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1976 DIGILAW 258 (KER)

Chandrasekharan Nair v. Lakshmi Amma Devaki Amma

1976-11-29

P.J.AMMA, V.P.GOPALAN NAMBIYAR

body1976
JUDGMENT Gopalan Nambiyar, C.J. 1. This appeal arises in execution proceedings and discloses a prolonged and protracted litigation arising out of a suit filed in 1118 M.E. (1943). The appellant before us is the legal representative of the original defendant in the suit and the respondents are the legal representatives of the plaintiff decree holder. The suit was for recovery of possession of the plaint property on payment of the value of improvements on the strength of a lease, Ext. P-4 dated 15th Medam 1103. It was decreed on 10th March 1951. The first E.P., for recovery was filed on 30th November 1953. Eviction was refused by order dated 13th October 1954, presumably because the defendant pleaded that he was entitled to protection under the Travancore Cochin Act VIII of 1950 which had by then been passed into law. A.S. 22 of 1955 was filed by the decree-holder, which resulted in setting aside the order of the execution court and a remand back to that court for fresh disposal. By way of objection to the execution, the defendant pleaded in C.M.P. No. 540 of 1954, claiming that he was entitled, as a tenant, to the benefits of the Travancore Cochin Act 8 of 1950; and the decree-holder replied that he could not claim the benefits of the Act in view of the exception in S.3C, which provided that nothing contained in the Act would apply to buildings rented out, including houses, warehouses and the sites thereof together with the gardens or lands appurtenant thereto. The execution court by order dated 2nd June 1956 held that the transaction sued on came under the exception covered by S.3C of the Act, and that the objection raised by the defendant that he was a tenant under Act 8 of 1950 had to be rejected. It accordingly rejected the objection petition. An appeal - A.S. 223 of 1956 - was filed by the defendant, and was dismissed on 14th June, 1957 without prejudice to the rights of the defendant-appellant to claim the benefits under Act 1 of 1957, which, by that time, had been passed into law. Accordingly, C.M.P. 7101/59 was filed by the defendant-appellant claiming the benefits of Act 1 of 1957. Accordingly, C.M.P. 7101/59 was filed by the defendant-appellant claiming the benefits of Act 1 of 1957. By order dated 18th of March, 1960, it was found that Act 1 of 1957 had no application to the instant case, by reason of the exception enacted by S.3C, which was practically the same as S.3C of Act 8 of 1950. It was observed by the execution court that the decree-holder cannot evict the defendant unless he obtained an order of eviction from the Rent Control Court under the Buildings (Lease and Rent Control) Act, 1959. In view of this observation, the decree-holder applied to the Rent Control Court. By Ext. P-2 order dated 26th February, 1965 that court held that it had no jurisdiction, as the defendant raised the plea that he is a tenant under the Kerala Act 4 of 1961 (Agrarian Relations Act). As that Act was no longer law, the plea was to be deemed to be under the Land Reforms Act (Act 1 of 1964). The Rent Control Court declined jurisdiction under the provisions of the 2nd proviso to S.11(1) of the Buildings (Lease and Rent Control) Act of 1959, and directed the defendant to move the civil court for appropriate relief. The matter again came up before the execution court in proceedings which have given rise to this appeal. The Munsiff held that the E.P. was not maintainable as Ext. P-2 order had become conclusive and eviction had been denied in view of the 2nd proviso to S.11(1) of the Rent Control Act with reference to the plea of fixity of tenure. On the merits, after construing the terms of Ext. P-4 demise, the Munsiff held that the transaction evidenced by it was a lease and that the lessee was entitled to claim fixity of tenure under Act 1 of 1964. He observed that S.3C of Act 1 of 1957 was not in pari materia with S.3(1)(ii) of Act 1 of 1964. He observed that the E.P. was barred by limitation. In view of these findings it dismissed the E. P. On appeal by the 2nd petitioner the appellate court in paragraph 3 of the judgment, construed the terms of Ext. P-4 and held that the transaction amounted to a lease, and the lessee was a tenant under the Kerala Land Reforms Act. It held that the E.P. was not barred by limitation. P-4 and held that the transaction amounted to a lease, and the lessee was a tenant under the Kerala Land Reforms Act. It held that the E.P. was not barred by limitation. It found in paragraph 4 that the earlier orders refusing to treat the transaction as relating to a 'holding' under Act 1 of 1957, cannot operate as res judicata on the question whether exception 3(1)(ii) of the Land Reforms Act (Act 1 of 1964) would be attracted, as the two provisions were different in scope and content. On the merits, after considering the nature of the transaction the lower appellate court held that the parties had transferred the land on lease for effecting improvements and the building on rent. With reference to the commissioner's plan Ext. D-2 and report Ext. D-1 the lower appellate court found that the building and plots C and O.P.Q.R. in Ext. D-2 plan were exempt from the provisions of the Land Reforms Act and could be delivered to the decree-holder; and with respect to the rest of the property the relief of recovery was refused. Aggrieved by the decision, the defendant preferred S.A. 669 of 1970 against that portion of the judgment which directed delivery of the building and its site. The plaintiff decree holder's legal representatives filed S.A. 748 of 1970 against the refusal of delivery of the rest of the property. These appeals were disposed of by a common judgment by the learned Single Judge. The question of limitation was not seriously pressed before the learned Judge. The learned Judge recorded that it was rightly not pressed. The learned Judge found on a construction of the terms of Ext. P-4 that the conclusion of the lower appellate court in regard to the document cannot be justified, and that on the terms of the document, the transaction, in question was really a lease of the land with the building standing thereon, and that the lessee was protected by Act 1 of 1964. But the learned Judge was of the opinion that the major difficulty which stares in the face of the defendant was the effect of the orders passed in the earlier stages of the case, and that these orders operated as res judicata. But the learned Judge was of the opinion that the major difficulty which stares in the face of the defendant was the effect of the orders passed in the earlier stages of the case, and that these orders operated as res judicata. The prior orders referred to were: (1) those of the Munsiff dated 2nd May 1956 earlier referred to, and the order or) appeal therefrom in A.S. 223/ 1956; and (2) the order in C.M.P. 7101/1959, dated 18th March 1960. The learned Judge also referred to the conduct of the plaintiff in applying to the Rent Control Court in pursuance of the order dated 18th March. 1960, and to Ext. P-2 order passed by that court. On this finding, the learned Judge came to the conclusion that the defendants were barred. In the result, he allowed S.A. 748 of 1970 and dismissed S.A. 669 of 1970. The aggrieved legal representatives of the defendants have preferred this appeal. 2. We are of the opinion that there can be no question of res judicata by reason of the prior orders noticed by the learned Judge. The order in C.M.P. 540, dated 2nd June 1956 was with respect to the question as to whether the exception under S.3C of the Travancore Cochin Act, VIII of 1950 was applicable to the transaction or not. Similarly the order in C.M.P. 7101/1959 was with respect to the question as to whether the exception under S.3(c) of the Kerala Act 1 of 1957 was applicable or not. These orders cannot operate as res judicata on the question as to whether the provisions of the exception under S.3(1)(ii) of Act 1 of 1964 does, or does not, apply to the transaction. As was pointed out by the lower appellate court the provisions are not identical. We may quote S.3C of Act 1 of 1957 and S.3(1)(ii) of Act 1 of 1964: "S.3. - Nothing in this Act shall apply to - (c) buildings rented out including houses, shops or warehouses and the sites thereof together with gardens or lands appurtenant thereto. As was pointed out by the lower appellate court the provisions are not identical. We may quote S.3C of Act 1 of 1957 and S.3(1)(ii) of Act 1 of 1964: "S.3. - Nothing in this Act shall apply to - (c) buildings rented out including houses, shops or warehouses and the sites thereof together with gardens or lands appurtenant thereto. ''S.3(1) Nothing in this Chapter shall apply to“ (ii) Leases only of buildings, including a house, shop or warehouse and the site thereof, with the land, if any appurtenant thereto." We may point out in this connection the provisions of S.13 of the Act which Confers fixity of tenure on every tenant, "notwithstanding anything to the contrary, contained in any law, custom, usage or contract or in any decree or order of court". We need not decide in this case whether the non obstante clause in S.13 of the Act has the result of getting rid of a fundamental principle such as the doctrine of res judicata, as the prior orders do not constitute res judicata. We may also draw attention to S.12 of the Act which confers upon the court a right of re-examining the provisions of certain type of transactions - the suit transaction is not one of the enumerated ones -"notwithstanding anything in the Indian Evidence Act or in any judgment, decree or order of court". There is, again S.127 which makes the provisions of Act 1 of 1964 paramount and gives them effect and operation notwithstanding the provisions of any other law or contract (not of any judgment or order). We are clearly of the opinion that the prior pronouncements on the question of the applicability of the exception under S.3C of Act 8 of 1950 or S.3(c) of Act 1 of 1957 cannot operate as res judicata on the applicability of S.3(1)(ii) of Act 1 of 1964. 3. Counsel for the appellant contended that the prior orders which we have specified earlier had pronounced on the question as to the nature of the transaction itself, evidenced by Ext. P-4, and that the said finding had become final. We are unable to agree that the earlier orders pronounced generally on the nature and effect of the transaction. 3. Counsel for the appellant contended that the prior orders which we have specified earlier had pronounced on the question as to the nature of the transaction itself, evidenced by Ext. P-4, and that the said finding had become final. We are unable to agree that the earlier orders pronounced generally on the nature and effect of the transaction. They were only examining the question whether the exception under S.3C of Act 8 of 1950 and the exception in the same or similar terms enacted in S.3(c) of Act 1 of 1957 were attracted to the suit transaction. The order dated 2nd June 1956 in C.M.P. 540/1956 expressly records that the only question for consideration was whether the transaction fell under S.3C of Act 8 of 1950. Similarly the order in C.M.P. 7101/59 held that the exception 3(c) in Act 1 of 1957 was the same as S.3C in Act 8 of 1950, and hence the same reasoning and conclusion must follow. It is of no consequence that in deference to the observations of the court the plaintiffs approached the Rent Control Court and obtained Ext. P-2 order. We cannot, therefore, agree with the learned Single judge, that the prior orders operate as res judicata. We hold that the appellants are not barred by res judicata by reason of the prior orders. 4. Counsel for the respondent argued before us that on the terms of the document Ext. P-4, it was really a lease of a building together with the land appurtenant thereto and, therefore, covered by the exception under S.3(1)(ii) of the Land Reforms Act. We have gone carefully through the provisions of the document. We are in complete agreement with the learned Judge in holding that the document evidences a lease of the land with the building standing thereon and that the lessees are entitled to claim protection under the provisions of the Land Reforms Act. The extent of the land covered by the demise, the provision for making improvements and for being paid the value thereof, the stipulation of a consolidated rent in respect of the demise for both the land and the building - all these considerations, noted in detail by the learned Judge in his Judgment satisfy us that the suit transaction was really a lease of the land with the building standing thereon. We allow this appeal, set aside the judgment and decree of the learned Judge and hold that Ext. P-4 lease was one under which the appellant was entitled to claim fixity of tenure under Act 1 of 1964. E.P. 343 of 1965 will therefore stand dismissed. The appellant is entitled to his costs.