1. Rival tenancy claims over land — Application for Certificate of Purchase under Kerala Land Reforms Act — Subsequent joint application obtained without notice to rival claimants. (Para 2 , 3 )
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1999 Supreme(SC) 272
1999(9) Supreme 333
SUPREME COURT OF INDIA
K.T. Thomas & D.P. Mohapatra, JJ.
Joseph & Anr. -Appellants
versus
Batho Mary & Ors. -Respondents
Civil Appeals Nos. 8048-8049 of 1995
Decided on 9-3-1999
Important Points
Orders and certificates of purchase obtained through fraud and collusion, such as by concealing pending litigation over the same property, are vitiated and can be declared nullities through a declaratory suit, upholding concurrent findings of fact on such fraud.
Subject
Civil Law - Land Disputes
Act Referred
Headnote
Kerala Land Reforms Act-Section 72-MM-Order allowing right to purchase right title and interest of land owner-Legality of-Two separate petitions by rival claimants, one by respondents herein another by appellant herein for certificate of purchase-Respondents filing application u/s 72MM without notice to appellants-Application purportedly signed by land owner-Tribunal passing order in favour of respondents-Subsequent suit for declaration by appellants that order procured by committing fraud-Trial Court and first appellate Court setting aside order-High Court upsetting concurrent findings-Not justified-High Court committed jurisdictional error in interfering with concurrent findings on fact-Tribunal directed to try both applications of appellants and respondents together. (Paras 5 to 9)
(ii) Code of Civil Procedure, 1908-Section 100-Second appeal -Scope of jurisdiction-Order of Tribunal under Kerala Land Reforms Act sought to declared as invalid on ground of fraud-Trial Court and first appellate Court holding in favour of plaintiff setting aside order of Tribunal-High Court, however, upsetting findings of lower courts-Held : High Court committed jurisdictional error in interfering with concurrent finding on question of fact. (Paras 5 to 8)
Legal Category Hierarchy
Table of Contents
2. Whether the order and Certificate of Purchase obtained through a joint application under Section 72-MM are vitiated by fraud and collusion due to non-disclosure of pending proceedings. (Para 4 , 5 )
3. The failure to notify rival claimants and the Land Tribunal about pending proceedings regarding the same land constitutes fraud, vitiating the resulting order and certificate. (Para 6 , 8 )
4. Where fraud is established, a party is entitled to a declaratory decree that the resultant order is vitiated and constitutes a nullity. (Para 7 , 8 )
5. Appeals allowed — Impugned judgment set aside — Land Tribunal directed to try the rival applications jointly. (Para 9 , 10 )
6. Can a party challenge an order obtained through fraud in a civil suit?
Yes, when fraud is established, the aggrieved party has the right to institute a suit for a declaratory decree that the resultant order is vitiated and is therefore a nullity. (Para 7 , 8 )
7. Does non-disclosure of a pending application for the same land in a subsequent joint application constitute fraud?
Yes, keeping rival claimants and the Land Tribunal in the dark about a pending application for the same land while filing a subsequent joint application is considered fraud. (Para 6 , 8 )
8. Under what circumstances is it a jurisdictional error for a High Court to interfere with concurrent findings of fact?
It is a jurisdictional error to interfere with concurrent findings on facts when those findings establish that an order was vitiated by fraud. (Para 8 )
ORDER
1. In second appeal a learned Single Judge of the High Court interfered with the concurrent finding on facts and dismissed the suit filed by the appellants as per the impugned judgment. Hence, the appellants preferred this appeal by special leave.
2. The factual position is this:
A land having an extent of 1.20 acres is the subject-matter of litigation. Two sets of persons put forward rival claims of tenancy over the said land and applied for Certificate of Purchase under the relevant provisions of the Kerala Land Reforms Act ("the Act" for short). OA No. 778 of 1970 was filed by the appellants for purchasing the right, title and interest of the landowners, during the pendency of which the present contesting respondents got themselves impleaded by raising a claim that they have the right to purchase the landowners title and interest in respect of 80 cents of land comprising of suit property. It is not necessary to refer to the chequered career which the said OA had undergone even by now. Suffice it to say that the said OA is still remaining before the Land Tribunal pending final disposal, and it was later renumbered as OA No. 4308 of 1976.
3. In the meanwhile the contesting respondents moved the Land Tribunal through an application purportedly under Section 72-MM of the Act showing that the landowners have also signed therein and prayed for an order allowing the respondents to purchase the right, title and interest of the landowners in respect of the aforesaid 80 cents. It is admitted that the appellants were not made parties thereto. It is numbered as OA No. 1810 of 1971. Without the appellants getting any knowledge about the pendency of the said OA the Land Tribunal happened to pass Ext. A-7 order on 19.5.1973 allowing the respondent to purchase the right, title and interest of the landowner in respect of the said 80 cents of land. On the footing of the said order the Certificate of Purchase (Ext. B-10) was issued on 18.7.1975. Armed with Ext. A-7 and Ext. B-10 the contesting respondents turned against the appellants and informed the Land Tribunal before which OA No. 4308 of 1976 was pending that in respect of 80 cents of the disputed property the OA is not maintainable.
4. It was in the said backdrop that the appellants filed the present suit OS No. 29 of 1977 for a declaration that Exts. A-7 and B-10 are vitiated by fraud, collusion, etc. The trial Court decreed the suit. The first appellate court confirmed the decree of the trial Court. But in the second appeal learned Single Judge of the High Court upset the findings and rendered the impugned judgment.
5. There is no dispute that OA No. 4308 of 1976 was pending when the contesting respondents filed the subsequent joint application under Section 72-MM of the Act. There is also no dispute that in the joint application the appellants were not made parties. Nor is there any dispute that the appellants were not informed either directly or indirectly of the filing of the joint application. The case of fraud was built up mainly on the aforesaid premise. Added to the above, it was a contention of the appellants that the signature of the landowner was forged on the joint application filed under Section 72-MM. That aspect was disputed by the contesting respondent, but the son of the purported signatory, when examined as PW 2 in the suit, said that the signature attributed to his late father in the joint application is a forged one. The fact-finding courts concurrently found that the said finding on a fragile reasoning that the aforesaid signature should have been forwarded to a handwriting expert to prove that it was forged.
6. Be that as it may, the crucial point is not that. The most crucial aspect in this case is the admitted premise that the appellants were kept in complete darkness about the joint applications when they chose to file OA No. 1810 of 1971. Even the Land Tribunal was kept in the dark that another application for the same land was filed by the appellants and which
