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1980 DIGILAW 132 (KER)

SHAHUL HAMEED v. HASSAN

1980-06-12

GEORGE VADAKKEL

body1980
Judgment :- 1. While the disputed property was in the possession of the respondents in CM. A. No. 32 of 1977 under Ext. A2 lease deed dated 9-2-1II6 M.E., the lessor executed Ext. Al Otti deed dated 3-6-1123 in favour of the lessee in respect of the same property Alleging that Ext. Al evidences a possessory mortgage, the mortgagor's son sought to redeem the said mortgage by invoking S.11 (5) of the Kerala Agriculturists' Debt Relief Act, 1970 (Act 11 of 1970). The counter petitioners therein raised two contentions in the alternative, namely, that Ext. A2 lease subsists despite Ext. Al otti transaction; and at any rate, Ext Al Otti transaction evidences a tenancy arrangement. The trial court upheld both the contentions mentioned above and consequently dismissed the application filed under S.11 (5) of the aforesaid Act. The applicant before the trial court preferred an appeal before the lower appellate court. That appeal too was dismissed. The lower appellate court held that though Ext. Al does not evidence a tenancy arrangement, Ext. A2 lease subsists despite Ext. Al transaction. On that basis the lower appellate court held that the respondent before the trial court as also before the appellate court is holding the property as a tenant. 2. The defeated applicant before the trial court has preferred CRP. No. 470 of 1977 and CMA. No. 32 of 1977 against the order dismissing his application under S.11 (5) of the Act by both the lower courts. The 1st respondent in those proceedings has preferred CRP. No. 618 of 1977 questioning the finding entered by the lower appellate court that Ext. Al evidences a usufructuary mortgage and not a tenancy arrangement. 3. The main contention advanced on behalf of the applicant under S.11(5) of the Act, that is to say the revision petitioner in CRP. No. 470 of 1977 who is the appellant in CMA. No. 32 of 1977 and the respondent in CRP. No. 618 of 1977 is that the application under S.11(5) of the Act was filed on 16 31972 and that therefore the question of tenancy raised by the opposite party should have been referred to the concerned Land Tribunal under S.125(3) of the Kerala Land Reforms Act, 1963. No. 32 of 1977 and the respondent in CRP. No. 618 of 1977 is that the application under S.11(5) of the Act was filed on 16 31972 and that therefore the question of tenancy raised by the opposite party should have been referred to the concerned Land Tribunal under S.125(3) of the Kerala Land Reforms Act, 1963. It is contended that no such reference was made by the trial court and that therefore the decision' of the trial court as confirmed by the appellate court is null and void. The learned counsel for the revision petitioner in CRP. No. 470 of 1977 seeks to support the submission as aforesaid relying on the Full Bench decision of this Court in Kesava Bhat v. Subraya Bhat (1979 KLT. 766) (FB). 4. In Alavi v. Radha Varasyaramma (1976 KLT. 691) (FB) a Full Bench of this Court said as follows: "A judgment or order of a court in suit or other proceeding passed without compliance with the provisions of S.125(3.), (4) and (S) is not a nullity and it cannot be ignored as void. Non-compliance with a provision of law relating to procedure to be adopted by a court may render the decision erroneous in law. But the decision does not become void for that reason if otherwise the court was competent to try the suit. A court would be competent to entertain and dispose of the suit if it had jurisdiction over the subject-matter and the parties to the case When, for the first time, the objection that the decision of the trial court should have been reached after reference to the Tribunal is taken in Second Appeal, this court is not called upon to reopen the decisions of the court below in order to enable the trial court to refer the matter to the Land Tribunal." 5. In Kesava Bhat v. Subraya Bhat (1979 KLT. 766) (FB) a larger Full Bench considered the correctness of the propositions laid down in Alavi v. Radha Varasyaramma (1976 KLT. 691) (FB). The larger Full Bench did not agree with the view of the earlier Full Bench to the effect that the question involved is one of procedure only and the decision arrived at on a matter that requires to be referred to a Land Tribunal under S.125(3) of the Kerala Land Reforms Act without compliance therewith is only vitiated by irregularity. The larger Full Bench did not agree with the view of the earlier Full Bench to the effect that the question involved is one of procedure only and the decision arrived at on a matter that requires to be referred to a Land Tribunal under S.125(3) of the Kerala Land Reforms Act without compliance therewith is only vitiated by irregularity. On the second aspect, namely whether such a question can be taken before the second appellate court after the question has been examined by the lower appellate court, the larger Full Bench said that they are not pronouncing thereon. (See Para.13 at page 784 of 1979 KLT. 766). 6. It is necessary to point out that earlier to the larger Full Bench decision another Full Bench had followed the Full Bench decision in Alavi v. Radha Varasyaramma (1976 KLT. 691) where this Court said as follows: "If the point was taken at least before the appellate court, the appellate court may, in given circumstances, set aside the decree of the trial court and remit the case to the trial court for compliance with S.125 (3). However, it is not obligatory on the part of the appellate court to do so. It has full powers to decide the question itself. This is clear from sub-section (6) of S.125 of the Kerala Land Reforms Act. If no point had been taken before the appellate court that S.125 (3) had not been complied with by the trial court, the point ought not to be permitted to be taken in the second appeal for the first time. In cases where the point had been taken before the appellate court, but had not been accepted by the appellate court, the question might arise before the second appellate court whether the decision of the first appellate court not to remit the case to the trial court to enable the trial court to make a reference to the Land Tribunal was a just and proper decision in the circumstances of the case." (See Karthyayani v. Pappu, ILR.1980 (1) Kerala 667 (F. B.)). 7. The aforesaid pronouncements are binding upon me. 7. The aforesaid pronouncements are binding upon me. I should therefore hold that in so far as the lower appellate court has examined the question of tenancy without objection thereto by the appellant therein and presumably at his behest, he cannot be allowed to contend in this Court that because of non-compliance with S.125 (3) of the Kerala Land Reforms Act, 1963 the decision of the lower appellate court is null and void. In this connection it is necessary to point out that under the scheme of the Act the Land Tribunal's finding obtained on a reference under S.125 (3) is, under subsection (5) of that Section to be accepted by the Civil Court. That sub-section says that the civil court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. Thereafter sub-section (6) of S.125 of the Kerala Land Reforms Act proceeds to say that 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. It should be noticed that the jurisdiction to decide the case is still vested in the civil court though under sub-section (3) of S.125 the jurisdiction of the civil court to decide "any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a perron is a tenant or a kudikidappukaran)" arising in the case has been taken away from the civil court. In other words the ultimate decision of the case itself on obtaining an answer to the question referred to the Land Tribunal, no doubt accepting the answer of the Land Tribunal to the reference, is by the civil court itself. The appeal therefrom is governed by the provisions of the Code of Civil Procedure, 1908. It is with reference to such an appeal that sub-s. (6) of S 125 says that the decision of the Land Tribunal which has been accepted by the civil court would for the purposes of that appeal be deemed to be part of the finding of the civil court. The appellate court has certainly jurisdiction to go into all questions arising in the appeal and relating to the findings impugned before that court. 8. The appellate court has certainly jurisdiction to go into all questions arising in the appeal and relating to the findings impugned before that court. 8. I am fortified in the view taken in the preceding paragraph by the decision of the Supreme Court in Noor Mohd. Khan v. Fakirappa (AIR. 1978 SC, 1217) which concerned a provision in the Karnataka Land Reforms Act similar to S.125 of the Kerala Land Reforms Act, 1963. The Supreme Court said as follows: "In the absence of express provision, when an issue has been referred by the Civil Court to the Tribunal and is received back and a decree passed in the suit, the provision of the Civil Procedure regarding appeals and revisions will be applicable. In such circumstance the Appellate Court will have to consider the correctness or otherwise of the issue that has been decided by the Tribunal". (Paragraph 31) and proceeded to point out: "The High Court ought to have also considered whether any restriction on the jurisdiction of the Civil Courts placed under the Act is applicable to the High Court also. The jurisdiction of the Civil Courts is not entirely barred as the Act only provides for reference of certain issues for decision before the Revenue Tribunal and after receipt of the finding on such issues to record a judgment on such finding. The appeal to the Civil Courts according to the Civil P.C. and the jurisdiction of the High Court in hearing appeals and revisions under certain circumstances have not been excluded." 9. In view of what is stated above there is no merit in the contention advanced on behalf of the revision petitioner in CRP. No. 470 of 1977 (the appellant in CMA. No. 32 of 1977) that in so far as the trial court has not complied with S.125(3) of the Kerala Land Reforms Act, 1963, the decision of the lower appellate court impugned herein is without any jurisdiction and is void. 10. On the merits it was contended that the finding entered by the lower appellate court that Ext. A2 lease of 1116 subsists is not sustainable. The lower appellate court pointed out that Ext. Al Otti transaction was executed before the expiry of the term fixed in Ext. A2 and that accounts have not been settled in accordance with the terms of Ext. A2 lease when Ext. A2 lease of 1116 subsists is not sustainable. The lower appellate court pointed out that Ext. Al Otti transaction was executed before the expiry of the term fixed in Ext. A2 and that accounts have not been settled in accordance with the terms of Ext. A2 lease when Ext. Al Otti transaction was entered into between the parties. These are sufficient grounds to come to the conclusion that by entering into Ext. Al Otti transaction the lessee did not intend to give up his rights under the lease transaction. The finding as aforesaid to be sustained and I do so. 11. In the view taken as aforesaid it is not necessary to consider the question arising in CRP. No. 618 of 1977 preferred by the respondent in the proceedings before the trial court impugning the finding entered by the lower appellate court that Ext. Al evidences a usufructuary mortgage and not a tenancy. I refrain from doing so and I leave that question open. The construction placed on Ext. Al by both the courts below is set aside and the question is left open. 12. Having confirmed the finding that Ext. A2 lease transaction subsists and that the respondent in CRP. No. 470 of 1977 is holding the property under that lease deed, it goes without saying that the lower court rightly held that the respondent in the said Civil Revision Petition is entitled to the fixity of tenure under the Kerala Land Reforms Act, 1963. The decision to that effect is confirmed. In the result CRP. No. 470 of 1977 and CMA. No. 32 of 1977 are dismissed, but without any order as regards costs. CRP. No. 618 of 1977 is disposed of as above allowing the same to the limited extent indicated hereinbefore. There shall be no order as regards costs.