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Judges : RADHAKRISHNA MENON
GOVINDA PILLAI - Appellant
Versus
MADHAVAN PILLAI - Respondent
Case No : S.A. No. 869 of 1987
Decided On : 07/22/1988
Advocates Appeared :
P. Sukumaran Nair; For Appellant P. Krishnamoorthi; For Respondents
Fraud and Collusion - Land Reforms Act - S.102, S.125(3) - Ext.A8, Ext.A2, Ext.A5 - The court discussed the relevance of Ext.A5 in deciding the issue arising for consideration in this appeal and held that Ext.A8 must be deemed to have been merged in Ext.A5. The court also considered the power of the Appellate Authority under S.102 to decide cases in which the orders are attacked on grounds of fraud or collusion. The court concluded that the Appellate Authority has the power to decide such cases and that the order which affects the rights of the parties is the order passed by the appellate authority. The court allowed the appeal and remanded the suit for fresh disposal, directing the trial court to take into account the verdict of the Appellate Authority in the appeal where Ext.A8 is challenged on the ground of fraud and collusion.
Fact of the Case:
The suit property, a reclaimed coconut garden, originally belonged to one Cherian. On the death of Cherian, Cherian's brothers and relations made attempts to get hold of the assets Cherian had left behind. The second defendant, the son of Cherian and third defendant his widow were unable to resist the attempts of the relations of Cherian to get at the assets. The second defendant at that time was a minor. Circumstanced like this, the third defendant acting for self and as guardian of the second defendant on 10-9-1958 demised the suit property on lease to the plaintiff, her brother as is seen from Ext.Al lease deed. The Land Tribunal within whose jurisdiction the property is situated, initiated suo motu proceedings under S.72 (C) of the Kerala Land Reforms Act for the assignment of the rights, title and interest of the landlord over the property to the cultivating tenant. The Land Tribunal after due enquiry passed Ext.A8 dated 26-4-1977 directing the assignment of the rights, title and interest of the landlord over the property in favour of the plaintiff. On the plaintiff depositing the purchase price on 7-6-1977 Ext.A2 certificate of purchase was issued to him on 3-6-1977.
Finding of the Court:
The courts below have found that inasmuch as Ext.A8 and Ext.A2 certificate of purchase were obtained by fraud and collusion, the plaintiff-appellant was not entitled to the declaration and the consequential reliefs prayed for in the suit and as a result of which the suit was dismissed. The court held that Ext.A8 must be deemed to have been merged in Ext.A5 and that the order which affects the rights of the parties is the order passed by the appellate authority. The court allowed the appeal and remanded the suit for fresh disposal, directing the trial court to take into account the verdict of the Appellate Authority in the appeal where Ext.A8 is challenged on the ground of fraud and collusion.
Issues: The main issue was whether the proceedings Ext.A8 based on which Ext.A2 certificate was issued, has got merged in Ext.A5. Another issue was whether the Appellate Authority constituted under the K. L. R. Act has the power to decide cases in which the orders are attacked on the ground of fraud or collusion.
Ratio Decidendi: The court held that the Appellate Authority under S.102 has the power to decide cases in which the orders are attacked on grounds of fraud or collusion. The court also held that the order which affects the rights of the parties is the order passed by the appellate authority. The court concluded that Ext.A8 must be deemed to have been merged in Ext.A5 and that the suit requires to be remanded to the trial court for fresh disposal, taking into account the verdict of the Appellate Authority in the appeal where Ext.A8 is challenged on the ground of fraud and collusion.
Final Decision: The appeal was allowed and the suit was remanded for fresh disposal, with the direction for the trial court to take into account the verdict of the Appellate Authority in the appeal where Ext.A8 is challenged on the ground of fraud and collusion.
1. Sri. P. Krishna Moorthi, Advocate, takes notice on behalf of the respondents.
2. The questions formulated in this Second Appeal read:
"A) Whether the first defendant has availed of the statutory remedy for setting aside Ext. A8 order and Ext. A2 certificate of purchase issued on the basis of the order and an adverse order Ext.A5 was passed in appeal inter parties, is the first defendant entitled to challenge the validity of Ext.A8 and Ext. A2 in collateral proceedings.
B) When Ext.A8 order has merged in Ext.A5 order of the Appellate Authority, is Ext.A8 order open to challenge as being vitiated by fraud and collusion?
C) Even if Ext.A2 certificate is bad in law, is not the plaintiff-entitled to the smaller relief namely the declaration of his possession and permanent injunction as tenant under Ext. Al ?
D) Is the finding that Ext.A2 is void as being vitiated by fraud and collusion based on any relevant material ? Is the finding sustainable in law and on the facts and circumstances of the case?
E) Is not the decree dismissing the suit without making a reference under S.125 (3) of the Kerala Land Reforms Act illegal and liable to be reversed."
2. Facts relevant and essential to determine the question arising for consideration, briefly stated are: The suit property, a reclaimed coconut garden, originally belonged to one Cherian. On the death of Cherian, Cherian's brothers and relations made attempts to get hold of the assets Cherian had left behind. The second defendant, the son of Cherian and third defendant his widow were unable to resist the attempts of the relations of Cherian to get at the assets. The second defendant at that time was a minor. Circumstanced like this, the third defendant acting for self and as guardian of the second defendant on 10-9-1958 demised the suit property on lease to the plaintiff, her brother as is seen from Ext.Al lease deed. The Land Tribunal within whose jurisdiction the property is situated, initiated suo motu proceedings under S.72 (C) of the Kerala Land Reforms Act for the assignment of the rights, title and interest of the landlord over the property to the cultivating tenant. The Land Tribunal after due enquiry passed Ext.A8 dated 26-4-1977 directing the assignment of the rights, title and interest of the landlord over the property in favour of the plaintiff. On the plaintiff depositing the purchase price on 7-6-1977 Ext.A2 certificate of purchase was issued to him on 3-6-1977.
3. In the meanwhile the first defendant had instituted suit, O.S.144 of 1975 in the Sub Court, Quilon against defendants 2 and 3 for specific performance of an agreement said to have been executed by them in his favour to sell the suit property to him. That suit was transferred to the District Court and renumbered as O.S.2 of 1977. Defendants 2 and 3 contested the suit. The said suit was dismissed on 8-7-1977. The first defendant filed A.S.290 of 1977 before this court which was compromised between the parties and as a result of which defendants 2 and 3 agreed to sell the property to the first defendant for a price to be fixed by the court on the basis of the valuation made by a Commissioner appointed for that purpose. Accordingly the price was fixed and a compromise petition was filed. A decree in terms of the
compromise was passed on 5-12-1979.
4. The appellant who had in the meantime obtained the certificate of purchase dated 3-6-1977 came to know about the decree on 11-12-1980. He thereupon instituted the suit from which this Second Appeal arises. It is relevant in this context to note that the suit which had been instituted in the Munsiff's Court was found not maintainable in the Munsiff's Court and as a result of which the same was returned for presentation before the Sub Court, Quilon. The plaint was taken back and represented in the Sub Court, Quilon where it was numbered as O.S.205/82.
5. The first defendant contested the suit. His main contention was that the plaintiff was not a lessee, that the proceed
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