IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 RSA.No. 310 of 2011() --------------------- AS.190/2008 of D.C & SESSIONS COURT,TRIVANDRUM OS.7/2003 of PRINCIPAL SUB COURT,ATTINGAL .................... RESPONDENT/PLAINTIFF ---------------------------------------- LALITHA, D/O.INDRAYANI, KOPRAKODU VEEDU, CHIRAYINKEZH, SARKARA VILLAGE. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): APPELLANTS/DEFENDANTS ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE REVENUE SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2. THE DISTRICT COLLECTOR, VANCHIYOOR, THIRUVANANTHAPURAM, PIN-695035. 3. THE TAHSILDAR, CHIRAYINKIZH TALUK, ATTINGAL, PIN-695101. 4. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM, PIN-695033. GOVERNMENT PLEADER THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.310 OF 2011 ............................................ DATED THIS THE 8th DAY OF JUNE, 2011 JUDGMENT Plaintiff in O.S.7 of 2003 on the file of Sub Court, Attingal is the appellant. Respondents are defendants. Appellant originally instituted the suit as one for injunction and subsequently it was converted to declaration of title and to declare the auction sale of the plaint schedule property in revenue recovery proceedings null and void. Learned Munsiff granted a decree. Defendants challenged the judgment before District Court, Thiruvananthapuram. Learned District Judge, on reappreciation of evidence found that the suit is barred under Section 72 of Revenue Recovery Act and learned Munsiff should not have granted a decree. The appeal was allowed and the suit was dismissed. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that though there was no specific plea that there was fraud, a reading of the plaint establishes that appellant was setting up fraud which vitiates the RSA 310/2011 2 auction sale under revenue recovery proceedings and therefore the finding of first appellate court that the suit is barred under Section 72 of the Revenue Recovery Act is unsustainable. 3. Section 72 of Revenue Recovery Act reads:- “ General Bar to jurisdiction of civil courts save where fraud alleged - Except otherwise expressly provided in this Act, every question arising between the Collector or the authorised officer and the defaulter or his 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”. 4. As provided under Section 72, when a suit is instituted by a defaulter or his representative, or any other person claiming RSA 310/2011 3 any right through the defaulter relating to the execution, discharge or satisfaction of a written demand issued under the Act or relating to the confirmation or setting aside by an order under the Act, of a sale held in execution of such demand, the suit is barred as the remedy is as provided under the Act, viz, before the Board of Revenue where the Collector is a party to the question or before the Collector in other cases. The proviso enables a plaintiff to institute a suit even in such a case, if there is an allegation of fraud. As mandated under rule 4 of Order VI of the Code of Civil Procedure, in all cases in which the parties rely on any misrepresentation, fraud, breach of trust, wilful default or undue influence and all other cases in which particulars may be necessary beyond satisfaction are exemplified in the forms aforesaid particulars, with dates and items, if necessary shall be stated in the plaint. Therefore, if the case of appellant is that the auction sale conducted in revenue recovery proceedings is vitiated by fraud, there should be specific pleading that it is vitiated by fraud and all particulars and details necessary to show the fraud must be pleaded. Admittedly the plaint does not contain any allegation of fraud much less details of the fraud. RSA 310/2011 4 The only pleading is in paragraph 7 which reads :- “ The aforesaid acts of the defendants and their subordinates are illegal and are against the provisions of Kerala Panchayat Raj Act, 1968. The said acts of defendants and their subordinates are fraudulent and have been done with a view to make unlawful enrichment by taking possession of the plaint schedule property”. 5. In the light of the said pleadings, when the appellant is admittedly the defaulter, the finding of the first appellate court that the suit is barred under Section 72 of the Revenue Recovery Act relying on the decisions in Chinna Swamy V. State of Kerala (2009(2) KLT 525), Inspector, Toddy Workers Welfare Fund Board V. Vijayan ( 2009(1) KLT 410 ) and V.O.Vakkan and sons V. George (2010(3) KLT 831) is perfectly correct. In such circumstances, no substantial question of law is involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk