IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 FAO.No. 225 of 2009() --------------------- AS.128/2007 of ADDL.DISTRICT COURT, KOTTAYAM OS.455/2004 of MUNSIFF COURT, VAIKOM .................... APPELLANT/IST RESPONDENT/PLAINTIFF ------------------------------------------------------ GEETHA,AGED 48,S/O.SAROJINI, EDATHIPARAMBIL, KULASEKHARAMANGALAM MURI AND VILLAGE. BY ADV. SRI.K.C.CHARLES SRI.M.POLY MATHAI SRI.P.CHELLAPPAN SRI.RENJU A.T RESPONDENTS/ APPELLANT & RESPONDENTS 2 AND 3 IN A.S/DEFENDANT 1 TO 3 ----------------------------------------------------------------- 1. SASIDHARAN NAIR,S/O.PRABHAKARAN NAIR, AGED 56,SANKARA BHAVAN,MARAVANTHURUTHU MURI, KULASEKHARAMANGALAM VILLAGE,PIN-682716. 2. JOHN,S/O.MATHAI,AGED 47,PUNNASSERIL, KULASEKHARAMANGALAM MURI AND VILLAGE, VAIKOM TALUK, PIN-682716. 3. BABU,S/O.PARAMESWARAN PILLAI, AGED 46,VIPIN NIVAS,KULASEKHARAMANGALAM MURI AND VILLAGE,VAIKOM TALUK,PIN-682716. ADV. SRI.DINESH R.SHENOY FOR R1 TO R3 SRI.P.RAJEEV FOR R1TO 3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NOS.3219/09 & 776/10 IN FAO.NO.225/09 ---------- DISMISSED 17/6/201O Sd/- HARUN-UL-RASHID, JUDGE. True Copy HARUN-UL-RASHID,J. ------------------------------ F.A.O.NO.225 OF 2009 ------------------------------- DATED THIS THE 17TH DAY OF JUNE, 2010 JUDGMENT Additional 2nd Plaintiff in O.S.No.445/04 on the file of the Munsiff's Court, Vaikom is the appellant. The appeal is directed against the order of remand passed by the Lower Appellate Court. The trial court decreed the suit as prayed for. The Lower Appellate Court set aside the decree and judgment of the trial court and remanded the case for fresh consideration. The parties hereinafter referred to are the plaintiff and defendants as arrayed in the suit. 2. The original plaintiff in the suit died pending suit. On his death his son Sri E.P. Ramesan was impleaded as additional 2nd plaintiff. The deceased plaintiff left behind more than one legal heir. The additional 2nd plaintiff alone filed a petition for impleading himself as additional 2nd plaintiff stating that he acquires right over the plaint schedule property by virtue -2- F.A.O.No.225/09 of a Will executed by the deceased original plaintiff. Subsequently, his sister was substituted as the additional 2nd plaintiff. 3. The deceased father is the title holder of plaint schedule item No.1 by virtue of a sale deed No.39767/62 which is marked as Ext.A2. The contesting defendant in the suit is the lst defendant. He is the son of the deceased original plaintiff through his first wife. Sri E.P. Ramesan and the present additional 2nd plaintiff are also the son and daughter of the deceased plaintiff through his second wife. Defendants 2 and 3 are strangers and are owners of the property situated on the east of item No.1 property. On the death of the deceased father the additional 2nd plaintiff got impleaded in the suit stating that she acquires title by virtue of the registered last Will executed by her father, who was the original plaintiff. 4. It is not disputed that on 12/7/1976 the deceased father permitted one Joseph Thankachan to construct a theatre -3- F.A.O.No.225/09 building in the plaint schedule property as per the agreement executed between them. Joseph Thankachan constructed a theatre building and started running cinema house. He continued to conduct cinema house till 1982. Besides, the main building which is used as cinema house, there were two other buildings in the property; one is a ticket counter and the other is a canteen. Later, Joseph Thankachan closed down the theatre and the building was given back to the deceased father. Father permitted his son, who is the lst defendant, to conduct a cinema theatre in the building. Admittedly, his son conducted cinema theatre till April, 2004 in the name “Baby Theatre”. The lst defendant has also conducted a canteen in the adjacent building. Due to old age, the theatre building got dilapidated and therefore the lst defendant stopped running of film show. The plaintiff demolished the theatre building. The lst defendant continued to run tea shop. The deceased father demanded his son to vacate the premises; but he did not accede to the demand of the father. It is -4- F.A.O.No.225/09 the case of the original plaintiff that on 29/9/2004 his son along with the other defendants and others demolished a portion of the western compound wall of the item No.1 property at a width of about 7 ft. and put up a new fence using concrete pillars and stumps by encroaching into the northern portion of item No.1 property. 5. In the plaint it is averred that subsequently the original plaintiff came to know that his son obtained a purchase certificate from the Land Tribunal concerned and on the strength of the purchase certificate the lst defendant son is resisting the request of the father to vacate the canteen building. On enquiry by the father, it was revealed that suo motu proceedings were initiated by the Land Tribunal as SM No.352/01 and issued purchase certificate dated 7/1/2002 in favour of his son. It is the case of the plaintiff that the Kulasekharamangalam Village Officer submitted a false report stating that the lst defendant obtained possession of the property as per oral lease from the -5- F.A.O.No.225/09 plaintiff in 1970 and therefore the lst defendant is eligible to get assignment of right, title and interest of the land owner. An ex parte order was seen passed by the Land Tribunal on 23/10/01. It is the case of the original plaintiff that his son influenced the then Village Officer and obtained a fraudulent and false report by suppressing the real facts and on the basis of the said report, he managed to initiate suo motu proceedings by playing fraud in the Tribunal and obtain pattayam and that it is crystal clear that the defendant was never in possession of the property under any oral lease and therefore he cannot approach the Land Tribunal for issuance of Patta. The original plaintiff sued for a declaration that the proceedings before the Land Tribunal and the report of the Village Officer are vitiated by fraud and collusion. It is his case that the proceedings before the Land Tribunal and the certificate of purchase are void ab initio. The plaintiff filed a suit for declaration that the certificate of purchase obtained by his son from the Land Tribunal is null and void. The plaintiff also sued -6- F.A.O.No.225/09 for recovery of a portion of the property converted into pathway by defendants 2 and 3, for an injunction restraining the lst defendant from alienating the plaint schedule property and for mandatory injunction directing the lst defendant to vacate the canteen building. 6. The lst defendant vehementally contested the suit. He admitted that the property belonged to his father, who is the original plaintiff. He also admitted that the theatre building was constructed by Joseph Thankachan on the basis of an agreement between him and the original plaintiff. He denied the allegation that the hotel building was constructed by the plaintiff or Joseph Thankachan and contended that it was constructed by him about 1 ½ years before the institution of the suit. The lst defendant claimed title by virtue of the purchase certificate issued by the Land Tribunal. According to him, S.M. proceedings was initiated in accordance with law and therefore he has acquired title to the plaint schedule item No.1. He denied the allegation that he -7- F.A.O.No.225/09 colluded with any officers of the Land Tribunal and Village Officer for obtaining purchase certificate. According to him, the certificate is absolutely valid in the eye of law. 7. The trial court framed necessary issues and examined the contentions of the respective parties. The lst defendant is the son born to the original plaintiff through his first wife. The title of the plaintiff by virtue of Exts.A2 and A3 title deeds is not disputed by his son, who is the lst defendant. It is also not disputed that there was a theatre building in the property and the third person was running the theatre till 1982. It is also admitted that the lst defendant continued to run the theatre till April, 2004. The trial court appreciated the oral and documentary evidence adduced by the plaintiff and the contesting defendants. The question of validity of the purchase certificate was also considered by the court below in detail. The evidence of PW1, DW1 and the relevant documents were considered and discussed in detail by the court below. Ext.A5 is the certified copy the -8- F.A.O.No.225/09 report of the Village Officer submitted in SM proceedings 352/2001 before the Land Tribunal. Ext.A6 is the order of the Land Tribunal and Ext.A7 is the copy of the purchase certificate. Before the Munsiff's Court, the learned counsel for the plaintiff contended that purchase certificate was obtained behind the back of the original plaintiff and by fradulent means. The learned counsel for the defendant also did not support the procedure followed by the Land Tribunal in issuing the purchase certificate. The only contention raised before the trial court is that the civil court cannot entertain the question of validity of issuance of the purchase certificate and that the plaintiff can challenge the proceedings in appropriate Forum as provided under the Kerala Land Reforms Act. This question was discussed by the trial court in detail and held that the relief sought for in the plaint is for a declaration that the purchase certificate was obtained by practicing fraud and collusion and therefore the civil court alone has got jurisdiction to try such a suit. If the purchase certificate -9- F.A.O.No.225/09 is obtained by practicing fraud and collusion, it is well settled that the remedy open to the party aggrieved is to approach civil court for a declaration that the same was obtained by practicing fraud and collusion. The trial court examined the contentions in detail and found that the lst defendant has practiced fraud and collusion in obtaining the purchase certificate. The trial court also held that this is a case in which the son obtained a purchase certificate against his father claiming to be a cultivating tenant under a lease arrangement from 1970 onwards. The purchase certificate was obtained based on the report of the Village Officer to the effect that the lst defendant obtained possession of the property in 1970 from the plaintiff under oral lease. In the oral and documentary evidence adduced by the parties including the admitted facts on the part of the lst defendant it is clear that the property was in the possession of one Joseph Thankachan and he was running a theatre till 1982. So the report prepared and submitted by the Village Officer to the Land Tribunal on the face -10- F.A.O.No.225/09 of it is untrue. In the written statement itself the lst defendant admitted that he got possession of the cinema house only in the year 1982 as permitted by his father. Considering the pleadings of the lst defendant and Ext.A5 to A7 documents, the learned Munsiff is satisfied that the plaintiff has succeeded in proving that the purchase certificate was obtained by the lst defendant by playing fraud and on the strength of false reports from the Village Officer. The trial court found that no notice was issued to the original plaintiff giving him an opportunity of being heard in the proceedings before the Land Tribunal. All other questions were also considered by the trial court in detail and passed the following reliefs: i) Title and possession of additional 2nd plaintiff over the plaint schedule property Item No.1 are declared. ii) Purchase certificate issued in favour of the lst defendant is declared as null and void and not binding on the plaintiffs. iii) Direction was issued to the lst defendant to give vacant possession of the hotel building; -11- F.A.O.No.225/09 iv) Permanent prohibitory injunction was ordered restraining the lst defendant from creating any document so as to encumber the plaint schedule item No.1 or committing any waste; and v)Costs. 8. The original plaintiff died on 3/11/2005. After the death of the original plaintiff his son Ramesan got himself impleaded as additional 2nd plaintiff stating that his father executed a Will in his name bequeathing the plaint item No.1 and Ramesan continued to prosecute the case till 2006. In 2006 the additional 2nd plaintiff filed an impleading petition I.A.No.1870/06 seeking to implead herself as additional 2nd plaintiff and to remove Sri Ramesan from the party array. In the affidavit filed in support of I.A.No.1870/06, it is stated that her father executed the last Will in her name and thus she became the title holder of plaint item No.1 property. She sought to remove her brother from the party array, who is the holder of the lst Will. Her brother Ramesan filed I.A.No.1850/05 for -12- F.A.O.No.225/09 impleading him as additional 2nd plaintiff in the year 2005. That application was not objected by the lst defendant. Subsequent application filed by the additional 2nd plaintiff as I.A.No.1870/06 was also not objected by him. He has no case that during the relevant time, his father has not executed Ext.A1 Will in favour of his daughter, who was substituted as additional 2nd plaintiff. Application was filed for permitting her to prosecute the suit filed by the original plaintiff in her capacity as the title holder by virtue of Ext.A1 Will. Other legal heirs were not impleaded for the reason that the property was bequeathed in her name. The lst defendant at the relevant time has no case that Ext.A1 Will executed by the father in favour of his daughter is not genuine. He has also not objected to the request of the additional 2nd plaintiff to prosecute the case stating that other legal heirs of his father are also necessary parties to the suit. The trial court passed orders on 2/1/2007 on I.A.No.1870/06. Ramesan was substituted by the present additional 2nd plaintiff. On the same day the -13- F.A.O.No.225/09 documents produced on the side of the plaintiff and defendants were marked with consent. Ext.A1 Will produced by the additional 2nd plaintiff was also marked with consent. 8. The lst defendant preferred A.S.No.128/07 challenging the decree and judgment. By the impugned judgment the Lower Appellate Court held that in the order passed by the trial court for impleading the additional 2nd plaintiff and marking of Ext.A1 etc. there was irregularity. I have narrated in detail the sequence of events, facts, evidence and attendant circumstances leading to the passing of the decree in favour of the additional 2nd plaintiff. Without examining the questions raised by the additional 2nd plaintiff and her grievance in the right perspective and without discussing and without appreciating the facts, which I have narrated in the preceding paragraphs, the Lower Appellate Court simply found that there was irregularity in the proceedings of the Munsiff's Court. I do not agree with the observations and conclusions arrived at by the Lower Appellate -14- F.A.O.No.225/09 Court in this regard which are contained in paragraph 8 of the judgment. The 2nd reason stated in the judgment is that the court below failed to call for the records of the Land Tribunal to find out whether notice was served on the original plaintiff or not. I have already stated that the sequence of events and the reasonings of the trial court leading to the passing of the decree declaring that the purchase certificate obtained by the lst defendant is by practicing fraud and collusion. The Lower Appellate court observed that the records of the Land Tribunal should have been called for and perused. Its observation is out of context. The above two reasons are stated for remanding the case to the trial court for fresh consideration. I do not see any reason to remand this case for fresh consideration for the reasons stated in the preceding paragraphs. 9. The learned counsel for the lst respondent/lst defendant brought to my notice the decisions reported in Aliyamutty Haji v. Mammi (1977 KLT 471), B. Valsala v. -15- F.A.O.No.225/09 Sundaram Nadar Bhaskaran (AIR 1994 Kerala 164) and Narayana Iyer v. Vella (1988 (1) KLY 856) and contended that in a case where the additional 2nd plaintiff set up an independent title on the basis of Ext.A1 Will, she has to plead and prove her title to the property. On the basis of the above-said decisions the learned counsel also submitted that one of the legal representatives cannot claim hostile title against other legal heirs and that it is mandatory that the other legal heirs, who also to be brought on record, and their claims also should be adjudicated in the case. I have narrated in detail the facts leading to the passing of the decree by the trial court. Father died in the year 2005. The brother of the lst defendant alone was impleaded stating that he is the holder of the Will. That was not objected by the lst defendant. Subsequently the present additional 2nd plaintiff was substituted stating that the father executed subsequent Will in her favour, which was marked as Ext.A1 in this case. Substitution as well as impleadment of the additional 2nd plaintiff was not -16- F.A.O.No.225/09 objected by the lst defendant. The additional 2nd plaintiff sought to prosecute the suit originally filed by her father not in her capacity as a legal heir of the deceased father; but in her capacity as the title holder of the property by virtue of Ext.A1 Will. Her permission to prosecute in that capacity was not objected by the lst defendant, who is none other than her brother. He has no case at the relevant time that other legal heirs of the deceased father are also necessary parties to be brought on record in this case. Instead of opposing the request of the additional 2nd plaintiff and not disputing the genuineness of the Will, he consented to the marking of Ext.A1 Will. The execution of Ext.A1 Will was never in dispute at the hands of the lst defendant. In such circumstances, the contention of the learned counsel for the lst defendant that other legal heirs should have been brought on record and that the additional 2nd plaintiff ought to have contested the case independently on the strength of Ext.A1 Will cannot be accepted. -17- F.A.O.No.225/09 10. For the reasons stated in detail in the preceding paragraphs, I find that the order of remand passed by the Lower Appellate Court is unsustainable in law. In the circumstances, the decree and judgment passed by the Lower Appellate Court is set aside. The appeal is of the year 2007. The Lower Appellate Court is directed to hear and dispose of the appeal afresh in accordance with law within a period of four months from the date of receipt of a copy of this judgment. There will be no order as to costs. HARUN-UL-RASHID, JUDGE. kcv