Sankaranarayanan
Potti Vs. K. Sreedevi & Ors [1998] INSC 182 (26 March 1998)
S.B.
Majmudar, K. Venkataswami, A.P. Misra S.B. Majmudar, J.
ACT:
HEAD NOTE:
Leave
granted.
I.A.
No.4, Application for substitution of the heirs of deceased original
petitioner, is granted. We have heard learned senior counsel for the
appellants, heirs of the original petitioner in the S.L.P. as well as learned
senior counsel for the respondents finally.
A
Bench of two Judges of this Court has referred the Special Leave Petition from
which this appeal arises for decision of a larger Bench of three Judges by
order dated 25th
October 1996 and that
is how these proceedings have been placed before us for final disposal. The
reference as aforesaid has been made presumably on the ground that there is an
apparent conflict between two decisions rendered by two Judge Benches of this
Court in the case of Mathevan Padmanabhan alias Ponnan (Deed) through L.Rs. v. Parmeshwaran
Thampi and others [1995 Supp. (1) SCC 479] and in the case of Chettiam Veettil Ammad
and another etc. etc. v. Taluk Land Board and others etc. etc. [AIR 1979 SC
1573].
In
order to highlight the controversy arising in the present appeal it will be
necessary to note a few relevant background facts.
Background
Facts The present appellants' predecessor was defendant no.2 in a civil suit
O.S. 75 of 1958 filed by the original plaintiff for setting aside Sale Deed
dated 27th July 1955 executed by defendant no.1. one of
the co-owners of the suit property, in favour of defendant no.2 and also for
redemption of the suit mortgage being otti mortgage (an anomalous mortgage)
executed by the original mortgagors in favour of defendant no.2-mortgagee. Wee
shall refer to the parties to this appeal as defendants and plaintiffs
respectively in the latter part of this judgment for the sake of convenience.
The said mortgage dated 01st
December 1944 was
executed by the Tarwad of the plaintiffs in favour of one Parameswaran Pillai
and his sons. In the said suit for redemption a preliminary decree was passed
by the Trial Court on 22nd
January 1963 for
redemption of the otti mortgage of defendant no.2 on payment of mortgage amount
and value of improvements by the plaintiffs. Defendant no.2 challenged the said
preliminary decree by filing regular appeal A.S. 527 of 1963 before the
Appellate Court. The said appeal came to be dismissed on 27th November 1965.
Thereafter
defendant no.2 carried the matter in Second Appeal No.334 of 1966 before the
High Court of Kerala. The said second appeal with another cognate second appeal
was dismissed by the High Court on 19th February 1969. Thus the preliminary decree for
redemption of the suit mortgage and for partition of the suit property became
final as no further proceedings were initiated by defendant no.2 against the
aforesaid decision of the High Court in second appeal.
Thereafter
Original Suit No. 75 of 1958 remained pending at the stage passing final
decree. In the meantime Kerala Land Reforms Act, 1963 [hereinafter referred to
as `the Land Reforms Act'] which has come into force with effect form 01st April 1964 got amended by Amending Act 35 of
1969.
According
to defendant no.2 the said Amending Act gave him a statutory right to purchase
the suit mortgage property as he got covered by the wider definition of `tenant'
as envisaged by the said Amending Act. On that ground defendant no.2 filed an
application under Section 72B of the Land Reforms Act before the Land Tribunal.
The Land Tribunal by its order dated 18th July 1974 issued a preliminary order
holding that the applicant was a tenant entitled to purchase landlord's rights.
Thereafter final orders were passed by the Land Tribunal on 28th October 1974 directing issuance of a certificate
of purchases in favour of the applicant- defendant no.2. Accordingly certificate
of purchases was issued to him under Section 72K of the Land Reforms Act on 25th July 1975. A few years later, in the pending
suit O.S. 75 of 1958, 11th defendant Kamala Bai filed an application being I.A.
No. 5092 of 1979 dated 17th
November 1979 requesting
the Trial Court to pass a final decree in the light of the preliminary decree
which had become final between the parties. She also filed I.A. No. 630 of 1980
on 15th February 1980 before the Trial Court for
condoning the delay in filing the application for final decree. Defendant no.2
on the other hand filed objection on I.A. No. 5092 of 1979 contending that the
application for final decree was barred by limitation and the otti sought to be
redeemed is a tenancy coming within the purview of the provisions of the Kerala
Land Reforms (Amendment) Ant and that the order of the Land Tribunal, finding
him to be entitled to fixity of tenure and assignment of the landlords' rights,
required the suit against him to be dismissed. The Trial Court by its order dated
07th April 1982 dismissed I.A. No.5092 of 1979 filed by the 11th defendant, for
passing the final decree, on the ground that the application for final decree
was barred by limitation. Application for condonation of delay was also
dismissed. Thereafter 11th defendant filed A.S.No.198 of 1982 against the
dismissal of her I.A. No. 5092 of 1979 for passing final decree. The learned
District Judge allowed the appeal of defendant no. 11 on 10th January 1983.
It was
held by the learned District Judge that the final decree application was not
barred by limitation. The learned District Judge also directed that t he Trial
Court should consider other objections raised by defendant no.2 to the final
decree proceedings. It was also held that the 11th defendant was entitled to
file application for passing of final decree. Defendant no.2 thereafter carried
the matter to the Kerala High Court in Civil Miscellaneous Appeal No.114 of
1984 challenging the judgment of the District Court in A.S. No. 198 of 1982 by
which proceedings were remanded to the Trial Court for proceeding further in
connection with the passing of final decree. The said miscellaneous appeal was
dismissed by the High Court on 19th August 1989.
It is
not in dispute between the parties that no further proceedings were initiated
by defendant no.2 against the decision of the High Court in C.M.A. No. 114 of
1984. It is thereafter that on 30th August 1994
defendant no.2 filed I.A. No. 1307 of 1994 in O.S. 75 of 1958 praying that the
question whether the plaintiffs were entitled to get final decree may be
decided as a preliminary issue. Same contentions were re-agitated by him by
submitting that as he was armed with a certificate of purchase issued by the
Land Tribunal the title of landlord was extinguished and it was also contended
that since more than 30 years, after t he time statutorily fixed for deposit of
redemption money, had expired redemption price could not longer be deposited,
nor could the property be redeemed. This I.A was dismissed by the Trial Court
on 31st May 1995. Thereafter defendant no.2 carried
the matter in revision before the High Court by way of S.R.O. No. 1271 of 1995
which came to be dismissed by the impugned judgment dated 18th October 1995. It is this judgment of the High
Court which is challenged in the present appeal on grant of special leave to
appeal.
Rival
Contentions Leave senior counsel Shri T.R.G. Warriyar, appearing for the
appellants, submitted that after the preliminary decree got confirmed by the
High Court the Kerala Land Reforms Act got amended and under the amending
provisions a new statutory right got conferred on defendant no.2 to become a
deemed purchaser of the suit land which was earlier held by him as otti
mortgagee and as this was a new statutory right he was entitled to get it
enforced through the Tribunal and that is what he had done and had obtained
purchase certificate from the competent tribunal, which had become final
between the parties and, therefore, on the principle of res judicata the said
certificate which had become conclusive under the Amending Act had to be given
effect to by the Trial Court and the final decree proceedings were required to
be dismissed qua defendant no.2. It was also submitted that the decision of
this Court in the case of Mathevan Padmanabhan (supra) was required to be
re-considered as it had erroneously held that proceedings under Section 72B of
the Amending Act could not be entertained by the Tribunal till the Civil Court
resolved the controversy whether the claimant was a tenant or not.
That
the Amending Act was a complete code in itself laying down its own machinery
for adjudication of rights of parties and as the decision was rendered by the
competent tribunal which had become final inter parties it could not be held as
laid down in the aforesaid decision of this Court that Section 72B proceedings
could not be entertained by the Tribunal till the question of tenancy was
finally decided by the Civil Court in the hierarchy of appeals. In this
connection strong reliance was placed on the earlier decision of two Judge
Bench of this Court in the case of Chettiam Veettil (supra) for submitting that
once the Land Tribunal issues certificate of purchase under Section 72K of the
Amending Act it becomes final and conclusive and cannot be gone behind by the
Civil in Chettiam Veettil (supra) was not noticed in the latter decision
rendered by two Judge Bench of this Court in Mathevan Padmanabhan (supra).
Learned senior counsel for the appellants, therefore, contended that I.A No.
1307 of 1994 was wrongly rejected by the Trial Court as well as by the High
Court and should have been granted.
In the
alternative it was contended that in any case final decree proceedings would
not survive as they were barred by limitation and that the earlier decision of
the Appellate Court holding that the final decree proceedings were not barred
by limitation and hence remanding the proceedings for decision on merits was a
remand order which was confirmed by the High Court in Miscellaneous Appeal but
against the said decision the appellant could not have filed a special leave
petition as it was at an interlocutory stage but now before this Court he can
legitimately contend that the final decree proceedings were barred by
limitation and even on that additional ground his application I.A. No.1307 of
1994 ought to have been granted. In support of this contention it was submitted
that the preliminary decree was dated 22nd January 1963 while the final decree application
was moved by defendant no.11 as late as on 17th November 1979. It was, therefore, filed beyond
the permissible period of three year under the residuary Article in the scheme
of Limitation Act for filing such applications. In any case, placing reliance
on a decision of this Court in the case of Mohd. Abdul Khader Mohd. Kastim and
another v. Pareethij Kunju Sayed Ahammed and others [(1996) 11 SCC 83], it was
submitted that as the redemption money was not deposited within statutory
period of six months by the plaintiff or by any of the other supporting
defendants the final decree proceedings could not b e continued any further and
the application for passing the final decree was required to be dismissed even
on that ground. He, however, lastly submitted that in case this Court is
inclined to remand the application of the appellant, I.A. No.1307 of 1994, for
a fresh decision by the Civil
Court on the issue of
tenancy of defendant no.2 then the question of limitation may also be kept open
for consideration of the Trial Court.
Learned
senior counsel Shri T.L.V. Iyer, appearing for the respondents on the other
hand submitted that there is no conflict between he aforesaid two decisions of
the two Division Benches of this Court. That in the case of Mathevan Padmanabhan
(supra) K. Ramaswamy, J. speaking for the Bench had to consider the question
whether in a suit filed after the amendment of the Kerala Land Reforms Act in
1969 when the issued of tenancy arose for consideration and was not finally
decided, an application under Section 72B by such a claimant could have been
granted. The said decision on the facts of that case was rightly rendered by
holding that 72B application should have been kept pending by the Land Tribunal
till the question of tenancy of the claimant was finally decided in the
hierarchy of proceedings. It was also submitted that the said view propounded
by the Division Bench of two learned Judges of this Court is not in conflict
with the earlier decision of the other tow Judge Bench in Chettiam Vettil
(supra) as in that case an entirely different question was considered namely,
when a claimant had got his tenancy right adjudicated upon by the Tribunal and
got a certificate of purchase under Section 72K which was final and conclusive
whether in a separate and independent proceedings under the very Act before the
Land Revenue Board for deciding the question of surplus holding of such tenant
the said certificate could be gone behind by the Land Revenue Board. Thus the
controversy posed for consideration of the earlier Bench of this Court in Chettiam
Veettil (supra) was entirely different and consequently it cannot be said that
there was any conflict of the decisions rendered by the two Benches of this
Court. It was next contended that even assuming that the Amending Act could be
pressed in service by defendant no.2, as he was seeking to invoke the
provisions of this Act pending the civil litigation between the parties Section
108 sub-section (3) of the very same Amending Act on which he placed reliance
would stare in the face and would have required him to move the Civil Court for
appropriate direction under the Amending Act read with the parent Act and under
these circumstances proviso to sub-section (1) of Section 125 of the parent Act
would get attracted to such a controversy and as it was a pending suit wherein
such a question was raised it was for the Civil Court to decide this question
and consequently the Land Tribunal would naturally have no jurisdiction to go
into this question. As a result whatever decision the Land Tribunal might have
rendered in favour of defendant no.2 and the consequential purchase certificate
issued to him would all be an exercise in futility and would be without
jurisdiction. Hence the Trial Court rightly rejected defendant no.2's
application I.A. No.1307 of 1994 and consequently the impugned decision of the
High Court in revision application confirming that order of the Trial Court
cannot be found fault with. He, however, fairly stated that even in earlier
proceedings the Appellate Court had clearly observed while remanding the final decree
proceedings for decision of the Trial Court that all other contentions which
could be put forward by defendant no.2 would be open for scrutiny of the Court
and consequently whether he can get benefit of the protection of the Kerala
Land Reforms (Amendment) Act could even now be considered by the Civil Court
afresh without in any way being influenced by the incompetent and infructuous
proceedings earlier initiated by defendant no.2 before the Land Tribunal and
the certificate of purchase obtained by him consequent thereto.
On the
question of limitation it was submitted that once the application for passing
final decree was held to be within limitation by the Appellate Court which
remanded the proceedings for decision on merits and as that decision was confirmed
by the High Court in Miscellaneous Appeal, this is not the stage in the special
leave petition arising out of the decision on interim application No. 1307 of
1994 for raising such a contention and if at all such a contention may be open
to the appellants for being canvassed on any legally permissible grounds
centering round the question of limitation it can be raised only when the final
decree proceedings culminate against them in the hierarchy of proceedings and
if an occasion arises for the appellants to ultimately come to this Court in
further S.L.P. against such final decree if passed against them. But even in
those future proceedings at least up to the stage of the High Court such a
contention would not be open for being canvassed again. In this connection our
attention was invited to a decision of a Bench of three learned Judges of this
Court in the case of Satyadhyan Ghosal and others v. Smt. Deorajin Debi and
another [AIR 1960 SC 941].
Points
for determination In view of the aforesaid rival contentions the following points
arise for our consideration;
1.
Whether the decision rendered on 18th July 1994 by the Kerala Land Tribunal
holding defendant no.2 to be a tenant entitled to purchase the landlord's
rights and the final order dated 28th October 1974, directing issuance of
certificate of purchase, passed by the Tribunal and the certificate of purchase
no.53 dated 25th July 1975 issued to him under Section 72K of the Kerala Land
Reforms Act as amended by Act 35 of 1969 can be treated to be final and
conclusive an d binding on the parties and on account of which the final decree
proceedings against defendant no.2 should be held to be incompetent and are
required to be closed.
2. If
the answer to the aforesaid point is in the negative whether the Trial Court in
the final decree proceedings which are pending between he parties can consider
the contention that defendant no.2 had got the benefit of the provisions of the
Amending Act 35 of 1969 as a cultivating tenant to purchase the suit land.
3. If
the appellants are held entitled to agitate the said contention and if
ultimately the said contention is held in their favour in the hierarchy of
proceedings can the appellants thereafter request the Land Tribunal to issue
appropriate certificate of purchase under Section 72K of the Kerala Land
Reforms Act in the light of the final decision of the Civil Court rendered in
their favour on this aspect.
4.
Whether there is any conflict between the decisions of this Court in the case
of Chettiam Veettil (supra) and in the case of Mathevan Padmanabhan (supra).
5.
Whether the final decree proceedings are barred by limitation.
6.
What final order ? We will deal with these points seriatim.
Point
No. 1 So far as this point is concerned we must keep in view the salient facts
of the case which have stood well established on the record. It is not in
dispute between the parties that original defendant no.2 was an otti mortgagee
pursuant to the mortgage dated 01st December 1944 binding between the parties. It is also not in dispute that the Ste
Deed said to have been executed by original defendant no.1 in favour of
defendant no.2 on 27th July 1955 is finally held to be not legal and operative
and consequently defendant no.2 could be treated to be only an otti mortgage.
It is
also not in dispute between the parties that preliminary decree for redemption
which had been passed by the Civil Court
has stood confirmed up to the High Court in Second Appeal No. 334 of 1966 which
was dismissed by the High Court on 19th February 1969 and thus the preliminary decree has
become final. It was thereafter that defendant no.2 during the pendency of
final decree proceedings before the Civil Court tried to agitate his contention
before the Kerala Land Tribunal that he was a protected tenant as per the
provisions of the Kerala Land Reforms (Amendment) Act 35 of 1969 and on the
basis of that contention he ultimately got order in his favour from the
Tribunal. The question is whether, pending the civil suit against him for
redemption, such an exercise could have been legally undertaken by him before
the Tribunal and whether the Land Tribunal acting under the provisions of the
Amending Act 35 of 1969 had jurisdiction to grant him any such relief. For
deciding this question relevant provisions of the Kerala Land Reforms Act. 1963
as amended by the Amending Act 35 of 1969 will have to be seen. Learned senior
counsel for the appellants fairly stated that the parent Act being Kerala Land
Reforms Act, 1963 which came on the Statute Book with effect from 01st April
1964 did not give defendant no.2 any right of tenancy and the further right to
become a deemed purchaser of the land. However, according to him, after the
Amending Act 35 of 1969 became operative from 01st January 1970 the situation changed and a fresh statutory right came to
inhere in defendant no.2. In order to appreciate this contention it is
necessary to note a few relevant provisions of the said Act.
With
effect from 01st January 1070 pursuant to the Amending Act 35 of 1969 the
definition of `Kanam as found in Section 2(22) was amended by the legislature
and it is this amended definition which is pressed in service by the learned
senior counsel for the appellants for submitting that defendant no.2 became a kanam-holder.
The very same Act defines a `tenant' as per Section 2(57), amongst others, to
include a kanamdar. Putting store on these provisions defendant no.2
straightaway approached the Land Tribunal under Section 72B of the Act alleging
that as he was a cultivating tenant of the land he had a right to get the land
assigned to him under the said provision and it was that application which was
allowed by the Tribunal which fixed the purchase price as per Section 72D of
the Kerala Land Reforms Act as amended by the Amending Act and then certificate
of purchase was issued in favour of defendant no.2 under Section 72K. The moot
question is whether pending the civil suit between the parties it was open to
defendant no.2 to directly approach the Tribunal for getting the aforesaid
orders which according to learned senior counsel for the appellants have become
binding as res judicata between the parties. It is now well settled that even
if a decision if right or wrong if it is rendered by a competent court inter
parties it would bind as res judicata.
Therefore,
the short question is whether the Land Tribunal under the amending provisions
had jurisdiction to grant the said relief to defendant no.2. So far as this
question is concerned the very same Amending Act 35 of 1969 contemplated a
class of claimants of tenancy rights who had already suffered decrees for
possession from competent civil courts passed prior to the coming into force of
the Amending Act or against whom civil suits for such reliefs were pending on
the date on which the amending provisions came into force, that is, 01st
January 1970. These two provisions which were styled as transitory provisions
in the Amending Act are required to be noted. Section 108 sub-section (2) and
(3) read as under :
"108(2)-
Any decree passed before the commencement of this section for the dispossession
of a person from the land in his possession, pursuant to which dispossession
has not been effected, may, on the application of such person to the court
which passed the decree be reopened and the matter may be disposed of in
accordance with the provisions of the principal Act as amended by this Act.
(3) -
If in any suit, application, appeal, revision, review, proceedings in execution
of a decree or other proceedings pending at the commencement of this section
before any court, tribunal, officer or other authority, any person claims any
benefit, right or remedy conferred by any of the provisions of the principal
Act or the principal Act as amended by this Act, such suit, application,
appeal, revision, review, proceedings, in execution or other proceedings shall
be disposed of in accordance with the provisions of the principal Act as
amended by this Act." It is not in dispute that these transitory
provisions still hold the field. A mere look at Section 108(2) as found in the
Amending Act shows that it would apply in cases where decrees for possession
are already finally passed against persons who seek benefit of the Amending
Act. In the present case as the civil suit for partition and redemption was
pending at the stage of passing final decree it could not be said that there
was a final decree for redemption and possession passed against defendant no.2.
Hence Section 108(2) is out of picture. However, Section 108 sub-section (3)
would directly apply to the facts of the present case.
In the
present pending suit O.S. No. 75 of 1958 after the stage of preliminary decree
and before final decree is passed which even till date is not finally disposed
of by the Trial Court and the final decree is still not passed, defendant
no.2's claim to be a tenant protected by the provisions of the Amending Act
with effect from 01st January 1970 as he claimed such a benefit or right or
remedy conferred by the provisions of the principal Act as amended by the
Amending Act, has to be disposed of by the Trial Court in accordance with the
provisions of the principal Act as amended by the Amending Act. This is the
mandate of Section 108(3) of the Amending Act. Keeping in view this legislative
mandate we have to find out as to what should have been done in such a
situation by defendant no.2 as well as by the Civil Court where the suit is
pending. In such a pending suit when a contention is raised by defendant no.2
about his claim of protected tenancy under the Amending Act the Civil Court
obviously has to follow the procedure laid down in Section 125 of the principal
Act. Section 125 with its sub-sections reads as under :
"125.
Bor of jurisdiction of civil courts.-
(1) No
court shall have jurisdiction to settle, decide or deal with any question or to
determine any matter which is by or under this Act required to be settled,
decided or dealt with or to be determined by the Land Tribunal or the appellate
authority or the Land Board or the Taluk Land Board or the Government or an
officer of the Government :
Provided
that nothing contained in this sub-section shall apply to proceedings pending
in any court at the commencement of the Kerala Land Reforms (Amendment) Act,
1969.
(2) No
order of the Land Tribunal or the appellate authority or the Land Board or the Taluk
Land Board or the Government or an officer of the Government made under this
Act shall be questioned in any civil court, except as provided in this Act.
(3) If
in any suit or other proceeding any question regarding rights of a tenant or of
a kudikidappukaran including a question as to whether a person is a tenant or a
kudikidappukaran arise, the civil court shall stay the suit or other proceeding
and refer such question to the Land Tribunal having jurisdiction over the area
in which the land or part thereof is situate together with the relevant records
for the decision of that question only.
(4)
The Land Tribunal shall decided the question referred to it under sub-section
(3) and return the records together with its decision to the civil court.
(5)
The civil court shall then proceed to decide the suit or other proceedings
accepting the decision of Land Tribunal on the question referred to it.
(6)
The decision of the Land Tribunal on the question referred to it shall, for the
purposes of appeal be deemed to be part of the finding of the civil court.
(7) No
civil court shall have power to grant injunction in any suit or other
proceeding referred to in sub-section (3) restraining any person from entering
into or occupying or cultivating any land or kudikidappu or to appoint a
receiver and property in respect of which a question referred to in that
sub-section has arisen, till such question is decided by the Land Tribunal and
any such injunction granted or appointment made before the commencement of the Kerala
Land Reforms (Amendment) Act, 1969, or before such question has arisen shall
stand cancelled.
(8) In
this section, "civil court" shall include a Rent Control Court as
defined in the Kerala Buildings (Lease and Rent Control) Act, 1965."
Consequently, in the present pending suit the Civil Court's jurisdiction would
have remained barred to decide or deal with any of the questions raised by
defendant no.2 about his tenancy but for the proviso to sub-section (1) of
Section 125 which clearly states t hat nothing contained in that sub-section
shall apply to proceedings pending in any court at the commencement of the Kerala
Land Reforms (Amendment) Act, 1969. Because of this proviso the net result is
that in the present pending suit there will be no bar of jurisdiction of the
Civil Court in deciding the question whether defendant no.2 was a protected
tenant under the amended provisions of the Kerala Land Reforms (Amendment) Act
with effect from 01st January 1970 or not. This claim of defendant no.2 could
be decided only by the Civil Court in the present pending suit and consequently
there would remain no occasion for the Civil Court to follow the procedure of
sub-section (3) of section 125 which obviously would apply to only such suits
and other proceedings which are filed after the Amending Act came into force
and wherein such contentions are raised about the status of a party to the suit
to be a tenant under the Amending Act. It is obvious that in all types of civil
disputes civil courts have inherent jurisdiction as per Section 9 of the Code
of Civil Procedure unless a part of that jurisdiction is carved out from such
jurisdiction, expressly or by necessary implication, by any statutory provision
and conferred on any other tribunal or authority. On a conjoint reading of
proviso to Section 125(1) of the principal Act and Section 108(3) of the
Amending Act it must, therefore, be held that the question of status of
defendant no.2 under the Amending Act 35 of 1969 could have been decided only
by the Civil Court in the pending suit and not by the Land Tribunal under the
Amending Act. Consequently the direct approach made by him to the Land Tribunal
under the Amending Act must be held to be premature and incompetent and it must
also be further held that consequently the orders obtained by him from the Land
Tribunal were rendered by a tribunal which had no jurisdiction to pass such
orders and they were nullities.
Hence,
no question of res judicata would arise in connection with such orders of an
incompetent authority. Learned senior counsel for the appellant was right when
he contended that the Kerala Land Reforms Act, as amended, is a complete code
in itself and it is only the Land Tribunal which can issue purchase certificate
under Section 72K and the Civil Court cannot give such a purchase certificate.
That may be so.
However,
such certificate cannot be granted to all and sundry. The claimant must prove
that he is a cultivating tenant under the Act. The would be a condition
precedent to be established by the claimant before he could get such purchase
certificate. The fulfilment of such a condition precedent would require
decision on the basis question whether he is a cultivating tenant under the
Amending Act or not. If the suit was not pending before the Civil Court and if
defendant no.2 being an otti-holder had gone to the Land Tribunal after the
Amending Act came into force, he would have been justified in involving the
jurisdiction of the Land Tribunal and if the Tribunal after hearing the parties
had granted such a purchase certificate it would have remained conclusive and
binding between the parties, but such is not the fact situation in the present
case. In the present case, as seen above, the suit was already pending between
he parties. Not only that, defendant no.2 had suffered the preliminary decree
for redemption of suit mortgage by the time Amending Act came into force.
Consequently,
proviso to Section 125(1) squarely got attracted and did not prevent the Civil Court from deciding such a contention as
canvassed by defendant no.2 regarding his alleged rights flowing from the
Amending Act as a protected tenant entitled to purchase the land. Hence, the
emphasis put by the learned senior counsel for the appellants on the alleged
conclusiveness of the purchase certificate issued to defendant no.2 by the Land
Tribunal under Section 72K, on the facts of the present case, is found to be
totally devoid of any efficacy. Point No.1, therefore, must be answered in the
negative against the appellants and in favour of the contesting respondents.
Point
No. 2 In the light of the decision on the first point it is obvious that when
in a pending suit the defendant raises the contention about his tenancy rights
under the amended provisions of the Kerala Land Reforms (Amendment) Act, such a
contention would validly attract the provisions of Section 108(3) of the
amended Act. As seen earlier, once that happens and once it is held that Civil
Court had jurisdiction to entertain such a contention and such jurisdiction is
not barred, Application No. 1307 of 1994 moved by defendant no.2 can
legitimately be treated as one moved under Section 108 sub-section (3) of the
Amending Act read with proviso to Section 125(1) of the parent Act.
Consequently,
before deciding to pass final decree in the redemption suit the Civil Court would be required to adjudicate on
merits of this contention after hearing the contesting parties. It will be for
the Civil Court to find out whether defendant no.2 was entitled to be treated
as tenant under the Kerala Land Reforms (Amendment) Act and whether he could
validly invoke provisions of Section 72B to be a cultivating tenant within the
sweep of Kerala Land Reforms Act as amended by Act 35 of 1969 and whether
accordingly he was entitled to get further benefit of fixation of purchase
price and issuance of purchaser certificate under the said provisions of the
Amending Act.
All
these consequential statutory benefits claimed by defendant no.2 would depend
upon the moot and the basis question whether he was a cultivating tenant within
the sweep of the Amending Act or not. Consequently, the wholesale rejection of
defendant no.2's application I.A. No.1307 of 1994 by the Trial Court and as
confirmed by the High Court in the impugned judgment in C.R.P. No. 1271 of
1995, must be held to be uncalled for and unsustainable on this ground alone. point
No. 2 is, therefore, answered in the affirmative in favour of the appellants
and against the contesting respondents.
Point
No. 3 So far as this point is concerned it is obvious that if ultimately the
Civil Court in the proceedings to be remanded pursuant to our present offer
decides I.A. No. 1307 of 1994 in favour of the appellants and it is held, after
hearing the contesting parties and after permitting them to lead whatever
evidence they want to lead on this point that defendant no.2 was a cultivating
tenant entitled to the benefit of the provisions of the Amending Act 35 of 1969
and if it is finally held in the hierarchy of these proceedings that the
appellants, as his heirs, are entitled to purchase the land in question being
armed with such a final order of the Court which would bind inter parties as res
judicata to submit before the Land Tribunal for fixation of appropriate price
of the land as required by the procedural provisions of Section 72D and other
succeeding relevant provisions of the Act in connection with the fixation of
the purchase price and after that gamut is gone through by the competent
tribunal ultimately a situation would be reached where a certificate of
purchase under Section 72K can be issued to the appellants. But all these
stages from 72B to 72K would only arise after a final decision s rendered by
the Civil Court in the remanded proceedings in I.A. No. 1307 of 1994 that
original defendant no.2 was a cultivating tenant entitled to the protection the
Kerala Land Reforms (Amendment) Act, 1969 and not before. Learned senior
counsel for the appellants was right when he contended that the Civil Court
cannot issue any purchase certificate. He was also right when he contended that
the time for applying for purchase certificate under the Kerala Land Reforms
Act has already expired. But this difficulty voiced by learned senior counsel
for the appellants on the peculiar facts of this case can obviously not come in
his way for the simple reason that defendant no.2 had already earlier applied
to the competent authority under the Amending Act 35 of 1969 as early as on
24th December 1973 under Section 72B being O.A.599 of 1973. Even though we have
found that the said proceedings as filed were premature and were filed before
incompetent authority at that stage with the result that the consequential
orders are found to be without jurisdiction still it cannot b e gainsaid that
defendant no.2 had tried to invoke within time the provisions of Section 72B of
the Kerala Land Reforms (Amendment) Act. Thus the said application, on the
peculiar facts of this case, can be deemed to be pending before the competent
authority awaiting the final decision of the Civil Court in the hierarchy of
the proceedings pursuant to our present order. Even otherwise on the facts of
the present case it would be equally open to the competent authority in the
light of the final decision if at all rendered by the Civil Court in hierarchy
of proceedings in favour of original defendant no.2 to the effect that he was
entitled to the protection of the Amending Act as a cultivating tenant, to
exercise suo motu powers for passing appropriate orders in the light of the
final decision of the Civil Court in the hierarchy of proceedings by resorting
to t he machinery provisions of Section 72B onwards culminating into the
issuance of appropriate purchase certificate under Section 72K. Point No.3,
therefore, is answered in the affirmative on the supposition and assumption
that the appellants ultimately succeed in convincing the Civil Court and also
the higher authorities in the hierarchy of proceedings that defendant no.2 was
a cultivating tenant entitled to the protection of the Amending Act 35 of 1969.
We should not be treated to have decided one way or the other whether the
appellants are in fact entitled to such a benefit of the Amending Act. That
question is kept open for decision in the remanded proceedings by the Civil
Court on relevant evidence to be led by the parties. The said decision shall be
rendered by the Civil Court while deciding the remanded I.A. No. 1307 of 1994
without in any way being influenced by the abortive exercise earlier undertaken
by defendant no.2 before the Land Tribunal and the orders passed therein including
the purchase certificate issued in his favour by the said authority on 25th
July 1975. In short as all these earlier proceedings are treated to be null and
void, the Civil Court will have to decide the entire question de novo afresh on
its own merits.
Point
Ni. 4 So far as this point is concerned as we will presently point out in fact
there is no conflict between the decisions of two Judge Benches of this Court
in the case of Mathevan Padmanabhan (supra) and in the case of Chettiam Veettil
(supra). In the case of Mathevan Padmanabhan (supra) a Bench of two learned
Judges presided over by K. Ramaswamy, J., had to consider the question whether
in a suit filed after the coming into operation of the Kerala Land Reforms Act
as amended by Act 35 of 1969, if question of tenancy of the claimant was not
finally decided in the hierarchy of proceedings an application under Section
72B of the Amending Act could have been finally decided by the competent
authority under the Act. Answering this question in the negative the following
observations were made in paragraph 5 of the Report ;
"The
first question is whether the High Court was justified in holding that the Land
Tribunal would have kept the application filed under Section 72-B pending til
the dispute of the tenancy is finally determined. On a comspectus of the
relevant provisions, the scheme of the Act and on the facts and circumstance of
the case, we consider that the High Court is right in its approach. The very
dispute whether the appellant is a tenant and is entitled to purchase the
property by virtue of that capacity, hinges upon the determination of the
question whether he is a tenant. When that dispute is pending adjudication, the
Tribunal was not right in directing the appellant to purchase the property. Ultimately,
it the High Court on appeal, finds that the appellant is not a tenant, his
entitlement to purchase the property also is lost. Under those circumstances,
the appropriate course for the Tribunal would have been to keep the application
filed under Section 72-B pending till the dispute is resolved in the Court.
Therefore,
the High Court is right in recording a finding in this behalf." In our
view on the facts of the case before that Bench no other conclusion was legally
possible. Before an application under Section 72B of the Amending Act could be
granted the condition precedent whether the claimant was a cultivating tenant
or not had to be decided. It is after the decision on the said question that
further question about the fixation of price etc. would arise. On the facts of
the case before the Bench the question of alleged tenancy of the claimant was
not finally decided in the hierarchy of proceedings.
Obviously,
therefore, application under Section 72B could not have been finally decided
and was required to be kept pending. Learned senior counsel for the appellants
submitted that the Tribunal is a competent authority under the Act to deal with
such questions and merely because a civil suit is pending the statutory
obligation of the authority could not be bypassed. As a general proposition the
said contention cannot be gainsaid. However, that would pre-suppose a situation
where the Land Tribunal is approached on a clean slate meaning thereby no other
proceedings are pending in any other court and the Tribunal has to decide the
jurisdictional question whether the claimant is a cultivating tenant entitled
to the benefit of Section 72B or not. In such a situation it is the Tribunal
which h as to decide both the condition precedent for applicability of Section
72B and the consequential orders which are to be passed therein. But when in a
pending suit issue of tenancy is referred to the Tribunal under Section 125(3)
and once the finding of tenancy is returned to the Civil Court and when such a
finding becomes that of the Civil Court as per Section 125(6), then it if is
pending for further scrutiny by the Appellate Court it has to be held that the
status of cultivating tenant has not become final and so long as that has not
become final there is no occasion of the Land Tribunal to pass final orders
under Section 72B. We have also to keep in view that in the case before the
Bench presided over by K. Ramaswamy,J., the proviso to Section 125(1) was out
of picture as the suit in which the controversy arose was filed subsequent to
the coming into force of the Amending Act 35 of 1969. Therefore, when Section
125(3) read with Section 125(6) of the Kerala Land Reforms Act applied, a
reference had to be made to the Land Reforms authorities for deciding the
status of such a tenant and once such finding was returned to the Civil Court
it became a finding of the Civil Court itself which could be challenged and was
challenged higher up in the hierarchy and that finding had not become final.
Therefore, as rightly held in that case, there remained no occasion for the
Land Reforms authorities to proceed under Section 72B onwards and to pass final
orders till that finding became final inter parties. Therefore, on the peculiar
facts of the case before the Bench in the above case, the conclusion to which
that Bench reached as found in paragraph 5 of the Report cannot be said to be
in any way uncalled for or erroneous as tried to be submitted by learned senior
counsel for the appellants. So far as the facts of the present case are concerned,
as we have seen earlier, the suit for redemption was already pending and is
still pending and in the meantime the Amending Act 35 of 1969 came into force
from 01st January 1070. Consequently, strictly speaking, the decision of this
Court in Mathevan Padmanabhan (supra) does not get attracted for resolving the
controversy posed before us.
So far
as the judgment of the earlier Division Bench of the two learned Judge of this
Court in the case of Chettiam Veettil (supra) is concerned it proceeds on an entirely
different set of facts. In that case the Land Tribunal had already decided the
question about the right of the cultivating tenant to be the deemed purchaser
of the Land and had fixed the purchase price and also issued certificate of
purchase. When that was done no civil suit was pending inter parties filed
either prior to the coming into force of the Amending Act or even subsequently.
Hence proceedings under Section 72B were fully competent and had resulted into
a valid purchase certificate which had remained final, conclusive and binding.
The question was when the cultivating tenant was a deemed purchaser armed with
such certificate, while deciding his surplus holding of land the Taluk Land
Board functioning under that very Act could go behind such a certificate. On
the scheme of the Act the conclusion to which this Court reached, speaking
through Shinghal.J., was obvious that the said certificate issued under section
72K did raise irrebutable presumption as per sub-section (2) thereto and even
after considering the conclusive eventuality following thereto the Taluk Land
Board had ample jurisdiction under Section 35(5) to pass appropriate order
regarding the surplus holding of the occupant. We fail to appreciate how the
ratio of the aforesaid decision rendered on the peculiar facts of that case and
deciding entirely a different controversy could ever be pressed in service in
the present case or even for demonstrating any supposed conclusive between the
said decision of this Court and the decision rendered in Mathevan Padmanabhan
(supra) in the light of a different set of facts and circumstances, as seen
earlier.
Before
parting with the discussion on this point we may take stock of the resultant
situation -
1. In
civil suits between he disputing parties pending on or before 01st January 1970
when the Kerala Land Reforms (Amendment) Act, 1969 came into force, if a
contention is raised by one of the contesting parties requiring determination
of any matter which is by or under the Amending Act required to be settled,
decided or dealt with by the authorities functioning under the Amending Act the
Civil Court before which such a question arises will not lose jurisdiction to
decide such a question in view of the proviso to sub-section (1) of Section 125
of the principal Act read with Section 108(3) of the Amending Act and such a
question can be decided by the Civil Court itself by applying the relevant
provisions of the Amending Act read with the principal Act so far as the
question of the status of tenancy of the contesting party is concerned and once
such a question is finally decided in favour of the contesting party and it is
held to be entitled to the benefit of the Amending Act then appropriate
consequential orders and relief on the basis of the final decision as aforesaid
could be obtained from the competent authorities functioning under the Amending
Act.
2.
After coming into operation of the Amending Act 35 of 1969 if a question arises
whether a person is a cultivating tenant entitled to the benefits of the
Amending Act and no civil suit is pending wherein such a person is a party then
appropriate proceedings can be initiated by such a person before the competent
authority under the Amending Act and if such person is found entitled to the
benefits of the Act in the hierarchy of proceedings under the Amending Act then
appropriate further relief could be obtained by such person from the
authorities under the Act and it purchase certificate is issued to such a
person under Section 72K of the Amending Act it would be binding and conclusive
between he contesting parties in proceedings before such authorities.
3. If
after coming into operation of the Amending Act 35 of 1969 a civil suit is
filed wherein a question arises regarding the status of a contesting party to
be a tenant and such a question by then is not already decided finally between
the contesting parties by competent authority under the Amending Act, then the
Civil Court will have to follow the procedure of Section 125(3) read with
sub-section (6) thereof and having made a reference to the competent court
under the Amending Act obtain appropriate finding on the said question from the
said authority and once such finding is received and which will be treated as a
finding by the Civil Court itself subject to the said finding becoming final in
the hierarchy of proceedings before the appellate authorities entitled to
re-consider t he said finding of the Civil Court appropriate further orders in favour
of such contesting party which is finally held to be a tenant can be obtained
from the competent authority under the Amending Act including certificate of
purchase under Section 72K of the Amending Act and such a certificate would be
treated as binding and conclusive between the parties.
4. After
the coming into operation of the Amending Act 35 of 1969 and in the absence of
any suit by then filed wherein the contesting parry claims tenancy rights. It
such a person already gets appropriate orders from t he competent authorities
in the hierarchy of proceedings under the Act and certificate of purchase is
obtained under Section 72K of the Amending Act, and thereafter it a civil suit
gets filed against it by the other contesting party then in such a civil suit
it could be said that the question of determination of right of the contesting
party as a tenant would not survive as it was already decided by the competent
authority under the Act earlier and the said decision having become final in
the hierarchy of proceedings under the Amending Act would operate as res judicata
between the parties. Under such circumstances there will be no occasion for the
Civil Court to follow the procedure of Section
125(3) read with Section 125(6) and only on the basis of the binding decision
of competent authority under the Amending Act between the parties the Civil Court can dispose of such subsequently
filed suit.
Aforesaid
are the four categories of situations which would emerge on account of the
interaction of the Amending Act 35 of 1969 on the one hand and the Civil Court proceedings on the other between
the very same contesting parties as and when such occasions arise. It becomes
at once clear that present is a case which falls in the first category.
Decision of the Decision Bench of this Court in the case of Mathevan Padmanabhan
(supra) was concerned with a case which fell in category no.3, while the
earlier decision of the Division Bench of this Court in the case of Chettiam Veettil
(supra) was concerned with a case which fell in category no.2. Obviously,
therefore, there could never be any conflict between the ratio of the decisions
rendered in these two cases. Point No. 4 is, therefore, answered in the
negative by holding that there is no conflict between the ratio of the
aforesaid two judgments of this Court.
Point
No. 5 So far as this alternative contention is concerned it has to be kept in
view that the Trial Court by its order dated 07th April 1982 dismissed the
application of defendant no. 11 on the ground that the application for final
decree was barred by limitation. Defendant no.11 then filed A.S. 1982 of 1962
against that decision. The Appellate Court by its judgment dated 10th July 1983 allowed the appeal holding that the
final decree application was not barred by limitation. Consequently the final
decree application was remanded to the Trial Court for passing final decree
after considering other objections raised by the second defendant. The 2nd
defendant challenged the order of remand by filing C.M.A. No. 114 of 1984
before the High Court and the High Court by its order dated 19th August 1989 held that the Appellate Court was
right in holding that the final decree application was competent and was not
barred by limitation. It is of course, true that at that stage defendant no.2
had no occasion to file an S.L.P. against the said remand order of the
Appellate Court as confirmed by the High Court. But that does not man that
during the remanded proceedings when his application I.A. 1307 of 1994 got
dismissed, and said dismissal got confirmed by the High Court by the impugned
order, in this S.L.P. against the impugned order of the High Court pertaining
only to I.A. 1307 of 1994, the appellants could raise the contention of
limitation and challenge the remand order in A.S.No.198 of 1982 as confirmed by
the High Court on 19th August 1989. The reason is obvious.
As
laid down by this Court in Satyadhyan Ghosal (supra) an interlocutory order
which had not been appealed from either because no appeal lay or even though an
appeal lay an appeal was not taken can be challenged in an appeal from the
final decree or order. A special provision is made in Section 105(2) Civil
Procedure Code as regards orders of remand. But even under Section 105(2) the
correctness of an order of remand can b e challenged in appeal from the final
decision provided the order of remand is not appealable. The question whether
final decree proceedings have become barred by limitation or not world arise
for consideration of this Court only if ultimately final decree gets passed
against the appellants pursuant to the earlier finding reached by lower
appellate court and High Court at interlocutory stage that these proceedings
were not barred by limitation. It is only then that the appellants can bring in
challenge the earlier remand order which results into the final decision
against them and can urge that the said interlocutory order of remand as
confirmed earlier by the High Court was itself not correct.
The
stage is still not reached for the appellants. Hence we keep this question open
at this stage. It is, of course, true that at the earlier stage when the
Appellate Court remanded the proceedings the question of limitation canvassed
for consideration was on one aspect, namely, whether an application for final
decree could be filed after three years of the passing of the preliminary
decree.
In the
present proceedings the appellants also sought to raise an additional
contention whether the final decree could ever be passed when the redemption
money is not deposited within six months and for which reliance is placed on a
decision of this Court in the case of Mohd. Abdul Khader Mohd. Kastim (supra).
However, even this contention is also an additional facet of the plea of
limitation regarding passing of final decree. The question whether final decree
proceedings have got barred by limitation on the ground that application for
the same was initiated after three years of the preliminary decree or whether
they have become barred on account of non-payment of redemption money in time,
would all the same pertain to the issue of limitation for passing the final
decree. All these contentions, therefore, for whatever they are worth cannot
now be agitated at this stage by the appellants in support of the application
No. 1307 of 1994 which we are ordering to be remanded for a fresh decision pursuant
to the present order. In these remanded proceedings the only question to be
examined by the Civil Court will be to the effect whether the appellants can
claim any legal rights flowing for defendant no.2 from the Amending Act 35 of
1969 as a cultivating tenant. It is obvious that if this contention succeeds
ultimately and gets confirmed in the hierarchy of proceedings throughout then
there would be no occasion for the court ultimately to pass any final decree
for redemption against the appellants as they would succeed on merits. Then
there would remain no occasion for them to urge the question of limitation. If
on the other hand the appellants fail all throughout on the contention about
the benefit of Amending Act 35 of 1969 and suffer a final decree for redemption
then at that stage in any future S.L.P. before this Court only they can raise
the contention of limitation and try to demonstrate whether the remand order of
the Appellate Court and as confirmed by the High Court on 19th August 1989
would be able to raise a further ground touching upon the very question of
limitation for passing the final decree, namely, whether the final decree for
redemption could b e passed on account of non-payment of redemption money
within the requisite period. We, therefore, hold that this contention is too
premature to be raised at this stage. We keep it open and do not express any
opinion one way or the other in this contention, in our view, therefore, it is
equally not open to the appellant to raise this contention before the Civil Court in the proceedings to be remanded
to it pursuant to the present order. This point for determination is answered
by holding that it is not necessary to decide this contention at this stage
keeping it open to be decided in appropriate future proceedings before this
Court if at all such need arises for the appellants, as discussed earlier.
Point
No, 6 As a result of the aforesaid discussion on these points it must be held
that the order passed by the Trial Court below I.A. 1307 of 1994 of 31st May
1995 as well as the impugned order passed by the High Court in C.R.P. No.1271
of 1995 decided on 18th October 1995 are not well sustained and are required to
be not aside entirely on different grounds as shown by us earlier and not on
the grounds which weighed with the Trial Court as well as with the High Court
in dismissing the said I.A. No. 1307 of 1994 filed by original defendant no.2
is restored to the file of the 1st Additional Sub-Judge, Trivandrum with a
direction to decide the said application, as indicated hereinabove, afresh on
the question of defendant no.2's claim to be entitled to the protection of the Kerala
Land Reforms (Amendment) Act 35 of 1969 as a cultivating tenant. In the light
of the decision rendered on this I.A. by the Civil Court in the remanded
proceedings, it shall proceed further in accordance with law in connection with
the question of passing appropriate final decree in the suit.
Appeal
is allowed accordingly. In the facts and circumstances of the case there will
be no order as to costs.
Back