Kochukuttan vs Davis, Sreenivasan and Kalyani

Thomas P. Joseph, J.—The Second Appeal arises from the judgment and decree of learned District Judge, Thrissur in A.S. No. 261 of 1998 reversing the judgment and decree of the learned Sub Judge, Thrissur in O.S. No. 871 of 1987. Appellant filed the suit for a declaration that as per proceedings in S.M.P. Nos. 1880 of 1976 and 6 of 1980 and A.A. Nos. 554 and 555 of 1980 of the Land Reforms (Appellate Authority), appellant is the owner of the suit property, that the judgment and decree in O.S. No. 483 of 1975 and A.S. No. 74 of 1979 are not binding on the appellant and for recovery of possession in case the respondents are found to be in possession of the suit property. The trial court granted a decree in favour of the appellant but only to be reversed by the first appellate court.

The property described in the plaint schedule is 51.50 cents which forms part of a total of 1.17 Acres. Appellant claimed that the said property belonged to Tirumalai Swamy Gowndar and Myil Swamy Gowndar who had verumpattom right over the said property. While so, there was an oral agreement for sale of that verumpattom right in favour of the appellant. Tirumalai Swamy Gowndar and Myil Swami Gowndar agreed to sell the verumpattom right to the appellant for a consideration of Rs. 15,000/- . For payment of the said amount, appellant collected Rs. 7,500/- from the 2nd respondent. Tirumalai Swamy Gowndar and Myil Swami Gowndar executed Ext. B3, assignment deed dated 27.05.1974 in favour of the 3rd respondent (wife of the 2nd respondent) regarding the 50 cents as security for repayment of the sum of Rs. 7,500/- appellant had collected from the 2nd respondent. It is further stated that appellant collected Rs. 3,000/- from the 3rd respondent for payment of the sale consideration to Tirumalai Swamy Gowndar and Myil Swamy Gowndar and as security for repayment of that amount, Tirumalai Swamy Gowndar and Myil Swamy Gowndar executed Ext. B6, assignment deed dated 20.02.1975 in favour of the 2nd respondent regarding the 15 cents. Appellant claimed that in the meantime, as per order in S.M.P. No. 1880 of 1976 appellant was issued Ext. A1, purchase certificate concerning the 65 cents. The 1st respondent challenged the assignment order leading to Ext. A1, purchase certificate, in A.A. No. 555 of 1980 but that appeal was dismissed as time barred. By virtue of Exts. B3 and B6, the 1st respondent initiated S.M.P. No. 6 of 1980 before the Land Tribunal (for short, "the Tribunal") for purchase of landlord''s right. That application was dismissed in view of the order on S.M.P. No. 1880 of 1976. Challenging that order, the 1st respondent filed A.A. No. 554 of 1980 which also ended in dismissal (since the Tribunal had by then passed order on S.M.P. No. 1880 of 1976 and issued Ext. A1, purchase certificate to the appellant). Appellant claimed that Exts. B3 and B6, assignment deeds in favour of the 3rd and 2nd respondents, respectively are void as the amounts borrowed were later repaid and he is in exclusive possession of the property. In case respondents disputed possession, appellant prayed for recovery of possession.

Respondents 2 and 3 did not contest the suit. The 1st respondent contended that he acquired right, title, interest and possession of the 65 cents respondents 2 and 3 had as per Exts. B3 and B6, by Ext. B7, assignment deed dated 22.10.1979. He also contended that the purchase certificate in favour of the appellant is invalid. The purchase certificate was obtained fraudulently without notice to respondents 1 to 3. Appellant never had possession of the suit property.

The trial court based on Ext. A1, purchase certificate declared the appellant as title holder of the suit property. The trial court was of the view that the 1st respondent has not claimed tenancy right over the suit property and there was no request to refer the question to the Tribunal. The trial court, acting upon Ext. A1, allowed the appellant to recover possession of the suit property.

The 1st respondent challenged that judgment and decree in A.S. No. 261 of 1998. The learned District Judge took the view that Ext. A1, purchase certificate is invalid since it is hit by Section 52 of the Transfer of Property Act (fort short, "the Act") since by the time the Tribunal initiated S.M.P. No. 1880 of 1976, O.S. No. 483 of 1975 filed by respondents 2 and 3 against the appellant was pending decision in the civil court. The first appellate court found that in view of the decision of the civil court in O.S. No. 483 of 1975, Ext. A1, purchase certificate has no validity. It further held that appellant never had possession of the suit property, not to say on 01.01.1970 when the right of the landlord vested with the Government. It also held that Ext. A1, purchase certificate was obtained fraudulently, suppressing facts and without notice to respondents 2 and 3 even who, even according to the appellant were the owners of the suit property.

The first appellate court accepted Exts. B3, B6 and B7. The judgment and decree of the trail court were reversed and the suit was dismissed. Hence this Second Appeal.

The following substantial questions of law are framed for a decision:

(i) Whether in the facts and circumstances of the case, the lower appellate court was right in holding that the plaintiff obtained Ext. A1, purchase certificate fraudulently and whether the court below has correctly appreciated and applied the principles which constitute fraud in the context and envisaged in S. 72K of the Land Reforms Act (for snort, "the KLR Act")?

(ii) Whether the court below went wrong in finding that the presumption under Sec. 72K of the KLR Act is subject to Sec. 52 of the Act considering the facts and circumstances of the case?

It is contended by the learned counsel for the appellant that the first appellate court has not approached the factual situation in the legal and correct perspective. The learned counsel contended that in view of the decision of the Full Bench in Kesava Bhat v. Subraya Bhat (1979 KLT 766), O.S. No. 483 of 1975 being a simple suit for injunction where the only question for decision was whether respondents 2 and 3 (plaintiffs in that suit) were in possession, the question of tenancy or reference of the claim of tenancy to the Tribunal did not arise. Hence the Tribunal was competent to entertain S.M.P. No. 1880 of 1976 and pass assignment order in favour of the appellant. It is argued that for the said reason the finding of the first appellate court that Ext. A1 is hit by Sec. 52 of the Act cannot be sustained. The learned counsel also argued that so far as the right, title, interest and possession of the appellant as per Ext. A1, purchase certificate is concerned, by the dismissal of S.M.P. No. 6 of 1980 filed by the 1st respondent claiming tenancy and of A.A. Nos. 554 and 555 of 1980 which have become final, Ext. A1 stands and hence the possession and tenancy right of the appellant stands. It is argued that the assignment order in S.M.P. No. 1880 of 1976 and Ext. A1 would operate as res judicata against the contentions raised by the 1st respondent that he is in possession and enjoyment of the property. The Tribunal has exclusive jurisdiction to decide the issue regarding tenancy and hence the civil court cannot interfere in the matter. Exhibit A1 is conclusive also regarding possession of the appellant over the suit property. Reliance is placed on the decisions in Koran v. Kamala Shetty (1977 KLT 358), Govindan Gopalan v. Raman Gopalan (1978 KLT 315) and Paily Thommen v. Thommen (1984 KLT 19 [Case No. 34). There is no evidence to show that Ext. A1 was obtained fraudulently. A further argument of the learned counsel is that Exts. B3 and B6 were executed by Tirumalai Swamy Gowndar and Myil Swamy Gowndar in favour of respondents 2 and 3 merely as security for repayment of the amount collected by the appellant for payment of the agreed sale consideration of Rs. 15,000/- to the said Tirumalai Swamy Gowndar and Myil Swamy Gowndar. It is argued by the learned counsel that the said amounts were paid to respondents 2 and 3 as per a registered document of the year, 1985 (not produced in the courts below or in this Court) and hence on the said payment, Exts. B3 and B6 became void. It is argued that the copy of report of the Revenue Inspector (in Ext. A1, proceeding) could be acted upon in the civil court even without examining that Officer. Appellant has also filed an argument note.

In response it is argued by the learned counsel for the 1st respondent that Ext. A1, purchase certificate and the assignment order preceding it being during the pendency of O.S. No. 483 of 1975 are hit by Sec. 52 of the Act. The Tribunal could not have entertained S.M.P. No. 1880 of 1976 when O.S. No. 483 of 1975 was pending. It is argued by the learned counsel that though O.S. No. 483 of 1975 was a suit for injunction alone, the question as to who among the appellant and respondents 2 and 3 was in possession of the suit property was under the consideration of the civil court. At that stage, the Tribunal could not have entertained S.M.P. No. 1880 of 1975 as if appellant were in possession of the suit property, be it as a cultivating tenant as he pleaded, proceeded with that proceeding and allowed it even after the decision of the civil court in O.S. No. 483 of 1975 that the appellant had no possession of the suit property and that respondents 2 and 3 were in possession. Exhibit A1 was obtained fraudulently, behind the back of respondents 2 and 3. They had right, title, interest and possession of the 65 cents as per Exts. B3 and B6. They in turn, executed Ext. B7, assignment deed in favour of the 1st respondent as regards the said 65 cents. Thus the 1st respondent got title and possession of the property.

I am to first consider what is the effect of Ext. A1, purchase certificate as regards the claim made by the appellant. It is not disputed that respondents 2 and 3 (who claimed title and possession of the property as per Exts. B3 and B6) filed O.S. No. 483 of 1975 against the appellant for a decree for prohibitory injunction against trespassing into the 65 cents. Respondents 2 and 3 claimed to be the owners in possession of the suit property as per Exts. B3 and B6 executed by Tirumalai Swamy Gowndar and Myil Swamy Gowndar who admittedly had verumpattom right over the suit property. Exhibit B1, copy of judgment dated 01.01.1997 in O.S. No. 483 of 1975 shows that the civil court found that respondents 2 and 3 are in possession of the property, appellant had no possession and accordingly granted a decree against the appellant. It is not disputed, and Ext. B1 shows that the civil court refused to accept plea of the appellant as to his possession and his plea against Exts. B3 and B6. Appellant challenged the judgment and decree in O.S. No. 483 of 1975 in A.S. No. 74 of 1979. That appeal was dismissed on 30.08.1979 as revealed from Ext. B2, copy of decree.

It is relevant to note that it is in the year 1976 (i.e., when O.S. No. 483 of 1975 was pending consideration in the civil court) that the Tribunal initiated S.M.P. No. 1880 of 1976 at the instance of the appellant. It is admitted that the assignment order was passed by the Tribunal on 16.05.1977 and following that Ext. A1, purchase certificate was issued on 19.08.1977. That means, the Tribunal entertained S.M.P. No. 1880 of 1976 when O.S. No. 483 of 1975 was pending in the civil court and passed the assignment order on 16.05.1977 and issued Ext. A1, purchase certificate on 19.08.1977, after the civil court by Ext. B1, judgment dated 01.01.1977 upheld the possession of respondents 2 and 3 based on Exts. B3 and B6 and found against the claim of the appellant that he is in possession of the suit property. Without possession, the appellant could not have claimed before the Tribunal that he is a cultivating tenant of the suit property.

No doubt, the decisions relied by the learned counsel for the appellant would support the argument that a reference of the question of tenancy arises under Sec. 125(3) of the KLR Act only when it arises for decision in the civil court. There is no dispute that only the Tribunal could decide the issue of tenancy or such other question which the Tribunal is required by the KLR Act to decide. There is also no dispute that in a simple suit for injunction based on possession, no question of reference under Sec. 125(3) of the KLR Act is involved as the civil court in such a suit is only concerned with the question whether the plaintiff seeking decree for injunction is in possession of the property.

But, that does not mean that the Tribunal is not bound by or could ignore the decision of the civil court as to possession. For, a person found by the civil court to have no possession of the property could not again claim before the Tribunal that he is in possession of the property as a cultivating tenant. The Tribunal is bound by the decision of the civil court regarding possession as well. The finding of the civil court on the issue of possession would bind the parties before the Tribunal on the principle of res judicata and bar a further or fresh investigation by the Tribunal on the question of possession which is ancillary to the question whether the appellant before the Land Tribunal is a cultivating tenant or not.

In this case, the civil court by Ext. B1, judgment dated 01.01.1977 held that the appellant has no possession of the suit property. The Tribunal could not have on 16.05.1977 held that the appellant is in actual possession of the suit property (as a cultivating tenant).

The decision in Parameswaran Thampi v. Podiyan Varghese (1984 KLT 397) confirmed by the Supreme Court in Mathevan Padmanabhan v. Parameswaran Thampi ([1995] Suppl. [1] SCC 479) says that when the civil court is in seizin of the matter and when the suit is pending, an application if preferred before the Tribunal, the Tribunal has to keep its hands off until the civil court decided the matter. In the above decision the plaintiff claimed to be in possession of an item of property. He claimed that the said item was originally leased to the 3rd defendant in the suit who later surrendered it to him. The 3rd defendant claimed that there was no such surrender and he continued to be in possession as a cultivating tenant entitled to fixity of tenure. The question of tenancy was referred to the Tribunal for a decision. In the meantime, the 3rd defendant made an application to the Tribunal for assignment of landlords'' rights. The reference was answered in favour of the 3rd defendant. Consequently, application was also allowed. Plaintiff challenged the decision on the application before the appellate authority. That appeal was dismissed for default. This Court and the Supreme Court held that when the finding on the reference is accepted by the civil court, it becomes part of decision of the civil court which is subject to an appeal before the appellate court and hence, the Tribunal could not have proceeded with the application and decided the same. The proper course open, in such situation was to keep the application pending until the civil court finally decided the issue and thereafter, based on that decision the Tribunal is to dispose of the application. Remember, the core issue involved in Parameswaran Thampi''s case (supra) was whether the 3rd defendant continued to be in possession of the property on the date of the suit.

In this case, S.M.P. No. 1880 of 1976 was initiated when O.S. No. 483 of 1975 was pending in the civil court. As above stated the question whether appellant was in possession of the suit property was involved in O.S. No. 483 of 1975. Hence the Tribunal ought to have kept the proceeding in S.M.P. No. 1880 of 1976 pending until the civil court finally decided the issue regarding possession and thereafter proceeded to decide S.M.P. No. 1880 of 1976. Hence the decision in S.M.P. No. 1880 of 1976 is hit by Sec. 52 of the Act which principle, it has been held, applies to the proceedings before the Tribunal also.

It is true that the appeal against the order in S.M.P. No. 1880 of 1976 was dismissed by the appellate authority (as time barred) and hence it could be argued that the order appealed against was confirmed. But the dismissal of the appeal as time barred would not remove the application of Sec. 52 of the Act to the proceeding in S.M.P. No. 1880 of 1976. Moreover, Ext. B1, judgment in O.S. No. 483 of 1975 was confirmed by the appellate court by Ext. B2, decree dated 30.08.1979. If at all the appellant could take advantage of the order in S.M.P. No. 1880 of 1976 and Ext. A1, purchase certificate to support his claim of possession, he should have done that in the appeal arising from O.S. No. 483 of 1975. That was not done. The dismissal of S.M.P. No. 6 of 1980 and A.A. No. 554 of 1980 arising therefrom at the instance of the 1st respondent was only because the Tribunal had, by then decided S.M.P. No. 1880 of 1976.

Next argument is that the copy of report of the Revenue Inspector (obtained in Ext. A1, proceedings of the Tribunal) produced in the civil court could be acted upon even without examining that Officer. May be, by virtue of Sec.105A of the KLR Act such a report can be accepted by the Tribunal even without examination of that Officer. But when that report is sought to be admitted in evidence in the civil court, it is necessary that the Officer who prepared that report is examined as a witness giving opportunity to the opposite party to cross- examine him. In this case since respondents 1 to 3 were not parties before the Tribunal in Ext. A1, proceeding, it was all the more necessary that the Officer who prepared the report was examined as a witness and the report was proved.

Thus there is a concluded finding in O.S. No. 483 of 1975 confirmed by the appellate court in A.S. No. 74 of 1979 that respondents 2 and 3 got possession of the suit property from Tirumalai Swamy Gowndar and Myil Swamy Gowndar as per Exts. B3 and B6 executed by the latter and that appellant had no possession at all. Hence the appellant could not claim to be a cultivating tenant in possession of the suit property.

It is also to be noticed that notwithstanding that to the knowledge of the appellant and with him as the defendant, respondents 2 and 3 filed O.S. No. 483 of 1975 claimed right, title, interest and possession of the suit property under Tirumalai Swamy Gowndar and Myil Swamy Gowndar and denying the claim of appellant, he did not implead respondents 2 and 3 as parties to S.M.P. No. 1880 of 1976. Nor were they given notice of the proceeding. The claim of the appellant was only under Tirumalai Swamy Gowndar and Myil Swamy Gowndar who apparently ceased to have any interest in the property as per Exts. B3 and B6. That means, the assignment order and Ext. A1, purchase certificate in S.M.P. No. 1880 of 1976 are obtained behind the back of respondents 2 and 3 and obviously without mentioning about the pendency of O.S. No. 483 of 1975 also. It was a fraud played by the appellant. The civil court is competent to decide whether a purchase certificate is obtained fraudulently. Moreover, Ext. A1, purchase certificate obtained without notice to respondents 2 and 3 is neither conclusive against nor binding on them. Hence the 1st respondent who claims under respondents 2 and 3 is also not bound by Ext. A1. When an order is found to be vitiated by fraud, the principles of finality, res judicata, etc., would not stand against it as fraud vitiates everything.

The next contention the learned counsel has advanced is that Exts. B3 and B6 are executed merely as security for repayment of the loan and that those documents became void by the subsequent repayment of the amount by the appellant as per a registered document of the year, 1985 (which I said is not produced either in the courts below or in this Court).

So far as Exts. B3 and B6 are concerned, apart from what is stated by the appellant as P.W.1 there is no evidence to show that those documents were executed merely as security in the circumstances pleaded by the appellant. Even if it is assumed that a registered document was executed by Tirumalai Swamy Gowndar and/or Myil Swamy Gowndar in the year 1985, that would not affect the title of respondents 2 and 3 as per Ext. B3 and B6 or that of the 1st respondent as per Ext. B7 since Exts. B3 and B6 are dated 27.05.1974 and 20.02.1975, respectively. Execution of any such document in the year 1985 cannot nullify Exts. B3 and B6. It is seen that by virtue of Ext. B7, respondents 2 and 3 have assigned their right, title and possession in the property in favour of the 1st respondent.

Yet another contention advanced by the learned counsel is regarding the alleged oral agreement for sale between the appellant and Tirumalai Swamy Gowndar and Myil Swamy Gowndar. As regards that oral sale, even the relevant date is not mentioned in the plaint. The appellant in his evidence as P.W.1 stated that the oral agreement was on 17.05.1973. That means, on 01.01.1970 appellant had no possession of the property to claim as a cultivating tenant even as per the oral agreement for sale dated 17.05.1973.

A further fact I must notice is that even according to the appellant, the alleged oral agreement for sale was for a consideration of Rs. 15,000/- . No evidence is adduced to show that Tirumalai Swamy Gowndar and Myil Swamy Gowndar had executed any registered instrument in favour of the appellant. Since even as per the alleged oral agreement for sale, the sale consideration fixed was Rs. 15,000./- , any interest in the suit property could be transferred to the appellant only by a registered instrument. Hence it is evident that appellant acquired no interest in the suit property.

It is seen from the evidence that the 1st respondent, apart from Exts. B3, B6 and B7 has produced documents to show that he is in possession and enjoyment of the property.

In the light of what I have stated above the claim of the appellant that he got title over the suit property pursuant to the assignment order in S.M.P. No. 1880 of 1976 and Ext. A1, purchase certificate cannot stand. He therefore could not claim relief in the suit as rightly found by the first appellate court.

Substantial questions of law framed are answered as above. The learned counsel for the appellant has sought leave to appeal to the Supreme Court. Having heard the learned counsel on both sides, I do not find any ground to allow the request. Hence the leave prayed for is refused.

The Second Appeal is dismissed.

No costs.

All pending Interlocutory Applications will stand dismissed.