IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WA.No. 1959 of 2010() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.14605/2010 Dated 22/10/2010 .................... APPELLANT(S)/PETITIONER :- ----------------------------------------- K.P.GOPALAKRISHNAN NAIR, S/O.PARAMESWARAN PILLAI, KRISHNA VILASAM, ULIYACOIL, KOLLAM EAST P.O., KOLLAM - 691 001. BY ADV. SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE SRI.M.A.ABDUL HAKHIM RESPONDENT(S)/RESPONDENTS :- ----------------------------------------------- 1. THE TAHSILDAR & EXECUTIVE MAGISTRATE, KOLLAM - 691001. 2. THE REVENUE DIVISIONAL OFFICER & SUB DIVISIONAL MAGISTRATE, KOLLAM - 691001. 3. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KOLLAM - 691001. 4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM - 695001. 5. PRATHAP S.NAIR, S/O.LATE SRI.K.V.SREEDHARAN NAIR, VELLANGAL VEEDU, ULIYACOIL P.O., KOLLAM - 691001. 6. ASHADEVI, W/O.LATE SRI.K.V.SREEDHARAN NAIR, VELLANGAL VEEDU, ULIYACOIL P.O., KOLLAM - 691001. R1 TO R4 BY SR.GP.SMT.R.BINDU R5 & R6 BY SRI.P.B.SURESH KUMAR THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2011 ALONG WITH W.A. NO. 1990 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------- W.A. Nos.1959 & 1990 of 2010 ----------------------------------------- Dated this the 17th day of February 2011 J U D G M E N T N.K.Balakrishnan, J. Sri.K.P.Gopalakrishnan Nair, the petitioner in W.P.(C) No.14605/2010 is the appellant in W.A.No.1959 of 2010. The aforesaid Gopalakrishnan Nair and his wife Smt.Lalithakumari are the appellants in W.A.No.1990 of 2010. The litigation between the parties started in the year 1984. Sri.Sreedharan Nair, the father of Sri.Pratap S. Nair and husband of Smt.Ashadevi owned 78 cents of land in Survey No.10211, 1.14 Acre in Survey No.10212 and 85 cents in Survey No.10213 thus, making a total of 2 Acre 77 cents. It was alleged that in 1984, certain persons residing on the western side of the above 2 Acres 77 cents of land attempted to trespass upon a portion of that property in order to form a pathway to go to the public road on the eastern side of that W.A. Nos.1959 & 1990 of 2010 -: 2 :- property. Sreedharan Nair thus filed O.S.No.37/1984 before the Munsiff's Court, Kollam seeking a permanent prohibitory injunction restraining those persons from trespassing upon his land. In the aforesaid suit the plaint 'A' schedule property was shown as 85 cents in Survey No.10213. The pathway claimed by the defendants therein was shown as 'B' schedule. Besides, the compound wall on the eastern side was specifically shown as 'D' schedule. Though that suit was dismissed by the trial court, the appellate court in A.S.No.19/1986 reversed the decree and judgment of the trial court and granted a permanent prohibitory injunction as sought for in the plaint as evidenced by Ext.P1 judgment dated 10.7.1989. The Second Appeal No.939/1989 filed by the defendants in that suit was dismissed on 30.7.1998. Sreedharan Nair died. His legal representatives filed E.P.274/2006 to enforce the decree. The compound wall was got constructed on the eastern side of the plaint schedule property therein in terms of the decree passed pursuant to Ext.P1 judgment, under the supervision of the Advocate W.A. Nos.1959 & 1990 of 2010 -: 3 :- Commissioner. 2. Sri.Gopalakrishnan Nair, the appellant herein and his brother owned an extent of 35 cents of land lying immediate to the south of the property held by late Sreedharan Nair shown as 'A' schedule in Ext.A1 suit. A partition was entered into between Gopalakrishnan and his brother in 1975 by which 18 cents of land being the western portion was allotted to Gopalakrishnan Nair. The property measuring 17 cents having road frontage on the east was allotted to the brother of Gopalakrishnan Nair. An attempt was made by Gopalakrishnan Nair to encroach upon a portion of his northern boundary property held by late Sreedharan Nair. For that purpose compound wall lying on the southern side of Sreedharan Nair's property was demolished. It is contended that the very same pathway claimed by the defendants in Ext.P1 judgment was tried to be created again by Gopalakrishnan Nair and it was for that purpose he demolished the southern compound wall of Sreedharan Nair's property and attempted to use a portion of Sreedharan Nair's W.A. Nos.1959 & 1990 of 2010 -: 4 :- property as a pathway to proceed to the road on the east. Gopalakrishnan Nair and his wife were not parties to Ext.P1 suit. Hence, Sreedharan Nair filed O.S.No.193/99 against Gopalakrishnan Nair for a prohibitory injunction restraining Gopalakrishnan Nair and his men from trespassing into the property held by Sreedharan Nair and also for a mandatory injunction to restore the compound wall to its original position. Gopalakrishnan Nair remained ex-parte in that suit and consequently Ext.P3, Ex-parte decree dated 9.1.1996 was passed. It is marked as Ext.P5 in W.P.(C)No.14605/2010. 3. The appellant contends that he and his wife have been residing in the building situated in 18 cents of land in Survey No.10214 and that the said property has compound walls on all sides and iron gate on northern boundary for passage to the way on the north. According to the appellant 2.50 Ares (6.178 cents) of government land in Re-Survey No.41 described as “Bhoosthithi way” is part of 84 cents of government land in old Survey No.10210 and it was reserved by the government for road in Ext.P16, the Government Order W.A. Nos.1959 & 1990 of 2010 -: 5 :- dated 3.11.1967. The appellant contends that, that pathway has been in existence from time immemorial and appellant and others have been continuously using that pathway for their ingress and egress from their residential plots. Ext.P2 in W.P.(C)No.14605/2010 is the survey sub division record of Kollam East Village in which 2.50 Ares of land in Re-Survey No.41 was shown in column No.3 as 'Puramboke'. In column No.6 which was to note “present nature of the land” it was shown as “Kerala Sarkar Bhoosthithi Vazhi”. 4. The appellant contends that except the pathway shown in Ext.P2 there is no other access to his property and that it will remain land locked if the said pathway is not allowed to be used by the appellant and his family members. The appellant contends that the aforesaid 2.50 Ares in Re- Survey No.41 described as way is part of 84 cents of government land in old Survey No.10210 and that the property shown in the schedule to Ext.P3 decree is only 85 cents of registered land/private land comprised old Survey No.10213 and that it does not take in the property measuring W.A. Nos.1959 & 1990 of 2010 -: 6 :- 2.50 Ares, described as way in Ext.P2. According to the appellant Sreedharan Nair who obtained Ext.P3 decree falsely and fraudulently represented that when resurvey was conducted, there was shortage in the extent of the decree schedule property shown in Ext.P3 and thus, he included the aforesaid 2.50 Ares of land also as part of the decree schedule property and that it was got done by a fraudulent representation made by Sreedharan Nair. According to the appellant, evidently under the influence of Sreedharan Nair the Assistant Director of Survey and Land Records passed Ext.P6 order dated 17.3.2003 stating that there is shortage in the extent of Ext.P3 decree schedule property while resurvey was done and holding that 2.50 Ares of government land in Re-Survey No.41 is part of Ext.P3 decree schedule property, effected mutation of 2.50 Ares of government land in Re- Survey No.41 in the name of Sreedharan Nair and accordingly basic tax receipt was issued to Sreedharan Nair under a new Thandaper. The appellant contends that the aforesaid land which was used as pathway was never a private land and was W.A. Nos.1959 & 1990 of 2010 -: 7 :- not part of 85 cents of land mentioned in Ext.P3 decree. The Deputy Director of Survey and Land Records passed Ext.P11 order setting aside Ext.P6 order passed by Assistant Director of Survey and Land Records holding that there is no shortage in the land covered by Ext.P3 decree and held that 2.50 Ares in Re-Survey No.41 is not part of Ext.P3 decree. Based on the same, the 3rd respondent, Tahasildar who is also the Executive Magistrate issued Ext.P12 order to provide way for ingress and egress to the appellants for their residential plot of 18 cents. 5. Ext.P1 is the partition deed entered into between Gopalakrishnan Nair and his brother in 1975. The description column mentioned therein would indicate that the plot allotted to the appellant being the rear portion was abutting a way on its north. It is submitted by the learned counsel for the appellant that in the schedule to the property allotted to his brother which is the eastern portion also it is shown that it lies to the south of the pathway mentioned above. So much so, the learned counsel for the appellant submits that apart W.A. Nos.1959 & 1990 of 2010 -: 8 :- from the fact that as per government order of 1967, it was noted and set apart as road, there is also clinching evidence to show that there was a pathway in existence to the north of the property held by the appellant. That pathway according to the appellant forms part of 84 cents of land which was reserved for road as per the Government Order dated 3.11.1967 mentioned above. The copy of the order was marked as Ext.P16 in W.P.(C)No.14605/10. 6. Ext.P18 produced in that case which is the copy of the tax receipt dated 18.3.1998 also according to the appellant would strengthen his case that only the private land originally held by Sreedharan Nair, on his death devolved upon his wife Ashadevi and his son Pratap S. Nair and that alone was included in Re-Survey No.42. The total extent of the property comprised in Re-Survey No.42 is shown as 2 Acres 76.75 cents. Thus, according to the appellant, the entire 2 Acres and 77 cents of land which was originally comprised in three old survey Nos.10211, 10212 and 10213, were shown as a single plot assigning the Re-Survey No.42 W.A. Nos.1959 & 1990 of 2010 -: 9 :- and hence it would sufficiently indicate that, that alone was the property which belonged to and was held by late Sreedharan Nair and thereafter by his legal heirs. 7. Respondent Nos.5 and 6 in the appeal W.A.No.1959/2010 (Smt.Ashadevi and Sri.Pratap S. Nair) resist all these contentions projecting Ext.P5 decree in O.S.No.193/95. Even though it was an ex-parte decree unless and until it is set aside, the decree is binding on the appellant. Therefore, the contention that Ext.P5 is only an ex-parte decree and so it cannot be much relied upon has no legs to stand. But the learned counsel for the appellant would submit that even accepting the position that Ext.P5 is binding on the appellant still the respondent Nos.5 and 6 mentioned above cannot sustain their plea since Ext.P5 was only in respect of 85 cents of land originally comprised in Survey No.10213. It is pointed out that since even after resurvey, the legal heirs of Sreedharan Nair are having 2.77 Acres of land originally comprised in three Survey Nos.10211, 10212 and 10213, they cannot now contend that they were in possession of any land W.A. Nos.1959 & 1990 of 2010 -: 10 :- in excess of 2.77 Acres. The very fact that this disputed 2.50 Ares (6.178 cents) was separately shown assigning separate Re-Survey No. as 42 according to the appellant would demolish the case of respondent Nos.5 and 6 that this disputed property forms part of the patta land originally held by late Sreedharan Nair. 8. It is contended by the appellant that the earlier judgments were based on a misconception that late Sreedharan Nair and respondent Nos.5 and 6 were the owners of land in Re-Survey No.41 and it forms part of the registered land whereas the survey records and the government order of 1967 would show that they have no land, over and above 2.77 Acres, and as such it should have been found that respondent Nos.5 and 6 have no land in Re-Survey No.41. It is further contended that Ext.P5 decree was only in respect of 85 cents of land which was originally comprised in 10213. Admittedly Re-Survey No.41 is not the corresponding resurvey No.10213. Hence on that ground also respondent Nos.5 and 6 cannot lay claim on this 2.50 Ares comprised in W.A. Nos.1959 & 1990 of 2010 -: 11 :- Re-Survey No.41, the appellant contends. Projecting these aspects, the learned counsel for the appellant submits that Ext.P5 decree and the consequent orders obtained by respondent Nos.5 and 6 are vitiated by fraud and therefore, the order passed by the Assistant Director of Survey and Land Records based on those orders cannot be sustained. 9. In this connection the decision of the Apex Court in S.P.Chengalvaraya Naidu (Dead) by LRS. v. Jagannath (Dead) by LRS. and others [(1994) 1 SCC 1] has been relied upon by the learned counsel for the appellant. It was held in the aforesaid decision : “The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the W.A. Nos.1959 & 1990 of 2010 -: 12 :- court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.” The learned counsel submits that the facts of this case would also show that Ext.P5 decree was obtained by the plaintiff therein by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. The learned counsel submits that if the court finds that Ext.P5 was obtained by fraud the fact that Ext.P5 has attained finality will not salvage the position since fraud cloaks everything. 10. The decision in N.Khosla v. Rajlakshmi (Dead) and others [(2006) 3 SCC 605] has also been cited by the learned counsel for the appellant. Relying upon S.P.Chengalvaraya Naidu's case cited supra it was held by the Apex Court that fraud avoids all judicial acts and that decree obtained by playing fraud is a nullity and it can be challenged W.A. Nos.1959 & 1990 of 2010 -: 13 :- in any court, even in collateral proceedings. The decision in Hamza Haji v. State of Kerala and another [(2006) 7 SCC 416] has also been relied upon in this connection. That was a case where the court found that the appellant therein had founded his case before the Forest Tribunal on a false plea or on a claim which he knew to be false and suppressed documents or transactions which had relevance in deciding his claim. In that context it was held that the appellant there in suppressed the fact that he had parted with almost the entire property purchased by him under the registered documents through which he claimed title to the property. It was held that the basic principle obviously is that a party who had secured a judgment by fraud should not be enabled to enjoy the fruits thereof. 11. In the decision of the House of Lords in Frank Reddaway and Co. Ltd. v. George Banham, 1896 Appeal Cases 199, Lord Macnaghten explained the multifarious aspects of fraud very lucidly : “But fraud is infinite in variety; sometimes it is audacious and unblushing; sometimes it pays a sort of W.A. Nos.1959 & 1990 of 2010 -: 14 :- homage to virtue, and then it is modest and retiring; it would be honesty itself if it could only afford it. But fraud is fraud all the same; and it is the fraud, not the manner of it, which calls for the interposition of the Court.” Also vide Venture Global Engineering v. Satyam Computer Services Ltd. & Anr. [AIR 2010 SC 3371]. It was held in that decision that fraud cannot be put in a strait-jacket and it has a very wide connotation in legal parlance. That was a case dealing with Arbitration and Conciliation Act, 1996. In that context it was held that if an award is induced or affected by fraud or corruption, the same will fall within the aforesaid grounds of excess of jurisdiction and a lack of due process. 12. The learned counsel for the respondents has stoutly resisted the arguments advanced by the learned counsel for the appellant. It is submitted that except the allegation made by the appellant there is absolutely nothing on record to show that the respondents had played fraud on the court. It is also submitted that appellant at the earliest opportunity should have filed a suit to declare the judgment passed in W.A. Nos.1959 & 1990 of 2010 -: 15 :- O.S.No.193/95 null and void, as vitiated by fraud if as a matter of fact the appellant has a serious contention with regard to the decree passed in that suit. That was not done. Hence it is too late in the day to contend that Ext.P5 is vitiated by fraud, the respondents 5 and 6 contend. The learned counsel for the appellant would submit that the decree in the aforesaid suit was pertaining only to property comprised in old survey No.10213. It does not take in the property in Re-Survey No.41 (the pathway measuring 2.50 Ares). Hence there was no necessity or occasion for the appellant to challenge that decree since the appellant at no point of time had objected to the respondents' title to or possession over the property measuring 85 cents in survey No.10213 but when the appellant making use of that decree wanted to demolish the pathway and to tack on that pathway as the property forming part of the land originally held by respondents Nos.5 and 6, the resistance was offered. 13. Another contention was also advanced by the appellant to the effect that in O.S.No.193/95 he was shown as W.A. Nos.1959 & 1990 of 2010 -: 16 :- Gopalakrishna Pillai instead of Gopalakrishnan Nair. That also according to the appellant is an act of fraud. But there is no merit in that contention since it was found that the appellant was described in so many other proceedings as Gopalakrishna Pillai. He did not raise any objection in those proceedings that he was not 'Pillai' but 'Nair'. Therefore that belated contention advanced by the appellant is only to be turned down. 14. It was vehimently argued by the learned counsel for the appellant that since compound wall of the property was completely constructed blocking his entry into the road/pathway, he has been confined in the compound and is not in a position to go out. According to the learned counsel if the appellant wants to go out they have to scale over the compound wall, as there is no other way at all. This contention has been stoutly resisted by the learned counsel for respondent Nos.5 and 6. It is pointed out that the property measuring 18 cents now held by the appellant and 17 cents lying to its east were originally held in common W.A. Nos.1959 & 1990 of 2010 -: 17 :- ownership and was a contiguous plot. The property was severed by Ext.P1 partition deed of 1975. That contiguous plot measuring 37 cents as it stood before severance was abutting the road on the east and as such the appellant being the owner of the severed plot (18 cents) can very well have access to the road through the other portion which as per the partition deed was allotted to his brother, claiming easement by necessity under Section 13 of the Easement Act. So much so, the grievance attempted to be projected by the appellant cannot draw sympathy of the court. 15. Late Sreedharan Nair filed E.P.No.171/1997 for executing Ext.P3 decree. An order was passed by the executing court directing this appellant to restore the compound wall demolished by him and to remove the gate installed by him. While passing such an order executing court held that appellant herein is not entitled to any portion of the decree schedule property as a way. The order passed by the executing court was challenged in revision before this Court in CRP No.1024/2001. It was stated that the aforesaid CRP W.A. Nos.1959 & 1990 of 2010 -: 18 :- was withdrawn by the petitioner therein on 19.7.2001. Since Gopalakrishnan Nair did not obey the direction of the court in E.P.No.171/97 an application was filed by the Decree Holder to restore the demolished portion of the compound wall by appointing an Advocate Commissioner. It was during the pendency of that application Sreedharan Nair died. His wife and children got themselves impleaded in that E.P. It was allowed. The order which directed issuance of a Commission to supervise the implementation of the order mentioned above was challenged by the appellant herein by filing W.P.(C) No.32713/2004. That writ petition was also dismissed. The compound wall was restored. Again Sri.Gopalakrishnan Nair and his supporters demolished the compound wall on 22.1.2005. Again the legal representatives of Sreedharan Nair filed E.A.No.48/2005 before the execution court to restore the compound wall. The petitioners therein were permitted to construct the compound wall through the process of the court. That order was also challenged by Gopalakrishnan Nair by filing W.P.(C)No.4321/2008. That W.A. Nos.1959 & 1990 of 2010 -: 19 :- petition was dismissed on 6.2.2008. The relevant portion of the judgment in that case can be extracted here : “This is a classical case which will demonstrate the disregard of a party to the orders and judgments of the Courts. A perusal of the order passed by the learned Munsiff would reveal that time and again the judgment debtor will violate the order of the Court and if a wall is constructed through the Court it will be demolished and I can give few illustrations as is seen from the order. The original decree holder filed E.A.416/01 and before that on 9.1.1996 there was an order to restore the compound wall into its original position on 26.12.96. The judgment debtor and his relatives demolished a portion of the compound wall. In E.A.416/01 an application was made for restoration of the compound wall through a Commissioner which was allowed by the Court with the assistance of the police. The judgment debtor approached the High Court, though obtained an interim stay later it was dismissed and thereafter the compound wall was restored through the process of the Court on 22.1.2005 also with a right to recovery of loss of Rs.10,000/-. Thereafter at 6.30 PM on the very W.A. Nos.1959 & 1990 of 2010 -: 20 :- same day the relatives and men of the judgment debtor gathered there and demolished the compound wall as it is seen proved by Exts.C1 and C2. There has been a persistent and consistent move on the part of the judgment debtor to nullify the decree that has been granted by the court. It is under such circumstances the Court again permitted the decree holder to construct the compound wall and also to recover the expenses incurred. I do not find any ground to interfere with that order.” Hence that writ petition was also dismissed. When the Ameen of the Munsiff Court attempted to restore the compound wall pursuant to the direction made by the court he was obstructed by the appellant herein and his men. The matter was reported to the court. The learned Munsiff addressed Superintendent of Police to give protection for enforcement of the order. Thus, with police protection the compound wall was restored on