A mere averment of fraud in obtaining a decree is not sufficient to challenge the finality of a prior adjudication. A case of fraud as understood in law is necessary to make a suit maintainable.

P.K. Balasubramanyan, J.

The petitioners herein are the legal representatives of the original defendant in O.S.373 of 1987 filed by the plaintiffs, the respondents herein.

2. The predecessor of the plaintiffs filed R.C.P. 37 of 1980 under S.11 of the Kerala Buildings (Lease and Rent Control) Act before the Rent Controller for eviction from a building occupied under him by the defendant. The defendant while resisting that application contended that he was a kudikidappukaran as defined in the Kerala Land Reforms Act and was not liable to be evicted under the Rent Control Act. It is to be noted that a Kudikidappukaran as defined in the Land Reforms Act is taken out of the definition of a tenant under the Rent Control Act. A question of kudikidappu having arisen for decision, the Rent Controller in view of the mandate contained in S.125(3) of the Land Reforms Act read in the light of S.125(8) of that Act referred the question of kudikidappu to the concerned Land decision. The Land Tribunal returned a finding that the building involved was a hut and the defendant was a kudikidappukaran. Accepting that finding, the Rent Controller dismissed the application for eviction filed under S.11 of the Rent Control Act. The predecessor of the plaintiffs filed an appeal R.C.A. 7 of 1984 before the appellate Authority under the Rent Control Act. The predecessor of the plaintiffs- appellants died pending the appeal. The legal representatives did not come on record within the time permitted by law and ultimately R.C.A. 7 of 1984 was dismissed as abated. Thus, the order of the Rent Controller upholding the claim of the defendant that he is a kudikidappukaran became final.

3. The present suit was filed by the plaintiffs for a declaration that the finding of the Land Tribunal in the reference made from the Rent Control Court and accepted by the Rent Controller in R.C.P. 37 of 1980 was vitiated by mistake, fraud and collusion and was hence, null and void and not binding on the plaintiffs or their rights over the plaint A schedule property. In paragraph 5 of the plaint it was averred that the report of the Special Revenue Inspector which was relied on by the Land Tribunal was filed to favour the defendant rjid the Special Revenue Inspector had colluded with the defendant while making that report. Since, the order of the Land Tribunal was based on that report, the same was void. In Paragraph 21 of the plaint it was averred that there was no valuation statement filed by the Special Revenue Inspector and the plaintiffs had no knowledge of the fraud earlier and on discovery of the fraud the present suit was being filed. The defendant raised a contention that the suit was not maintainable, that it was barred by resjudicata and by S.125 of the Land Reforms Act and that the suit was liable to. be dismissed. Since in this revision we are not concerned with the merits of the various contentions, I am not referring to the averments in the plaint and the answers in the written statement in detail on the other aspects.

4. In the suit among other issues the following two issues were also raised: (1) Whether the suit is maintainable? (2) "Whether this court has jurisdiction to try the suit? These issues were taken up for decision at the preliminary stage and have been answered by the trial court in favour of the plaintiffs. This is questioned in this revision by the legal representatives of the defendant who were impleaded as additional defendants m the suit on the death of the original defendant. Normally this court could have refused to intervene at this stage by leaving the defendants to canvass the correctness of the finding on these preliminary issues also in any appeal they may have to file against the decree in case the decree ultimately went against them. But considering the nature of the questions involved and seeing that such suits are now being frequently filed without proper advertence to the relevant aspects involved, I have thought it appropri