 of 1983, excluding plaint B schedule property therein. The case of appellants in the plaint in O.S.16 of 1988 was that they have been in possession of the plaint schedule property on verumpattom right and respondents have no manner of right or possession over the property and therefore they are to be restrained by a decree for permanent prohibitory injunction. The case that acquisition under Ext.A1 was by the father in favour of first respondent, daughter-in-law alleged in O.S.216 of 1983, was not pleaded in O.S.16 of 1988. Instead, the case was that plaint schedule property was obtained on verumpattom right by appellants. Respondents resisted the suit reiterating the contentions raised in the other suit. Subsequently, O.S.768 of 1988 was filed by appellants, seeking a decree to set aside Ext.B4 purchase certificate obtained by first respondent in O.A.56 of 1977. The case of appellants in the SA 76/94 & CONN. 5 plaint was that the order of the Land Tribunal and purchase certificate granted in favour of first respondent was based on a J form submitted by first respondent as tenant and second respondent as jenmi and first respondent is not a tenant, as the property was purchased by Arogya Maniyakaran in the name of first respondent, daughter-in-law to save the property from creditors and therefore first respondent has no tenancy right and even after Ext.A1 assignment, it was the father of appellants who has been in possession of the property paying pattom and effecting improvements and the father died in 1970 and thereafter his rights devolved on all the children including appellants and brothers and property was being managed for and on behalf of all the co-owners by appellants and purchase certificate obtained by first respondent is vitiated by fraud and collusion. It was also contended that appellant filed an application before the Land Tribunal opposing the claim of first respondent to implead them and without considering that application purchase certificate was granted in favour of first respondent and though appellants filed A.A.157 of 1979, it was dismissed on technical grounds and O.P.610 of 1985 filed by appellants to quash the order in O.A.56 of 1977 was dismissed SA 76/94 & CONN. 6 on the ground of delay and the order of High Court enables appellants to approach the civil court for appropriate remedy and the jenmi of the property Naduvil Madam Devasom was not a party to the OA and therefore the purchase certificate was vitiated by fraud and is to be set aside. 3. First respondent resisted the suit contending that earlier suits were filed to harass first respondent and as against the judgment in O.S.216 of 1983, an appeal was filed and the judgment was set aside by first appellate court and suit was remanded for fresh disposal and respondents 1 and 2 filed a J form before the Land Tribunal and it was allowed by the Land Tribunal and though appeal was filed by appellants, it was dismissed and the petition filed before High Court was also dismissed and therefore appellants are not entitled to challenge that order. It was also contended that the order of Land Tribunal is not vitiated by fraud and there was no fraud or collusion and the suit is only to be dismissed. 4. After the remand of O.S.216 of 1983 by first appellate court in A.S.105 of 1986, all the three suits were jointly tried by learned Munsiff. On the evidence of PW1, Dws 1 to 3, Exts.A1 to A31 and B1 to B44, learned Munsiff dismissed all the suits SA 76/94 & CONN. 7 holding that case of appellants that Ext.A1 is a binami transaction is not maintainable in view of Binami Transaction Prohibition Act(hereinafter referred to as the “Act”). Learned Munsiff found that question whether appellants are also entitled to a right in a portion of A schedule property which was acquired, was considered by the Land Acquisition Court in LAR 121/1972 and under Ext.B27, entire compensation was paid to first respondent alone and therefore plea of appellants that plaint schedule property belonged to all the children of deceased Arogya Maniyakaran is not correct and as the said plea is barred by principles of resjudicata. Learned Munsiff also found that under Ext.A1, first respondent obtained the plaint schedule property and under Ext.B4, she purchased jenmom right from the Land Tribunal also and Ext.B4 order is not vitiated by fraud or collusion and appellants are not entitled to the decree for injunction or a decree to set aside Ext.B4 order. Appellants challenged the judgment before District Court, Palakkad in A.S.190 of 1990, 194/1990 and 205 of 1990. Learned Additional District Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed all the appeals. S.A.76 of 1994 is filed challenging the concurrent judgment in O.S.216 SA 76/94 & CONN. 8 of 1983. S.A.85 of 1994 is filed against the concurrent judgment in O.S.16 of 1988 and S.A.87 of 1994 is filed against the concurrent judgment in O.S.769 of 1988. 5. Second appeals were admitted formulating the following substantial questions of law. 1) Whether courts below were justified in holding that provisions of Binami Transaction (Prohibition Act 1988) will apply so as to disentitle appellants from getting the relief. 2)Whether findings of courts below that suits are barred by resjudicata in the light of Ext.B27 judgment in LAR 121/1972 is sustainable. 3)In a suit for injunction, whether the provisions of Binami Transaction Prohibition Act 1988 will apply. 4)Whether on the pleading and evidence, courts below were justified in not granting a decree for declaration in favour of appellants. 5)Whether Ext.B4 purchase certificate is vitiated by fraud and collusion and are liable to be set aside. 6. Learned counsel appearing for appellants and respondents were heard. The argument of the learned counsel appearing for appellants is that in view of the declaration of law SA 76/94 & CONN. 9 by the Apex Court in A.Rajagopal Reddy V. P.Chandrasekharan (AIR 1996 SC 238), provisions of Binami Transaction Prohibition Act is not retrospective and as Ext.A1 was executed before coming into force of the Act, finding of courts below that in view of the Act, the plea is not available is not sustainable. Learned counsel argued that courts below should have found that Ext.A1 was obtained by Arogya Maniyakaran, the father in law, in the name of first respondent, daughter-in-law to save the properties from the creditors and therefore first respondent has no right over the property and on the death of Arogya Maniyakaran, the property devolved on all the legal heirs and on behalf of the legal heirs, appellants are in possession of the property and therefore a decree for injunction should have been granted. Learned counsel also argued that Ext.B27 judgment in LAR 121/1972 was exparte judgment and the question whether the property was obtained by first respondent or by Arogya Maniyakaran as claimed by appellants was not decided on merit by the Land Acquisition Court and therefore Ext.B27 judgment will not operate as resjudicata. Learned counsel also argued that in respect of the other portion of acquired property, LAR 117 of 1972 was pending before Land SA 76/94 & CONN. 10 Acquisition Court and as evidenced by Ext.A29, compensation was paid to appellants also and therefore relying on Ext.A27, it should not have been held that the claim of appellants is barred by resjudicata. Learned counsel also argued that Ext.A7 judgment in LAR 484 of 1972 establish that only appellants claimed enhanced compensation for the acquired property and Ext.A17 judgment shows that only appellants challenged the judgment in Ext.A7 and therefore courts below should not have rejected the case of appellants based only on Ext.B27 judgment. Learned counsel also argued that Ext.B4 order of the Land Tribunal was challenged in A.A.157 of 1979 before the Appellate Authority(Land Reforms) and though under Ext.A23, appeal was dismissed, it was only for technical reasons. It was further argued that Ext.A23 order establishes that though appellants filed an application before the Land Tribunal, before Ext.B4 order was passed to get themselves impleaded, contending that property was purchased by the father Arogya Maniyakaran, while passing Ext.B4 order, no order was passed in the impleading application and the claim of appellants that property was not obtained by first respondent and instead was obtained in the name of first respondent by her father in law was not SA 76/94 & CONN. 11 considered and appeal was dismissed only for the reason that remedy of appellant was to file an application before the Land Tribunal as provided under sub-section 7 of Section 72MM of Kerala Land Reforms Act. It was argued that though Ext.B4 and B23 order was challenged before this court in O.P.1610 of 1985, as evidenced by Ext.A24 judgment, the petition was dismissed as belated and the judgment makes it clear that appellants are entitled to challenge the order of the Land Tribunal before civil court and therefore courts below should not have dismissed O.S.769 of 1988 when it is proved that the landlord Naduvil Madam Devasom was not impleaded and Ext.B4 order was passed without considering the objection raised by appellants and therefore it is vitiated and courts below should have granted the decree sought for. 7. Learned counsel appearing for respondents pointed out that even though in O.S.216 of 1983, appellants raised a plea that plaint A schedule property was obtained by Arogya Maniyakaran binami under Ext.A1, that case was not pursued when O.S.16 of 1988 was filed later after O.S.216 of 1983 was originally disposed, and in O.S.769 of 1988, the challenge was only against Ext.B4 order and no relief sought for in O.S.769 of SA 76/94 & CONN. 12 1988 to the effect that Ext.A1 was a binami transaction and therefore the acquisition of plaint A schedule property was by Arogya Maniyakaran and first respondent is only a name lender and instead, only Ext.B4 order was sought to be set aside alleging fraud and collusion without pleading the necessary ingredients of fraud as provided under Rule 4 of Order VI of Code of Civil Procedure. Learned counsel also argued that as rightly found by courts below, question whether plaint schedule property belongs to the legal heirs of Arogya Maniyakaran or to first respondent was a subject of dispute in LAR 121/1972 and as evidenced by Ext.B25 and B26, copies of the statements filed by one of the appellants and first respondent, the same plea was raised before the Land Acquisition Court and Ext.B27 judgment establish that compensation was granted only to first respondent and not to appellants. Relying on the decision of the Apex Court in Saroja V. Chinnusamy (2007(4) KLT 233(SC), learned counsel argued that even an exparte judgment will operate as resjudicata and therefore as rightly found by courts below, plea of appellants is barred by resjudicata in view of Ext.B27 judgment of the Land Acquisition Court. Learned counsel also pointed out that Ext.B29 is only the decree and SA 76/94 & CONN. 13 Ext.A6 judgment shows that judgment was pronounced only based on Ext.A26 joint statement and Ext.A26 establishes that without prejudice to the contentions of respective parties, first respondent consented to apportion a portion of the compensation to appellants and that will not enable appellants to raise any claim and the settlement is only with respect to apportionment of the compensation amount in that case and therefore finding of courts below that claim of appellants is barred by resjudicata is perfectly correct. Learned counsel also relied on the decision of Apex Court in Raj Lakshmi Dasi V. Banamali Sen (AIR 1953 SC 33) and argued that decision of Land Acquisition Court will also operate as resjudicata in a later suit. Learned counsel also argued that as mandated under Order VI, Rule 4, details of fraud were not alleged in the plaint in O.S.769 of 1988 and there is no evidence to prove that Ext.B4 order is vitiated by fraud or collusion. It was further argued that irregularity in the proceedings or failure of the Land Tribunal to pass an order in an application filed by appellants to get themselves impleaded in the proceedings will not vitiate the proceedings and it cannot be said that failure to pass an order would amount to a collusion or fraud and there is no allegation of SA 76/94 & CONN. 14 collusion as against the Land Tribunal and therefore courts below rightly dismissed all the suits. Learned counsel argued that though appellants claim that they are in possession of the plaint schedule property, they did not produce any document to prove possession including tax receipts, when respondents have produced B6 to B16 tax receipts and in the light of evidence, appellants cannot claim that they are in possession of the property or entitled to the decree for injunction. 8. Plaint A schedule property was admittedly acquired under Ext.A1 assignment deed executed by Arogya Maniyakaran in favour of first respondent. First respondent is admittedly the daughter of one of the sons of Arogya Maniyakaran. The case of appellants is that Ext.A1 assignment deed was obtained by Arogya Maniyakaran in the name of first respondent daughter in law to save the property from being proceeded against by his creditors. Though such a contention was raised in O.S.216 of 1983, when O.S.16 of 1988 was filed, appellants did not pursue that plea and instead, claimed in the plaint that plaint A schedule property was obtained on verumpattom by them and they have been in possession of the property. Even though after the dismissal of O.P.1610 of 1985 by this court, appellants filed SA 76/94 & CONN. 15 O.S.769 of 1988 seeking a decree to set aside Ext.B4 purchase certificate obtained by first respondent in respect of A schedule property contending that it is vitiated by fraud and collusion, even in that plaint, appellants did not seek a decree for declaration that Ext.A1 is a binami transaction and though document stand in the name of first respondent, she is only a name lender and that property was purchased by the father in law, Arogya Maniyakaran. O.S.216 of 1983 and 16 of 1988, are suits for injunction simplicitor. Though O.S.769 of 1988 was filed seeking a decree to set aside Ext.B4 order, no declaratory decree was sought. Even according to the pleading in O.S.216 of 1983 and O.S.769 of 1988, Ext.A1 is not a sham and nominal document which is loosely called as binami transaction. Instead what was contended in both the suits was that Ext.A1 was obtained in the name of daughter-in-law to save the property and not that transaction is a sham and nominal document and not acted upon. Therefore without seeking a decree for declaration that Ext.A1 assignment deed is a binami transaction and first respondent is only a name lender and Arogya Maniyakaran is the owner of the property, appellants are not entitled to challenge the right of first respondent by filing suits for SA 76/94 & CONN. 16 injunction alone. Therefore strictly speading, on the pleadings the question whether Ext.A1 is a binami transaction does not arise for consideration. 9. Trial court and first appellate court rejected the claim based on the binami transaction holding that in view of the Act, the plea is not available. As rightly pointed out by learned counsel appearing for appellants, in view of the declaration of law by the Apex Court in A.Rajagopal Reddy's case (supra), the said finding of courts below is not correct. The decisions of the trial court and first appellate court were rendered when the earlier decision of the Apex Court in Mithilesh Kumari V. Prem Behari Khare (AIR 1989 SC 1247) that the Act is retrospective in operation was prevailing. In view of the later decision of the Constitution Bench in Rajagopal Reddy's case that the Act is only prospective and not retrospective, it cannot be said that appellants are entitled to plead that Ext.A1 is a binami transaction. But as appellants did not seek a decree for declaration that Ext.A1 is a binami transaction and in the nature of the suit, it is not necessary to consider that question and appellants are not entitled to get a decree on the basis that Ext.A1 is a binami transaction. SA 76/94 & CONN. 17 10. Though learned counsel appearing for appellants challenged the findings of courts below that the claim of appellants is barred by resjudicata, in view of the decision of Land Acquisition Court in LAR 121 of 1972 evidenced by Ext.B27 is not sustainable as it is only an exparte decree, as rightly pointed out by learned counsel appearing for respondent even an exparte decree will operate as resjudicata. The position is settled by Apex Court in Saroja's case (supra). It was held:- “ Let us, therefore, deal with Condition No.(iv) first which says, “ the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit”. Learned counsel for the appellant sought to argue that since the former suit was decided ex parte, it could not be said that it was finally heard and decided by the Court and therefore, condition (iv) was not satisfied and the principle of SA 76/94 & CONN. 18 resjudicata could not be applied and accordingly the exparte decree in the former suit would not operate as resjudicata in the subsequent suit. We are unable to agree with this contention of the learned counsel for the appellant. In this case, admittedly, summons was duly served upon Kuppusamy and inspite of such service of summons, Kuppusamy though it fit not to appear or to contest the suit filed against him. Once an exparte decree is passed against Kuppusamy, in our view, the same should be taken as a final decision after hearing. It is well settled that an exparte decree