IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 SA.No. 153 of 2000(B) ------------------------------ AS.137/1998 of PRINCIPAL SUB COURT,ALAPPUZHA OS.680/1992 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT(S): APPELLANT/PLAINTIFF -------------------------------------------------------- * K.C. KURUVILLA, KARAVELITHARA HOUSE, MITHRAKARI, MUTTAR VILLAGE,(DIED) *ADDL. APPELLANT IMPLEADED. LILLY KURUVILA, AGED 63 YEARS, W/O. LATE K.C.KURUVILA, RESIDING IN KURUVILATHARA, MUTTAR MURI, DO. VILLAGE. LEGAL REPRESENTATIVES OF THE DECEASED APPELLANT IS IMPLEADED AS ADDL. APPELLANT AS PER ORDER DT. 19.12.2000 ON CMP. 2335/2000. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.LATHEESH SEBASTIAN SRI.PHILIP M.VARUGHESE SRI.SAJI VARGHESE KAKKATTUMATTATHIL RESPONDENT(S): RESPONDENT/DEFENDANT ------------------------------------------------------------------- 1. THE STATE OF KERALA, REP.BY THE DISTRICT COLLECTOR, ALAPPUZHA. 2. THE DEPUTY TAHSILDAR (R.R) TALUK OFFICE, KUTTANAD. 3. STATE BANK OF INDIA, AGRICULTURAL DEVELOPMENT BANK, EDATHUA. R1 & R2 BY GOVT. PLEADER SMT.REKHA NAIR R3 BY ADV. SRI.P.V.SURENDRANATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2010, THE COURT ON 05/08/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 153 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2010. JUDGMENT Confronted with the concurrent findings by the courts below, the plaintiff in O.S. 680 of 1992 before the Munsiff's Court, Alappuzha has come up in appeal. The suit was one for injunction. The plaintiff claimed to be the absolute owner in possession of the property, the building therein and the movables in the building. His sons and daughter had availed of agricultural loans from the third defendant Bank. As they defaulted in payment of the same, Bank initiated revenue recovery proceedings. The grievance of the plaintiff was that for the debts due from his children, the movables belonging to him were being proceeded with. According to him, the defendants are not entitled to do so. He would point out that they can proceed against such movable properties, which belong to the debtors concerned and S.A. 153/2000. 2 not against the movables and immovables belong to him. On the basis of these contentions, he laid the suit. 2. In the written statement filed by defendants 1 and 2, it was contended that there is no basis for the claim made by the plaintiff. Revenue recovery proceedings were initiated for the amounts due from the defaulters and it is not correct to say that the entire movable and immovable properties belong exclusively to the plaintiff. Even if he has such a case, he can agitate the same before the authorities as provided under the Revenue Recovery Act and the suit is not maintainable. On the basis of these contentions, they prayed for a dismissal. In the written statement filed by the third defendant Bank, it is pointed out that the plaintiff was a defaulter and amounts were due from him. The said loan was guaranteed by his wife, so also his children, who had availed of loans. It is under these circumstances, the Bank was constrained to initiate revenue recovery proceedings. They too contended that the suit is not maintainable. They prayed for a dismissal of the suit. S.A. 153/2000. 3 3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants had D.W.1 examined and the documents marked as Exts.B1 to B16 marked. 4. On an appreciation of the evidence in the case, the trial court found that amounts were due from both the plaintiff as well as his children. Accepting the case of the defendants that the suit is hit by Section 72 of the Revenue Recovery Act and also since no schedule had been given in the plaint, no relief could be granted, the suit was dismissed. 5. The plaintiff carried the matter in appeal as A.S. 137 of 1998 before the Sub Court, Alappuzha. The said court differed with the trial court with regard to the maintainability of the suit under Section 72 of the Revenue Recovery Act, but concurred with the finding of the trial court that since schedule was not provided, the suit was not maintainable and accordingly the appeal was dismissed. S.A. 153/2000. 4 6. During the pendency of the appeal before this court, the appellant died and his legal heirs have been brought on the party array. The following questions of law have been formulated in the Memorandum of Second Appeal: “I. Whether the fact that the children of the owner of the house also reside with him, the presumption that owner of the house is the owner of the movables will stand rebutted? II. Is the assumption that the movables belongs to the inmates of the house as presumed by the courts below warranted by the facts and evidence in the case? III. Does not the super technical approach regarding absence of description of movables by furnishing schedule of movables in the plaint lead to miscarriage of justice? IV. Are not children residing with father in his house mere licencees in occupation with no possession? V. Is it not illegal to enter the house of the owner in occupation for attracting movables therein without serving proper notice to him furnishing full S.A. 153/2000. 5 particulars of the debt, for which the proceedings are initiated and the authority sanctioning the proceedings with dates, amounts and names of the defaulters?” 7. It is pointed out by the learned counsel for the appellants that the courts below were not justified in dismissing the suit. According to learned counsel, Section 72 is not a bar since plaintiff's case was that his property was being proceeded against for the amount due from others. It is also pointed out that the mere fact that the schedule has not been produced is not a ground for dismissing the suit. Therefore, it is contended that the judgments and decrees of the courts below are not sustainable. 8. There is absolutely no merit in the above contention. There is no fraud alleged in this case at all. Even though the plaintiff denied that amounts were due from him, in the written statement filed by the Bank, it has been specifically stated that the plaintiff is also a defaulter. S.A. 153/2000. 6 It is pointed out that amounts are due from his children also and therefore the Bank was constrained to initiate revenue recovery proceedings for recovery of all the amounts from the assets. The fact that amounts are due from the plaintiff also is seen denied. 9. As rightly pointed out by the learned Government Pleader, Section 72 of the Revenue Recovery Act is a clear bar to the suit. Even assuming that the properties of the plaintiff are being proceeded against for the amount due from others, he has adequate remedies under the Act to prefer claim petition and he can prefer objection before the authorities under the Act, who will adjudicate the same in accordance with law. The allegation of the plaintiff that his assets were being proceeded against for the amount due from his children also appears to be incorrect. The Bank has specifically stated that amounts were due from the plaintiff also. If that be so, the Bank can resort to revenue recovery proceedings. S.A. 153/2000. 7 10. Finally, the finding of the courts below that since there is no schedule to the plaint, no relief can be granted cannot be taken exception to. It has come out in evidence that the plaintiff stays along with his children and therefore it cannot be said that all the movables in the house belong exclusively to the plaintiff alone. If as a matter of fact the plaintiff had a case that some of the movables belong to him exclusively, he ought to have produced a schedule. Without doing so, an effective decree could not be granted. The result is that there is no merit in the appeal. It is only to be dismissed. I do so confirming the judgments and decrees of the courts below with costs to the respondents. P. BHAVADASAN, JUDGE sb.