JOE JOSEPH Vs. K. C. MOIDEEN

JUDGEMENT

(1.) THIS appeal is filed against the order in I.A.No. 367 of 1995 in O.S.No. 1 of 1995 on the file of the District Court, Wynad. The appellants are the defendants in the above suit. The suit was filed mainly praying for perpetual injunction restraining the appellants from alienating or otherwise disposing of the plaint schedule property or from trespassing or entering into it. In the suit, the respondent plaintiff filed the above interlocutory petition under O.39 R.1 of the Code of Civil Procedure for temporary injunction. The court below has allowed the said petition as per order dated 5-1-1996, the correctness and legality of which is challenged in this appeal.

(2.) THE facts involved in this appeal can be shortly summarised thus: The plaint schedule property is the subject matter of Ext. A1 agreement for sale dated 31-3-1994 executed between the appellants on the one side and the respondent on the other. The appellants are executants 1 to 8 and the respondent is the 9th executant in Ext. A1. The plaint schedule contains twelve items of properties having a total extent of 96 1/2 cents in survey No 519 and sub Division No. 4D of Kalpetta amson desom of Vythiri Taluk. The above properties were owned and possessed by the appellants as per the registered assignment deeds obtained in the year 1986. They together executed Ext. A1 agreement for sale in favour of the respondent agreeing to sell the property absolutely for a total consideration of Rs. 25,00,000/-. Out of the above , Rs. 5 lakhs was paid as advance at the time of the execution of the agreement. It was agreed that the balance consideration of Rs. 20 lakhs would be paid by the respondent in two instalments, that is to say, first installment of Rs. 10 lakhs would be paid on or before 30-6-1994 and the second on or before 31-8-1994. However, on 28-6-1994 the respondent sent a registered lawyer notice to the appellants stating that though he was ready to pay the balance consideration payable on 30-6-1994 he came to know that the properties agreed to be sold as per Ext. P1 agreement forms part of the properties escheated to the Government in view of the proceedings under the Escheat and Forfeiture Act 1964 initiated by the District Collector, Kozhikode and that those facts were wilfully and fraudulently suppressed at the time of executing the sale agreement and that the respondent would pay the balance consideration as per the terms of Ext A1 agreement on satisfactorily explaining the title in respect of the properties. There was no reply to this notice from the appellants. Again, the respondent sent Ext. A3 notice on 27-8-1994 calling upon the appellants to satisfy that they have perfect and valid title over the properties covered by Ext. A1 agreement and that the title is not lost by statutory forfeiture under the provisions of the Escheat and Forfeiture Act. However, the respondent has received Ext. A4 letter from the appellants sent through their lawyer. Along with the said letter, copy of the reply notice stated to have been sent by the lawyer on 23-6-1995 has been enclosed. Subsequently, the respondent came to know from reliable sources that the appellants were attempting to alienate and dispose of the properties in spite of Ext. A1 agreement and therefore the suit had been instituted for a decree restraining the appellants from the properties and for other reliefs. The respondent also filed a petition for temporary injunction against the appellants from interfering with his peaceful possession and from alienating the property. The court below, after enquiry, passed an order granting temporary injunction against the appellants which will be in force till the appellants clear their title over the plaint schedule property. It is against the said order the present appeal has been filed by the defendants.

(3.) IN channelizing the contention that the appellants had suppressed the defective nature of the title of the property proposed to be sold as per Ext. A1 agreement, the respondent has produced Ext. A6 notification issued by the District Collector, Kozhikode under S.5 of the Kerala Escheats and Forfeiture Act, 1964. Ext. A6 contains two notifications. The first one relates to properties comprised in R.S.No. 519/3, and 519/4 (Patta 27, 157 and 262). The second notification relates to the properties comprised in R.S.No. 960/1A and 960/1B. In the case, we are concerned with the first notification, which is extracted below: KOZHIKODE DISTRICT Notices Under S.5 of the Kerala Escheats and Forfeitures Act 1964 (Act 4 of 1964) Ref. L8 - 35670/67 4th February 1975 On enquiry under S.4 of the Kerala Escheats and Forfeitures Act 1964 (Act 4 of 1964) caused by the District Collector, Kozhikode it has been reported by the Tahsildar, Vythiri that on the death of Smt. Ponnan Kalliani, owner of Woodland Estate in Kalpetta amsom desom of S. Wynad Taluk described in the schedule below, the patta of the land was transferred in the names of her children 1) Mr. John Fletcher and 2) Mr. Frank Fletcher and 3) Miss P. M. Fletcher as per F. Dis 15/MTR/ 45 - 46 dated 23-6-1945 of the Deputy Tahsildar, Vythiri. Miss P. M. Fletcher died on 28-7-1946 at her residence at Camp Bazar, Cannanore whereupon her name was deleted from the patta and the name of one C. Spittler substituted as per F. Dis 58/ MRR/56 dated 8-1-1947 of the Deputy Tahsildar, Vythiri. Even though the patta of the land stood in the name of John Fletcher, Frank Fletcher and C. Spittler there is no evidence to show that they had exercised any right or control over the lands. On the other hand there is evidence to show that Miss P. M. Fletcher alone was the sole Jenmi and possessor of the land and that Mr. C. Spittler was only power holder of the Jenmies. Anyway nothing has been heard of the registered holders. John Fletcher, Frank Fletcher and C. Spittler or their heirs, if any, ever since 1951. It is therefore presumed that they have died heirless and intestate or abandoned the properties. The properties detailed in the schedule below have thus become escheated and vested in the Government in 1951, where from the Fletcher's mentioned above were unheard of. I am, therefore, satisfied that this is a prima facie case of escheat. It is, therefore, hereby notified under S.5 of the Kerala Escheats and Forfeitures Act 1964 and under common law that persons if any claiming any legal right over the proprietary detailed in the schedule below belonging to the Fletchers family or any property of which the above family may hereafter be found to have possessed of in full proprietary right should appear and prefer their claims before the District Collector, Kozhikode within six months from the date of publication of this notice failing which the right of the said jenmies over the said properties shall be declared as escheated and vested in the State Government by escheats and the Government shall be entitled to take possession of the said properties. The above notification says that the patta of properties comprised in the survey numbers mentioned therein stood in the names of John Fletcher, Frank Fletcher and C. Spittler whose whereabouts were not known and hence presumed that they have died heirless and intestate. Therefore the above properties have thus become escheated . and vested in the State Government in the year 1951 under the provisions of the above Act. The said notification also reveals that Smt. Ponnan Kalliani was the owner of the Woodland Estate in Kalpetta amsom and the land was transferred in the names of her children, John Fletcher, Frank Fletcher and Miss P.M. Fletcher. Twelve items of properties proposed to be sold to the respondent as contained in the schedule to Ext. A1 are seen to be the properties forming part of Woodland Estate in respect of which the appellants claimed to have obtained title as per the assignment deeds executed in the year 1986.