Defendants 1 to 9 in O.S.No.139/1990 on the file of the Munsiff Court, Kasaragod are the appellants herein. The suit was one filed by the first respondent herein for cancellation of the order in O.A.No.97/1974 of Special Tahsildar LR-1, Kasaragod and declaration of the right of the plaintiff and for consequential injunction restraining defendants 1 to 9 from trespassing into the plaint schedule property with following allegations:
Plaint A schedule property belongs to the plaintiff as absolute Jenm right and he has been in possession and enjoyment of the same. The property originally belonged to Ibrahine Beary, father of the plaintiff and on 6.9.1943, he executed a mortgage deed (illidarwar) in favour of Shankara Kadambalithaya and Sreepathi Kadambalithaya who are the senior most members of Hindu undivided family of the 10th defendant and mortgagee was put the possession of the property. Subsequently in 1974, there was a partition in the family of the mortgagee and the plaint schedule property along with other items were allotted to separate share of 10th defendant. In the meanwhile during Vishu, 1960, plaintiff got back possession of the mortgage properties including the plaint schedule property, but the release deed S.A. No.27 of 1999 2 could not be executed in 1960 as there were some dispute between the members of the mortgagee's family regarding the partition of their properties. As per the partition deed dated 04.09.1974, the plaint A- schedule property along with other items were allotted to the share of the 10th defendant and thereafter 10th defendant on 01.11.1976 released the mortgage right in favour of the plaintiff. Since 1960 onwards, plaintiff has been in possession and enjoyment of the property. Neither the defendants nor late Abdulkhader, who is the predecessor of defendants 1 to 9 were ever in possession of the property. During February 1990, defendants 3 and 4 attempted to trespass into plaint A-schedule property by demolishing the compound wall on the east of plaint-A schedule property and on the basis of the complaint given, the defendants before the Adoor police station claimed that late Abdulkhader their predecessor obtained jenm right through land tribunal as per order in O.A.97/74 and they are in possession of the property. The order of the land tribunal is vitiated by fraud and misrepresentation and it is not valid and binding on the plaintiff. No notice was issued to the plaintiff in the said O.A. Before partition of the tharavad, 10th defendant was not competent to represent his tharavad. Plaintiff was not impleaded in the O.A. So the plaintiff has no other remedy, except to approach this court seeking S.A. No.27 of 1999 3 the relief of cancellation of the order in the O.A. or in the alternate to set aside the same on the ground of fraud and also for declaration of title of the plaintiff over the plaint schedule rooms and injunction.
2. Defendants 3 to 9 entered appearance and filed written statement stating that the court has no jurisdiction to entertain the suit. Abdulkhader, father of Defendants 1 to 4 and 6 to 9 and husband of 5th defendant was a cultivating tenant in respect of the plaint schedule property and he was in possession and enjoyment of the same till his death and after his death, his wife and children are in possession of the same. Abdulkhader filed O.A.97/1974 before the land tribunal, Special Tahsildar LR-1, Kasaragod for assignment of landlord's right, impleading the 10th defendant as the landlord as he was in possession of the property as the 'karanavar' of the tharavad under whom Abdulkhader was in possession as a lessee. After proper investigation, the tribunal allowed the application. The proceedings was not vitiated by fraud or misrepresentation and it is valid and binding on the plaintiff. Plaintiff was not the owner in possession of the plaint schedule property. The alleged release deed dated 01/11/1976 in favour of the plaintiff is not valid and genuine and binding on the defendants. The allegation that, the property was released during Vishu, 1960 and the plaintiff has been in possession of the property S.A. No.27 of 1999 4 since then is not correct. The property has not been properly identified. So they prayed for dismissal of the suit.
3. 10th defendant remained exparte.
4. On the basis of the pleadings, following issues have been framed by the trial court for consideration.
1. Whether the plaintiff has got right and possession over the plaint-A schedule property?
2. Whether the order of the Land Tribunal in O.A.97/74 is vitiated by fraud and misrepresentation?
3. Whether the plaintiff is entitled to get the relief of declaration sought for?
4. What order as to relief and costs?
5. The plaintiff was examined as PW1 and one witness was examined as PW2 and Exts.A1 to A5 were marked on his side, DW1 was examined and Exts.B1 to B3 were marked on the side of the defendants 2 to 9. Exts.C1 and C1(a) and C2 were also marked. After considering the evidence on record, the trial court found that the plaintiff alone is not entitled to maintain the suit as he is not having exclusive right and he is only one of the co-owners and there is no evidence to show that the proceedings before land tribunal in O.A.No.97/1974 is vitiated and dismissed the suit. Aggrieved by the same, the plaintiff filed appeal before the District Court, Kasaragod and it was made over to Sub Court, Kasaragod, where it was numbered as S.A. No.27 of 1999 5 A.S.No.220/1996. Learned Sub Judge by the impugned judgment allowed the appeal and decreed the suit. In the appeal Ext.A6 was marked. Dissatisfied with the same, the present second appeal has been filed by the appellants/defendants 1 to 9 by the court below.
6. At the time of admission, the substantial question of law raised in the appeal memorandum has been accepted as substantial question of law arise for consideration and the same has been formulated, which reads as follows:
a. When a person claim tenancy under 'A' and files an application for assignment under the K.L.R.Act and the landlord does not dispute the tenancy, is not the order passed in that application by the Land Tribunal a valid order binding on A and all who claim under him? If so has not the Lower Appellate Court committed an error of law in holding that the order in O.A.No.97/1974 is not valid or binding on the plaintiff?
b. In a case covered by the above question A., if it is found that the landlord was only a mortgage and the mortgagor was some one else, can it be said that the order in O.A.No.97/1974 is illegal or invalid for any reason?
c. Is not Ext.A2 release, under which the plaintiff claim right and his suit, hit by the principle of Lis Pendense in as much as it was executed during the pendency of O.A.No.97/1974? If so has not the Lower Appellate Court committed an error of law in granting a decree relying on Ext.A2?
d. Can a purchase certificate under the K.L.R.Act be declared to be invalid, on the sole ground that one of the interested parties are not made a party to the proceeding, even if S.A. No.27 of 1999 6 the landlord is a party? Is not the remedy of such an aggrieved party lie under the K.L.R.Act itself?
e. On the facts and circumstances of the case is the decision of the Lower Appellate Court sustainable?
7. During the pendency of the appeal original 10th respondent died and his legal heirs were impleaded as additional respondents 11 to 13 as per order in I.A.No.1043/96. During the pendency of the appeal, the first appellant died and supplemental appellants 10 to 13 were impleaded as per common order in I.A.Nos.1924/2017, 1925/2017 and C.M.Appln.No.577/2017, after condoning the delay and setting aside the abatement caused.
8. Heard Sri.Gouri Sankar Rai, counsel appearing for the appellant and Sri.Sreehari Rao, counsel appearing for the first respondent.
9. The counsel for the appellant submitted that, admittedly the relief claimed in the suit was for cancellation of the order in O.A.No.97/1994 of Special Tahsildar LR-1, Kasaragod on the ground of fraud and misrepresentation. In fact 10th defendant is the 'karanavar' of the tharavad to which the father of the plaintiff had mortgaged the property as per Ext.A2 and even according to the plaintiff, in 1974, the plaint schedule property along with other properties were allotted to the share of the 10th defendant, who in turn assigned his right S.A. No.27 of 1999 7 including the right of equity of redemption as per Ext.A1 document to the plaintiff. O.A. proceedings were initiated in 1974 and 10th defendant was the owner of the property at that time and the transfer was effected during the pendency of the proceedings. Even if any fraud has been committed, that has been committed by the assignor of the plaintiff and he had not taken any action against his assignor for that. Further the evidence of PW1 will go to show that, what is the nature of fraud committed has not been either pleaded or proved by him. Further the partition deed of the family of the 10th defendant has not been produced to show that the plaint schedule property was allotted to him and the right of release obtained by him as per Ext.A1 is valid. Further the dispute is only in respect of the portion of the property mortgaged and the 10th defendant was exparte in the land tribunal proceedings. These aspects were not considered by the lower appellate court. Further even according to the plaintiff, there are other legal heirs of his father and they were not impleaded and it was not mentioned that the suit was filed on their behalf as well. So the trial court has considered all these aspects and rightly dismissed the suit and the appellate court was not justified in reversing the same and decreeing the suit.
10. On the other hand, the counsel for the contesting S.A. No.27 of 1999 8 respondent submitted that, the lower appellate court had properly considered all the aspects. Further according to his knowledge, the matter has been settled between the parties and the plaintiff in the lower court had accepted the purchase certificate in favour of the appellant's predecessor and he has no objection in allowing the appeal and no such settlement had been received and the same could not be produced before the court, this may also be considered.
11. It is an admitted fact that the plaint schedule property originally belonged to the father of the plaintiff, who had mortgaged the same to the family of the 10th defendant evidenced by Ext.A2 mortgage deed. According to the plaintiff, there was a partition in the family of the 10th defendant and the plaint schedule property along with other properties were allotted to the share of the 10th defendant, who in turn assigned his rights in favour of the plaintiff as per Ext.A1. Even prior to that, during Vishu, 1960, the property was released in his favour and he has been in possession of the same.
12. It is also averred in the plaint that predecessor of defendants 1 to 9 Abdul Khader obtained Annexure A3 order from the Land Tribunal in respect of 11 Ares of property comprised in Survey No.8/5 of Adhur Village of Kasaragod Taluk. It is seen from Annexure A3 order that the 10th defendant was shown as the land owner. According to S.A. No.27 of 1999 9 him, the order as obtained by exercising fraud without impleading the plaintiff and so it is not valid.
13. Admittedly, during 1974, the mortgagee was in possession of the property and according to the plaintiff also, the property was mortgaged to the family of the 10th defendant and in the Partition Deed of 1974, this property was allotted to the 10th defendant. Later, he assigned the same in 1976 as per Annexure A1 document in his favour. So during 1974, it is clear that the 10th defendant is the owner of the property even according to the plaintiff. Since 10th defendant is in possession as a mortgagee in possession, he will be deemed to be a landlord under the Kerala Land Reforms Act for the purpose of assignment, under whom the predecessor of the defendants was claiming tenancy right.
14. The nature of fraud or misrepresentation has not been mentioned in the plaint. The only ground alleged was that he was not made party and no notice was served on him and as such the same is not binding on him. It is brought out in the evidence of PW1 that he did not make any enquiry as to whether notice was served on the 10th defendant and whether he entered appearance or not in the Land Tribunal proceedings. Since the property was obtained during the pendency of the Land Tribunal proceedings, it is the duty of the S.A. No.27 of 1999 10 assignee to come on record. Further, the pendency of the Land Tribunal proceedings was not mentioned in Ext.A1 and if any suppression was made by the 10th defendant when the assignment was made, the predecessor of the appellants cannot blamed for that. Further, it is seen in Ext.A3 that individual notice under Section 72(f) (2) was duly served on the respondent and he did not file any objection. Further, the Special Revenue Inspector has inspected the property, which was noted as Ext.C1 in the Land Tribunal proceedings and it is seen that some objection has been filed by the 10th respondent to the Special Revenue report but no documentary evidence has been adduced to prove his contentions. So it is after considering those aspects that the Land Tribunal had come to the conclusion that the claimant in that proceedings is a cultivative tenant under the respondent and granted an order of assignment in respect of the property covered by the application after due enquiry.
15. It is true that if the party can establish that the order was obtained by fraud or misrepresentation, then the jurisdiction of the Civil Court to go into the question to set aside the order of the Land Tribunal is not ousted. But on all other aspects, the aggrieved party has to exercise the remedy under the Kerala Land Reforms Act by filing an appeal, which has not been done in this case. The evidence of S.A. No.27 of 1999 11 PW1 is not sufficient to come into the conclusion that any fraud or misrepresentation was committed by the claimant in getting the order of assignment in his favour. So under such circumstances, by virtue of Ext.A6 application filed by the 5th respondent in the appeal before the Lower Appellate Court was rejected by the Land Tribunal and affirmed by the Appellate Authority is not sufficient to come to the conclusion that the tenancy claimed by Abdul Khader, the predecessor of the appellants in this case, is not valid. It is in respect of some other property not connected with the plaint schedule property. Further, except producing certain documents showing that the plaintiff was in possession alone is not sufficient to come to the conclusion that he has been in possession of the property from 1960 onwards as claimed, especially when he obtains the right of release only 1976 during the pendency of the Land Tribunal proceedings. Any order passed against his assignor is binding on him as the assignment is hit by the principles of lis pendens. These aspects have not been considered by the Lower Appellate Court before setting aside the decree and judgment dismissing the suit passed by the Trial Court and decreeing the suit. Under such circumstances, the decree and judgment passed by the Lower Appellate Court setting aside the decree and judgment of dismissal of the Trial Court is unsustainable in law and the same are S.A. No.27 of 1999 12 liable to be set aside. The substantial question of law raised are answered in favour of the appellants.
In the result, the second appeal is allowed and the decree and judgment passed by the Sub Judge in A.S. No.220 of 1996 are set aside and the decree and judgment passed by the Trial Court in O.S. No.136 of 1990 is restored. Considering the circumstances of the case, parties are directed to bear the respective costs in the appeal. Registry is directed to communicate the judgment and send back the records to the Court below at the earliest.
Sd/-
K. RAMAKRISHNAN, JUDGE.
//True copy// P.A. to Judge ss/sp/02/08/17