Kerala High Court
P.M.Ramachandrn Nair vs Cherukattu Madhavikutty Amma on 9 July, 2010
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 630 of 2008(G)
1. P.M.RAMACHANDRN NAIR, S/O GOPALAN NAIR,
... Petitioner
Vs
1. CHERUKATTU MADHAVIKUTTY AMMA,
... Respondent
2. C.UMADEVI, UMA MANDIRAM,
3. C.GOPALAKRISHNAN,
4. C.INDIRA, UMA MANDIRAM,
For Petitioner :SRI.B.N.SHIVSANKAR
For Respondent :SRI.A.P.CHANDRASEKHARAN (SR.)
The Hon'ble MR. Justice K.T.SANKARAN
Dated :09/07/2010
O R D E R
K.T.SANKARAN, J.
------------------------------------------------------
C.R.P. NO. 630 OF 2008
------------------------------------------------------
Dated this the 9th day of July, 2010
O R D E R
This Revision is filed against the order passed by the Land Reforms Appellate Authority dismissing applications for condoning the delay of 11161 days in filing the appeals by the revision petitioner.
2. In this Revision, the petitioner contends that the orders passed by the Land Tribunal in the suo motu proceedings initiated in favour of the first respondent in the Revision are not binding on the petitioner on the ground of fraud. It is contended that when fraud is established, the delay in filing the appeal would be irrelevant. The contesting respondents dispute the case of fraud set up by the revision petitioner. They also contend that the plea of fraud raised by the Revision Petitioner, to get over res judicata, is barred by res judicata.
3. An extent of 2.41 acres of land in Ramanattukara Village, which is a garden land and which consists of buildings, belonged to C.R.P. NO.630 OF 2008 :: 2 ::
Achuthan Nair, who died on 3.3.1960. Achuthan Nair had a sister, Lakshmi Amma. Lakshmi Amma is no more. Her husband Gopalan Nair also died. The revision petitioner is one among the children of Lakshmi Amma and Gopalan Nair. The property was acquired by Achuthan Nair as per registered assignment deed dated 17.8.1935. That assignment was made by a person who had tenancy right in the property. The landowner was Abdullakutty Haji.
4. Gopalan Nair, the father of the revision petitioner, filed O.A.No.7543 of 1975 before the Land Tribunal, Beypore, under Section 72B of the Kerala Land Reforms Act for the assignment of the right, title and interest of the landlord and intermediary in 2.41 acres of land. In that proceeding, Achuthan Nair was shown as the intermediary and Abdullakutty Haji was shown as the land owner. Achuthan Nair was dead even before the filing of O.A.No.7543 of 1975. His widow, Madhavikutty Amma, was impleaded as supplementary party. In O.A.No.7543 of 1975, Gopalan Nair contended that he was the cultivating tenant in respect of the property. O.A.No.7543 of 1975 was contested by the respondents therein. The Land Tribunal, as per the order dated 25.9.1978, C.R.P. NO.630 OF 2008 :: 3 ::
dismissed the OA holding that there was no evidence to show that the property was entrusted to the applicant by the intermediary and that there was no evidence to show payment of rent. The tenancy set up by Gopalan Nair was an oral lease. The Land Tribunal held that there was no evidence to prove the tenancy. The appeal filed by Gopalan Nair as A.A.No.154 of 1979 on the file of the Appellate Authority (Land Reforms), Kozhikode was dismissed by the judgment dated 6.2.1982, confirming the order passed by the Land Tribunal. The Appellate Authority also held that Gopalan Nair failed to prove the tenancy and the landlord-tenant relationship. Though C.R.P.No.2352 of 1982 was filed by Gopalan Nair challenging the order of the Appellate Authority, the High Court dismissed the Revision by the order dated 18.7.1989.
5. After O.A.No.7543 of 1975 was filed, suo motu proceedings under Section 72C of the Kerala Land Reforms Act were initiated in S.M.C.No.562 of 1976 and S.M.C.No.558 of 1976 before the Land Tribunal No.I, Beypore, showing Madhavikutty Amma, widow of Achuthan Nair, as the cultivating tenant and Abdullakutty Haji as the land owner in respect of 1.38 acres of land C.R.P. NO.630 OF 2008 :: 4 ::
in R.S.No.181/4 of Ramanattukara Village and 24 cents in R.S.No.181/3A1B of the same village respectively. These lands form part of the land included in O.A.No.7543 of 1975. The revision petitioner or his predecessor was not a party to the aforesaid suo motu cases. The Land Tribunal allowed the suo motu cases by the order dated 25.3.1976 and pursuant to the same, purchase certificates were issued to Madhavikutty Amma on 10.8.1976. The petitioner stated that he was not aware of the pendency of the suo motu cases. Challenging the order passed by the Land Tribunal, the petitioner filed C.R.P.No.28 of 2007, which was dismissed as withdrawn on 5.1.2007, without prejudice to the right of the petitioner to file appeal before the Appellate Authority under Section 102 of the Kerala Land Reforms Act. Thereafter, the revision petitioner filed A.A.Nos.3 of 2007 and 9 of 2007 against the orders of the Land Tribunal in the suo motu cases. Applications were also filed to condone the delay of 11161 days in filing the appeals. Those applications were dismissed by the Appellate Authority by the order dated 8.5.2008, which is under challenge in this Civil Revision Petition.
C.R.P. NO.630 OF 2008 :: 5 ::
6. Meanwhile, the legal representatives of Achuthan Nair filed O.S.No.584 of 1982 before the Munsiff's Court, Kozhikode against Gopalan Nair and others for recovery of possession of the property on the basis of the title to the plaintiffs. The revision petitioner was the fourth defendant in that suit. In the suit, the plaintiffs relied on the purchase certificates issued in favour of the widow of Achuthan Nair in S.M.C.Nos.562 of 1976 and 558 of 1976. The trial court dismissed the suit as per the judgment and decree dated 24.7.1984. The plaintiffs filed appeal as A.S.No.231 of 1984 before the Sub Court, Kozhikode. The Appellate Court dismissed the appeal by the judgment dated 18.1.1989. The plaintiffs filed S.A.No.956 of 1989 before the High Court. The Second Appeal was allowed by the judgment dated 24.6.1999, against which, the defendants filed Civil Appeal No.4805 of 2000. The Civil Appeal was allowed on the ground that no substantial questions of law were raised by the Second Appellate Court. The Second Appeal was remanded for fresh disposal. Thereafter, the Second Appeal was allowed as per the judgment dated 7.4.2006. The defendants challenged the judgment of the High Court in SLP (Civil) No.15491 of 2006. The Supreme Court dismissed the Special Leave Petition. Thus the C.R.P. NO.630 OF 2008 :: 6 ::
decree in O.S.No.584 of 1982 became final. It is stated by the respondents that the decree was executed and the property was taken delivery of in execution of the decree. The case of the revision petitioner in the appeals filed by him against the orders in the suo motu cases referred to above was that he was not aware of the said proceedings pending before the Land Tribunal and the orders passed thereon. It is also contended that the orders passed by the Land Tribunal are vitiated by fraud. The fraud alleged is of the following nature:
7. The suo motu cases were initiated after the predecessor in interest of the revision petitioner filed O.A.No.7543 of 1975. The widow of Achuthan Nair was a party to that proceeding. In the suo motu cases, Gopalan Nair was not impleaded. The suo motu cases were heard by the Land Tribunal on 5.3.1976. On that day, before the same Land Tribunal, O.A.No.7543 of 1975 was posted. But, Madhavikutty Amma, the widow of Achuthan Nair, did not disclose the pendency of the suo motu cases before the same Land Tribunal while O.A.No.7543 of 1975 was taken up for hearing. Even after the suo motu cases were allowed on 25.3.1976, that fact was C.R.P. NO.630 OF 2008 :: 7 ::
suppressed by the legal representatives of Achuthan Nair before the Land Tribunal in O.A.No.7543 of 1975, which was dismissed only on 25.9.1978. In the appeal from O.A.No.7543 of 1975 also, the legal representatives of Achuthan Nair did not disclose that the suo motu cases were allowed on 25.3.1976. For the first time, the legal representatives of Achuthan Nair disclosed the fact that the Land Tribunal had allowed the suo motu cases, only in O.S.No.584 of 1982. However, the trial court did not rely on those purchase certificates and the suit was dismissed. The appeal therefrom was also dismissed. In the Second Appeal, the legal representatives of Achuthan Nair succeeded and the Second Appellate Court relied on the purchase certificates issued in the suo motu cases. In these circumstances, the revision petitioner had no other alternative but to challenge the orders in the suo motu cases and there occurred a delay of 11161 days in filing the appeals.
8. The trial court dismissed O.S.No.584 of 1982 accepting the case of the defendants that the plaint schedule properties were acquired by Achuthan Nair for and on behalf of his sister Lakshmi Amma, that the plaintiffs failed to establish their title over the C.R.P. NO.630 OF 2008 :: 8 ::
property and that the orders passed by the Land Tribunal in the suo motu cases are not binding on the defendants. Though the Appellate Court held that there are inconsistencies in the case put forward by the defendants, it was held that the defendants had perfected title by adverse possession and limitation. In the Second Appeal, the High Court reversed the findings of the trial court and the lower Appellate Court and held that the defendants had put forward inconsistent and irreconcilable pleas before the Land Tribunal and before the Civil Court. It was noticed by the High Court that the title of Achuthan Nair was admitted by the defendants in the suit. The case of Gopalan Nair, the father of the revision petitioner, before the Land Tribunal was that he was the cultivating tenant. In the suit, a different contention was put forward that Lakshmi Amma, wife of Gopalan Nair, was the cultivating tenant. The High Court held thus:
"All these fortify the plaintiff's case that Achuthan Nair was really entrusting the properties with his brother-in-law, the first defendant, presumably because Achuthan Nair was residing 20 miles away from the property. It must be remembered that Achuthan Nair died on 3.3.1960. He had his wife and a large family of 10 children of whom the eldest alone had become a C.R.P. NO.630 OF 2008 :: 9 ::
major. Hence the documentary evidence showing possession of the property with Lakshmi Amma or the first defendant or any of their children does not militate against the plaintiffs case that Achuthan Nair who was the absolute title holder had entrusted the properties with the 1st defendant as caretaker.
19. With regard to the entrustment set up by the contesting defendants in favour of Lakshmi Amma also the evidence was really conflicting and discrepant. Right from 1975 to 1982 the first defendant with the first plaintiff on the party-array was contending that he was in possession of the properties as a cultivating tenant and tried to get an order for assignment of the right title and interest of the landowner. But the 1st defendant was not successful in getting his application allowed in his favour. In the present suit, he however, came out with a different case that his wife Lakshmi Amma was in possession as the cultivating tenant and he attempted to prove the said case by producing the very same revenue receipts which were produced before the Land Tribunal in the purchase application filed by him earlier..."
9. The High Court also considered in the Second Appeal whether the purchase certificates issued by the Land Tribunal in C.R.P. NO.630 OF 2008 :: 10 ::
favour of the widow of Achuthan Nair were vitiated by fraud or collusion. In this context, the High Court held thus:
"When the title over the properties admittedly belonged to Achuthan Nair, Exts.A3 and A4 certificates of purchase should be presumed to be conclusive proof of the fact that he was the cultivating tenant in possession of the property in question. As per the statutory scheme of the K.L.R.Act a person in possession alone can be the cultivating tenant and when the competent Land Tribunal has held that the legal heirs of Achuthan Nair are the cultivating tenants entitled to purchase the jenm rights, it goes without saying that they are the persons in possession. There is nothing to show that the said certificates of purchase are vitiated by fraud or collusion or are inaccurate on their face so as be eschewed from consideration. As against this there is the evidence furnished by Exts.A5 and A6 orders of the land reform authorities dismissing the claim made by the first defendant for purchase on the basis that his wife Lakshmi Amma was the tenant."
10. Coming back to the order passed by the Appellate Authority which is challenged in this Revision, the Appellate Authority held that the father of the appellant was aware of the order passed C.R.P. NO.630 OF 2008 :: 11 ::
by the Land Tribunal, at least in 1982 when O.S.No.584 of 1982 was filed and in which, the orders passed by the Land Tribunal were produced. The Revision Petitioner contested the suit and took up the matter up to the Supreme Court, but he failed. The High Court had even negatived the contention that the purchase certificates are vitiated by fraud or collusion.
11. Learned counsel for the petitioner relied on several decisions of the Supreme Court and of the Madras and Calcutta High Courts in support of the contention that when fraud is established, it would vitiate the orders impugned and the principles of res judicata would not be applicable to the order which is proved to be obtained by fraud. In Lakshmi Charan Saha v. Nur Ali (38 I.L.R. Calcutta
936), it was held that the jurisdiction of the Court in trying a suit is not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by fraud of the defendants and the "Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree". In Manindra Nath Mittra vs. Hari Mondal (AIR 1920 Calcutta 126), it was held that in a suit to set C.R.P. NO.630 OF 2008 :: 12 ::
aside an exparte decree on the ground that it was obtained by fraud, the Court has no jurisdiction to decide on the merits of the former judgment, its function is to decide whether that judgment is vitiated by fraud. In S.P.Chengalvaraya Naidu v. Jagannath and others ((1994) 1 SCC 1) the Supreme Court held that it is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. It was also held that the principle of finality of litigation cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. In Hamza Haji v. State of Kerala and another ((2006) 7 SCC 416), the Supreme Court held thus:
"25. Thus, it appears to be clear that if the earlier order from the Forest Tribunal has been obtained by the appellant on perjured evidence, that by itself would not enable the Court in exercise of its power of certiorari or of review or under Article 215 of the Constitution of India, to set at naught the earlier order. But if the court finds that the appellant had founded his case before the C.R.P. NO.630 OF 2008 :: 13 ::
Forest Tribunal on a false plea or on a claim which he knew to be false and suppressed documents or transactions which had relevance in deciding his claim, the same would amount to fraud..."
12. It is well settled that fraud vitiates the most solemn proceedings of Courts of justice. In order to impeach a judgment on the ground of fraud, actual fraud must be established. Fraud must be extrinsic and collateral to the matter tried and not a matter actually or potentially in issue in the action.
13. In Govindan Gopalan v. Raman Gopalan (1978 KLT 315 (FB)), a Full Bench of the Kerala High Court held that the decision of the Land Tribunal under the Kerala Land Reforms Act will be res judicata in a suit before the civil court. Subsequent to the decision of the Full Bench, by the Kerala Land Reforms (Amendment) Act (Act 27 of 1979), Section 108A was inserted in the Act. Section 108A provides that the provisions of Section 11 of the Code of Civil Procedure, 1908 shall, so far as may be, apply to proceedings before the Land Tribunal. The five Judge Bench of the Kerala High Court in Kesava Bhat v. Subraya Bhat (1979 KLT 766 (F.B.)), held that the C.R.P. NO.630 OF 2008 :: 14 ::
decision of the Land Tribunal as to the existence of a tenancy will be res judicata in a subsequent civil suit or proceeding between the same parties, and will bar a further decision on the same point by the Land Tribunal or the court in a subsequent suit or proceeding. In the present case, there is no dispute that O.A.No.7543 of 1975 filed by the predecessor in interest of the revision petitioner, claiming tenancy right was dismissed and it was confirmed in appeal and revision. That decision is binding on the revision petitioner. His contention that his mother, who was the sister of the land owner, was a cultivating tenant is barred by res judicata in view of the decision in O.A.No.7543 of 1975. The claim of tenancy by the petitioner, his father and mother is also barred by res judicata in view of the finality attained in O.S.No.584 of 1982, in which the petitioner and his mother were parties. The suit was decreed and the matter was taken up to the Supreme Court. The decree was executed and delivery of the property was taken. There is no case for the petitioner that the proceedings in O.A.No.7543 of 1975 and O.S.No.584 of 1982 were vitiated by fraud. If those decisions are treated as final and binding on the revision petitioner, he cannot claim any tenancy right or intermediary right or landlord's right in C.R.P. NO.630 OF 2008 :: 15 ::
respect of the property. If so, how could the revision petitioner or his father or his mother now contest the suo motu cases initiated in favour of the widow of Achuthan Nair ? The answer would be an emphatic 'no'. Technically speaking, the petitioner may not be bound by the orders passed in the suo motu cases, as he or his predecessor in interest was not a party to that proceeding. The question is not whether the petitioner is bound by that order. The question is whether the order passed in favour of the widow of Achuthan Nair in those suo motu proceedings could be set at naught by the revision petitioner on the ground that he was not made a party to those proceedings. Even if the orders passed by the Land Tribunal in the suo motu cases are set aside and the Land Tribunal is directed to decide the matters afresh, what contention could the revision petitioner take in that proceeding ? He cannot raise the contention that he is a cultivating tenant. If so, he cannot challenge the order passed by the Land Tribunal in favour of the cultivating tenant therein. Therefore, I am of the view that even if all the contentions of the petitioner are accepted, that would not advance his case and he could not prevent a purchase certificate being issued in favour of the cultivating tenant. An argument can be put C.R.P. NO.630 OF 2008 :: 16 ::
forward that if the widow of Achuthan Nair does not get a purchase certificate, that would advance the case of the petitioner to plead adverse possession. Such a plea was negatived in S.A.No.956 of 1989. Therefore, the plea of adverse possession is also barred by res judicata. The second Appellate Court held that the defendants having put forward a case of permissive possession and having put forward possession under the colour of title, they could not plead that they had perfected title by adverse possession. Therefore, I am of the view that in view of the judgment in S.A.No.956 of 1989 and the order in O.A.No.7543 of 1975, the revision petitioner is barred from putting forward (a) a claim of tenancy; (b) a claim of title; and (c) a plea of adverse possession. In view of this position, the petitioner would not be able to contest the claim put forward by the cultivating tenant in the suo motu cases.
14. The plea of fraud was apparently raised by the petitioner in the Second Appeal and that was negatived. The plea of fraud is thus barred by res judicata. Even if it is taken that the plea of fraud was not considered by the second Appellate Court, the plea raised by the petitioner would still be barred by res judicata as he might and C.R.P. NO.630 OF 2008 :: 17 ::
ought to have raised such a plea in the suit and in the Second Appeal filed against him and others. Therefore, the only irresistible conclusion that could be arrived at is that the plea of fraud raised by the petitioner is barred by res judicata, the petitioner having no case that the proceedings before the Civil Court, the Appellate Court and the second Appellate Court were vitiated by fraud. Fraud, if established, would vitiate the decree obtained by fraud. Plea of res judicata would not be available against such plea of fraud. But if the plea of fraud is barred by res judicata, such plea of fraud would not displace the binding nature of the decree or order and the operation of the principles of res judicata in respect of that decree or order.
For the aforesaid reasons, the Civil Revision Petition is dismissed, however, without any order as to costs.
(K.T.SANKARAN) Judge ahz/