BALAN v. STATE OF KERALA — 1978 DIGILAW 24 (KER)

Judgment :- 1. The revision petitioner filed O. A. No. 106 of 1972 on the file of the Land Tribunal, Edakkad, invoking S.80B of the Kerala Land Reforms Act, 1963, for purchase of his kudikidappu. The Land Tribunal allowed the said application holding that the purchase price of Rs. 2376/- is payable to the respondents before the Tribunal. Each of the two respondents preferred an appeal against the said order of the Land Tribunal. The 1st respondent before the Tribunal preferred A. A. No. 320 of 1973 and the 2nd respondent preferred A. A. No. 442 of 1973, both before the Appellate Authority (Land Reforms), Kozhikode. The said appeals were allowed. The revision petitioner was held to be not entitled to claim the benefit of a kudikidappukaran. The two appeals were disposed of by a common judgment. This revision was filed on 16-5-1975 against the decision in A. A. No. 442 of 1973 aforesaid Note that the revision petitioner did not prefer any appeal against the decision of the Appellate Authority in A. A. No. 320 of 1973. Long after filing the revision petition the revision petitioner has filed two applications, CMP. Nos. 16289 of 1977 and 16290 of 1977. By the first mentioned petition the revision petitioner seeks to amend the revision petition by adding in the cause-title the number of the appeal, A.A No. 320 of 1973 and by substituting the words "A. A. No. 442 of 1973 and A.A No. 320 of 1973" in the place of "A. A. No. 442 of 1973" in the first sentence of Para.4. A similar substitution is prayed for in Para.5 also. In short the object of the amendment is to include the number "A. A. No. 320 of 1973" also in the revision. CMP. No. 16290 of 1977 is an application to condone the delay of 874 days in amending the revision petition so as to include the judgment in A. A No. 320 of 1973 also as one against which this revision is filed. 2. It is pointed out by the learned counsel for the 2nd respondent that the 2nd respondent has filed objections to the maintainability of this civil revision petition on 24-6-1977 and it was about four months thereafter that CMP. Nos. 16289 and 16290 of 1977 above referred to were filed. 2. It is pointed out by the learned counsel for the 2nd respondent that the 2nd respondent has filed objections to the maintainability of this civil revision petition on 24-6-1977 and it was about four months thereafter that CMP. Nos. 16289 and 16290 of 1977 above referred to were filed. The maintainability of this revision petition is questioned raising the ground that the decision of the Appellate Authority in A. A. No. 320 of 1973 would operate as res judicata The submission on behalf of the 2nd respondent is that there is no bona fides in the aforesaid applications and that there is inordinate delay to convert this civil revision petition as one against the decision in A. A. No. 320 of 1973 also. 3. It appears to me that the submission as aforesaid as regards CMP Nos. 16289 and 16290 of 1970 is well-founded. I am not satisfied that the petitioner is entitled to have this civil revision petition filed in 1975 converted into one against A. A. No. 320 of 1973 also now. I therefore dismiss the said applications. 4. The next question that arises for consideration is as to whether the learned counsel for the 2nd respondent is well-founded in his submissions that this civil revision petition is berried by general principles of res judicata In view of the decision of the Full Bench in Koran v. Kamala (1977 KLT. 358) (F.B.) it cannot be disputed that the principles of res judicata would be attracted to proceedings before the Land Tribunal though not S 11 of the Code of Civil Procedure, 1908. It cannot also be disputed that S.11 aforesaid would not be attracted to such proceedings in so far as that provision would be attracted only to suits. The submission of the learned counsel for the 2nd respondent is that the decision in the connected appeal before the Appellate Authority, A.A. No. 320 of 1973, which (though was disposed of by a common judgment) held that the petitioner is not entitled to the benefits of a kudikidappukaran, would operate as res judicata so far as this revision is concerned. 5. The learned counsel for the petitioner relying on the decision of the Supreme Court in Narhari . Shanker (AIR. 1953 S. C 419), S. Singh v. D Kunwar (AIR. 1966 SC. 1332: 1966 ALJ. 578) and Lonankutty v. Thomman (AIR. 1976 SC. 5. The learned counsel for the petitioner relying on the decision of the Supreme Court in Narhari . Shanker (AIR. 1953 S. C 419), S. Singh v. D Kunwar (AIR. 1966 SC. 1332: 1966 ALJ. 578) and Lonankutty v. Thomman (AIR. 1976 SC. 1645) submits that since the two appeals arose from the same proceedings, viz., O.A. No. 106 of 1972 on the file of the Land Tribunal, Edakkad, there can be no question of the rule of res judicata being invoked in this case. The learned counsel for the petitioner went to the extent of submitting that in fact this revision is against the common judgment in both the appeals and the omission to mention the number of one of the appeals in the revision memo is of no consequence. 6. No doubt the Supreme Court in the first-mentioned case said as follows: 'It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. As has been observed by Tek Chand J. in his learned judgment in (Mst. Lachmi v Mst. Bhuli) AIR 1927 Lah. 289', mentioned above, the determining factor is not the decree but the matter in controversy. As be puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one". In the said case there was only one suit, but, however, two separate appeals were preferred against the same decision of the trial court by two sets of defendants to the appellate court. The two decrees in substance are one". In the said case there was only one suit, but, however, two separate appeals were preferred against the same decision of the trial court by two sets of defendants to the appellate court. It was with reference to the said appeals that the Supreme Court said as aforesaid. 7. In S. Singh v. D. Kunwar (AIR. 1966 SC. 1332 =1966 ALJ. 578) however the Supreme Court took the view that where two suits having common issues were decided on merits and two appeals were preferred therefrom, dismissal of one of the appeals would operate as res judicata in so far as the result of the decision of the appellate court is to confirm the decision of the trial court given on merits. The earlier decision in the Narhari case adverted to above was considered by that court in this case. That case was distinguished by holding that it can have no application to the facts of the case in S. Singh v. D. Kunwar (AIR. 1966 SC. 1332=1966 ALJ. 578) "because there the suit was only one which was followed by two appeals". (See Para.12 at page 583 in 1966 ALJ.). 8. Narhari's case (AIR 1953 SC. 419) again came up for consideration before the Supreme Court in the last mentioned case, Lonankutty v. Thomman (AIR. 1976 SC. 1645). There again the earlier case was distinguished "because in that case only one suit was filed giving rise to 2 appeals" (See Para.21 at page 1650). 9. With reference to the aforesaid three cases the learned counsel for the petitioner argued that in so far as there was only one O.A. before the Land Tribunal though two appeals were preferred therefrom before the Appellate Authority, the decision in Narhari's case should govern the instant case and that this is clear from the subsequent decisions of the Supreme Court in S. Singh v. D. Kunwar (AIR 1966 SC. 1332 =1966 ALJ 578) and Lonankutty v. Thomman (AIR. 1976 SC. 1645) At the first blush the argument as aforesaid is forceful, but, I am afraid, is without any merit and this is so in view of the decision of the Supreme Court in Badri Narayan v. Kamdeo Prasad (AIR. 1962 SC. 338). That case arose from an election petition which was partly allowed and partly dismissed Both portions were appealed against by the respective aggrieved parties. 1962 SC. 338). That case arose from an election petition which was partly allowed and partly dismissed Both portions were appealed against by the respective aggrieved parties. The said appeals were disposed of by the High Court by one judgment. The High Court confirmed the order of the Election Tribunal setting aside the election, and allowing the appeal of the respondent declared him duly elected. The defeated candidate further appealed before the Supreme Court against the order in one of the appeals viz„ Election Appeal No. 8 of 1958 filed by the respondent before the High Court who was declared by that Court to be duly elected. The defeated candidate did not prefer any appeal against the order of the High Court setting aside his election. The question arose before that Court as to whether in these circumstances the decision of the High Court in the appeal against which no further appeal was preferred would operate as res judicata. The decision in Narhari v. Shanker (AIR. 1953 SC. 419) was sought to be pressed into service to contend for the position that in the circumstances obtained in the case the same would not operate as res judicata. Referring to Narhari's case and adverting to the passages therein the Supreme Court in Badri Narayan v Kamdeo Prasad (AIR. 1962 SC. 338) said as follows: "These observations do not apply to cases which are governed by the general principles of res judicata which rest on the principle that a judgment is conclusive regarding the points decided between the same parties and that the parties should not be vexed twice over for the same cause". 10. Therefore, the position is clear. The decision in one appeal arising from the same decision in a suit would not operate as res judicata so far as a further appeal from one of the appeals before the lower appellate court is concerned. That is the principle laid down in Narhari's case. This is obviously so because S 11 of the Code of Civil Procedure, 1908, is not attracted to such a case for the reason there is only one suit to attract section H it is essential that there should be more than one suit It is also clear that where the common decision appealed against is rendered in two or more suits, S.11 of the Code of Civil Procedure. 1908, would be attracted and presumably for that reason the decision in one case would operate as res judicata so far as appeals from the other cases are concerned. The decisions in S. Singh v. D. Kunwar (AIR. 1966 SC. 1332: 1966 ALJ 578) and Lonankutty v. Thomman (AIR. 1976 S.C.1645; lay down the aforesaid principle. It is further clear that so far as cases governed by the general principles of res judicata are concerned, the principle laid down in Narhari's case would have no application. It is so laid down in Badri Narayan v Kamdeo Prasad (AIR. 1962 SC 338). 11. In view of what is stated above and in so far as, as already stated, the case on hand is governed by the general principles of res judicata, I have no hesitation to hold that the decision in A.A. No. 320 of 1973 against which the civil revision petitioner has not preferred a revision would operate as res judicata so far an the case on hand is concerned. 12. In view of what is stated above it is not necessary for me to consider the other question raised before me by the learned counsel for the petitioner, viz., as to whether the appellate authority is correct in reversing the decision of the Land Tribunal on the ground that the revision petitioner herein had 22 cents of land as on 141964 wherefore be was not then a kudikidappukaran as defined in S.2 (25) of the Land Reforms Act, 1963, be it as it stood then or as obtained now though by alienation of the said land in 1967 he had no land on 111970 from when alone a kudikidappukaran has, by reason of insertion of S.80B in the Land Reforms Act, 1963 by the Land Reforms (Amendment) Act, 1969, statutory right to purchase his kudikidappu or in 1972 when he filed the application for purchase, either or both of which dates alone are, according to the learned counsel for the Civil Revision Petitioner, the crucial dates with reference to which the question whether a person invoking S.80B is a kudikidappukaran or not, is to be determined. I may however point out that in CRP. I may however point out that in CRP. 1429 1972 this Court in similar circumstances held that 'taking the scheme of Act 1 of 1964, the status of a person as a kudikidappukaran has to be decided as on 1-4-1964 when the Act came into force', but I make it clear that I refrain from expressing any views thereon now. 13. The Civil Revision Petition is dismissed as barred by res judicata by reason of the decision in A.A. No. 320 of 1973 which has become final. In the circumstances of the case there will be no order as to costs. Dismissed.