SPECIAL TAHSILDAR RR KANAYANNUR TALUK Vs. VASU

JUDGEMENT

(1.) This appeal arises from the decree and judgment dated 30.3.1994 in O.S. No. 485/1992 on the file of the Sub Court, Ernakulam. Appellants are defendants 1 and 2 and respondents are the plaintiff and the 3rd defendant respectively. The suit is one for declaration and injunction. According to the plaintiff he purchased the plaint schedule property for a total consideration of Rs. 75,000/- by sale deed No. 806/1990 of Maradu Sub Registry from the 3rd defendant. He was served with revenue recovery notice dated 7.2.1992 calling upon him to pay an amount of Rs. 1,00,000/- with interest failing which the plaint schedule property would be proceeded against. The recovery is for realisation of customs penalty due from the 3rd defendant, the vendor. The appellants (defendants 1 and 2) contended that notice under Section 7 of the Kerala Revenue Recovery Act had already been served on the defaulter, 3rd defendant, as early as on 19.8.1985 and hence the sale is hit by Section 44 of the Kerala Revenue Recovery Act. It was also contended that notice under Section 36 had also been served on the 3rd defendant and finally it was contended that the suit itself was not maintainable in view of the specific bar under Section 72 of the Kerala Revenue Recovery Act. The Court below framed issues in terms of the relief claimed in the plaint including the one on maintainability.

(2.) Though there is a specific bar on the civil court under Section 72, it was held that the plaintiff is not a representative of the defaulter, the 3rd defendant. It was also held that the plaintiff was not claiming any right through the 3rd defendant. Still further it was held that whether the purchase of the property by the plaintiff from the 3rd defendant, who admittedly is the defaulter, is with intention to defeat the right of the State is to be determined by the civil court. We are afraid the approach of the court below cannot be appreciated. Section 72 of the Kerala Revenue Recovery Act, 1968 reads as follows:

(3.) Admittedly the plaintiff purchased the property from the 3rd defendant, after he became a defaulter. Defaulter is defined under Section 2(e) as "a person from whom an arrear of public revenue due on land is due, ...". It is the contention of the respondent/plaintiff that dues to the customs is not public revenue due on land. Public revenue due on land is defined under Section 2(j) of the Act to mean "...the land revenue charge on the land and includes all other taxes, fees and cesses on land, whether charged on land or not and all cesses or other dues payable to the Government on account of water used for purposes of irrigation". Under Section 68(1) of the Act...other dues payable by any person to the Government" are liable to be recovered under the Act. It is significant in this context to note that the 3rd defendant vendor has indemnified the plaintiff in Ext. A1 sale deed. There is no case for the plaintiff that the recovery is on account of any fraud on the part of the defendants. The only situation where a suit is maintainable challenging the revenue recovery under the provisions of the Kerala Revenue Recovery Act is where a question of fraud is involved. As the plaintiff has no such case, the suit is not maintainable.