IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 RSA.NO. 74 OF 2010() -------------------- {AS.66/2003 OF ADDITIONAL DISTRICT COURT-II, MAVELIKKARA IN OS.271/1999 OF MUNSIFF COURT, HARIPAD} .................... APPELLANT(S): RESPONDENT/PLAINTIFF: ----------------------------------------------- UNNIKRISHNAN K.V., S/O.VELAYUDHAN PANICKER, KUTTIPARAMBIL THEKKETHIL, MAHADEVIKADU MURI, KARTHIKAPILLY VILLAGE AND TALUK. BY ADV. SRI.T.N.MANOJ RESPONDENT(S): APPELLANTS/RESPONDENTS 3-4 AND ADDL R.5-8: ---------------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ALAPUZHA. 2. THE TAHSILDAR, KARTHIKAPILLY TALUK, HARIPPAD. 3. PRABHAKARAN P.K., S/O.NARAYANAN, AMBIKA COTTAGE, KIZHACHE KARA VADAKKUM MURI, THRICKUNNAPUZHA VILLAGE. 4. VIJAYAN G., S/O.JANARDHANAN, VIJAYA BHAVANATHIL, KIZHACHE KARA VADAKKUM MURI, THRICKUNNAPUZHA VILLAGE. 5. THANKAMMA PODAYIL, KARUVATTA VADAKKUM MURI, KARUVATTA VILLAGE. 6. ANIRUDHAN, S/O.THANKAMMA PODAYIL, KARUVATTA VADAKKUM MURI, KARUVATTA VILLAGE. RSA.NO. 74 OF 2010 :: 2 :: 7. JANAKAMMA, D/O.THANKAMMA PODAYIL, KARUVATTA VADAKKUM MURI, KARUVATTA VILLAGE. 8. KANAKAMMA, PRANAVAN, THULAMPARAMABU DESOM, HARIPPAD VILLAGE. R1 & R2 BY GOVERNMENT PLEADER SRI.S.GOPINATHAN SRI.A.ABDUL LATHEEF FOR R5,7,8 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RSA.NO. 74 OF 2010 :: ORDER ON I.A.NOS.180/10 & 1536/10 IN RSA.NO. 74 OF 2010 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 22.10.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. ----------------------------------------------- R.S.A.No.74 of 2010 ----------------------------------------------- Dated this the 22nd day of October, 2010 JUDGMENT Plaintiff in a suit for declaration and injunction has filed this appeal. The trial court granted a decree in his favour, but in appeal, the lower appellate court, reversing that decree, dismissed the suit. 2. the appellant/plaintiff was a partner of a firm, which was carrying on toddy business. Towards arrears of kist due from the firm, revenue recovery proceedings were initiated and the suit was filed by the plaintiff, an erstwhile partner of that firm, for a declaration that such proceedings against the properties scheduled in the plaint are illegal, and for a perpetual prohibitory injunction to restrain the revenue officials, defendants 4 and 5, from proceeding against those properties for realisation of the alleged arrears of public revenue. Defendants 1 to 3 in the suit, according to the R.S.A.No.74 of 2010 :: 2 :: plaintiff, were the debtors, and from whom alone the State is competent to realise the arrears due on public revenue towards the defaulted amount due under the kist for the toddy shops operated by the firm as a licensee. 3. On the materials placed, the trial court came to the conclusion that the plaintiff is entitled to the reliefs canvassed for and, accordingly, the suit was decreed granting the plaintiff a declaration that the properties scheduled in the suit are not liable for realisation of the debts due from defendants 1 t 3, and a perpetual prohibitory injunction was also granted restraining the State and revenue officials from proceeding against the plaint properties under the Revenue Recovery Act (for short “the Act”) in respect of the plaint properties. 4. In the appeal preferred by the State and revenue officials as appellants, after re-appreciating the materials tendered, the lower appellate court reversed the decree granted by the trial court and dismissed the R.S.A.No.74 of 2010 :: 3 :: suit. Plaintiff had previously challenged the recovery proceedings initiated against the properties by way of an original petition before this court and the relief claimed therein was negatived, and that was confirmed in writ appeal, with the bar of jurisdiction of the suit covered under Section 72 of the Act, prompted the lower appellate court to hold that the plaintiff is not entitled to the discretionary relief of declaration and injunction applied for in the suit. The decision so rendered by the lower appellate court reversing the decree of trial court and non-suiting the plaintiff is challenged in the appeal. 5. The learned counsel for the appellant/plaintiff urged that since his suit has been found to be not maintainable in view of the bar under Section 72 of the Act, an opportunity may be extended to the plaintiff to pursue the remedies provided under the Statute - Revenue Recovery Act , to save his property from revenue sale. Status of the plaintiff as one among the 'defaulters' being R.S.A.No.74 of 2010 :: 4 :: a partner of the firm which operated the toddy shops, and liability of the firm would fall on him and defendants 1 to 3, was not challenged or disputed. The only question on the submission of the counsel is whether after disposal of the suit, any reservation could be made in favour of the plaintiff to pursue whatever rights he has in respect of the properties, whether as a partner or otherwise before the revenue officials to save such properties from the revenue recovery proceedings. The dismissal of the suit by which he claimed that the properties are not available to be proceeded under the Act by itself would not debar the plaintiff from raising whatever objections before the revenue officials as provided by the statute, Revenue Recovery Act. What has been found by the dismissal of the suit is that his claim for a declaration that the properties are not liable to be proceeded and for an injunction to restrain the public officials from proceeding under the Act is not allowable. That would not enable the revenue officials to negate R.S.A.No.74 of 2010 :: 5 :: whatever other contentions which he can canvass for, if so entitled to, under the above 'Act' or under any other law. Subject to the observations made above, the appeal is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//