IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 82 of 1993()
1. POULOSE GEORGE
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI M.C.CHERIAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :08/03/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO.82 OF 1993
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Dated this the 7th day of March 2007
JUDGMENT
Plaintiffs in O.S.193/82 on the file of Munsiff
Court, Muvattupuzha are the appellants. Respondents
are the defendants. Suit was filed for a
declaration that the order in C.R.P.826/75 dated
5.2.1976 is not binding on the plaintiffs or the
plaint schedule property and for a permanent
prohibitory injunction restraining defendants from
interfering with the peaceful possession and
enjoyment of the plaint schedule property and
alternatively for recovery of possession of the
property in case it is found that defendants are in
possession of the property. Taluk Land Board
initiated proceedings under section 85 (8) of
Kerala Land Reforms Act against fourth defendant
finding that he is in possession of excess land
than the ceiling area. A notice was issued to the
appellants also in that ceiling case. Appellants
S.A.82/93 2
appeared and contended that plaint schedule
property was purchased by first appellant and his
brother Krishna Iyer on 25.2.1115(M.E.) and
22.6.1115 (M.E.) and on 2.7.1120 the said four
acres were partitioned between the first appellant
and his brother and plaint schedule property was
allotted to him and since then it has been in his
possession and enjoyment and therefore fourth
defendant had no right over the property and it
cannot be included within the ceiling area of the
fourth defendant and hence it is to be excluded.
The fourth defendant filed a statement opting to
surrender the plaint schedule properties. Taluk
Land Board directed to surrender possession of the
excess area. The properties directed to be
surrendered were not the properties opted by
fourth defendant. The order of the Taluk Land
Board was challenged before this court in C.R.P.
No.826/75. In the said C.R.P. fourth defendant did
not implead appellants. Appellants were also not
heard by this court when C.R.P. 826/75 was
S.A.82/93 3
disposed. This court as per order dated 5.2.1976
in that C.R.P. held that Taluk Land Board should
not have disregarded the option filed by the
declarant fourth defendant and therefore directed
Taluk Land Board to accept the option tendered by
the declarant. The grievance of appellants was
that their objections raised before Taluk Land
Board were not considered by this court while
directing to accept the option made by fourth
defendant and directed to take possession of the
plaint schedule property accepting the option made
by fourth respondent. According to appellants, the
order is not binding on them and is invalid.
Realising that this court has passed the order
against the properties of appellants, without
hearing them appellants filed R.P. 8/78 to review
the order in C.R.P.826/75. Under Ext.A6 order,
this court dismissed the review petition leaving
appellants to seek appropriate remedy. It is
thereafter appellants instituted O.S.193/82 before
Munsiff Court, Moovattupuzha. Respondents 4 to 12
S.A.82/93 4
are the persons to whom the properties were
allegedly distributed by the State. Fourth
defendant filed a written statement contending that
the decision of the Taluk Land Board as modified
by this court in C.R.P.826/75 is valid and
appellants have no right to challenge the same and
they are not entitled to the decree sought for.
Defendants 6 to 10 and 12 filed a written statement
contending that they did not know the rights of
appellants and the plaint schedule property is the
excess land declared by the Taluk Land Board and
after verifying the application filed by those
defendants properties were given to them and they
have taken possession of the property and deposited
the purchase price fixed by the Government and
appellants are not entitled to the decree sought
for. Learned Munsiff framed the necessary issues.
On the evidence of PW1 and Dws 1 to 3 and Exts.A1
to A7, B1 to B7, X1 to X3 learned Munsiff found
that the order in C.R.P.826/75 was fraudulently
obtained by fourth defendant. But holding that
S.A.82/93 5
under section 85(8) of Kerala Land Reforms Act
appellants have an alternative remedy, the suit was
dismissed. Challenging the dismissal of the suit
plaintiffs filed A.S.154/84 before Additional
District Court, Ernakulam. When appeal was
pending, appellants in view of the finding of
learned Munsiff that they have a remedy under
section 85(8) of Kerala Land Reforms Act,
approached the Taluk Land Board to consider their
claim. Under Ext.A9 order the petition was
dismissed as not maintainable. In view of the
finding of the learned Munsiff that defendants 5 to
12 are in possession of the property and to prove
that possession continued with the appellants, they
applied for a Commission. First appellate court
appointed a commission and Commissioner submitted
a report. The learned Additional district judge on
reappreciation of evidence confirmed the finding of
the learned Munsiff that the remedy available to
the appellants is only under section 85(8) of the
Kerala Land Reforms Act and therefore the suit is
S.A.82/93 6
not maintainable and dismissed the appeal. It is
challenging the concurrent findings Second Appeal
was filed.
2. The second appeal was admitted formulating
the following substantial questions of law.
1) Was the court below correct in dismissing
the suit after finding that the fourth respondent
obtained the order from this court in C.R.P. 826/75
by playing fraud?
2) Whether the order in C.R.P.826/75 procured
without impleading the appellants is binding on
the appellants and if so, whether the subsequent
proceedings initiated by Taluk Land Board pursuant
to the order is sustainable?
3. Learned Munsiff and learned District Judge
after elaborate discussion of the facts found that
fourth respondent filed C.R.P.826/75 without
impleading appellants and without disclosing the
true facts and obtained an order directing the
Taluk Land Board to accept the option submitted by
him. It was found that the order was obtained by
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playing fraud on the court. That factual finding
is fully supported by the evidence. Fourth
respondent is aware of the fact that the property
which he has opted to surrender and which he
persuaded this court to accept, was the property in
the possession of the appellants which was
considered by the Taluk Land Board before the
earlier order was passed. Inspite of the exclusive
claim over the properties raised by appellant
fourth respondent did not disclose that fact in the
C.R.P and did not implead them. It was not
revealed to this court that appellants herein had
raised independent claim over that property. In
such circumstances,without deciding the claim
raised by appellants it is not possible to accept
the option of surrender made by fourth defendant.
Eventhough the finding of fraud was entered into by
the trial court, that portion of the finding was
not challenged before the first Appellate Court by
filing a Cross Objection. Eventhough notice was
served on the fourth respondent, he did not appear
S.A.82/93 8
in the second appeal.Therefore the finding of fact
that the order in C.R.P.826/75 is the result of
fraud can only be upheld.
4. As observed by De Grey,C.J in Rex v. Duchess
of Kingston (2 Smith LC 687) “Fraud” is an
intrinsic, collateral act, which vitiates the most
solemn proceedings of courts of justice. Lord Coke
says it avoids all judicial acts ecclesiastical and
temporal.” The law in India is not different.
Section 44 of Evidence Act enables a party,
otherwise bound by a previous adjudication, to show
that it was not final or binding because it is
vitiated by fraud. It is always competent to any
court to vacate any judgment or order if it is
proved that such judgment or order was obtained by
manifest fraud. (Paranjpe v. Kanade (ILR 6 Bombay
1481). Apex Court in Chengalvaraya Naidu v.
Jagannath (1993) Supp.3SCR 422) held:
“It is the settled
proposition of law that
S.A.82/93 9
a judgment or decree
obtained by playing
fraud on the court is a
nullity and nonest 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.”
The result is that the order in C.R.P.826/75
obtained by fourth defendant by playing fraud on
the court is to be treated as nonest in the eyes of
law as against appellants.
5. When it is established that the order in
C.R.P.826/75 is the result of fraud played on this
S.A.82/93 10
court, it is necessarily to be found that the
order has no value and is not binding on
appellants. The grievance of the appellants were
that eventhough appellants filed a review petition
to review the order in C.R.P.826/75, the petition
was dismissed holding that the remedy of the
appellants is elsewhere and the courts below held
that the remedy is under section 85(8) of the
Kerala Land Reforms Act and when appellants
approached the Taluk Land Board subsequent to the
dismissal of the suit, that was also dismissed and
in such circumstance they have no other remedy and
the properties of the appellants cannot be
interfered. There is force in the submission. When
the order passed by this court directing to accept
the option filed by the fourth defendant is found
to be vitiated by fraud played on the court,
without hearing the appellants on the rights
claimed by them, the property cannot be taken
possession of. In such circumstances the dismissal
of the suit is illegal.
S.A.82/93 11
The Second Appeal is therefore allowed. The
decree and judgment passed by learned Munsiff in
O.S.193/82 and learned District Judge in A.S.154/84
are set aside. A decree is passed in O.S.193/82 as
follows:- The order in C.R.P. 826/75 is not
binding on the appellants. The Taluk Land Board is
directed to consider the claim raised by appellants
in respect of the plaint schedule properties basing
Ext.A1, A2, A7 and A10. The Taluk Land Board has
to decide whether plaint schedule properties belong
to appellants under the title deeds as claimed.
If it is found that the properties belong to
appellants Taluk Land Board is at liberty to
proceed against fourth respondent directing to
surrender other excess land ignoring the option
submitted by fourth defendant. The Taluk Land
Board has to decide the question after hearing the
appellants within six months from the date of
receipt of a copy of this judgment.
M.SASIDHARAN NAMBIAR
S.A.82/93 12
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A..NO.82 /1993
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JUDGMENT
7th MARCH, 2007