IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 RSA.NO. 265 OF 2009() ---------------------------------- AS.65/2005 OF SUB COURT, MANJERI OS.399/1997 OF MUNSIFF COURT, MANJERI .................... APPELLANT/APPELLANT/SUPPL.2ND PLAINTIFF ----------------------------------------------------------------- SECRETARY MANCHERI MUHAMMED, KOTTAKUNNU JUMA ATH PALLI COMMITTEE, S/O.ALAVI KURIKKAL, PORUR AMSOM, PUTHRUKOV DESOM, NILAMBUR TALUK. BY ADV. SRI.SAJU.S.A RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, MALAPPURAM. 2. ERNAD TALUK LAND BOARD, REPRESENTED BY ITS CHAIRMAN, MALAPPURAM AMSOM IN ERNAD TALUK. 3. PARAMPOOR MARIYAKUTTY UMMA, W/O.KOTTAMMAL THANDUPARAKKAL MOOSAKUTTY HAJI. 4. SAHEER BABU, S/O.MOOSAKUTTY HAJI, PORUR AMSOM, PUTHRUKOV DESOM, NILAMBUR TALUK. 5. SABIRA BABY, PORUR AMSOM, PUTHRUKOV DESOM, NILAMBUR TALUK. 6. FATHIMA SHEEBA, PORUR AMSOM, PUTHRUKOV DESOM, NILAMBUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.265 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 19th day of February, 2010 J U D G M E N T --------------------- Additional plaintiff No.2 has come up in this Second Appeal (original plaintiff died pending suit) challenging concurrent finding of the courts below. Suit is for a declaration that the suit property is not liable to be proceeded against in the proceeding of the Taluk Land Board (defendant No.2) as if it is the property of K.T. Moosakutty Haji and for consequential injunction. According to the plaintiffs property belonged to Kanjirathu Mannazhi Mana wherefrom Mukri Chekutty took it on oral lease and in the year, 1957 the said Mukri Chekutty granted lease in favour of Kunhalan. While Kunhalan was in possession and enjoyment of the same the Government purchased the said property as per document No.2022/1974 for construction of a School. Later on the Government abandoning proposal for construction of the School the property was re-conveyed to Kunhalan as per a Government order and a document was executed by the Assistant Educational Officer in favour of Kunhalan. Kunhalan gave the property to the Mosque Committee as per a registered Wakf deed dated 5.5.1987. The R.S.A. No.265 of 2009 -: 2 :- Mosque Committee obtained purchase certificate for the said property. While so K.T. Moosakutty Haji who owned property nearby the suit property fraudulently got the suit property included in the proceeding for excess land initiated by the Taluk Land Board against him. Learning about that, plaintiffs filed a claim petition before the Taluk Land Board (defendant No.2) but that was dismissed. The Civil Revision Petition that followed was dismissed by this Court. There was a Special Leave Petition before the Supreme Court but in vain. Defendants are trying to take possession of the property as if it is the excess land of K.T. Moosakutty Haji who had no title or possession over the property. It is contended that order of defendant No.2 was obtained fraudulently and collusively and hence the suit. Defendant Nos.1 and 2 resisted the suit and contended that plaintiffs have no locus standi to file the suit. They do not have right, title, possession or interest over the suit property. It is contended that plaintiffs had raised the very same contentions before the Taluk Land Board which were found against and confirmed by this Court and hence the issue cannot be re-agitated. They also challenged jurisdiction of the civil court in view of the bar under Section 125 of the Kerala Land Reforms Act (for short, “the R.S.A. No.265 of 2009 -: 3 :- Act”). Courts below found that the allegation of fraud is not established. Decision in the claim petition before the Taluk Land Board as confirmed by this Court in revision operated as res judicata on the plaintiffs. It was also found that civil court has no jurisdiction to entertain the suit. Consequently suit was dismissed which the first appellate court has confirmed. Hence the present Second Appeal urging by way of substantial question of law whether finding of courts below regarding res judicata is legal and sustainable. It is contended by learned Senior Advocate for appellant that in so far as challenge of plaintiffs to the decision of the Taluk Land Board as confirmed by this Court is on the ground of fraud and collusion question of res judicata does not arise since if the allegations were upheld decision of the Taluk Land Board as confirmed by this Court could only be a nullity which has legal force and hence cannot operate as res judicata. Learned Senior Advocate has contended that civil court has jurisdiction to decide whether suit property formed part of K.T. Moosakutty Haji and the Taluk Land Board (defendant No.2) was entitled to take possession notwithstanding the bar under Sec.125 of the Act since the said issue was ancillary to the main issue whether decision of the Taluk Land Board R.S.A. No.265 of 2009 -: 4 :- (defendant No.2) was fraudulent or collusive which the civil court was competent to decide. 2. No doubt, when a decision is challenged on the ground of fraud and collusion and that challenge succeeded such decision is a nullity and such decision operating as res judicata did not arise. It cannot also be disputed that when decision of the Taluk Land Board is challenged on the ground of fraud, it is within the jurisdiction of the civil court to decide the ancillary question whether suit property is part of excess land of K.T. Moosakutty Haji. But the question arises whether fraud and collusion pleaded by the plaintiffs is established. The Taluk Land Board (defendant No.2) is a Statutory Tribunal invested with certain powers and functions under the Act. Its acts being official, legality and and regularity are to be presumed. When the decision of a Court or Tribunal is challenged on the ground of fraud or collusion, a high degree of evidence is required. The fraud alleged must be something extraneous to everything which has been adjudicated by such Court or Tribunal (See Hans Raj Gupta and Others v. Dehra Dun- Mussoorie Electric Tranway Company Ltd. - AIR 1941 P.C. 93 and Bappu @ Moidunni v. Mohammed - 1993 [2] KLT R.S.A. No.265 of 2009 -: 5 :- 969). It is also the requirement of law (See Order VI Rule 4 of the Code of Civil Procedure) that when a party relies on fraud, collusion, etc., particulars of such fraud or collusion are to be pleaded. In this case whatever contentions are raised concerning the suit property and its inclusion in the statement of K.T. Moosakutty Haji as if it is part of his excess land had been raised before the Taluk Land Board (defendant No.2) and found against. That decision was upheld by this Court in revision. No fraud or collusion extrinsic to the proceeding before the Taluk Land Board is pleaded or proved. 3. Contention raised in the suit is that property belonged to Kanjirath Mannazhi Mana, Mukri Chekkutty got it on lease and the latter gave it on oral lease to Kunhalan in the year 1957 under whom plaintiffs claimed title and possession. It is also contended that at the time when Kunhalan was in possession and enjoyment of the property Government had purchased it as per document No.2022 of 1974 for construction of a School but later on that proposal being abandoned Government re-conveyed the property to Kunhalan as per a document executed by the Assistant Educational Officer. These contentions, it is not disputed were raised by the plaintiffs before the Taluk Land Tribunal (defendant No.2) and in this Court, R.S.A. No.265 of 2009 -: 6 :- but found against. Therefore it is not open to the plaintiffs to contend in a separate proceeding that the suit property did not form part of the excess land of K.T. Moosakutty Haji. I stated that plaintiffs were not able to adduce evidence of fraud and collusion as is expected in the matter regarding the alleged fraud and collusion. If that be so, on that ground plaintiffs were only to be non-suited. In the circumstances I do not find any substantial question of law involved requiring decision in this Second Appeal. Second Appeal is dismissed in limine. Interlocutory Application No.569 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv