Sobhana Kumari vs Kerala State
2021 Latest Caselaw 1206 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

              THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

 WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                        RSA.No.407 OF 2020

    AGAINST THE JUDGMENT IN AS 17/2018 DATED 29-10-2019 OF
                       SUB COURT, PALA

          OS 370/2015 DATED 23-11-2017 OF MUNSIFF'S COURT,
                           KANJIRAPPALLY


APPELLANT/APPELLANT/PLAINTIFF:

              SOBHANA KUMARI,
              AGED 49 YEARS,
              W/O.V.MOHANAN, AMBIKA VILASAM HOUSE,
              KANCHIYAR P.O., KANCHIYAR KARA, AYYAPPAN KOVIL,
              IDUKKI-685 511.

              BY ADV.SRI.G.BHAGAVAT SINGH

RESPONDENTS/RESPONDENTS/DEFENDANTS:
      1      KERALA STATE,
             REPRESENTED BY THE DISTRICT COLLECTOR,
             COLLECTORATE, KOTTAYAM-686002.

      2       DEPUTY TAHSILDAR,
              REVENUE RECOVERY,
              KANJIRAPPALLY TALUK OFFICE,
              KANJIRAPPALLY.P.O.,
              KOTTAYAM DISTRICT-686507.

      3       GOPINATHAN NAIR,
              AGED 70 YEARS,
              S/O.KESAVAN NAIR,
              PARAPPADICKAL HOUSE,
              KAVUMBHAGOM P.O.,
              CHERUVALLY VILLAGE,
              KOTTAYAM DISTRICT-689102.

               R1 & R2 BY GOVT.PLEADER SRI.P.M.SATHEESH
               R3 BY ADV.SHRI.SUNDARESAN N.K.


     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
11-01-2021, THE COURT ON 13-01-2021 DELIVERED THE FOLLOWING:
 R.S.A.No.407 of 2020


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                              JUDGMENT

The appellant is the plaintiff in O.S.No.370/2015 on

the file of the Munsiff's Court, Kanjirappally (hereinafter

referred to as 'the trial court') and the appellant in

A.S.No.17/2018 on the file of the Sub Court, Pala

(hereinafter referred to as 'the first appellate court'). The

respondents 1 to 3 in this appeal were the defendants in

the suit and the respondents in the first appeal. The

parties are hereinafter referred to as 'the plaintiff' and

'defendants' as in the trial court unless otherwise stated.

2. The plaintiff had sought a decree of permanent

prohibitory injunction restraining the defendants 1 and 2

from initiating revenue recovery proceedings against the

plaint schedule property belonging to the plaintiff.

3. The case of the plaintiff in brief is that she had

purchased the plaint schedule property as per Ext.A1 sale

deed bearing registration No.154/2004 of the Sub R.S.A.No.407 of 2020

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Registrar's Office, Kanjirappally from the 3rd respondent.

According to the plaintiff, she purchased the property for

adequate consideration enabling the 3rd respondent to

conduct the marriage of his daughter. It is alleged that the

1st and 2nd defendants are now attempting to recover the

liability of the 3rd defendant which was finalised in the year

2008 only. It is further alleged that the 3rd defendant and

others have other properties and the 1st and 2nd

defendants have no right to recover any amount by

charging upon the plaint schedule property.

4. The defendants 1 and 2 filed a joint written

statement before the trial court contending that as per

Section 69(2) of the Kerala Revenue Recovery Act, steps

have been taken against the 3rd defendant for recovery of

an amount of Rs.21,61,292/- and interest at the rate of

18% from 01.04.2001. They further contended that the

3rd defendant defaulter was served with demand notice, R.S.A.No.407 of 2020

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but he failed to repay the amount due to the Government.

5. In the written statement filed by the 3 rd

defendant it is contended that the demand notice as

required by law was not served upon him. The 1st and 2nd

defendants cannot proceed against the plaint schedule

property and effect revenue recovery proceedings.

6. The trial court by its judgment and decree dated

23.11.2017 dismissed the suit holding that the plaintiff

has not approached the court with clean hands to get an

equitable remedy of injunction. Accordingly, the suit was

dismissed.

7. Assailing the judgment and decree passed by

the trial court, the plaintiff preferred A.S.No.17/2018

before the first appellate court. The first appellate court

after re-appreciating the pleadings and materials on

record, by the impugned judgment dated 29.10.2019

confirmed the judgment and decree of the trial court. R.S.A.No.407 of 2020

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8. It is challenging the concurrent findings of the

two courts below, the appellant is before this Court in this

R.S.A.

9. Heard Sri.Bhagavat Singh, the learned counsel

appearing for the appellant and the learned counsel for

the 3rd defendant.

10. The learned counsel for the appellant contended

that both the courts below had committed an error of

jurisdiction while deciding the application under Section

44 of the Revenue Recovery Act and failed to consider the

fact that there was no arrear of public money due from

the 3rd defendant and that he was not a defaulter at the

time of execution of Ext.A1 deed. It is further contended

that there was no written demand issued by the authority

to the 3rd defendant. The learned counsel for the appellant

further contended that the pendency of disciplinary

proceedings against the 3rd defendant is not sufficient to R.S.A.No.407 of 2020

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attract Section 44 of the Act as the execution of Ext.A1

had taken place sufficiently earlier. Hence the learned

counsel prayed that the R.S.A. may be admitted and all

further proceedings may be stayed.

11. Both the trial court and the appellate court

concurrently entered a finding that the plaint schedule

property having an extent of 23.40 ares of land was sold

to the plaintiff by the 3rd defendant on 12.1.2004. It was

further held that Ext.A2 tax receipt would show that the

plaintiff had paid tax to the plaint schedule property on

10.8.2012.

12. When PW1 was examined before the trial court,

she admitted that out of the plaint schedule property, an

area of 46½ cents was sold to Tulasi who is none other

than the daughter of the 3rd defendant. It was brought out

in evidence that the 3rd defendant sold an area of 46½

cents to his own daughter. The learned counsel for the 3 rd R.S.A.No.407 of 2020

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defendant appearing in the second appeal supported the

appellant.

13. It is brought out in evidence that the 3 rd

defendant was a Panchayat Secretary and he had retired

from service on 31.08.2001. Admittedly some portion of

the plaint schedule property was also transferred to the

daughter of the 3rd defendant subsequently after Ext.A1

sale deed executed between PW1 and the 3 rd defendant.

Further, charge memo dated 05.08.2003 was issued by

the Director of Panchayat to the 3 rd defendant on

05.08.2003 as per Ext.A3. It is a fact that the 3 rd

defendant had transferred the plaint schedule property to

PW1 on 12.1.2004 in order to evade the money due to the

Government. After executing Ext.A1, the plaintiff is left

with only 11.3 cents of land. Analysing the above

evidence, both the trial court and the appellate court

entered a finding that the plaintiff approached the court R.S.A.No.407 of 2020

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seeking an injunction restraining the defendants 1 and 2

from proceeding against 23.40 ares of property though he

has not been in actual possession of the entire property

scheduled in the plaint on the date of suit. Since the

plaintiff has not been in possession of the entire property

on the date of the suit and that the suit was filed

collusively to defeat and delay the revenue recovery

proceedings, the suit was dismissed.

14. The two courts below have rightly arrived at the

conclusion that the plaintiff has suppressed material facts

and filed the suit in collusion with the 3 rd defendant to

defeat and delay the revenue recovery proceedings. I do

not find any error committed by the two courts below in

arriving at the above conclusion holding that the plaintiff

is not entitled to get equitable remedy of injunction.

15. On an appreciation of the impugned judgments

and materials on records, this Court is of the view that R.S.A.No.407 of 2020

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there is no question of law involved in the appeal, much

less any substantial question of law.

Resultantly, I dismiss the R.S.A which would be

without prejudice to the rights to the plaintiff to invoke

the remedies provided under the Revenue Recovery Act

before the competent authority including the contention of

the appellant that the transfer of immovable property

made by the defaulter/3rd defendant before the public

revenue due on land from him has fallen in arrears and

the transfer is made before the service of the written

demand on the defaulter, uninfluenced by the findings

rendered by the courts below on the merits of the transfer

of property involved in this case.

Sd/-

N.ANIL KUMAR, JUDGE skj R.S.A.No.407 of 2020

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APPENDIX APPELLANT'S EXHIBITS:

ANNEXURE A1 COPY OF THE ORDER DATED 14/08/2008 PASSED BY THE DIRECTOR OF PANCHAYAT FINALIZING THE DISCIPLINARY PROCEEDINGS AGAINST THE 3RD DEFENDANT.