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1983 DIGILAW 273 (KER)

PADMANABHAN v. THOMAS

1983-10-27

BHASKARAN NAMBIAR

body1983
Judgment :- 1. The petitioner claims to be a kudikidappukaran. The first respondent, landlord, filed an application under S.77 of Act I of 1964 praying for shifting of the kudikidappu. The claim was opposed by the tenant on several grounds including the question of resjudicata. He contended that the present shifting application would not lie in view of an earlier application which was dismissed. 2. The Land Tribunal over-ruled this preliminary objection and held that there was no bar of res judicata. The petitioner filed an appeal under S.102 of the Act before the Appellate Authority. The Appellate Authority dismissed the appeal as not maintainable. Aggrieved, this revision is filed. 3. The short question raised is whether an appeal is maintainable against a preliminary order passed under S.77(2) of the Act. S.102 of the Act provides that any -person aggrieved by any order of the Land Tribunal under sub-section (2) of S.77 may appeal against such order. S.77(2) states that the Land Tribunal, after such inquiry as it deems fit, and on being satisfied that the applicant has complied with all the conditions specified in S.75, "may pass an order requiring the kudikidappukaran to shift the kudikidappu before such date as may be specified in the order." 4. Learned counsel for the petitioner Sri. S. Parameswaran contends that any order passed under S.77(2) is appealable and the Land Tribunal was exercising only the powers conferred under S.77(2) when it issued an order overruling an objection based on res judicata. He also cites two decisions in support of his contention, Abraham v. Joseph (1975 KLT. 658) and Chellappan v. Kalyani (1975 KLT. 187). 5. In the decision in Abraham v. Joseph (1975 KLT. 658), this court had to consider whether an appeal would lie against a preliminary order passed under S.80B read with R.81 of the Kerala Land Reforms (Tenancy) Rules. S.80B provides for orders being passed on applications by kudikidappukars and R.81 of the Rules states that if the status of the applicant is in dispute, a decision shall be rendered. The question of the status of the tenant was thus decided as a preliminary issue in view of the statutory directive contained in R.81. When a finding is so entered, it could not be modified by the same authority; it was final so far as the Land Tribunal was concerned. The question of the status of the tenant was thus decided as a preliminary issue in view of the statutory directive contained in R.81. When a finding is so entered, it could not be modified by the same authority; it was final so far as the Land Tribunal was concerned. This court, therefore, held that the order, though preliminary, was final and therefore an appeal lay under S.102. 6. In the decision in Chellappan v. Kalyani, (1975 KLT. 187) the question was whether an order passed on a preliminary point under S.72F(5) was appealable. Under S.72F(5) the Land Tribunal has to pass an order determining the compensation and purchase price payable under the Act. Under Rule (1) of the Kerala Land Reforms (Vesting and Assignment) Rules the Land Tribunal shall decide the question of tenancy as a preliminary point and pass an order thereon with reasons for such order. This court held in this case also that under R.9(1) the Land Tribunal has not only to decide the question as a preliminary point, but also has to record its decision thereon with reasons for such decision. 7. The above two decisions therefore provide instances where a preliminary order was contemplated under the Statute. Those orders were final so far as the authority which passed the order was concerned. The matter can thus be taken up in appeal under S.102 of the Act. 8. It seems to me that the finality of an order under the Act and the rules furnished the clue to decide whether an appeal lies under S.102 of the Act. If an order contemplated under the Act or under the rules is passed by the primary authority, it is final so far as that authority is concerned. It can be challenged and corrected only in appeal. If however, the Act and the rules do not conceive of any preliminary order and expects only a final disposal, and an authority renders a preliminary finding de hors the rules, that finding can be challenged only in an appeal against the final order. Only one appeal is contemplated in such cases and that lies against the final order. 9. S.77(2) does not insist or expect any preliminary determination. The Land Tribunal should have passed only a final order deciding also in the process, the question of res judicata. Only one appeal is contemplated in such cases and that lies against the final order. 9. S.77(2) does not insist or expect any preliminary determination. The Land Tribunal should have passed only a final order deciding also in the process, the question of res judicata. Piecemeal disposal by statutory authorities like the Land Tribunal are not countenanced by the Act and the rules except in specific instances provided by the Statute itself. It is not the intention of the legislature that the proceedings under the Act should be protracted by an appeal against every decision or that the Land Tribunal should pass separate orders in every case when the parties raise points for determination as preliminary issue. 10. S.72(2) does not provide for a preliminary or interim order. The order now passed will be a part of the final order to be passed later on the merits. The petitioner can challenge this finding when the Land Tribunal passes a final order. 11. The Appellate Authority was right when it held that ah appeal did not lie and this revision petition is dismissed subject to the observations made above. No costs. Issue carbon copy of this order to counsel for the petitioner on usual terms.