IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 RSA.No. 506 of 2009() --------------------- AS.161/2007 of ADDL.DISTRICT COURT (ADHOC-I), KOTTAYAM OS.371/2005 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT/APPELLANT/PLAINTIFF PEETHAMBARAN S/O JANARDHANAN, AKHIL BHAVAN SACHIVOTHAMAPURAM KURICHY VILLAGE, CHANGANACHERRY (FORMERLY RESIDING AT PULLANIKIZHAKKETHIL AKHIL BHAVAN, PULIYOOR VILLAGE, CHENGANNOOR) REPRESENTED BY THE POWER OF ATTORNEY HOLDER OMANA P.G W/O PEETHAMBARAN, AKHIL BHAVAN SACHIVOTHAMAPURAM , KURICHY VILLAGE CHANGANACHERRY. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KOTTAYAM 2. THE DEPUTY TAHSILDAR (R.R) CHANGANACHERRY 3. THE VILLAGE OFFICER VILAGE OFFICE , KURICHY 4. EXCISE DIVISIONAL OFFICER PALAKKAD 5. MANIAPPAN S/O MADHAVAN PUTHUPARAMBIL PERUNNAI EAST CHANGANACHERRY BY GOVT. PLEADER SRI.T.K.SAJEEV THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1132 OF 2009 IN R.S.A. NO. 506 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 17.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 506 of 2009 ---------------------------------------- Dated this the 17th day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 161/2007 on the file of the Additional District Court(Adhoc-I), Kottayam which arises from the judgment and decree in O.S. 371/2005 on the file of the Munsiff's Court, Changanassery. The suit filed for declaration of title and for permanent prohibitory injunction, was dismissed by the trial court and confirmed in appeal by the lower appellate court. Hence this Second Appeal . The plaintiff in the suit is the appellant herein. The parties hereinafter referred to plaintiff and defendants. 2. The plaintiff is the title holder of the plaint schedule property. He purchased the said property by sale deed No. 260/2001 of Changanacherry S.R.O executed by the 5th defendant who is a defaulter of abkari dues and facing revenue recovery proceedings. According to the plaintiff, he is a bonafide purchaser of the plaint schedule property for consideration from the 5th defendant and therefore the said property is not liable for attachment for abkari dues of the 5th defendant. Therefore the suit was filed for declaration of title and for a permanent prohibitory injunction restraining the defendants 1 to 4 from trespassing into the plaint schedule property . According to the plaintiff defendants 1 to 4 have no right to proceed against the plaint schedule property. R.S.A. No. 506 of 2009 -2- 3. Defendants 2 and 3 filed a joint written statement The 5th defendant also filed a separate written statement. It was contended interalia by defendants 2 and 3 that the suit is not maintainable, that the plaintiff has no title and is not in possession of the plaint schedule property that the 5th defendant was the owner in possession of the plaint schedule property and that the above mentioned sale deed executed in favour of the plaintiff by the 5th defendant was to defeat the revenue recovery proceedings initiated against the 5th defendant. It was also contended by them that the plaintiff was a relative of the wife of the defaulter (5th defendant), that the 5th defendant defaulted in paying Rs. 7,76, 386/- to the Government towards excise duty for the period 1996-97 and that the plaintiff is not entitled for the reliefs as claimed in the suit. 4. The 5th defendant in his written statement contended that the plaint schedule property was not encumbered or attached or liable for any debt, that the plaintiff has valid title to the plaint schedule property and possession. 5. The trial court examined the question as to whether the suit was maintainable in view of the specific bar under Section 72 of the Kerala Revenue Recovery Act (hereinafter referred to as the R.R. Act) The trial court found that Section 72 of the R.R Act expressly bars any suit between the State and any person claiming any right through the defaulter with relation to the discharge or satisfaction of a written demand under the R.R Act, that the only exemption was that such a suit can be R.S.A. No. 506 of 2009 -3- brought in a Civil Court only on the ground of fraud. The plaintiff has no case in the plaint that the proceedings initiated by defendants 1 to 4, for realising the abkari dues of the 5th defendant, are by adopting fraudulent practices. The only allegation is that the action of defendants 1 to 4 are illegal . The trial court concluded that since the suit comes within the mischief of Section 72 of the R.R. Act and is expressly barred from being considered by it, the suit is not legally maintainable. 6. The lower appellate court also considered the issues on evidence and held that the plaintiff is not entitled for any reliefs. 7. The 5th defendant is a defaulter of the State as abkari dues relating to transactions with the State in 1996-97 is due from him. As per Section 2(a) of the R.R Act, an arrear of public revenue due on land means the whole or any portion of any kist or instalment of such revenue not paid on the day on which it falls due according to the kistbandy or any engagement or usage. As per Section 3 of the R.R.Act “ The public revenue due on any land shall be the first charge on that land, the buildings upon it and on the produce thereof” . It is clear from the evidence that Ext.A2 sale deed was executed by the 5th defendant after the amount have become due from the 5th defendant to the State. In the light of the above provisions,it is to be inferred that even if the 5th defendant had transferred the property to the plaintiff, the State will be having a right to realise the amounts due from the 5th defendant, from the plaint schedule property. R.S.A. No. 506 of 2009 -4- 8. The same questions were considered by this Court in detail in the decision reported in State of Kerala Vs Bank of India and others (2009 (1) KLT 105) This court is of the view that the abkari arrear due from a defaulter is an “arrear of public revenue due on land” as defined under Section 2( a ) of the R.R. Act and the public revenue due on any land shall be the first charge on that land as per Section 3. 9. It is to be noted in this context that Rule 5(11) of the Abkari Shops ( Disposal in Auction) Rules 1974 stipulates that any encumbrance created on the assets of the defaulter will be deemed to be void to the extent of the sum due under a contract. 10. The legal and factual questions raised by the plaintiff were answered by the courts below in the right perspective. It is not possible to take a different view from the views taken by the courts below. I find no reasons to interfere with the judgments and decrees passed by the courts below. There is no scope to invoke Section 100 of the C.P.C No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 506 of 2009 ---------------------------- JUDGMENT 17th June, 2009