DENNY FERNANDEZ Vs. STATE OF KERALA

JUDGEMENT

(1.) This Second Appeal has come up before us on the basis of a reference made by a single Judge of this Court who is of opinion that the decision in Raman Kannan v. State of Kerala reported in 1977 KLT 657 requires reconsideration in view of the judgment of the Supreme Court in State of Kerala v. Radhamany ( 1996 (6) SCC 287 ).

(2.) The above Second Appeal is filed by the plaintiff in a suit for injunction filed by her to restrain the State and its officials from proceeding against the plaint schedule property under the Revenue Recovery Act by selling in auction to realise the abkari dues alleged to be due from one Mohankumar. According to the plaintiff, Mohankumar, the owner of the plaint schedule property entered into an agreement for sale of the property to one Asok Kumar on 16.3.1987 for a total consideration of Rs. 15,000/- and an advance amount of Rs. 10,000/- was received by Mohankumar on the same day. As Mohankumar committed breach of the agreement, Asok Kumar filed O.S. 208/88 before the Munsiffs Court, Neyyattinkara for specific performance of the agreement and in execution of the decree passed by the court against Mohankumar, registered assignment deed was executed through court conveying the plaint schedule property in favour of Asok Kumar. Asok Kumar did not take delivery of the property through court. Subsequently Asok Kumar and Mohankumar jointly assigned the property in favour of the plaintiff for valid consideration as per registered assignment deed No. 17/92 of Kanjiramkulam Sub Registry and as such the plaintiff is the exclusive owner in possession of the property. The plaintiff - appellant has contended that the defendants - respondents are not entitled to proceed against the plaint schedule property for the abkari dues, if any, due from Mohankumar under the Revenue Recovery Act.

(3.) The defendants pleaded that the alleged agreement for sale is not true or genuine and the plaint schedule property was attached as early as on 23.2.1988 for realisation of the abkari arrears due from Mohankumar. O.S. 208/88 was a collusive suit to defeat the revenue recovery proceedings against Mohankumar. The decree in O.S. 208/88 is not binding upon the defendants who are not parties to that suit. The sale deed relied upon by the plaintiff is not valid. The plaintiff has no title to, right in or possession of the property and the property is not conveyed in favour of the plaintiff as per the assignment deed. The plaintiff is not a bona fide purchaser for value of the plaint schedule property. Therefore, she is not entitled to any relief in the suit.