JOSEPH JOHN Vs. DISTRICT LK

JUDGEMENT

(1.) Plaintiffs in O.S.76 of 1986 on the file of Munsiff Court, Pala are the appellants. Defendants are the respondents. Appellants instituted the suit seeking a decree for permanent prohibitory injunction restraining respondents from proceeding against the plaint schedule property as per the provisions of Revenue Recovery Act contending that the plaint schedule property originally belonged to the father and it was purchased by Kunjan Chettiar in court auction sale and he took delivery of the property and later filed O.S.32 of 1975 for a mandatory injunction directing mutation of registry in his name and O.S.103 of 1975 against respondents from proceeding against the property under Revenue Recovery Act and O.S.32 of 1975 was decreed. Appellants purchased the property under Ext.A1 sale deed dated 5.2.1981. Appellants would contend that though O.S.103 of 1985 was dismissed for want of a notice under Section 80 of Code of Civil Procedure, the findings therein that the court auction sale in favour of Kunjan chettiar is valid and for the amount due from Thomas Joseph respondents cannot proceed against the plaint schedule property and therefore appellants are entitled to a decree for perpectual injunction. Respondents resisted the suit contending that Rs.27,599.94 was due from Thomas Joseph father of appellants as Abkari arrears and revenue recovery proceedings were initiated for recovery of the same on 11.9.1969 and then defaulter filed O.P before the High Court and got the sale adjourned and the court auction sale and the assignment deed in favour of appellants were created to shield the property and O.S.216 of 1973 was a collusive suit and Government was not a party to that suit and plaint schedule property is the first charge for the Abkari dues and therefore appellants are not entitled to the decree sought for.

(2.) The trial court granted a decree in favour of the appellants holding that though the earlier suit was dismissed, the findings in the said suit against the respondents are binding on them and Kunjan Chettiar had title to the property under court auction sale and as assignees from him, appellants have title to the property and respondents are not entitled to proceed against the property belonging to the appellants.

(3.) Defendants challenged the decree and judgment before District Court, Kottayam in A.S.47 of 1989. Learned District Judge on reappreciation of evidence held that even though there are adverse findings in Ext.A2 judgment in O.S.103 of 1975 against defendants, the suit was dismissed and hence the findings therein against defendants will not operate as resjudicata and as State has first charge over the plaint schedule property for the arrears of abkari dues appellants are not entitled to the decree and set aside the findings of the learned Munsiff and dismissed the suit. It is challenged in the second appeal.