Joseph And Anr. vs Batho Mary And Ors.

1. In second appeal a learned Single Judge of the High Court interfered with the concurrent finding on facts and dismissed the suit filed by the appellants as per the impugned judgment. Hence, the appellants preferred this appeal by special leave.

2. The factual position is this:

A land having an extent of 1.20 acres is the subject-matter of litigation. Two sets of persons put forward rival claims of tenancy over the said land and applied for Certificate of Purchase under the relevant provisions of the Kerala Land Reforms Act ("the Act" for short). OA No. 778 of 1970 was filed by the appellant for purchasing the right, title and interest of the landowners, during the pendency of which the present contesting respondents got themselves impleaded by raising a claim that they have the right to purchase the landowners' title and interest in respect of 80 cents of land comprising of suit property. It is not necessary to refer to the chequered career which the said OA had undergone even by now. Suffice it to say that the said OA is still remaining before the Land Tribunal pending final disposal, and it was later renumbered as OA No. 4308 of 1976.

3. In the meanwhile the contesting respondents moved the Land Tribunal through an application purportedly under Section 72MM of the Act showing that the landowners have also signed therein and prayed for an order allowing the respondents to purchase the right, title and interest of the landowners in respect of the aforesaid 80 cents. It is admitted that the appellants were not made parties thereto. It is numbered as OA No. 1810 of 1971. Without the appellants getting any knowledge about the pendency of the said OA the Land Tribunal happened to pass Ext. A-7 order on 19.5.1973 allowing the respondent to purchase the right, title and interest of the landowner in respect of the said 80 cents of land. On the footing of the said order the Certificate of Purchase (Ext. B-10) was issued on 18.7.1975. Armed with Ext. A-7 and Ext. B-10 the contesting respondents turned against the appellants and informed the Land Tribunal before which OA No. 4308 of 1976 was pending that in respect of 80 cents of the disputed property the OA is not maintainable.

4. It was in the said backdrop that the appellants filed the present suit OS No. 29 of 1977 for a declaration that Exts. A-7, and B-10 are vitiated by fraud, collusion etc. The trial court decreed the suit. The first appellate court confirmed the decree of the trial court. But in the second appeal learned Single Judge of the High Court upset the findings and rendered the impugned judgment.

5. There is no dispute that OA No. 4308 of 1976 was pending when the contesting respondents filed the subsequent joint application under Section 72MM of the Act. There is also no dispute that in the joint application the appellants were not made parties. Nor is there any dispute that the appellants were not informed either directly or indirectly of the filing of the joint application. The case of fraud was built up mainly on the aforesaid premise. Added to the above, it was a contention of the appellants that the signature of the landowner was forged on the joint application filed under Section 72MM. That aspect was disputed by the contesting respondent, but the son of the purported signatory, when examined as PW 2 in the suit, said that the signature attributed to his late father in the joint application is a forged one. The fact-finding courts concurrently found that the said signature was forged. Unfortunately, learned Single Judge upset the said finding on a fragile reasoning that the aforesaid signature should have been forwarded to a handwriting expert to prove that it was forged.

6. Be that as it may, the crucial point is not that. The most crucial aspect in this case is the admitted premise that the appellants were kept in complete darkness about the joint applications when they chose to file OA No. 1810 of 1971. Even the Land Tribunal was kept in the dark that another application for the same land was filed by the appellants and which was hotly contested by the contesting respondents.

7. Learned Single Judge had not disputed the proposition that when fraud is established the appellants have a right to institute a suit for a declaratory decree that the resultant order is vitiated and is therefore a nullity. At any rate the binding legal position on that score in the State of Kerala was based on the decision of the High Court in Velappan v. Thomas. Though a reference to the said decision was made by the learned Single Judge in the impugned judgment, its correctness has not been doubted.

8. We are of the considered view that learned Single Judge has committed a jurisdictional error in interfering with the concurrent finding on facts. Ext. A-7 order and its by-product Ext. B-10 Certificate of Purchase, both are vitiated by fraud as found by the fact-finding courts.

9. OA No. 1810 of 1971 must be tried jointly with OA No. 4308 of 1976 so that a finality can be reached regarding the rival claims raised in respect of the same land. We direct the Land Tribunal concerned to do so.

10. Subject to the above observation we allow these appeals and set aside the impugned judgment.