IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 SA.No. 634 of 1998(A) ------------------------------- AS.123/1994 of ADL.SUB COURT, THALASSERY OS.5/1993 of MUNSIFF COURT, THALASSERY .................... APPELLANT(S)/RESPONDENT/DEFENDANTS 1 & 2 ------------------------------------------------------------------------ 1. THE TAHSILDAR (REVENUE RECOVERY) KANNUR. 2. THE DISTRICT COLLECTOR, KANNUR REPRESENTED BY THE GOVERNMENT OF KERALA. BY GOVERNMENT PLEADER SRI. JAYAKRISHNAN.P.R RESPONDENT(S)/APPELLANTS/PLAINTIFF/DEFENDANTS 3 & 4 --------------------------------------------------------------------------------------------- 1. MARINGOLIPUTHIYAPURAYIL MARIYUMMA, W/O.ABDULLA, AGED 43 YEARS,RESIDING AT ARAFA MAHAL, MADAMBOOR AMSOM ADOOR DESOM, P.O.KADACHIRA, KANNUR TALUK. 2. DAUGHTER -DO- ASEENA, AGED 20 YEARS, RESIDING AT -DO- -DO- 3. YOUNGER SISTER -DO- RAHAMATH, AGED 18 YEARS, RESIDING AT -DO- -DO 4. YOUNGER SISTER -DO- NADEERA (MINOR AGED 14 YEARS). 5. YOUNGER SISTER -DO- SHUBAITHA(MINOR AGED 12 YEARS). (MINOR PLAINTIFFS 4 & 5 THROUGH NEXT FRIEND 1ST PLAINTIFF). 6. MURINGOLIPUTHIYAPURAYIL LATHEEF S/O.ABDULLA. 7. MURINGOLI PUTHIYAPARAYIL ABDUL HAMEED, DRIVER, MUSCUT. R1, R2 & R4 TO R6 BY ADV. SRI.S.ABDUL SALAM R3 BY ADV.SRI.MOHAMMED RAFIQ THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ---------------------------- S.A.No. 634 of 1998 --------------------------------- Dated this the 18th day of February, 2011 JUDGMENT The State assails the judgment and decree in A.S.No.123/1994 by which the lower appellate court decreed a suit restraining the defendants from proceeding with revenue recovery proceedings for recovery of sales tax arrears from the third defendant in the suit. 2. The third defendant obtained the plaint schedule property as per a partition deed dated 08.02.1998. Subsequently, he assigned the plaint schedule property in favour of one Abdulla, the husband of the first plaintiff and father of other plaintiffs and 4th defendant as per Ext.A1 dated 20.06.1988. Ever since the assignment deed, the said Abdulla had been in actual possession and enjoyment of the property. After the death of Abdulla, his legal heirs are in possession and enjoyment of the plaint schedule property. It is alleged in the plaint that at the time of purchase the property did not have any encumbrance. The sales tax arrears which were due from Abdulla had already been paid. The allegation was that under the guise of recovering sale tax arrears the defendants 1 and 2 were attempting to proceed against the plaint schedule property, which they are not entitled to. On the basis of these allegations, the suit was laid. S.A.No. 634 of 1998 2 3. The defendants 1 and 2 resisted the suit by pointing out that the allegations in the plaint are not correct. At the time of assignment of the property infavour of the predecessor in interest of the plaintiffs, Abdulla was a defaulter and notice has already been issued to him. The claim that Abdulla had discharged the sale tax arrears without any basis. Pointing out that the suit is not maintainable they prayed for a dismissal of the suit. 4. The third defendant filed a written statement admitting the assignment in favour of Abdulla. He too would contend that at the time of assignment the property was free from encumbrance. He would say that the sales tax authority had no right to proceed against the property in the hands of Abdulla and subsequently his legal heirs. 5. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 and A2 series were marked from the side of the plaintiff. The defendant examined DW1 and had Exts.B1 to B7 series were marked. The trial court on a consideration of the materials before it and came to the conclusion that the suit is not maintainable and dismissing the suit. 6. The plaintiff carried the matter in appeal as A.S.123/1994. S.A.No. 634 of 1998 3 The lower appellate court took the view that the sale tax arrears due from the third defendant had been discharged by him and therefore, the property could not be proceeded against by the Revenue Authority. Accordingly, the judgment and decree of the trial court was set aside and decree was granted in favour of the plaintiff. Hence the second appeal. 7. Notice has been issued on the following substantial questions of law: 1. Does an injunction suit maintainable against the officers of the State for the action taken by them for revenue recovery proceedings against a defaulter since Section 72 of the Revenue Recovery Act has barred the “jurisdiction of civil courts (save fraud alleged”). Without alleging fraud can such a suit be filed. Is such a suit maintainable under law? 2. Does the suit lie against the State for its proceedings of Revenue Recovery without issuance of Section 80 notice or without getting permission of the court or without applying the court to waive such notice under the circumstances where the suit itself is barred under section 72 of the Revenue Recovery Act. 3. Does a suit lie against the action of the officers of the State for the recovery of sales tax arrears when an alternative remedy under Section 83 of the C.P.C is provided. 4. Does the brother-in-law of the defaulter is a close S.A.No. 634 of 1998 4 relative? If so, the execution of a deed between them after the executor has become a defaulter, is legal and proper? Is it intended to avoid payment? 5. What is the implication of Section 23 and other provisions of the Kerala General Sales Tax Act read with Section 72 and 44 of the Revenue Recovery Act initiated under the Revenue Recovery Act consequent on arrears of land revenue and in a circumstances when a transfer of property is made by the defaulter to near relative? 6. Is it proper to seek a relief for injunction without making a prayer for declaration of a civil right? 8. The learned Government Pleader pointed out that the lower appellate court was not justified in decreeing the suit in the light of Sections 44 and 72 of the Revenue Recovery Act. According to the learned Government Pleader the assignment in favour of Abdulla, who is none other than the brother-in-law of the defaulter was after the arrears has been fallen due and notice has been issued against the defaulter. Therefore, the assignment is not binding on the Revenue Authority. It was also pointed out that the third defendant had no case that he had discharged the sale tax arrears and the lower appellate court therefore, was not justified in holding that no amount remained to be paid by the third defendant. 9. The learned Government Pleader relied on the decisions S.A.No. 634 of 1998 5 reported in (2005 (2) KLT 543) Jaya v. State of Kerala (2006 (4) KLT 557) Spl. Tahsildar v. Vasu and contended that the suit is not maintainable and also that any assignment after the arrears of fallen due does not binding on the Revenue Authority. 10. It is difficult to be sustain the judgment and decree of the lower appellate court. Going by the evidence on record, it is clear that the assignment in favour of Abdulla by the third defendant was after the arrears had accrued and also after the demand notice has been served. Further the assignment is to a close relative of the defaulter. The transaction is squarely covered by Section 44 of the Revenue Recovery Act. Therefore burden is on the assignee to establish that there was no arrears due to the Revenue Authorities and that he was a bonafide purchaser. 11. Apart from the above fact the suit is not maintainable in view of Section 72 of the Revenue Recovery Act also. Section 72 reads as follows: “72. General bar to jurisdiction of Civil Courts have where fraud alleged.-- Except as otherwise expressly provided in this Act, every question arising between the Collector or the Authorised Officer and the defaulter or his S.A.No. 634 of 1998 6 representative or any other person claiming any right through the defaulter, relating to the execution, discharge or satisfaction of a written demand issued under this Act or relating to the confirmation or setting aside by an order under this act of a sale held in execution of such demand, shall be determined not by suit, but by order of -- (i) the Board of Revenue, where the Collector is a party to the question; (ii) the Collector, in other cases; Provided that a suit may be brought in a Civil Court in respect of any such question on the ground of fraud.' 12. There is no allegation of fraud in the case on hand. The only claim made by the plaintiff is that at the time of their purchase by the predecessor in interest there was no encumbrance on the property and they were not aware of the fact that the arrears were due. 13. The mere fact that the assignee might not have known about the arrears of tax due from the defaulter is not a ground which can be sustained. Admittedly, going by the records, the assignment was after S.A.No. 634 of 1998 7 the tax arrears are become due and notice was received by the defaulter. 14. It is also to be noticed that the third defendant has no case that he had discharged the arrears of sales tax due from him. There is absolutely no evidence at all to show that the third defendant had discharged the arrears due from him. For the above reasons, this court unable to sustain the judgment and decree of the lower appellate court. The appeal is allowed. The judgment and decree of the lower appellate court is set aside and the judgment and decree of the trial court is restored. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln