A D SAMKUTTAN ALIAS SABU Vs. RETNAMMA

JUDGEMENT

(1.) DEFENDANTS 5 and 6 in O.S.478/2001 on the file of Additional Sub Court, Kottayam filed this appeal challenging the judgment of Additional District Judge, Kottayam in A.S.139/2007 whereunder the appeal was allowed and the decree granted by the trial court was modified. First respondent is the plaintiff and the others are the respondents in the appeal. First respondent instituted the suit seeking a declaration that she is not liable to pay the amount assessed by the fourth defendant under the Toddy Workers Welfare Fund personally and as the plaint schedule property belong to her absolutely and for a permanent prohibitory injunction restraining defendants 1 to 4 from attaching the plaint schedule property for the amount due to the Toddy Workers Welfare Fund. Appellants, defendants 5 and 6, were impleaded in the suit as the persons who were conducting the toddy shop after the death of Vasudevan the licensee of the toddy shop, along with the seventh defendant one of the legal heirs. Learned Sub Judge on the evidence granted a decree finding that the demand for arrears is for the period prior to March 1993 and the revenue recovery proceedings were initiated only in 2001 and hence the demand is barred by time. It was also found that plaint schedule property was not inherited from Vasudevan the licensee of the toddy shop, but the absolute property of the first respondent and restrained defendants 1 to 4 from attaching the plaint schedule property. DEFENDANTS 1 to 3 filed A.S.139/2007 before Additional District Court, Kottayam challenging the judgment. Learned Additional District Judge on reappreciation of evidence found that the arrears due to the Toddy Workers Welfare Fund relates to the period 1.4.1992 to 31.3.1993 from Vasudevan, the original licensee of Toddy shops No.193, 194 and 195 of Erattupetta Range and the contribution of Rs. 1, 48,104/- was in arrears. Relying on Ext.X1 file maintained by the Toddy Workers Welfare Fund it was found that it was only by orders dated 20.11.2001 and 26.11.2001 the Government disposed statutory appeal preferred by the plaintiff and seventh defendant as directed by this court in the Writ Petition and therefore finding of the learned Sub Judge that the demand for payment of arrears of the contribution payable to the Toddy Workers Welfare Fund and its recovery under the provision of Revenue Recovery Act is barred by time is unsustainable. Learned Additional District Judge on the evidence found that Writ Petition was filed before this court and this court directed the Government to dispose the statutory appeals which were disposed as per orders dated 20.11.2001 and 26.11.2001. As per the orders, it was found that seventh defendant was conducting the toddy shop along with defendants 5 and 6 and they are liable to pay the arrears. Learned District Judge therefore found that though defendants 1 to 3 are entitled to realise the amount by recourse to the provisions of Revenue Recovery Act, they are not entitled to proceed against the plaint schedule which is the absolute property of the first respondent the sister of Vasudevan. Therefore judgment of the trial court was modified upholding the finding of the trial court that defendants 1 to 3 are not entitled to proceed against the plaint schedule property and the demand is not barred by time and the arrears due to the Toddy Workers Welfare Fund is recoverable primarily from seventh defendant and appellants are also liable. DEFENDANTS 5 and 6 filed this second appeal contending that without a specific issue on the liability of defendants 5 and 6, learned Additional District Judge wrongly found that defendants 5 and 6 are jointly liable along with the seventh defendant and therefore the judgment is not sustainable.

(2.) ON hearing the learned counsel appearing for the appellants, I do not find any substantial question of law involved in the appeal. The suit was instituted by the plaintiff, the sister of deceased Vasudevan, the licenseee of toddy shop No.193, 194 and 195 of Erattupetta Excise Range. Learned Additional District Judge found that as the plaintiff was not conducting the toddy shop which is not disputed by any of the parties including the appellants, plaintiff is not personally liable to pay the arrears of contribution to the Toddy Workers Welfare Fund and plaint schedule property exclusively belongs to the plaintiff and was not the asset of deceased Vasudevan and hence the arrears cannot be proceeded by sale of the plaint schedule property. That finding is correct and is not being challenged. The arrears due could be realised by defendants 1 to 3, only in accordance with the orders passed by the Secretary to Government in the statutory appeals filed under section 8(5) of Kerala Toddy Welfare Fund Act, 1969 on 20.11.2001 and 26.11.2001. I find no reason for the apprehension of the appellants against the findings in the First Appeal. Learned Additional District Judge has only reiterated the finding in the statutory appeals. It is only a finding of fact. It is made clear that the revenue recovery proceedings could only be in accordance with the orders dated 20.11.2001 and 26.11.2001 passed by the Government. As no substantial question of law is involved, appeal is dismissed.