L. Manoharan, J.
1. Defendants 1 and 2 are the appellants. The suit was one of declaration of title, recovery of possession and other reliefs. First respondent-plaintiff alleged that plaint schedule properties belonged to Kuppachi, her maternal grandmother. After her death the properties devolved on her only daughter Thanka. The 1st appellant and 1st respondent arc her children. The first appellant incurred dehts. For discharging the said debt ornaments worth 25 sovereigns belonging to the first respondent was sold by her father Velankutty for Rs. 12,000'-. Velankutty could no! return the money. Therefore, her mother sold the plaint schedule properties to the first respondent as per Ext, A2 dated 1-2-1983. She obtained possession after thesaid sale deed. On 14-5-1983 when the first respondent went to the plaint schedule properties for cultivation along with her two other brothers, appellants obstructed them. The mother of the first respondent filed a complaint before the Kollengode Police Station and when first appellant was summoned to the Police Station, he told them that he has obtained purchase certificate for the plaint schedule properties. The purchase certificate is vitiated by fraud and collustion. No notice was issued to the land owner and no enquiry was conducted. It was obtained by influencing the authorities. Appellants trespassed into the property and harvested the crops raised by the first respondent. On the said allegation she prayed for a decree for declaration of her title, to set aside Ext. B5 purchase certificate and to recover possession with mesne profits,
2. The first and second appellants filed separate written statements. First appellant contended that, he was in possession of the property as tenant of Kuppachi. On the strength of the said tenancy, he obtained purchase certificate for the plaint schedule properties. Therefore, property did not devolve on Thanka. Ext. A2 sale deed in favour of the 1st respondent is incompetent. The same is not supported by consideration. The allegation that money was borrowed for discharging the debt incurred by him is false and is denied. The debt was incurred for the marriage expenses of the 1st respondent and others. Ext. A2 sale deed relied on by the first respondent is not valid. As per Ext. B3 agreement he agreed to sell the properties to the second appellant and has put him in possession of the properties. The said fact is known to the first respondent. The allegations against the validity of Ext. B5 are denied.
3. The second appellant supported the 1st appellant. She contended, the purchase certificate was issued on a joint application filed by the 1st appellant and Kuppachi after observing the prescribed procedure. He has paid an advance of Rs. 15,000/- to the first appellant as per the agreement to sell the properties and possession was handed over to him.
4. The court below found that the pur-chase certificate issued to the first appellant was vitiated by fraud and set aside the same. The title of the 1st respondent was declared and she was allowed to recover the properties. But the prayer for mesne profits was disallowed. The cross-objection by the 1st respondent is directed against the same.
5. Learned counsel for the appellants contended that the finding of the court below that Ext. B5 purchase certificate is vitiated by fraud is unsustainable because there was not even sufficient pleading as regards fraud. He maintained, Ext. B5 was issued only after observing the prescribed procedure. Alternatively he contended, even assuming that Ext. B5 is vitiated by fraud or collusion, it need not follow that the tenancy set up by the first appellant is not true. According to him even in the event of setting aside Ext. B5, the claim of tenancy right by the 1st appellant has to be considered and the appellate court is not competent to go into the said question without referring the said claim under Section 125(3) of Act 1/64 as amended (for short the Act) to the land tribunal by the trial court. On the other hand the learned counsel for the 1st respondent argued that, there is effective and sufficient allegation as to fraud practiced in obtaining Ext. B5. The first respondent was not a tenant of the schedule properties. Notice as required under Section 72 MM of Act 1/64 was not even attempted to be served, and no enquiry was conducted. According to the learned counsel, since the claim of tenancy would arise incidentally for consideration in adjudicating whether Ext. B5 is vitiated by fraud, only the civil court can entertain the same. Therefore, no question of tenancy would arise within the meaning of Section 125(3) of the Act. Alternatively he maintained that, even if such a claim would arise, the appellate court is competent to go into the question and decide the matter.
6. Learned counsel for the appellants contended that there is no sufficient allegation as regards fraud. According to the learned counsel when allegation regarding fraud is vague, the court cannot act on it. Reliance was made on the decision in United India Insurance Co. Ltd. v. Andrew Vivera (1989 (2) KLT 348) : (AIR 1990 Ker 139). Paragraph 11 of the plaint alleges that the firstdefendant has no right over the property, that the purchase certificate obtained by the first defendant is vitiated by fraud and collusion, that no notice was issued to the land owner, that the same was obtained as a result of the influence exerted by the first appellant on the authorities, the same is vitiated by collusion, and that there was no enquiry in the matter. It is further alleged, the first appellant therefore, is not entitled to any right as per the said purchase certificate, and the same would not bind on the first respondent or on her predecessor. The allegations cannot be said to be vague for the same contained details as to how the purchase certificate was obtained by the first appellant. In the decision in Bhagwati v. Chandramaul (AIR 1966 SC 735): (1966 All LJ 799) the Supreme Court held, if a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The pleading in this case, as has been noted early is neither vague nor ambiguous.
7. The soul of fraud is deception and the exercise of the same would be secret. Making false assertion knowing the same to be false with a view to deceive another is fraud. Often it has to be inferred from proved circumstances. Of course, the burden of proof is on the person who alleges fraud. This is particularly so, as Ext. B4 order of assignment has got presumption of regularity under Section 114(d) of the Evidence Act, and as per Section 72-K(2) of the Act Ext. B5 shall be conclusive proof of assignment of the right, title, interest of the land owner and the intermediaries over the holding. In the said circumstances the first question that would fall for consideration is whether civil court would have jurisdiction to adjudicate as to whether a purchase certificate is vitiated by fraud or collusion particularly when Section 125(1) of the Act ousts the jurisdiction of the civil court to settle, decide or deal with any question or to determine, any matter which by or under the Act is required to be settled, decided or dealt with by the Land Tribunal or theAppellate Tribunal. The scope of Section 125 of the Act in the context of the jurisdiction of the civil court to adjudicate whether the purchase certificate is vitiated by fraud or collusion was considered by this court in the decision in Velappan v. Thomas, 1979 KLT 412 : (AIR 1979 Ker 194). It is held therein that the ouster of jurisdiction under Section 125( 1) and (2) docs not extend to the question relating to fraud and collusion. It is pointed out in the said decision that the ouster of jurisdiction is limited only to matters which are by or under the Act required to be settled, decided or dealt with by the Land Tribunal or the Appellate Authority. Those questions which fall outside the same, naturally should be decided by the civil court as per Section 9 of the C.P.C. In other words civil court will be competent to decide disputes which cannot be decided by the statutory tribunals.
8. It is case of the appellants, that the 1st appellant and Kuppachi filed a joint application under Section 72MM for assignment, and it was after enquiry Ext. B4 order for assignment was passed pursuant to which Ext. B5 certificate was issued. In support of the allegation of fraud the 1st respondent relies on certain circumstances brought out in evidence. According to the learned counsel for the 1st respondent, a notice under Section 72F(2) was mandatory before order for assignment was made. No notice was issued. Reliance was made on Fxt. X-1 file maintained by the Land Tribunal with respect to the application filed by 1st appellant and Kuppachi under Section 72MM and also the evidence of DW-4, the Bench Clerk of the Land Tribunal. It is pointed out that, the file does not disclose even any attempt having been made to issue notice to the land owner and interested parties. It is also pointed out that, no publication of notice as required under Section 72(1) was made. A reading of Sub-sections (3) and (4) of Section 72 MM of the Act would show that, publication under Sub-section (1) and notice under Sub-section (2) of Section 72F were mandatory before an order under Sub-section (3) of Section 72 MM could be passed. Learned counsel for the appellants on the other hand contended that, it is not a mandatory to issue a notice under Sub-section (2) of Section 72F. Section 72MM reads:
'72MM. Assignment by mutual agreement :--(1) Notwithstanding anything to the contrary contained in Sections 72A to 72D and Sections 72F to 72M, where the right, title and interest of the landowner and the intermediary or intermediaries, if any, in respect of a holding have vested in the Government under Section 72, the cultivating tenant, the landowner, the intermediary or intermediaries, if any, the holders of encumbrances, if any, charged on such right, title and interest and the person entitled to maintenance or alimony, if any, charged on such right, title and interest, may jointly apply to, the Land Tribunal for an order assigning the right, title and interest of the landowner and the intermediary or intermediaries, if any, to the cultivating tenant:
Provided that nothing in this sub-section shall apply in respect of a holding, if the landowner or any intermediary of that holding is a religious, charitable or educational institution of a public nature which has opted for annuity.
(2) An application under Sub-section (1) shall be in such form and shall contain such particulars as may be prescribed.
(3) On receipt of an application under Sub-section (1), the Land Tribunal may, after such inquiry as may be prescribed, pass an order assigning the right, title and interest of the landowner and the intermediary or intermediaries, if any, to the cultivating tenant.
(4) Before passing an order under Subsection (3), the Land Tribunal shall, so far as may be, follow the procedure laid down in Sub-sections (1), (2) (3A), (4) and (5) of Section 72F.
(5) An order of the Land Tribunal underSub-section (3) shall be in such form and shall contain such particulars as may be prescribed.
(6) Where an order has been passed by the Land Tribunal under Sub-section (3), the Government shall have no right to receive any purchase price from the cultivating tenant or liability for the payment of compensation or any other amount in respect of the holding to which the order relates.
(7) Any person affected by the order of a Land Tribunal under Sub-section (3) may,within ninety days from the date of the order, apply to that Land Tribunal to set aside the order on the ground that he had no notice of the application under Sub-section (1), and the Land Tribunal may either set aside the order and proceed under Section 72F. nr reject application:
Provided that no order shall be passed under this sub-section without giving the parties interested an opportunity of being heard.
(8) An appeal shall lie from any order passed by the Land Tribunal under Subsection (7) as if such order were an order under Section 72F'.
Sub-section (3) enjoins that the order of assignment has to be passed after conducting 'such enquiry as may be prescribed'. Subsection (4) says that, the Land Tribunal shall, so far as may be, follow the procedure laid down in Sub-sections (1), (2), (3A), (4) and (5) of Section 72 F. It would only mean that so far as the enquiry prescribed under Sub-section (3), the Land Tribunal should follow the procedure provided for under the aforesaid subsections of Section 72F. Section 72F reads ;
'72F. The Land Tribunal to issue notices and determine the compensation and purchase price -- (1) As soon as may be after the right, title and interest of the landowner and the inrtermediaries, if any, in respect of a holding or part of a holding have vested in the Government under Section 72, or, where an application under Section 72B (or Section 72BB) has been received by the Land Tribunal, as soon as may be after the receipt of such application, the Land Tribunal shall publish or cause to be published a public notice in the prescribed form (in such manner) as may be prescribed calling upon-
(a) the landowner, the intermediaries, if any, and the cultivating tenant; and
(1) all other persons interested in the land, the right title and interest in respect of which have vested in the Government, to prefer claims and objections, if any, within such time as may be specified in the notice with all relevant records to prove their respective claims or in support of their objections.
(2) The Land Tribunal shall also issue anotice individually to the landowner, each of the intermediaries and the cultivating tenant and also, as far as practicable to the other persons referred to in Clause (b) of Sub-section (1) calling upon them to prefer claims and objections if any within such time as may be specified in the notice and to appear before it on the date specified in the notice with all relevant records to prove their respective claims or in support of their objections.
(3) Notwithstanding anything contained in Sub-section (2), the publication of a notice in the manner referred to in Sub-section (1) shall be deemed to be sufficient notice to the landowner, the intermediaries, if any, the cultivating tenant and all other persons interested in the land.
(3A) The Land Tribunal shall furnish a copy of the public notice under Sub-section (1), along with a statement containing the names and addresses of the persons to whom individual notices have been issued under Sub-section (2) and such other particulars as may be prescribed, to the village committee of the village in which the holding is situate, or, where the holding is situate in more than one village, the village committee of each such village and require the village committee or village committees, as the case may be, to advise the Tribunal on the matters mentioned in Sub-section (3B) before such date as may be specified in the requisition.
(3B) On receipt of the copy of the public notice and the statement from the Land Tribunal under Sub-section (3A), the village committee, or each of the village committees shall, after such inquiry as may be prescribed, advise the Land Tribunal in respect of the following matters, namely:--
(a) the names and addresses of the landowner, the intermediaries, if any, and the cultivating tenant;
(b) the names and addresses of all other persons interested in the land;
(c) such particulars as are necessary for the identification of the land comprised in the holding, as may be prescribed;
(d) the value of encumbrances subsisting or claims for maintenance or alimony charged on the right, title and interest of the landowner and intermediaries, if any;
(e) the amount due to the holders of encumbrances or the persons entitled to maintenance or alimony and the order of priority in which the amount is payable; and
(i) such other matters as may be prescribed.
(4) Any person interested in the land, to whom no notice under Sub-section (2) has been issued, may apply to the Land Tribunal stating the nature of his claim or objection and the relief be requires.
(5) (The Land Tribunal shall, after considering the claims and objections received in pursuance of the notice issued under Sub-section (1) or Sub-section (2) and the advice received from the village committee or village committees before the date specified therefor and hearing any person appearing in pursuance of the notice issued under Sub-section (1) or Sub-section (2), and after making due enquiries, pass an order specifying -
(a) the extent, survey number and such other particulars as may be prescribed, of the land, the right, title and interest in respect of which have vested in the Government under Section 72;
(b) the compensation due to the landowner and intermediaries, if any;
(c) the amount due to the landowner and each of the intermediaries, if any, on the apportionment of the compensation;
(d) the value of encumbrances subsisting or claims for maintenance or alimony charged on the right, title and interest of the landowner and the intermediaries, if any;
(e) the amount due to the holders of encumbrances or the persons entitled to maintenance or alimony, and the order of priority in which the amount is payable;
(f) the amount payable to the landowner and each of the intermediaries after deducting the value of encumbrances or claims for maintenance or alimony;
(g) the purchase price payable by the cul-tivating tenant;
(h) the rent payable by the cultivating tenant to the Government in the cases falling under Section 72E;
(hh) where the landowner or intermediary is a religious, charitable or educational institution of a public nature and is entitled to annuity instead of compensation, the amount of such annuity; and
(i) such other particulars as may be prescribed.
(6) Where the right, title and interest of the landowner or the intermediaries in respect of a holding or part of a holding vested in the Government form part of the security for any encumbrance or charge for maintenance or alimony, the Land Tribunal shall, for the purpose of determining the value of the encumbrance or the claim for the maintenance or alimony relating to that holding or part, as the case may be, apportion the entire encumbrance or the charge for the maintenance or alimony between such holding or part and the remaining lands which form the security for the encumbrance or the charge for the maintenance or alimony, in proportion to the values of the two portions.
(7) If the landowner or any intermediary is liable to pay any amount to the cultivating tenant under this Act, the Land Tribunal shall, in passing orders under this section, set off such amount against the compensation payable to the landowner or that intermediary.
(8) Where the cultivating tenant is entitled to the assignment of the right, title and interest in respect only of a portion of the land held by him (whether included in one holding or not), the Land Tribunal shall, as far as possible, assign to the cultivating tenant, the right, title and interest in respect of the portion of his choice.'.
It is relevant in this connection to note, subsection (4) of Section 72MM does not mention Sub-section (3) of Section 72F. The non-mention of Sub-section (3) of Section 73F in Sub-section (4) of Section 72MM in the context assumes significance for Sub-section (3) of Section 72F would state that notwith-standing Sub-section (2) publication of notice under Sub-section (1) would be deemed to be sufficient notice to the landowner or the intermediaries and all other persons interested in the land. Not only Sub-section (3) is not mentioned in Sub-section (4) of Section 72MM, there is no evidence to show that even publication under Sub-section (1) of Section 72MM was made. It may be useful to refer to the observations made in the decision in Velap-pan v. Thomas (1979) KLT 412 : (AIR 1979 Ker 194) as regards Sub-section (3) of Section 72F (at page 207 of AIR 1979 Ker):
'According to me, it is necessary for courts, with this Sub-section 72F(3) on the statute Book, which cannot be struck down as being violative of natural justice, to read it down and to hold that it will come into operation only when individual notices contemplated in Section 72F(2) become impracticable in the manner provided under the general law. Otherwise, the wide manner in which Section 72F(3) is worded would give room for unscrupulous persons in charge of litigations and even Tribunals invested with the power to decide cases, to resort to dishonest methods to secure orders dishonestly under circumstances with which can better be imagined than stated'.
The conscious omission to mention Subsection (3) of Section 72F in Sub-section (4) of Section 72MM emphasises that even a publication under Section 72F(1) will not be sufficient or a substitute for notice under Section 72F(2). Thus, it is clear, when an application is filed under section 72MM, publication under Section 72F(1) and notice under Section 72F(2) are necessary.
9. Sub-section (3A) of Section 72F enjoins that a Land Tribunal shall furnish a copy of the public notice under Sub-section (1) along with the particulars mentioned in such section (3A) to the village committee and require the village committee to advise on matters mentioned in Sub-section (3B). Clauses (a) and(b) concern particulars regarding names and addresses of landowner, intermediaries, cultivating tenant and other persons interested in the land. The land tribunal did not furnish anything as per Sub-Clause (3A). Rule 13(5) of the Kerala Land Reforms (Vestingand Assignment) Rules (for short the Rules) enjoins that on receipt of an application under Sub-rule (1) in Form No. J the Land Tribunal should issue notice in Form No. E to the District Collector and publish in the manner specified in Sub-rule (2) of R. 7 a public notice in Form D. Evidently no such step was taken by the Land Tribunal on receipt of the application.
10. Learned counsel for the appellants contended, since Rule 13(5) goes beyond what Section 72MM contemplates it would be enough if the section is complied with as the Rule has to yield to the statute. Reliance was made by the learned counsel on the decision in Central Bank of India v. Their Workmen (AIR I960 SC 12). The rule making power is contained in Section 129 of the Act. Section 129(2)(e) gives power to make rules regarding the procedure to be followed by the Land Tribunal, the Taluk Land Board and the Land Board. Section 72MM(3) itself would show that the Land Tribunal should follow such enquiry as may be prescribed. Section 2(46) defines 'prescribed' as prescribed by the rules made under the Act. From a reading of the aforesaid provisions, it is abundantly clear that the said Rule is within the rule making power and the Rule contains nothing inconsistent with Section 72MM. The Rule does not go beyond Section 72MM. On the other hand Sub-section (3) of Section 72MM directs enquiry as prescribed.
11. The function of the provisions in Section 72MM(3) and (4) read with Sub-sections (1), (2), (3A) and (5) of Section 72F, is to insulate the proceedings under Section 72MM against collusion or fraud.
12. It was argued all that the 1st respondent could point out is failure to issue notice. According to the learned counsel, since specific remedy is provided for in Section 72MM(7) the first respondent should have resorted to the said remedy; and since an appeal is provided for under Sub-section (8) of Section 72MM by an aggrieved party against an order passed under Sub-section (7) of Section 72MM, the suit of this nature cannot be maintained. In the decision in Govinda Pillai v. Madhavan Pillai (1988(2) KLT 522) it was held that the appellate authority functioningunder S. 102 of the Act has all the powers of a Court, and hence it has also power to decide cases in which the order of the lower authority is attacked on the ground of fraud or collusion. No appeal is provided for against an order under Sub-section (3) of Section 72MM (see the decision in Gangadharan Nambiar v. Land 'Tribunal, Kasaragod, 1982 KLT 623 ; (AIR 1982 Ker (NOC) 298. Sub-section (7) of Section 72MM only states, any person affected by the order can within 90 days from the date of order apply before the Land Tribunal to set aside the order on the ground that no notice was served on the party. Sub-section (8) says that an appeal would He from the order under Sub-section (7). In such circumstance it cannot be said that the only remedy for the first respondent is under Sub-section (7) of Section 72MM.
13-14. It is not the failure to issue notice alone that is relied on. The failure to issue notice is relied on as one of the circumstances in support of the case of fraud. The first respondent's case is that there was no tenancy between the first appellant and Kuppachi and the certificate of purchase was obtained on the basis of a lease which was not in existence. If there was no lease, and consequently the first appellant was not a cultivating tenant, then the failure to issue notice could only have been to keep the interested parties in the dark and that would be a strong circumstance in support of the allegation of fraud and collusion. In such circumstance the failure to issue notice cannot be treated as a mere procedural irregularity. Then the only remedy of the aggrieved party cannot be under Sub-section (7) of S.72MM. This is particularly so if the authority also is alleged to be party to fraud, Therefore, it is necessary to examine whether the first appellant was a cultivating tenant during relevant time.
15. Learned counsel for the appellant contended that since under Sub-sections(l) and (2) of Sections 125 of the Act, the jurisdiction of the civil Court to deal with the question is ousted, this court is not competent to go into the said question. According to the learned counsel such adjudication is possible only after a reference under Sections 125(3) by the trial court.
16. As has already seen, the civil court hasgot jurisdiction to adjudicate the questions to whether a purchase certificate is vitiated by fraud or collusion. The question whether first appellant was a cultivating tenant arises only incidentally in adjudicating whether the purchase certificate is vitiated by fraud. That the first appellant was not a cultivating tenant though is one of the important circumstances relied on by first respondent, that is not the only circumstance. Since the civil court alone has jurisdiction to adjudicate as to whether purchase certificate is vitiated by fraud the question whether such certificate was issued to a person who was not a cultivating tenant being incidental in the context no claim of tenancy can arise within the meaning of Sections 125(3) of Act 1 of 1964 particularly because the Tribunal has already adjudicated that question in the proceeding in which certificate was issued. When there is jurisdiction on the person and subject matter, the decision on all other questions in the case is only an exercise of that jurisdiction. It is significant in this connection to note, in Velappan's case (1979 KLT 412 : (AIR 1979 Ker 194) (supra) it is observed that what arises is not the existence of tenancy but whether the order of the Land Tribunal is vitiated by fraud or collusion. When it is found that the civil court alone has jurisdiction to adjudicate as to whether the purchase certificate is vitiated by fraud or collusion, a decision as to whether the first respondent was a cultivating tenant, in the context, can only be in exercise of that jurisdiction. There could be no proper exercise of the jurisdiction to adjudicate the question as to whether fraud was practised, without dealing with the question of tenancy.
17. Even assuming that the question of tenancy arises for determination, the appellate court is competent to go into the question and render decision. If in a given case the question of tenancy arose and the trial court without referring the matter passed a decree on appeal the appellate court is competent to go into the question and the appellate court can decide the question. Section 125 does not limit the power of the appellate court, on the other hand it requires the appellate court to treat the finding of the Land Tribunal asfinding of the civil Court. Thus, it is clear that the appellate Court's powers under C.P.C. are not taken away by Sections 125 of the Land Reforms Act. If there is no finding by the trial court on any material question, the appellate court can enter a finding if there is sufficient evidence or call for a finding from the trial court (see the decision in Kunjan v. Janaki, 1980 KLT 796 (DB). This decision was followed in the decision in Rosamma v. Narayana Pillai (1989 (2) KLT SN 35, case No. 42).
18. Learned counsel for the appellants contended that the said decision would require reconsideration in view of the Full Bench decision in Kesava Bhat v. Subraya Bhat, (1979) KLT 766 : AIR 1980 Ker 40. Learned counsel pointed out, in paragraph 16 of the judgment since it is held that there is ouster of jurisdiction of the civil court to decide the question of tenancy by Sections 125(1) of the Act the view taken in the decision in Kunjan v. Janaki, 1980 KLT 796 (supra) is not in agreement with the said decision of the Full Bench. A reading of paragraph 13 of Kesava Bhat's case, 1979 KLT 766; AIR 1980 Ker 40 (supra) would show that this question as to whether the appellate court is competent to go into the question is left open. Kunjan's case (1980 KLT 796) considers the effect of the decision in Kesava Bhat's case, 1979 KLT 766 : (AIR 1980 Ker 40) (FB) and reaches at the conclusion that the appellate court has got power to go into the question of tenancy even in cases where the trial court failed to make a reference under Sections 125(3) of the Act. I am in respectful agreement with the statement of law in Kesava Bhat's case. Thus the appellate court is competent to go into the question. There is still another circumstance which would go against the stand taken by the learned counsel for the appellant. A petition was filed in the trial court by the first respondent for referring the question of tenancy to the Land Tribunal. That was opposed by the second appellant and that petition was dismissed.
19. Apart from the failure to comply with Section 72MM and the procedure for thereunder, it is contended the first respondent was not acultivating tenant. There is no allegation as to the details of the tenancy such as the year of tenancy, the rate of rent and whether the same was an oral lease or whether the same was reduced to writing. According to DW 1 he got the lease for meeting the expenditure towards his education and that he was 21 years old when he obtained the lease from Kuppachi, his grandmother. He said, when he passed B.A., he was 22 years old and was studying in Madras. According to him the lease was in 1956 and that he was in possession from 1956 to 1983. He said after passing B. A., he went to Bombay. The very testimony improbabilises the occasion for the creation of the lease and his enjoyment as a tenant. He admits that he has no records other than those he has produced in this case in support of his claim of tenancy. The document relied on in this regard is Ext. B-2. Ext. B 2 is the certificate issued by the Executive Officer of Kollengode Panchayat. The same shows the first defendant had been paying agricultural tax from 1973 onwards. The evidentiary value of this certificate has to be considered in the context of Ext. B 3 agreement executed by the first appellant in favour of the second appellant. The case of the appellant is, on execution of this document the second appellant was put in possession of the property. Ext. B-3 was on 16-3-1983. But Ext B2 shows that the first appellant was paying agricultural tax even after 1983. This will show that Ext. B2 need not necessarily be with respect to the disputed property. Had it been so, there was no necessity for the first appellant to pay agricul-tural tax even after he parted with possession. No receipt of payment of rent or receipt of payment of tax is produced. On the other hand the first respondent has produced tax receipts Exts. A3 to A7. The attack against these receipts is that since no survey number is shown in the tax receipt, the same need not relate to the plaint schedule property. The first appellant as DW 1 has admitted that Kuppachi had no property other than the plaint schedule item in Kizhekkethara village. Exts. A3, A6 and A7 receipts show that the same were issued with respect to her property situated in Kizhakkethara village. The said circumstance and the evidence certainly willnot support the case of the appellants that the first appellant was a cultivating tenant when he made Ext. B 1 application. There could not have been any lease and therefore the applicant could not have been a cultivating tenant. That is a strong circumstance in support of the case of the first respondent that the order of assignment and the purchase certificate were secured by practising fraud.
20. Learned counsel for the appellants pointed out that Ext. B-l form was a joint 'application under S.72MM and the said application was signed by both Kuppachi and first appellant and that an Advocate has filed a vakalath for them. Learned counsel for the first respondent, on the other hand pointed out that since the attestation is not proper the appellants are not entitled to rely on the same. Apart from the same, PW -3 an attestor to Ext. Xl(a) J form has sworn that he did not actually see the applicants sign the form. Subsection (3) of Section 72MM contemplates an enquiry. As has already noted the Land Tribunal has to follow the procedure laid down in Sub-section (4) and also to the Rules. The same is insisted upon to ensure no collusion or fraud takes place. If the mere filing of a joint application with proper attestation alone would have been sufficient, detailed procedure need not have been provided for in Section 72MM would not have been necessary. It is not the admission of the landlord alone that matters. What is necessary is, there must be a genuine lease; the person who seeks assignment should have been holding under a valid tenancy. Section 74 of the Act prohibits creation of tenancy after the commencement of the Act. That section came into force on 1-4-1964. Simply because a joint application is filed from that alone a valid tenancy cannot be inferred. An enquiry in accordance with procedure was mandatory. The Land Tribunal was bound to make an enquiry whether the petitioner was a cultivating tenant. Collusive application under Section 72MM cannot be entertained. In this connection, it is not of a little importance to note that Ext. X-1 does not show that the Land Tribunal summoned any party nor does it show that the parties were present before him.
20A, Ext. XI file contains the report of the Revenue Inspector. That was the only document before the Tribunal in support of the alleged tenancy. Column No. 16 of the report requires details of the documents produced in support of the claim of tenancy. Against that column the Revenue Inspector made the following entries : 'Levy notice, Water Tax Receipt, B. T. receipt etc.'. No such receipt was produced by the first appellant in the suit. He would state as D W-1 that he has no documents other than those he produced in this case. Therefore the said entry is a false entry. As has already seen, no notice under Section 72(F)(2) was ever issued and no enquiry as contemplated under Sub-section (3) of Section 72MM was made. No notice as is required under Rule 13(5) of the Rules was issued. There is no evidence in support of the claim that the first appellant was a cultivating tenant. The aforesaid circumstances would certainly support the contention of the learned counsel for the first respondent that Exts. B4 and B5 are vitiated by fraud and collusion.
21. According to the first respondent, Ext. A-2 sale deed was executed by her mother in her favour in consideration of the amount advanced by her for discharging the debts. The appellants challenged the validity of Ext. A-2. The mother of the first respondent is alive. Admittedly she was the only daughter of Kuppachi. Therefore, on the death of Kuppachi the plaint schedule property would devolve on her only daughter. Consequently, she was competent to execute Ext. A-2. The first respondent's only claim with respect to that property was on the basis of the purchase certificate. The purchase certificate is found to be not valid and liable to be set aside. In such situation the first respondent is not entitled to question Ext. A 2 sale deed.
22. Therefore the conclusion reached by the court below that the first respondent is entitled to the declaration that purchase certificate is liable to be set aside as vitiated by fraud, and that she is entitled to recover' the property does not call for any interference.
23. What remains for consideration nowis the cross-objection filed by the first res-pondent. The first respondent claimed mesne profits at the rate of 250 paras of paddy and 500 bundles of hay from the date of suit. Though the lower court allowed the first respondent to reecover the property on the strength of her title, refused to award mesne profits on the ground that there was no evidence as to the quantum. DW-1 stated that he agreed to pay an annual rent of 170 paras of paddy as rent. In J form application filed under Section 72MM of the Act the rent is mentioned as 170 paras of paddy. The said staterrient by DW-1 can be taken as the estimate of mesne profit that could be obtained from the properties. The first respondent has paid court-fee for the claim of mesne profits valuing at Rs. 10/- per para of paddy. Therefore, the first respondent shall be entitled to recover from the appellants the price of 170 paras of paddy at Rs. 10/- per para or at the rate fixed by the Government for the relevant period whichever is less from the date of suit till recovery of the plaint schedule property or for three years whichever may happen early. The cross-objection has to be allowed to that extent.
In the result the appeal is dismissed and the cross-objection is allowed to the extent indicated above. In the circumstances, there will be no order as to costs.