IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 AS.No. 160 of 2002() -------------------- O.S.No.721/1991 OF PRINCIPAL SUB JUDGE, THIRUVANANTHAPURAM APPELLANT: ----------- THE CORPORATION OF THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, CORPORATION BUILDINGS, THIRUVANANTHAPURAM (NOT A PARTY IN THE SUIT). BY ADV. SRI.N.NANDAKUMARA MENON,SC,TVM CORPN. RESPONDENTS: PLAINTIFFS & RESPONDENTS 2 TO 5 --------------------------------------------- 1. NAZEEBA BEEVI, AGED 22, SHYLA MANZIL, KADAMPATHUKONAM,KALLUVATHUKAL,PARIPPALLY MURI, QUILON TALUK, PRESENTLY RESIDING AT EENTHIVILA VEEDU, ATTIPRA PANCHAYATH, SREEKARIYAM, THIRUVANANTHAPURAM. 2. MUHAMMED BASHEER,S/O. ABDUL RAHIM, RESIDING AT SHYLA MANZIL, NOW RESIDING AT EENTHIVILA VEEDU, ATTIPRA PANCHAYAT, THIRUVANANTHAPURAM. 3. HAJIRA BEEGAM, AGED 42,RESIDING AT KOPRAPURA VEEDU, VAYYAMOOLA MURI, PALKULANGARA VILLAGE, THIRUVANANTHAPURAM. 4. THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 5. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 6. THE VILLAGE OFFICER, ATTIPRA VILLAGE, THIRUVANANTHAPURAM. 7. IGNATITIOUS D'CRUZ, AGED ABOUT 58, RESIDING AT MANITHOTTAM BUNGALOW, MUTTATHARA VILLAGE, VALIATHURA, THIRUVANANTHAPURAM. R4 TO R6 BY GOVERNMENT PLEADER SHRI BASANT BALAJI R1 TO R3 BY ADV. SHRI S.V.RAJAN AND SHRI M.V.S.NAMBOOTHIRY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- A.S.No.160 of 2002 ------------------------------------------------- Dated, this the 31st day of January, 2008 JUDGMENT Corporation of Thiruvananthapuram represented by its Secretary who was not a party to O.S.No.721/1991 on the file of the Principal Sub Judge, Thiruvananthapuram has filed this appeal challenging the decree and judgment passed in that suit after obtaining special leave. Respondents 1 to 3 filed O.S.No.721/1991 for a declaration of their title and possession over the suit property and for a further declaration that the revenue proceedings, if any, initiated against Shri L.Antony D'cruz was ipso facto null and void and not binding on the plaintiffs and suit property and also for a further prayer that if the court finds that the plaintiffs were evicted by illegal and unjustifiable recovery steps of defendants 1 to 4 the same may be allowed to be recovered with mesne profits at the rate of Rs.5,000/- per year from the date of suit till the date of recovery and for loss of recovery of damages. 2. Following are the material averments in the plaint: Plaintiffs were owners and in undisputed possession of 1 acre 56 cents of property comprised in Sy.No.2466/23A/1/2/3 of Attipra Village. Property originally belonging to 5th defendant. He got the same under gift deed No.3811/1978 dated 3.11.1978 executed by his mother. He was in possession and undisputed enjoyment of the same along with other items of properties. 2nd plaintiff purchased 1 acre 31 cents AS No.160/2002 2 of property from the 5th defendant as per sale deed dated 9.5.1984 through the Sub Registry Office, Kazhakkuttom after paying valuable consideration and was in possession and enjoyment of the same. Remaining 25 cents of property was sold to one Yoosuff as per sale deed dated 9.5.1984 which was subsequently transferred to plaintiffs by separate sale deed. The entire 1 acre 56 cents of property was under the undisputed possession and enjoyment of the plaintiffs. Plaintiffs had effected mutation in their names and paying taxes. 2nd defendant illegally initiated collusive actions for recovery of an unknown amount against customs dues from one L.Antony D'cruz as advised by the Assistant Commissioner of Customs, Cochin . Revenue recovery proceedings were initiated against the suit property by thinking that it belonged to Antony D'cruz who was a defaulter of customs duty. 1st defendant in collusion with other defendants attempted to trespass into the scheduled property by illegal means for which preparations were being made. They had no right or locus standi to proceed against the suit property without due process established by law. Plaintiffs were not at all defaulters under the Revenue Recovery Act nor liable for any action under the Revenue Recovery Act or Rules framed thereunder. No amount was due to the State by charging the plaint schedule property and as such revenue recovery proceedings cannot be initiated against the plaintiffs for the dues of other persons. Even if Antony D'cruz was a defaulter neither the scheduled property nor the properties comprised in Sy.Nos.2466/2 or 2466/4 were liable to be proceeded AS No.160/2002 3 with since those items belonged to the 5th defendant and his family members as per the records and judgment of the Kerala High Court. Plaintiffs had constructed buildings and compound wall using granite and latrite stones by spending huge amounts. They had planted 175 coconut palms and other valuable trees. 1st defendant Panchayath without issuing any valid notice attempted to demolish the granite and latrite compound wall of the suit property and also attempted to evict the plaintiffs from the suit properties on the ground that Panchayat obtained some right over the suit property. Plaint schedule property was never attached nor sold to any other person at any time for the alleged customs dues. Antony D'cruz had no right or authority over the suit property or over the property comprised in Sy.Nos.2466/2 or 2466/4 of Attipra Panchayat. Even if Antony D'cruz had obtained any collusive or fraudulent documents, the same were unenforceable as per the records and as per judgments of Kerala High Court. In order to evict the plaintiffs from the scheduled properties 1st defendant Panchayat initiated coercive actions through other defendants. So the suit for declaration of title and for a further declaration that the revenue recovery proceedings are null and void. The second prayer was for recovery of damages. The third prayer was for mandatory injunction or any other forms of injunction restraining the defendants from initiating revenue recovery proceedings and for incidental reliefs. 3. 1st defendant Panchayat alone filed written statement raising the following contentions. The original suit as framed was not maintainable. 1st AS No.160/2002 4 defendant is a local self Government functioning in accordance with the provisions of the Kerala Panchayat Raj Act. 1st defendant decided to purchase three acres of land suitably situated to locate a stadium and public burial ground. It participated in the auction sale of the land comprised in Sy.Nos.2466/2 and 2466/4 of Attipra Village, conducted by the 4th defendant. The revenue sale was conducted for realisation of customs dues from one L.Antony D'cruz. The Panchayat was the successful bidder for Rs.61,750/- and the bid amount was deposited on 28.6.1980. The sale ought to have been confirmed on the expiry of one month from the date of auction and possession handed over to the Panchayat. But at the instigation of the defaulter, the 5th defendant raised objection which was adjudicated and rejected by the District Collector. Board of Revenue also rejected his claim as per order dated 19.11.1982. Though the 1st defendant became eligible for confirmation of sale on 19.11.1982 the 5th defendant and his men managed to prolong it using their influence for years together. 1st defendant filed O.P.No.9184/1989 before this Court and for confirmation of sale and delivery of possession. This Court by judgment dated 13.11.1989 directed the District Collector to confirm sale and deliver possession to the Panchayat within ten days. Revenue authorities did not comply with that direction. Panchayat was constrained to initiate contempt of court proceedings. At that point of time the revenue authorities confirmed the sale, measured out the property, prepared a plan and mahazar and delivered possession of three acres of property from AS No.160/2002 5 Sy.Nos.2466/2 and 2466/4 to the Panchayat on 20.4.1991. Panchayat obtained possession of the property on 20.4.1991 and it is now in the absolute possession and control of the Panchayat. Plaintiffs had no possession when the property was delivered to the Panchayat. All persons who were in occupation of the property were evicted from the property at the time of delivery. After obtaining possession first defendant auctioned the constructions in the property and all those constructions were demolished and removed by the bidders in the auction. The averment that plaintiffs derived title, interest and possession over the property from the 5th defendant was denied. The document under which 5th defendant claimed title was a sham document. Second plaintiff also did not get any title from the 5th defendant. The claim of the plaintiffs that they got title by virtue of sale deeds in their favour was denied. The 5th defendant himself had no title over the property. The averments in paragraph 3 of the plaint were false. Recovery proceedings were perfectly legal and neither the plaintiffs nor the 5th defendant have no right to challenge it. There is no collusive steps in the revenue recovery proceedings. The plaintiffs had no title or possession over the subject matter of the revenue recovery proceedings and they created sham documents colluding with Antony D'cruz and others so as to take undue advantage and to obstruct the revenue recovery proceedings. Those documents were brought into existence without paying any consideration and the plaintiffs were not bona fide purchasers. Revenue recovery proceedings against Antony D'cruz is perfectly legal and AS No.160/2002 6 binding on the scheduled property. Plaintiffs never made any substantial improvements in the property. The 1st defendant Panchayat had obtained absolute title by sale confirmation dated 10.4.1991 and got absolute possession from 20.4.1991. Sale confirmation as well as delivery of possession effected by revenue authorities was legal and binding on all persons including the plaintiffs. The plaintiffs had not challenged those proceedings. 1st defendant as per the provisions of the Kerala Panchayat Raj Act had exercised acts of possession in the property delivered to them and also had initiated steps for construction of stadium and the work is in progress. 1st defendant is a statutory authority interested in the welfare of the entire Panchayat area and people. It had no intention to commit any illegal activities. Plaintiffs were not entitled to get a decree declaring the revenue recovery proceedings to be null and void. No notice as contemplated under the Panchayat Raj Act or Code of Civil Procedure was issued to defendants and hence the suit is to be dismissed on that account. Plaintiffs had no authority to challenge the revenue recovery proceedings and they had not complied with the legal requirements to challenge the revenue recovery proceedings. It was also contended that none of the reliefs sought for in the suit were allowable. 4. Other defendants did not file any written statement or contest the matter. 5. During the pendency of the suit the plaintiffs filed AS No.160/2002 7 I.A.No.11745/1995 to amend the reliefs sought for. Relief No.1 was amended by incorporating a relief to the effect that in case court finds that plaintiffs were evicted by illegal and unjustifiable recovery proceedings by defendants 1 to 4 same may be allowed to be recovered with mesne profits at the rate of Rs,5,000/- per year from the date of the suit still the date of recovery. Second prayer was deleted and a new prayer seeking recovery of loss and damages ascertained by the Commissioner with 18% was incorporated. But the averments stated in the plaint were not amended. The valuation portion was also amended by incorporating payment of court fee in respect of substituted relief. To this amendment application 1st defendant filed an additional written statement contending that the prayer for recovery of mesne profits was unsustainable. It was reiterated that the plaintiffs have no title over the suit property. The quantum of damages claimed was disputed. 6. Initially the trial court found that the plaintiffs failed to identify the property and to establish their title over the property. Suit was dismissed. Challenging that decree plaintiffs filed A.S.No.793/199 before this Court. A Division Bench of this Court by judgment dated 16.2.2000 set aside the decree and judgment passed by the trial court and remanded the suit for fresh disposal in accordance with law. This Court also held that the plaintiffs did not get the property covered by the sale deeds purchased by them from 5th defendant identified and also the properties covered by revenue recovery proceedings. This AS No.160/2002 8 Court was of the opinion that an opportunity can be afforded to the plaintiffs to get the properties purchased by them and the properties sold under the provisions of Revenue Recovery Act identified provided they pay a cost of Rs.2,500/- to the contesting respondent. The decree was set aside and the case was remanded to give an opportunity to the plaintiffs to adduce further evidence. After remand PW1 was recalled and further examined. Plaintiffs filed I.A.No.1425/2000 to appoint a commissioner. An objection to that application was filed by the 1st defendant. Thereafter the first defendant also did not appear and contest the case. Suit was decreed exparte. Challenging that decree and judgment Corporation of Thiruvananthapuram who was not a party to the suit has filed this appeal after obtaining special leave. 7. Advocate Shri N.Nandakumara Menon, learned senior counsel appearing for the appellant has argued that in effect it is a decree passed which cannot be executed against any person. It is submitted that after the remand of the case by this Court Attipra Panchayat got amalgamated with the Corporation of Thiruvananthapuram under Section 4 of the Kerala Municipalities Act. Thereafter Panchayat is not in existence. It is argued that the 5th defendant who was the alleged owner of the property did not appear and file any written statement. It is also argued that defendants 2 to 4 who are the revenue authorities did not appear and contest the matter. The 5th defendant who according to the plaintiffs was the owner of the property also remained exparte. It is argued that to get the sale AS No.160/2002 9 confirmed the Panchayat had to initiate contempt proceedings against the State and its officers. It is argued that from the beginning the revenue authorities were colluding with the plaintiffs. It is argued that in spite of the fact that Attipra Panchayat was not in existence they did not implead the Corporation who was the only person interested in the subject matter. It is also argued that though 11 issues were raised the learned Sub Judge did not consider any of the issues on its merits and simply granted a decree to the plaintiffs for mere asking. It is argued that the trial court itself noted the fact that Attipra Panchayat was now within the limits of Corporation of Thiruvananthapuram and Attipra Panchayat was not in existence on the date on which the suit came up for trial. The trial court also noted that the plaintiffs did not take any steps to implead the Corporation of Thiruvananthapuram in the party array but it passed a decree against an authority which ceased to exist. It is argued that the appellant Corporation is compelled to file this appeal since the plaintiffs are trying to execute the decree against Corporation of Thiruvananthapuram. It is argued that either it may be clarified that the decree cannot be executed against the appellant who is not a party to the suit or the decree and judgment passed by the trial court may be set aside and the case remanded for fresh disposal in accordance with law. 8. Learned counsel for respondents 1 to 3 contended that in view of the provisions contained under Section 99 of the Code of Civil Procedure the matter cannot be remanded at all. It is contended that no appeal shall be allowed AS No.160/2002 10 and the case remanded on account of mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit. It is also contended that the property claimed by the Panchayat and the property claimed by the plaintiffs are situated in different survey numbers and those properties were properly identified and the decree passed by the court below does not call for any interference at all. 9. I shall first consider the basis of Section 99 of CPC. It reads as follows: S.99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.-No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: Provided that nothing in this section shall apply to non-joinder of a necessary party. This is not a case in which the question of non-joinder of parties alone was raised. In fact no such contention was also raised. The question arising for consideration in this appeal is whether a relief can be granted against a legal entity which was not in existence on the date of suit. The court below had taken note of the fact that the 1st defendant Attipra Panchayath was not in existence on the date of taking up the matter for trial. The appellant Corporation was not impleaded in the suit. It is not a case on non-joinder. It is a case in which the plaintiffs obtained a decree AS No.160/2002 11 against a legal entity which was not impleaded at all. There is yet another aspect. Section 99 only deals with the procedure. Section 99 itself makes it clear that if the defect pointed out is something affecting the merits of the case or the jurisdiction of the court, the matter can be remanded. The plaintiffs claimed title and possession under 5th defendant. According to them the property originally belonged to 5th defendant's mother. She executed a gift in favour of the 5th defendant. The 2nd plaintiff claimed one acre 31 cents under sale deed dated 9.5.1984. Regarding the remaining 25 cents, in paragraph 2 of the plaint it was averred that that was sold by 5th defendant to one Yoosuff. He transferred the same to the plaintiffs by separate sale deeds. There are three plaintiffs. There is no specific averment that who actually purchased the remaining 25 cents. The specific contention raised by the 1st defendant was that 5th defendant never obtained title or possession over the suit property. It was specifically contended that his mother also did not get any right or possession over the property. It was contended that the property belonged to late Antony D'cruz. So it is a case in which the 1st defendant raised a contention that the executents of the sale deeds and their predecessors-in-interest did not get any title or possession over the suit property. Trial court had initially raised as many as 11 issues. Some of the issues are as follows: 1. Whether the plaintiffs have acquired title and possession over the plaint schedule property as per sale deeds executed by 5th defendant? AS No.160/2002 12 2. Was the 5th defendant competent to execute the sale deeds in respect of plaint schedule property in favour of plaintiffs at the time of its execution? 3. Whether the plaintiffs are entitled to the declaration of title in respect of the plaint schedule property? 4. Are they entitled to recovery of possession? 5. Whether the plaintiffs are entitled to get damages for the mischief committed pursuant to the revenue sale. If so what is the quantum and who are liable? 6. Whether the plaintiffs are entitled for mesne profits? Initially the trial court found that plaintiffs failed to prove their title. After remand those issues were not considered by the trial court at all. There was absolutely no averment in the plaint to the effect that plaintiffs were never dispossessed by any of the defendants. On the other hand the specific case put forward by the respondents was that they were in possession of the suit properties. According to the plaintiffs they put up buildings and other constructions in the property and constructed boundary wall on all the four boundaries of the entire one acre 56 cents of property using granite and latrite stones. But in the relief portion it was stated that in case the court finds that the plaintiffs were dispossessed by illegal and unjustifiable recovery steps initiated by defendants 1 to 4 the same may be allowed to recover with mesne profits. Plaintiffs were the best persons to say whether they were in possession of the property or they dispossessed. Plaintiffs AS No.160/2002 13 are entitled to get a decree for recovery only if they admit the possession of the defendants. If the plaintiffs assert possession even at the time of trial they are not entitled to get the relief of recovery. The court below was not justified in granting a decree of recovery of possession without considering these aspects. 10. The 1st defendant had raised a contention that the suit was bad for proper notice either under the Kerala Panchayat Raj Act or Code of Civil Procedure. Section 249 of of the Panchayat Raj Act reads as follows: 249. Institution of suits against authorities of Panchayats, their officers, etc.- (1) No suit, or other civil proceedings against a Panchayat or against the President, the Vice-President or any other member, or employee thereof or against any other person acting under the direction of the Panchayat or any member or employee thereof for anything done or purporting to be done under this Act in its or his official capacity, - (a) shall be instituted until the expiration of one month after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the nature of the relief which he claims, has been, in the case of a Panchayat delivered or left at the office of the Panchayat and in the case of a member, employee or person as aforesaid delivered to him or left at his office or at his usual place of abode and the plaint shall in each such case contain a statement that such notice has been so delivered or left; or (b) shall be instituted, unless it is a suit for the recovery of immovable property or for the declaration of title thereto, otherwise than within six months next after the accrual of the alleged cause of action. (2) The notice referred to in sub-section (1) when it is intended for a Panchayat, shall be addressed to the Secretary. (3) If any Panchayat or person to whom notice AS No.160/2002 14 is given under sub-section (1) tenders to the plaintiff before the proceedings is commenced and if the plaintiff does not in such proceedings require more than the amounts so tendered he shall not recover any costs incurred by him after such tender; and the plaintiff shall also pay all costs incurred by the Panchayat after such tender. Notice is necessary under certain contingencies. Court below did not consider whether this is a case in which the plaintiffs were bound to give notice under Section 249 of the Kerala Panchayat Raj Act. 11. The court below also did not consider whether notice under Section 80 of Civil Procedure Code was necessary in the case. Further the court below did not consider whether the suit is barred under the provisions of Revenue Recovery Act also. The trial court noticed the fact that the real person affected was not on the party array. In paragraph 4 it is stated as follows: At the time of trial after remand order the defendants remained exparte. It is reliably understood that Attipra Panchayat is now within the limits of Corporation of Thiruvananthapuram and Attipra Panchayat is not in existence at present. But there is no attempt to implead the Corporation of Thiruvananthapuram in the party array. On the whole there is nobody to represent the Attipra Panchayat. In spite of such a finding the court below granted a decree to the plaintiffs for mere asking. It is unsustainable. The only other point arising for consideration is whether an opportunity can be given to the plaintiffs to implead Corporation of Thiruvananthapuram on the party array. Since the suit was pending from 1991 AS No.160/2002 15 onwards I am of the view that it is only just and proper to give one more opportunity to the