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1987 DIGILAW 292 (KER)

MANUAL DCRUZ v. STATE OP KERALA

1987-07-07

BALAKRISHNA MENON, SHAMSUDDIN

body1987
Judgment :- 1. This Civil Revision Petition comes up before a Division Bench since a learned judge of this court doubted the correctness of the decision of Kochu Thommen, J in Achutha Shenoi v. Land Tribunal, Alwaye (1980 KLT. 823). 2. The revision arises out of an application filed by the revision petitioner under S.80B of the Kerala Land Reforms Act for the purchase of kudikidappu situated in Sy. No. 287/4 of Rameswaram Village, Cochin Taluk. There is no dispute that the applicant is in occupation of the building. According to him the building is a but within the meaning of the Act. He has no other building or land to put up a homestead, and is therefore a kudikidappukaran entitled to purchase the kudikidappu under S.80B of the Act. The 3rd respondent in the CRP is the owner of the land and building. Respondents I and 2 are only the State and the Appellate Authority respectively. The third respondent raised a contention that the building is not a but and the applicant is not entitled to kudikidappu rights. He raised also the contention that the claim of kudikidappu is barred for the reason of the order dated 18-1-1972. of the Rent Control Court, Cochin for eviction of the applicant under S.11(2) and (3) of the Kerala Buildings (Lease and Rent Control) Act. The Land Tribunal entered a preliminary finding that the applicant is a kudikidappukaran, entitled to purchase the kudikidappu under S.80B of the Kerala Land Reforms Act. The plea of res judicata based on the judgment of the Rent Control Court in RCP No. 151 of 1969 was rejected as according to the Tribunal the decision of the Rent Control Court is not binding on it. An appeal against the preliminary finding by the third respondent-land owner was rejected as not maintainable. The Land Tribunal thereafter passed a final order for assignment of the kudikidappu to the applicant. In appeal by the third respondent, the appellate authority has reversed the decision of the Land Tribunal and has dismissed the application on the ground that the finding of the Rent Control Court in RCP 151 of 1969 that the applicant is not a kudikidappukaran is binding on him and, it operates as res judicata against his present plea of kudikidappu. It is against the decision of the appellate authority that the applicant has come up in revision. 3. It is against the decision of the appellate authority that the applicant has come up in revision. 3. The judgment in RCP 151 of 1969 shows that the applicant bad raised the plea that be is a kudikidappukaran, and no order of eviction can be passed against him under S.11 to the Kerala Buildings (Lease and Rent Control) Act. The Rent Control Court has considered this question and has entered a finding that the applicant is not a kudikidappukaran, and that he is only a tenant of the building liable to be evicted under sub section (2) and (3) of S.11 of the Kerala Buildings (Lease and Rent Control) Act. 4. The jurisdiction of the Rent Control Court to decide the question whether the occupant of the building is a tenant or a kudikidappukaran cannot be doubted. It is a jurisdictional fact and unless the Rent Control Court is satisfied under the Second proviso to S 11(1) of the Act that the claim to a right of permanent tenancy is bonafide, that court is not obliged to direct the landlord to sue for eviction of the tenant in a civil court. The first point for consideration by the Rent Control Court was whether the building is a but and whether the respondent before it is a kudikidappukaran. The plea raised on behalf of the revision petitioner that the question of kudikidappu should be referred to the Land Tribunal for decision under S.125(3) of the Kerala Land Reforms Act was not acceded to by the Rent Control Court for the reason that RCP 151 of 1969 was pending on the date of commencement of Act 35 of 1969. and that court itself had the jurisdiction to decide the question. The Rent Control Court entered a clear finding that the building is not a but and the respondent before it is not a kudikidappukaran. 5. As per S.125(1) of the Kerala Land Reforms Act no civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the other authorities mentioned therein. 5. As per S.125(1) of the Kerala Land Reforms Act no civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the other authorities mentioned therein. Sub-s. (3) enjoins a reference of the question regarding rights of a tenant or of a kudikidappukaran including a question as to whether a person is a tenant or a kudikidappukaran for decision to the Land Tribunal if such question arises in a suit or other proceedings before the civil court. The Land Tribunal shall decide the question referred to it under sub-section (3) and return the records together with its decision to the civil court as enjoined by sub-section (4), and sub-section (5) requires the civil court to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. Sub-section (8) was inserted by Amendment Act 17/1972 as per which the Rent Control Court as defined in the Kerala Buildings (Lease and Rent Control) Act, 1965 is included in the expression civil court within the meaning of the Section. Subsection (1) has a proviso that nothing contained in the sub-section shall apply to proceedings pending in any court at the commencement of the Kerala Land Reforms (Amendment) Act 1969. The Supreme Court in the decision in Eapen Chacko v. Provident Investment Co. (P) Ltd. (1977 KLT 1) bad considered the effect of the proviso to sub-section.(1) and it was held that both sub-sections (1) and (3) of S.125 are only prospective in operation and proceedings pending at the commencement of the Amendment Act 35 of 1969 are excepted from the application of both the sub-sections by virtue of the proviso. The Supreme Court at page 8 states: "The effect of the proviso is to carve out by way of exception what would other-wise have fallen within the provision to which it is a proviso. It. therefore, follows that the proceedings in the present case which were pending at the commencement of the Amendment Act on 1st January, 1970 are saved from the operation of S.125(1) of the Act. In short the proceedings are to be determined by the civil court". 6. It. therefore, follows that the proceedings in the present case which were pending at the commencement of the Amendment Act on 1st January, 1970 are saved from the operation of S.125(1) of the Act. In short the proceedings are to be determined by the civil court". 6. In the light of the decision of the Supreme Court, the contention of the counsel for the petitioner that the Land Tribunal alone has exclusive jurisdiction to consider the question of kudikidappu cannot be accepted in so far as the question arises in proceedings pending on the date of commencement of the Amendment Act 35/1969. 7. The learned counsel for the petitioner has raised a contention that the Appellate Authority (Land Reforms) has no jurisdiction to interfere with the preliminary finding of the Land Tribunal in an appeal against the final order especially in view of the dismissal of the earlier appeal as not maintainable. It is true that the preliminary finding of the Land Tribunal was the subject of appeal at the instance of the third respondent in LRAS 986/1972 before the Appellate Authority (Land Reforms) Ernakulam. That appeal was however, rejected without considering the question on merits leaving the parties to wait until a final order is passed by the Land Tribunal. It was in an appeal against the final order that the third respondent had challenged the correctness of the finding on his plea that the question of kudikidappu raised by the applicant is barred by res judicata for the reason of the decision of the Rent Control Court in RCP 151 of 1969. A learned judge of this court in Ayammed v. Parameswaran Namboodiri (1976 KLT 788) has held that an appeal would lie against the preliminary order of the Land Tribunal under R.9(1) of the Kerala Land Reforms (Vesting and Assignment) R.1970. It is also held that the correctness of the preliminary finding can also be challenged in an appeal against the final order. There is nothing precluding the third respondent from challenging the correctness of the preliminary finding in an appeal against the final order. We respectfully agree with the view expressed by the learned judge in Ayammed's case that the correctness of the preliminary finding can well be challenged in an appeal against the final order. There is nothing precluding the third respondent from challenging the correctness of the preliminary finding in an appeal against the final order. We respectfully agree with the view expressed by the learned judge in Ayammed's case that the correctness of the preliminary finding can well be challenged in an appeal against the final order. We, therefore, over-rule the contention that the appellate authority had no jurisdiction to consider the correctness of the finding of the Land Tribunal on the plea of kudikidappu raised by the applicant. 8. The Rent Control Court established under the Kerala Buildings (Lease And Rent Control) Act 1965 is not a civil court. Vide the decision of a Full Bench of this court reported in Ouseph Vareed v. Mary (1968 KLT 583). The Rent Control Court is deemed to be a civil court for the purpose of S.125 of the Kerala Land Reforms Act with effect from 2/11/1972 when the Amendment Act 17/1972 came into force. Kochu Thommen. J. in Achutha Shenoy v. Land Tribunal, Alwaye (1980 KLT. 823) stated at page 825: "5. In Eapen Chacko v. Provident Investment Company (P) Ltd. (1977 KLT 1 (SC) the Supreme Court, disagreeing with a Pull Bench decision of this Court in Anantha Narayanan Iyer v. Paran (1976 KLT 403) has held that S.125(1), S.125(3) are both prospective. The civil court was divested of jurisdiction in regard to matters mentioned therein only in respect of proceedings initiated subsequent to 1-1-1970. As regards proceedings pending on 1-1-1970, which is the date on which S.125 came into effect, there was no divestiture of jurisdiction of the civil court. The same reasoning must of necessity apply mutatis mutandis to sub-section (8) of S.25 in respect of Rent Control Court which is brought within the definition of a civil court as from 2-11-1972. The sub-section reads: "shall include". This indicates that the sub-section operates only as from the date on which it was brought into force, viz. 2-11-1972. Until then, the Rent Control Court was not a "civil court" and it did not therefore come under the ban of S.125(1) or S.125(3). The sub-section (8) being prospective the Rent Control Court retained its full competence in respect of proceedings pending on 2/11/1972 in relation to matters over which it had jurisdiction prior to that date". 9. 2-11-1972. Until then, the Rent Control Court was not a "civil court" and it did not therefore come under the ban of S.125(1) or S.125(3). The sub-section (8) being prospective the Rent Control Court retained its full competence in respect of proceedings pending on 2/11/1972 in relation to matters over which it had jurisdiction prior to that date". 9. We are in agreement with the learned judge that the Rent Control Court was not a civil court until sub-section (8) was inserted by Amendment Act 17/1972 with effect from 2/11/1972. Until that date the bar of jurisdiction under S.125(1) of the Act did not extend to the Rent Control Courts. We cannot however agree with the conclusion of the learned judge that subsection (8) being prospective, the Rent Control Court retained its full competence in respect of proceedings pending on 2/11/1972. The bar under S.125(1) of the Act is absolute and the only exemption is in respect of pending matters covered by the proviso. The proviso expressly states that S.125(1) of the Act shall not apply to proceedings pending in any court at the commencement of the Kerala Land Reforms (Amendment) Act 1969. The Amendment Act 1969 came into force on 1/1/1970, and the proviso will not exclude the bar under S.125(1) in respect of matters instituted after 1/1/1970 and pending on 2/11/1972. The exemption under the proviso cannot be enlarged for the reason of introduction of sub-section (8) bringing in Rent Control Courts also within the meaning of the expression civil court in S.125 of the Act. The decision of Vadakkel. J. reported in Sankara Narayanan v. Seetharaman (1977 KLT 846) was not brought to the notice of the learned Judge. Vadakkel, J. slated at page 849: "5. Understood in the light of the construction placed in sub-sections (1) and (3) of S.125 of the Act by the Supreme Court, it is necessary to import the proviso to S.125(1) also to S.125(3) Therefore, sub-section (3) would not be attracted to matters falling within the ambit of the proviso to sub-section (1) of S.125. It is not possible to extend the exception any further. It is not possible to extend the exception any further. It should be remembered that I am in this case concerned with the construction of a statutory provision and it is not possible to accept the contention on behalf of the 1st respondent that since the effect of the proviso to S.125(1) is to take out proceedings pending on 1-1-1970, the date of commencement of the Kerala Land Reforms (Amendment) Act, 1969, outside the purview of both sub-sections (1) and (3) of S.125. (and applying that analogy) proceedings pending in Rent Control Courts when Act 17 of 1972 came into force should also be taken outside the ambit of the aforesaid provisions-the aforesaid Act came into force on 2-11-1972. The submission advanced on behalf of the 1st respondent landlord is that since sub-section (8) came into force only on 2/11/1972 and as on that date the Rent Control Petition in question was pending, that proceeding would be outside the ambit of sub-sections (1) and (3) of S.125. As stated earlier it is not possible to accept the contention as aforesaid; it appears to me that the only exception to S.125(1) and (3) is the exception contained in the proviso to S.125(1) of the Act". 10. We are in respectful agreement with the view expressed by Vadakkel, J. that the only exemption to S.125(1) and (3) is the exception contained in the proviso to S 125(1) of the Act and it cannot be extended any further. 11. In the present case, however, the proceedings in RCP 151 of 1969 were pending on the date of commencement of Act 35 of 1969 and the proviso squarely applied against the bar contained in S.125(1) of the Act. The Rent Control Court had jurisdiction to consider the plea of kudikidappu raised by the revision petitioner and its finding that he is not a kudikidappukaran is binding on him. The Rent Control Court is a court of exclusive jurisdiction in regard to tenancies of buildings tailing under the Rent Control Act and its decision is res judicata against the present plea of kudikidappu raised by the revision petitioner. 12. The Rent Control Court is a court of exclusive jurisdiction in regard to tenancies of buildings tailing under the Rent Control Act and its decision is res judicata against the present plea of kudikidappu raised by the revision petitioner. 12. The learned counsel for the revision petitioner has raised another contention that the Rent Control Court is a court of limited jurisdiction and its decision on the question of kudikidappu is not res judicata, in subsequent proceedings initiated before the Land Tribunal under S.80B of the Kerala Land Reforms Act for the purchase of Kudikidappu. Counsel relies on the decision of the Supreme Court in Bhagwan Dayal v. Reoti Devi (AIR 1962 SC 287) in support of this proposition. In that case the widow of the deceased brother of the plaintiff instituted proceedings before the Revenue Court under S.227 of the Agra Tenancy Act, 1926 for her share of profits in a Mahal held in common by the plaintiff and her deceased husband. On the plaintiff's contention that the Mahal belonged to the Hindu Joint Family of himself and his deceased brother and that on the death of the brother the property devolved absolutely on him by survivorship, the question of title to the Mahal was referred to the civil court for decision under S.271 of the said Act. The Munsiff decided the issue against the plaintiff and the Revenue Court passed a decree based on the finding of the Munsiff for payment of the widow's share of profits to her. The decision of the revenue court was confirmed in appeal before the District Court and in Second Appeal by the High Court. Thereafter the plaintiff instituted a suit for declaration of his title to the plaint schedule properties and for injunction restraining the execution of the decree of the revenue court. The gist of the provisions of the Agra Tenancy Act, 1926 is summarised in Para.12 of the judgment of the Supreme Court at page 293: One of the co-sharers can file a suit against another co-sharer for settlement of accounts and for his share of the profits of a mahal or any part thereof. If the defendant denies the plaintiff's proprietary right, an issue on the question of title is raised and sent to the civil court for decision. The revenue court is required to accept the finding of the civil court and decide the suit accordingly. If the defendant denies the plaintiff's proprietary right, an issue on the question of title is raised and sent to the civil court for decision. The revenue court is required to accept the finding of the civil court and decide the suit accordingly. An appeal would lie against that decree to a court which has jurisdiction to bear appeals from the court to which the question was referred. The revenue court has exclusive jurisdiction to decide suits of the nature described in the Fourth Schedule to the Act. One of the suits mentioned in the Fourth Schedule is a suit by a co-sharer against a co-sharer for a settlement of accounts and his share of profits. No other court can take cognizance of a suit based upon a cause of action in respect of which relief can be obtained from the revenue court. On the question whether the decision of the revenue court is res judicata against the contention of the plaintiff that the property belonged to the joint family of himself and his brother and on the death of the brother his share devolved on the plaintiff by survivorship, the Supreme Court stated: "(13) The first query is whether the present suit is based on a cause of action in respect of which relief can be obtained by means of a suit specified in the Fourth Schedule to the Act. The present suit is for a declaration of the plaintiff's title to the plaint schedule properties and for an injunction restraining the execution of the decree obtained by the defendant in the Revenue Court. The plaintiff claims title to the suit properties on the ground that he was a member of a joint Hindu family along with his deceased brother and, therefore, he succeeded to his share by right of survivorship. The question is whether such a suit is in the nature of suits specified in the Fourth Schedule to the Act. The said Schedule does not provide for any suit by a person claiming to be the proprietor of a property and in possession thereof praying for a declaration of his title and for an injunction against another who is trying to interfere with his title. The said Schedule does not provide for any suit by a person claiming to be the proprietor of a property and in possession thereof praying for a declaration of his title and for an injunction against another who is trying to interfere with his title. If so, under S.230 of the Act, the Revenue Court has no exclusive jurisdiction to entertain a suit of the nature that is before us If it is not a suit of that nature, under that section, the civil court's jurisdiction is not ousted". The Supreme Court approved the decision of the Madras High Court in Venkatarama Rao v. Venkayya (AIR 1954 Mad. 788) and stated at page 294: "In this case the title to properties now put in issue was tried in the revenue court. But that court is not competent to try the present suit in which the same issue is raised. It follows that is terms of S 11 of the Code, the decision on the said issue in the revenue court could not operate as res judicata, for the necessary condition of competency of that court to try the present suit is lacking". In Gulam Abbas v. State of UP (AIR 1981 SC 2198) a question arose as to whether the decision of a civil court is res judicata in a subsequent writ petition before the Supreme Court under Art.32 of the Constitution. The Supreme Court following its earlier decisions in Daryao v. State of UP (AIR 1961 SC 1457), Gulabchand Chotalal Parikh v. State of Bombay (AIR 1965 SC 1153) and Union of India v. Nanak Singh (AIR 1968 SC 1370) held at page 2213: "It is thus clear that technical aspects of S.11 of CPC, as for instance, pecuniary or subject-wise competence of the earlier forum to adjudicate the subject-matter or grant relief sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked. The two decisions, relied upon by counsel for the respondents 5 and 6 were directly under S 11 of CPC. Even under S 11 the position has been clarified by inserting a new Explanation.8 in 1976. The two decisions, relied upon by counsel for the respondents 5 and 6 were directly under S 11 of CPC. Even under S 11 the position has been clarified by inserting a new Explanation.8 in 1976. It was not disputed that the Munsiff's court at Banaras was competent to decide the issues that arose for determination before it in earlier litigation and, therefore, the decision of such competent court on the concerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general principles of res judicata". Explanation.8 to S.11 introduced by the Civil Procedure Code (Amendment) Act 1976 specifically enacts that an issue beard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try the subsequent suit or the suit in which such issue has been subsequently raised. 13. We are, therefore, clearly of the view that the decision of the Rent Control Court is res judicata against the plea of kudikidappu raised by the revision petitioner in proceedings before the Land Tribunal, instituted under S 80-B of the Kerala Land Reforms Act. For the aforesaid reasons, we see no merit in the CRP. It is accordingly dismissed in the circumstances without any order as to costs. 14. Counsel for the revision petitioner submits that his client apprehends immediate eviction in execution of the order of the Rent Control Court, and prays for time to vacate the building. The learned counsel for the third respondent-landlord submits that his client has no objection in granting the revision petitioner four months' time to vacate on condition that be files a written undertaking before the execution court to surrender the building within the aforesaid period of four months. This submission is recorded and if an undertaking as aforesaid is filed in the execution court within one month from today, the petitioner will not be evicted for a period of four months from today.