GOVINDA PILLAI Vs. MADHAVAN PILLAI

JUDGEMENT

(1.) SRI. P. Krishna Moorthi, Advocate, takes notice on behalf of the respondents.

(2.) THE questions formulated in this Second Appeal read: "a) Whether the first defendant has availed of the statutory remedy for setting aside Ext. A8 order and Ext. A2 certificate of purchase issued on the basis of the order and an adverse order Ext. A5 was passed in appeal inter parties, is the first defendant entitled to challenge the validity of Ext. A8 and Ext. A2 in collateral proceedings. B) When Ext. A8 order has merged in Ext. A5 order of the appellate Authority, is Ext. A8 order open to challenge as being vitiated by fraud and collusion? C) Even if Ext. A2 certificate is bad in law, is not the plaintiff-entitled to the smaller relief namely the declaration of his possession and permanent injunction as tenant under Ext. Al ? D) Is the finding that Ext. A2 is void as being vitiated by fraud and collusion based on any relevant material ? Is the finding sustainable in law and on the facts and circumstances of the case? E) Is not the decree dismissing the suit without making a reference under S. 125 (3) of the Kerala Land Reforms Act illegal and liable to be reversed. " 2. Facts relevant and essential to determine the question arising for consideration, briefly stated are: THE suit property, a reclaimed coconut garden, originally belonged to one Cherian. On the death of Cherian, cherian's brothers and relations made attempts to get hold of the assets cherian had left behind. THE second defendant, the son of Cherian and third defendant his widow were unable to resist the attempts of the relations of cherian to get at the assets. THE second defendant at that time was a minor. Circumstanced like this, the third defendant acting for self and as guardian of the second defendant on 10-9-1958 demised the suit property on lease to the plaintiff, her brother as is seen from Ext. Al lease deed. THE Land Tribunal within whose jurisdiction the property is situated, initiated suo motu proceedings under S. 72 (C) of the Kerala Land Reforms Act for the assignment of the rights, title and interest of the landlord over the property to the cultivating tenant. THE Land Tribunal after due enquiry passed Ext. A8 dated 26-4-1977 directing the assignment of the rights, title and interest of the landlord over the property in favour of the plaintiff. On the plaintiff depositing the purchase price on 7-6-1977 Ext. A2 certificate of purchase was issued to him on 3-6-1977.

(3.) THE first defendant contested the suit. His main contention was that the plaintiff was not a lessee, that the proceedings in which the certificate of purchase was issued were collusive and fraudulent and therefore the certificate of purchase was void and hence not enforcible in law. THE suit therefore, it was contended, was liable to be dismissed. Pending suit the first defendant challenged Ext. A8 order of the Land Tribunal based on which ext. A2 purchase certificate was issued in favour of the plaintiff, by filling an appeal before the Appellate Authority under S. 102 of the K. L. R. Act. That appeal, A. A. 4/81 (plaintiff and defendants 2 and 3 were impleaded as respondents 1 to 3 in that appeal) was filed out of time and therefore the first defendant had to file a petition to condone the delay in filing the appeal. THE Appellate Authority after hearing the parties, dismissed the appeal by Ext. A5 order dated 13-8-1984. It is against the said order of the Appellate authority the first defendant has filed C. R. P. 3270/84, which I have disposed of today by a separate order.