IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 RSA.No. 672 of 2009() --------------------- AS.140/2005 of II ADDL. DISTRICT COURT, PALAKKAD OS.28/2002 of MUNSIFF COURT, ALATHUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------ 1. KARTHIAYANI, AGED 72 YEARS, W/O.RAMANEZHUTHASAN, OTTELAPPADI VEEDU, KARAPOTTA, KANNAMBRA AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD. 2. NALINI, AGED 41 YEARS, D/O.KARTHIANI, OTTELAPPADI VEEDU, KARAPOTTA, KANNAMBRA AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.JOHN JOSEPH(ROY) RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------- 1. GANGADHARAN, AGED ABOUT 42 YEARS, S/O.AYYAPPAN EZHUTHASSAN, KIZHAKKEVEEDU, POOTHANUR DESOM, KOTTEKKAD AMSOM, PALAKKAD TALUK. 2. ANANTHAN, AGED ABOUT 32 YEARS, S/O.KRISHNAN EZHUTHASSAN, KIZHAKKE VEEDU, POOTHANUR DESOM, KOTTEKKAD AMSOM, PALAKKAD TALUK. 3. KRISHNANEZHUTHASSAN, AGED ABOUT 60 YEARS S/O.PARU AMMA, WORKING IN HOTEL RAMARAJ BHAVAN, KUMARAMPALAYAM SELAM, SELAM DISTRICT, TAMIL NADU. 4. MURALEEDHARAN, AGED ABOUT 42 YEARS, S/O.RAMAN EZHUTHASSAN, OTTELAPPADI VEEDU, KARAPOTTA, KANNAMBRAM DESOM AND AMSOM, ALATHUR TALUK. 5. SURESH, AGED ABOUT 35 YEARS, S/O.RAMANAEZHUTHASSAN, OTTELAPPADI VEEDU, KARAPOTTA, KANNAMBRAM AMSOM AND DESOM, ALATHUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA NO.14897/2009 IN RSA 672/2009 DISMISSED 23.9.2009. Sd/-THOMAS P.JOSEPH, JUDGE //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.672 of 2009 -------------------------------------- Dated this the 23rd day of September, 2009. JUDGMENT This Regular Second Appeal is directed against judgment and decree of learned Additional District Judge-II, Palakkad in A.S.No.140 of 2005 confirming judgment and decree of learned Munsiff, Alathur in O.S.No.28 of 2002. Case of appellants in short, is that judgment and decree in O.S.No.137 of 1992 of the court of learned Munsiff, Alathur was obtained by fraud and collusion and therefore, they wanted a decree cancelling that judgment and decree. The suit concerned 12 cents said to be acquired by late Sankaran Ezhuthachan , father- in law of appellant No.1 and grand father of appellant No.2 and respondent Nos. 4 and 5 according to the appellants, from Puthukkode Devaswom. They claimed that it was the self acquired property of Sankaran Ezhuthachan. The remaining 15 cents of the suit property was acquired by husband of appellant No.1, Raman Ezhuthachan as per an exchange with Parameswaran Ezhuthachan. Sankaran Ezhuthachan has only two sons, husband of appellant No.1 and Ayyappan. The said Sankaran Ezhuthachan according to the appellants, died on 25.3.1937 and thus the suit property devolved on Raman Ezhuthachan and Ayyappan. Ayyappan died bachelor and hence entire 12 cents belonged to Raman Ezhuthachan (husband of appellant No.1) who died on 13.10.1996. Raman Ezhuthachan has filed O.S.No.188 of 1989 against respondent No.3 and his wife, Kunhilakshmi contending that Sankaran RSA No.672/2009 2 Ezhuthachan died in the year 1937 and respondent No.3 is the son of appellant No.1’s mother-in law’s second husband. Respondent No.3, not disputing paternity entered a compromise with Raman Ezhuthachan (husband of appellant No.1) on 11.3.1991 and agreed for an oral partition of the property. But as per the oral partition, nobody got the property. Respondent No.1 filed O.S.No.137 of 1992 before the Munsiff Court, Alathur according to the appellants on behalf of respondent No.2 for partition at the instigation of respondent No.3. In that suit they contended that Sankaran Ezhuthachan (father-in law of appellant No.1) died in the year 1945. In that suit a preliminary decree was passed. Against that preliminary decree husband of appellant No.1 and respondent Nos.4 and 5 filed A.S.No.189 of 1993 in the District Court, Palakkad but that appeal was dismissed. Appellants would say that the decree in O.S.No.137 of 1992 was obtained by fraud and collusion between parties thereto including husband of appellant No.1 and father of appellant No.2 and defendant Nos. 4 and 5. It is also alleged that A.S.No.189 of 1993 arising from the judgment and decree in O.S.No.137 of 1992 was not properly conducted. Respondent Nos.1 and 2 resisted the suit contending that the suit is time barred and the allegations in the plaint are untrue. They contended that judgment and decree in O.S.No.137 of 1992 and appellate decree arising there from are valid and binding on all concerned. They claimed that respondent No.3 is the son of Sankaran Ezhuthachan. Learned Munsiff found that the contention of appellants that the decree in O.S.No.137 of 1992 is obtained by fraud and collusion is not proved and consequently dismissed the suit. Dismissal of the suit has been confirmed RSA No.672/2009 3 by Additional District Judge-II in A.S.No.140 of 2005 and hence this Second Appeal. It is contended in this Second Appeal that the decree obtained by misleading the court is not sustainable in the eye of law and that a child born after 12 years from the date of death of the male is not entitled to inherit the property. 2. So far as the frame of the suit is concerned, there is an inherent defect which affected its very maintainability regarding which though there is no contention raised by contesting respondents I heard learned counsel for the appellants. It is admitted that judgment and decree in O.S.No.137 of 1992 which are sought to be cancelled in the present proceeding was confirmed by the District Court in A.S.No.189 of 1993. As such, the judgment and decree in O.S.No.137 of 1992 which is sought to be cancelled have merged in the judgment and decree of the District Court in A.S.No.189 of 1993 and hence, the judgment and decree of the trial court which is sought to be cancelled has no existence. There is no prayer in the plaint (I have gone through a copy of the plaint provided by the learned counsel for appellants) to set aside the judgment and decree of the first appellate court in A.S.No.189 of 1993 and the only averment in the plaint is that the appeal was not properly conducted. That does not amount to any allegation of fraud and collusion. This Court in State of Kerala v. Alam Tapioca Pulvarisors [1990 (2) KLT 632] has stated that when the judgment that is sought to be cancelled has merged in the judgment of the superior court, suit for cancellation of the judgment of the lower court is not RSA No.672/2009 4 maintainable. That was a case where a suit was filed to set aside judgment of this Court in Writ Petition which was taken in appeal to the Supreme Court and dismissed. This Court found that the suit to cancel the judgment of this Court in Writ Petition is not maintainable without a prayer to cancel the judgment of the Supreme Court. As such the suit is not maintainable. 3. So far as allegation of fraud and collusion in obtaining decree in O.S.No.137 of 1992 is concerned, appellants placed reliance on Ext.B2 to show that Sankaran Ezhuthachan, father-in law of appellant No.1 died on 25.3.1937 and not in the year 1945 as pleaded by the parties in O.S.Nos.188 of 1989 and 137 of 1992. Courts below referred to Exts.B2 and A3 and other evidence and found that Sankaran Ezhuthachan referred to in Ext.B2 is not the father-in law of appellant No.1 and father of Raman Ezhuthachan whose property is dealt with in O.S.Nos.188 of 1989 and 137 of 1992. Appellate court has concurred with that finding. No substantial question of law is involved with respect to that finding which is based on appreciation of evidence as it is only a question of fact. 4. Yet another contention advanced by the appellants to prove their allegation of fraud and collusion in obtaining the decree in O.S.No.137 of 1992 is that respondent No.3 is not the son of Sankaran Ezhuthachan. In the previous litigations, husband of appellant No.1 and father of appellant No.2 and respondent Nos. 4 and 5 conceded that respondent No.3 is the son of Sankaran Ezhuthachan. Ext.B3 is the copy of the written statement filed by the predecessor in interest of appellants (Raman Ezhuthachan) in O.S.No.137 of 1992 where, it is admitted that respondent No.3 is the son of Sankaran RSA No.672/2009 5 Ezhuthachan. It is on the above evidence that the courts below found against the plea of fraud and collusion which, first appellate court has also concurred. To cancel a judgment and decree on the ground of fraud and collusion, a high degree of evidence is required. Such evidence is lacking in this case. The decision in this case rest on a proper appreciation of the evidence. I do not find any substantial question of law involved in this Second Appeal requiring its admission. Resultantly, this Second Appeal fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks