SUPREME COURT OF INDIA

Before:- K. T. Thomas and D. P. Mohapatra, JJ.

Civil Appeals Nos. 8048-8049 of 1995. D/d. 9.3.1999.

Joseph and another - Appellants

Versus

Batho Mary and others - Respondents

Civil Procedure Code, 1908, Section 100 - Kerala Land Reforms Act, 1964, Section 72MM - Regular Second Appeal - Against concurrent findings of fact - Appellants were kept in complete dark about the joint applications when they chose to file OA No.1810 of 1971 - Even the Land Tribunal were kept in dark that another application for the same land was filed by the appellants and which was hotly contested by the contesting respondents - Ld. Single Judge had not disputed the proposition that when fraud is established appellants have a right to institute a suit for a declaratory decree that the resultant order is vitiated and therefore a nullity - Ld. Single Judge committed a jurisdictional error in interfering with the concurrent finding on facts - Impugned judgment set aside - Further directions issued.

[Paras 6 to 10]

Cases Referred :-

Vellappan v. Peter Thomas, 1979 Ker LT 412 .

JUDGMENT

In second appeal a learned single judge of the High Court interfered with 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. ("Act" for short) OA No. 778 of 1970 was filed by the appellants for purchasing the right title and interest of the land owners, during the pendency of which the present contesting respondents got themselves impleaded by raising a claim that they have the right to purchase the land owners' title and interest in respect of 80 cents of land comprising of suit property. It is not necessary to refer to the chequered carrier 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 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 land owners have also signed therein and prayed for an order allowing the respondents to purchase the right title and interest of the land owners in respect of the aforesaid 80 cents. It is admitted that 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 land owner 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 back drop that appellants filed the present suit OS No. 29 of 1977 for a declaration that Ext. 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 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 appellants were not made parties. Nor is there any dispute that 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 premises Added to the above, it was a contention of the appellants that the signature of the land owner was forged on the joint application filed under Section 72 MM. 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 hand writing 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 appellants were kept in complete dark about the joint applications when they chose to file OA No. 1810 of 1971. Even the Land Tribunal was kept in 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 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 Vellappan v. Peter Thomas, 1979 Ker LT 412 . 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 observations we allow these appeals and set aside the impugned judgment.

Appeal allowed.