IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 SA.No. 59 of 1995() ------------------- AS.45/1990 of ADDL.SUB COURT, ALAPPUZHA OS.283/1984 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANT/APPELLANT/DEFENDANT: ---------------------------------- STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, ALAPPUZHA BY GOVERNMENT PLEADER: L G SURESH BABU RESPONDENT/RESPONDENT/PLAINTIFF: ---------------------------------- 1. KUTTY PRASAD NJARAPARAMBIL VEEDU THRIKODITHANAM MURI THRIKODITHANAM VILLAGE *2. SHYAMALA D/o. KUTTY PRASAD AGED 46, CHARUMOOTIL, THRIKKODITHANAM P O PAYIPAD, CHANGANASSERY KOTTAYAM *3. SETHUJI, S/o. KUTTY PRASAD AGED 40, NJARAPARAMBIL KOTTAMURI P O , PAYIPPAD CHANGANASSERY *4. SANALJI, S/o. KUTTY PRASAD AGED 37, NJARAPARAMBIL THRIKKOTHANAM, PAYIPAD CHANGANASSERY *5. SAJI, S/o. KUTTY PRASAD AGED 33, NJARAPARAMBIL THRIKKODITHANAM, PAYIPAD CHANGANASSERY *6. MOLAMMA, GRAND D/o. KUTTY PRASAD AGED 32, THEVAKADU VEEDU SAMKRANTI P O, KOTTAYAM *7. ANISH KUMAR, GRAND S/o. KUTTY PRASAD AGED 30. KOCHUKUNNUMPURAM THRIKODITHANAM, PAYIPAD CHANGANASSERY ADV. SRI.P.KESAVAN NAIR SRI.C.S.MANU FOR ADDL.R2 TO R7 SRI.S.K.PREMRAJ FOR ADDL.R2 TO R7 (*ADDITIONAL RESPONDENTS 2 TO 7 ARE IMPLEADED AS LR's OF DECEASED SOLE RESPONDENT VIDE ORDER DATED 19-03-2009 IN I.A.No.1250 of 2008) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- S.A.No.59 of 1995 --------------------------------------- Dated this 07th day of September 2009 JUDGMENT The following substantial questions of law are raised in this second appeal for a decision: 1. Whether in view of section 44 of the Revenue Recovery Act (for short, “the Act”) the sale deed dated 04-04-1983 in favour of the respondent is binding on the Government?. 2. Whether civil court's jurisdiction is not ousted in view of section 72 of the Act?. Parties are referred as respondents and defendants as in the trial for convenience. 2. This second appeal is brought from the judgment of learned Sub Judge, Alappuzha in A.S.No.45 of 1990 arising from judgment and decree of court of learned Munsiff, Alappuzha in O.S.No.283 of 1984. Respondent filed suit against appellants/State and its officials for decree for prohibitory injunction against revenue recovery proceedings on the property schedule in the plaint. That property originally belonged to Ayyappan Kunju (for short, “the Defaulter”). There was an agreement for sale between respondent and the defaulter on 29-12-1980 as per which respondent was to purchase the suit property for a total consideration of Rs.20,000/-. A period of one year was fixed for execution of the sale deed. S.A.No.95 of 1995 2 Respondent paid Rs.10,000/- by way of advance to the defaulter. Since the defaulter was not agreeable for executing the sale deed, respondent filed O.S.No.9 of 1982 against the defaulter for decree for specific performance of that agreement for sale. There was a decree in favour of the respondent. He filed E.P.No.15 of 1982 for execution of sale deed and accordingly the court executed sale deed in his favour. Property was delivered over to respondent on 27-09-1983. He thus became the absolute owner of schedule property. Respondent apprehended the suit property is being proceeded against by the appellants for recovery of the amount due from the defaulter. Appellants-Government and its officials contended that the suit is bad for want of notice under section 80 of the Code of Civil Procedure. As per revenue records property still stood in the name of defaulter. The requisition for recovery of the amount under the Act was received on 30-07-1982. Notice under section 7 and 34 of the Act was issued to the defaulter on 27-09-1983. Appellants are not aware of the transaction between respondent and the defaulter. Notice of attachment was served on the defaulter on 13-08-1982 and 28-12- 1982. The suit property was attached for the amount due from the defaulter on 12-01-1983. Sale deed was executed by the court in favour of respondent on 04-04-1983 pursuant to decree in O.S.No.9 of 1982. Respondent is the son-in-law of defaulter. It is contended that S.A.No.95 of 1995 3 any engagement entered into by the defaulter after service of written statement on him is not binding on the Government. The further contention is that the attempt of respondent is to somehow avoid payment of the amount due from the defaulter to the Government. 3. Learned Munsiff framed issues whether suit is maintainable and whether injunction prayed for is allowable. Answering the issues in favour of respondent, he was given a decree as prayed for. Appellate court has concurred with the findings. It is contended by learned Government Pleader appearing for appellants that courts below overlooked section 44 of the Act. It is also contended by learned Government Pleader that the suit is barred under section 72 of the Act. Learned counsel for respondent contended that the findings entered by the courts below are justified and no substantial questions of law are involved in this second appeal. 4. Though, one of the substantial question of law raised in the second appeal is whether the suit is maintainable in view of section 72 of the Act I find that there is no pleadings to that effect in the written statement filed by the appellants. Learned counsel for respondent argued that the bar under section 72 of the Act cannot apply since that bar is only relating to questions as to the execution, discharge or satisfaction of a written demand arising between the defaulter and person claiming title under him. In this case, respondent is claiming S.A.No.95 of 1995 4 title over the property as per sale deed executed by the court pursuant to the decree in O.S.No.9 of 1982. Even if it is assumed that he is claiming title from the defaulter, the challenge is not as to the execution, discharge or satisfaction of the written demand but to the question whether property allegedly belonging to the respondent is liable to be proceeded against . Learned counsel has placed reliance on the decision in Chinnaswamy Vs. State of Kerala (2009(2) ILR Kerala 527). But in the absence of any plea in the written statement regarding the bar under section 72 of the Act, it is not necessary to go into that question in this second appeal. 5. Section 44 of the Act reads thus: 1. Any engagement entered into by the defaulter with anyone in respect of any immovable property after the service of the written demand on him shall not be binding upon the Government. 2. Any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrear, with intent to defeat or delay the recovery of such arrear, shall not be binding upon the Government. 3. Where a defaulter transfers immovable property to a near relative or for grossly inadequate consideration after public revenue due on any land from the defaulter has fallen in arrear, it shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear, and the Collector or the authorized officer may subject to the orders of a competent court, proceed to recover such S.A.No.95 of 1995 5 arrear of public revenue by attachment and sale of the property so transferred, as if such transfer had not taken place. It is not disputed that the written demand was served on the defaulter on 13-08-1982 and 22-12-1982 but, it is not clear when actually amount became due. It is seen that appellants did not produce any evidence to prove that notice was served on defaulter. It is not disputed that it was pursuant to the decree in O.S.No.9 of 1982 that court executed sale deed in favour of respondent on 04-04-1983. Under section 44(3) of the Act, if the transfer of immovable property is to a near relative or for grossly inadequate consideration after public revenue due on land from the defaulter has fallen in arrear there is a presumption until the contrary is proved such transfer is made with intent to defeat or delay the recovery of such arrears. I find and as rightly pointed out by the first appellate court also that appellants have not pleaded that decree in O.S.No.9 of 1982 was collusive in nature. There is also no contention that agreement for sale deed on 29-10- 1980 was intended to defeat the claims of Government. But, fact remained that notice of demand was served on the defaulter on 13-08- 1982 and 22-12-1982 and therefore the amount must have fallen due at some time before 13-08-1982 and 22-12-1982. It is also a fact that sale deed was executed by the court on behalf of defaulter only on 04- 04-1983. Courts below, obviously in the absence of proper plea and S.A.No.95 of 1995 6 lack of evidence had no occasion to consider these aspects. This court in Denny Fernandez Vs. State of Kerala (2003(1) KLT 280) held concerning section 44(2) of the Act If the transfer of immovable property over which the recovery of arrears can be fastened is effected by the defaulter after the date when the arrears fell due, the sale will not bind the Government. These aspects are required to be considered by the court below. 6. Learned counsel for respondent contended that there is lack of pleadings in the written statement of appellants as to any fraud or collusion between respondent and the defaulter. But, I find that there is an averment that the case is filed by the respondent for delaying payment obviously, amount due from the defaulter. On the facts and circumstances of this case and particularly as a substantial amount is due from defaulter and the person claiming title over the property is his son-in-law, I am inclined to think that due to laches or negligence on the part of government officials, the state should not suffer and public revenue should not be lost. On the facts and circumstances of the case I am inclined to give appellants an opportunity to adduce proper evidence and if necessary to amend its written statement suitably taking up appropriate contentions. I make it clear that it will be open to the respondent also to adduce further evidence if circumstances warranted. Substantial questions of law raised are answered as above. S.A.No.95 of 1995 7 Resultantly the judgments and decree under challenge are set aside and the matter is remitted to the court of learned Munsiff for fresh consideration and disposal after giving both sides opportunity to adduce further evidence. I make it clear that it will be open to the appellants to make a request if they are so advised, to amend their written statement to incorporate necessary pleas. Learned Munsiff shall expedite trial and disposal of the case untrammeled by any of the observations contained in this judgment concerning the merit of the case. Parties shall appear in the court of learned Munsiff on 26-10- 2009. No cost THOMAS P JOSEPH, JUDGE Sbna/