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1987 DIGILAW 412 (KER)

VELAYUDHAN NAIR v. NARAYANAN NAMBOODIRI

1987-08-19

PADMANABHAN

body1987
Judgment :- 1. Defendants 3 and 4 seek to revise an order rejecting their application for the issue of a commission to assess the value of improvements, with a direction that if they are entitled to get value of improvements it could be assessed in execution. 2. This unfortunate litigation started 13 years ago in 1974. The suit property is 4 acres 17 cents. The suit as framed initially was only for injunction to restrain various defendants from disturbing possession of the plaintiffs. In this revision petition, we are concerned only with 311/2 cents out of the suit property claimed by the revision petitioners. The suit property belongs to a Namboodiri Illom. The suit was filed on behalf of the illom by the karanavan and another member. 3. Revision petitioners claimed that 311/2 cents out of the suit property was given from the illom to the mother of the second revision petitioner for enjoyment on condition that she should pay Rs. 2/- and a bunch of bananas every year during onam. The contention is that the arrangement was made on account of the fact that the mother of the 2nd revision petitioner was the maid servant in the illom. Now the services are continued by the 2nd revision petitioner. Therefore revision petitioners contended that the prayer for injunction will not lie with respect to the said 311/2 cents. Trial court dismissed the suit as regards the said 311/2 cents and decreed the suit for injunction regarding the remainder. 4. At that time the decisions in Alavi v. Mohammedkutty Haji and others (1973 KLT 937) and Narayana Menon v. Kallandi (1973 KLT 983) held the field. According to those decisions no question of reference to the Land Tribunal under S.125 (3) of the Kerala Land Reforms Act will arise in a suit for injunction even if a tenancy right is claimed, because in such a suit the question to be considered is only possession as on the date of suit. But these decisions were overruled by a Full Bench decision in Lissy v. Kuttan (1976 KLT 571). That decision said that even in a suit for injunction a reference to the Land Tribunal is necessary if a claim of tenancy is raised. From the decision of the trial court, there was an appeal. The appeal was decided in 1976. But these decisions were overruled by a Full Bench decision in Lissy v. Kuttan (1976 KLT 571). That decision said that even in a suit for injunction a reference to the Land Tribunal is necessary if a claim of tenancy is raised. From the decision of the trial court, there was an appeal. The appeal was decided in 1976. At that time the principles laid down in Lissy's case (1976 KLT 571) was in force. It was only much later that Lissy's case (1976 KLT 571) was overruled by a larger Bench in the decision in Kesava Bhat v. Subraya Bhat (1979 KLT 766). By that decision the law laid down in the 1973 decision was restored following the decision in Alavi v. Radha Varasyaramma (1976 KLT 691). The appellate court remanded the suit with a direction to refer the question of tenancy to the Land Tribunal. Accordingly a reference was made under S.125(3). The Land Tribunal found that the arrangement pleaded by the revision petitioners is not a tenancy entitling them to fixity of tenure under the Kerala Land Reforms Act. 5. Subsequent to the finding of the Land Tribunal the plaintiffs got the plaint amended. By the amendment which was allowed on 26-7-1985, so far as the disputed 311/2 cents is concerned, a prayer for recovery of possession was also included. Amendment was allowed on terms. After the revision petitioners filed additional written statement in answer to the amended plaint, additional issues were raised on 14-11-1985. On 19-11-1985 they applied for the issue of a commission for assessing value of improvements in order to substantiate the claim for the same in the additional written statement. That application was rejected by the impugned order with the observation that if they are entitled to get value of improvements, it could be determined at the execution stage. 6. The correctness of this order was under serious challenge before roe at the time of arguments. That application was rejected by the impugned order with the observation that if they are entitled to get value of improvements, it could be determined at the execution stage. 6. The correctness of this order was under serious challenge before roe at the time of arguments. 0.14 R.2 of the Code of Civil Procedure, as it stood before the amendment of 1976, reads: "Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined". After the amendment of 1976, 0.14 R.2 reads thus: "(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may. if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." As per the provisions of 0.14 R.2(1) as amended, notwithstanding the fact that a case may be disposed of on a preliminary issue the court is bound to pronounce judgment on all the issues. This is subject to the provisions of sub-rule (2). Even under sub-rule (2), where there are both issues of fact and law, the court could dispose of the suit on a preliminary issue of law only if the issue relates to jurisdiction of the court or a bar of the suit created by any law for the time being in force. 8. So far as the present suit is concerned, there is not even a question of law on which the court could determine the suit on a preliminary issue. 8. So far as the present suit is concerned, there is not even a question of law on which the court could determine the suit on a preliminary issue. Here the disputed question is assessment of value of improvements. All disputes between the parties arising in the suit are definitely to be decided on the trial side itself by the judgment. Determination of value of improvements is not something which the trial court could relegate to the stage of execution. That will amount to a wrong or irregular procedure. 9. In the present case there is no question of any delay also on the part of the revision petitioners in filing the application for issue of a commission to assess the value of improvements. The necessity for getting value of improvements assessed arose only when the suit for injunction was converted into one for recovery of possession by amendment which was allowed on 26-7-1985. Within five days of the settlement of issues the revision petitioners applied for issue of a commission. Probably what might have prevailed upon the trial court was the consideration that the suit is one of 1974 and the issue of a commission is likely to delay the old suit further. But that aspect may not justify a wrong legal procedure. If a decree for recovery of possession is conditional on the assessment and payment of value of improvements that is definitely a matter to be decided on the trial side because the decree has to adjudicate and settle the rights between the parties finally. 10. The procedure is not only irregular or illegal, but there is another aspect also. If the assessment of value of improvements is made on the trial side by the decree, the revision petitioners will be having a right of appeal against the same. If that is relegated to the execution stage the effect will be that such a right of appeal will be taken away. It is true that there may be a remedy by way of revision. But it has to be borne in mind that both are not equal remedies. The exercise of the power under S.115 of the Code of Civil Procedure has its own limitations and it may not be as efficacious a remedy as an appeal. It is true that there may be a remedy by way of revision. But it has to be borne in mind that both are not equal remedies. The exercise of the power under S.115 of the Code of Civil Procedure has its own limitations and it may not be as efficacious a remedy as an appeal. Considering all these aspects, I am of opinion that the direction given by the trial court in the impugned order to have the value of improvements assessed at the stage of execution is against the provisions of 0.14 R.2 of the Code and therefore illegal. The CRP. is therefore allowed and the order of the trial court is set aside. The trial court will allow the commission application, get the value of improvements assessed and pass a decree on the merits, according to law, in the light of what is stated above, I do not make any order as to costs in the circumstances.