Research › Browse › Judgment

Kerala High Court · body

1988 DIGILAW 195 (KER)

KRISHNAN RAMAN v. SOMAN

1988-04-06

VARGHESE KALLIATH

body1988
Judgment :- 1. These Civil Revision Petitions concern a question of construction and interpretation of Explanation IIA to S.2(25) of the Kerala Land Reforms Act, hereinafter referred to as the Act. 2. Two Full Bench decisions of this Court, Velayudhan v. Aishabi (1981 KLT 529) and Xavier v. Antony (1982 KLT. 769). and the decision of the Supreme Court reported in Appukuttan v. Thundiyil Janaki Amma And Ann (1988 (I) KLT. 512: JT 1988 (1) SC. 184) which has approved the Full Bench decisions, have settled the question. So, there is no scope for me to consider or interpret or to enquire and investigate the scheme, scope and the width of Explanation HA to S.2 (25) of the Act. 3. The counsel for the petitioners submitted before me that in another case I had occasion to doubt the correctness of the Full Bench decisions and that 1 bad referred that case for a reconsideration of the Full Beach decisions and so, I must express the ambit, scope and width of Explanation II A to S.2(25) of the Act. It is true that I have doubted the correctness of the Full Bench decisions. But, now, I am bound by the decision of the Supreme Court and so, I have to decide the case applying the ratio of the decision of the Supreme Court reported in Appukuttan v. Thundiyil Janaki Amma & Ann Though not ostensible the counsel reminded me that the consistent operation of a precedential decision procedure is so patently incompatible with all conceptions of progress, enlightenment and self-correction, I should innovate a method of my own to distinguish Appukuttan's case and render justice to the case at hand. I may at once say that I am bound by the Supreme Court decision and I do not venture to speculate improvements on that decision in an attempt to distinguish it. 4. The counsel submitted before me that the Supreme Court decision has to be understood on the facts of the cases dealt with by the Supreme Court and submitted that the influence of precedent on a court, however binding it may be. depends on the background of the facts of the case decided. 4. The counsel submitted before me that the Supreme Court decision has to be understood on the facts of the cases dealt with by the Supreme Court and submitted that the influence of precedent on a court, however binding it may be. depends on the background of the facts of the case decided. The counsel straightaway submitted before me that there is absolutely no justification, justice or equity in allowing the respondents in these Civil Revision Petitions to purchase kudikidappu right, who were found to be trespassers by a decree of a competent civil court which has been confirmed in appeal. 5. I shall now advert to the crucial facts of this case. The revision petitioner filed a suit, O.S. 102 of 1967, before the Munsiff's Court, Mavelikara. This was a suit for redemption. Pending the suit for redemption, the respondents in these Civil Revision Petitions (said to be relatives of the mortgagees) at the instance of the mortgagee constructed six sheds in the plaint property obviously to defeat and cause prejudice to the right of the plaintiff to recover the property after redemption. In the circumstances, the respondents herein were made parties to the suit and the plaintiff (the revision petitioner) wanted the removal of the sheds constructed by the respondents herein who were defendants 3 to 10. The learned Munsiff raised an issue "Are defendants 3 onwards liable to be evicted from the buildings", as issue No. S. There was another suit filed by the mortgagee against the respondents herein who were defendants in the other suit, O.S 102 of 1967. This was a suit for an injunction to restrain the respondents in the Civil Revision Petitions from trespassing into the property in question. The learned Munsiff found that the respondents herein are trespassers who cannot claim any kudikidappu right. The suit was decreed and the court directed the receiver to surrender the property to the plaintiff who is the revision petitioner herein. The respondents herein who claimed kudikidappu, filed appeals from the common judgment in O.S. 102 of 1967 and O. S.174 of 1967. The Appellate Court held: "There is clinching evidence in this case that these defendants were occupying items 3 to 8 as trespassers and there is no principle of law to support the case of kudikidappu to trespassers. The respondents herein who claimed kudikidappu, filed appeals from the common judgment in O.S. 102 of 1967 and O. S.174 of 1967. The Appellate Court held: "There is clinching evidence in this case that these defendants were occupying items 3 to 8 as trespassers and there is no principle of law to support the case of kudikidappu to trespassers. The trial court has elaborately considered all these aspects and came to the conclusion that items 3 to 8 are constructed after the institution of the redemption suit and so the occupants in those sheds are not entitled to any kudikidappu right". So, the status of the respondents who claimed kudikidappu was unequivocally found to be that of trespassers. Certainly, the trespass was prior to the crucial date stated in Explanation IIA to S.2 (25) of the Act. 6. Now, I shall quote the relevant part of S.2(25) of the Act. "2 (25) 'kudikidappukaran' means Expln. IIA notwithstanding any judgment, decree, or order of any court, a person, who, on the 16th day of August. 1968. was in occupation of any land and the dwelling house thereon (whether constructed by him or by any of his predecessors-in-interest or belonging to any other person) and continued to be in such occupation till the 1st day of January, 1970, shall be deemed to be a kudikidappukaran" Explanation IIA was inserted by S.2 (a) (ii) of Act 17 of 1972. The circumstances under which this Explanation was introduced by the legislature have been very clearly explained in the Full Bench decisions as well as in the decision of the Supreme Court. 7. The counsel submits before me that in a case where there is clear finding that the status of the persons claiming kudikidappu is that of a trespassers, the Supreme Court's decision will not be of any succour to such persons to claim kudikidappu. The counsel tells me that the legislature never wanted to encourage trespassers and it is, not possible to think that the court by interpreting a provision will support the proposition that the intention of the legislature was to legalise trespass by certain persons during a particular period of time. The counsel tells me that the legislature never wanted to encourage trespassers and it is, not possible to think that the court by interpreting a provision will support the proposition that the intention of the legislature was to legalise trespass by certain persons during a particular period of time. He submits that the wording of the section does not admit of any fiction to be introduced in the Explanation to the section to say that a trespasser is deemed to be a kudikidappukaran if the trespass was prior to the crucial date, i.e. 16-8-1968. The counsel wanted to elaborate bis submission by saying that the Full Beach decisions as well as the Supreme Court decision have said only that persons who were in continuous occupation should satisfy all the other requirements of a kudikidappukaran for the period mentioned is Explanation IIA. namely, from the 16th of August till the 1st day of January. 1970, so as to enable him to claim kudikidappu. The counsel submits that the crucial words that have to be interpreted in Explanation IIA are these: "was in occupation of any land". When the legislature has said that a person was in occupation of any land, that occupation shall mean only lawful and legal occupation. It has to be noted that the undertaking of the meaning of the word 'occupation' in the Full Bench decisions sounds a sour note with the principles stated in K. K. Handique v. Member, Board of Agricultural Income-tax, Assam (AIR 1966 SC 1191), Bramma v. Veruppa (AIR 1966 SC. 1879) and Budhan Singh v Babi Bux (AIR 1970 SC. 1880). in a case where a court has found that the occupation is not legal or lawful. Explanation IIA has no application. Even if in cases where there is no evidence regarding the genesis of the occupation, the application of Explanation IIA may be available, but, certainly, it cannot be applied when there is a clear finding by a civil court that the occupation was unlawful. 8. The counsel submitted before me that the Supreme Court itself in regard to certain provisions of the same Act, has expressed such a view in the decision reported in Mathew v. Hamsa Haji (1987 (2) KLT 1). The Supreme Court has interpreted S.71) of the Act. 8. The counsel submitted before me that the Supreme Court itself in regard to certain provisions of the same Act, has expressed such a view in the decision reported in Mathew v. Hamsa Haji (1987 (2) KLT 1). The Supreme Court has interpreted S.71) of the Act. The section reads thus: '7D Certain persons occupying private forests or unsurveyed lands to be deemed tenant-Notwithstanding anything to the contrary contained in S.52 or any other provision of the Transfer of Property Act. 1382, or any other law, or any contract, custom or usage, or in any judgment, decree or order of court, any person in occupation at commencement of the Kerala Land Reforms (Amendment) Act, 1969, of the land of another situated in Malabar, to which the provisions of the Madras Preservation of Private Forests Act, 1949 (XXVII of 1949), were applicable on the 11th day of April, 1955 or which was unsurveyed on that date, shall be deemed to be a tenant if be or bis predecessor-in-interest was continuously in occupation of such land for not less than two years within a period of twelve years immediately preceding the 11th day of April, 1967". The Court said: "The High Court has taken the view that the benefit of the above section would apply only to persons whose occupation of the private forests or unsurveyed lands bad a lawful origin and not to persons in unlawful occupation based on trespass or forcible and unlawful entry. We are of opinion that the said interpretation placed by the High Court on the section is perfectly correct". It has to be noted that the Supreme Court has taken note of this decision when it interpreted Explanation IIA to S.2(25) of the Act in Appukuttan's case. 9. In Appukuttan's case the Supreme Court said about Mathew v. Hamsa Haji, thus: "The clear finding in that case was that the appellant bad claimed title on the basis of adverse possession and his own plea was that he bad come into possession of the lands by trespass. He was, therefore, far removed from the class of persons whom the legislature wanted to provide for, namely, persons who bad entered upon land under a bona fide mistaken belief that the land belongs to Government and is capable of assignment or that the land belongs to the person who had granted them lease etc. The entry was. therefore. He was, therefore, far removed from the class of persons whom the legislature wanted to provide for, namely, persons who bad entered upon land under a bona fide mistaken belief that the land belongs to Government and is capable of assignment or that the land belongs to the person who had granted them lease etc. The entry was. therefore. linked with a bona fide belief though mistaken, about the character of the land and hence a trespasser is not entitled to claim any benefit. But, in so far as S.2(25) and Explanation IIA of the Act are concerned, the occupant of the homestead or but is not enjoined to prove that he occupied the homestead or but under a bona tide mistaken belief and that be was not a trespasser. He need only prove under the main clause that be bad been permitted to occupy the homestead or but and under Explanation IIA that he had been in continuous occupation from 16-8-1968 to 1-1-1970 Presumably, the legislature has thought that an occupant of a homestead or a but would not have been allowed to remain in occupation for so long if be was a trespasser. There is, therefore, no conflict between the view taken by us in these appeals and the view taken by this Court in CA No. 165 of 1974 etc." 10. The counsel submits before me that I should give emphasis to the last part of the above quote where the Supreme Court has adverted to the intention of the legislature by saying that "an occupant of a homestead or a but would not have been allowed to remain in occupation for so long if he was a trespasser". The counsel points out that in the above quote the Supreme Court also is of the view that in a clear case where a person claiming kudikidappu right under Explanation IIA to S.2 (25) of the Act is found to be a trespasser by a competent court, he cannot be given that benefit under Explanation IIA. Counsel wanted to shed more light on this aspect by spotlighting the guarded usage of the Supreme Court in the following passage "the occupant of the homestead or but is not enjoined to prove that be occupied the homestead or but under a bona fide mistaken belief and that be was not a trespasser". Counsel wanted to shed more light on this aspect by spotlighting the guarded usage of the Supreme Court in the following passage "the occupant of the homestead or but is not enjoined to prove that be occupied the homestead or but under a bona fide mistaken belief and that be was not a trespasser". Counsel submits that this only relieves him from the burden of proving the genesis of his entry, but the case would take a totally different colour and perspective if there is clean and clear declaration of a competent civil court that be is a trespasser after bearing him and adjudicating his claims. He says that such cases are beyond the pale of the rule laid down in Appukuttan's case. 11. It has to be remembered that the Supreme Court bad occasion to consider the ratio of the decision reported in Mathew v. Hamsa Haji (1987(2) KLT 1). The Supreme Court held that Mathew's case stands on a different footing and that the interpretation to Explanation IIA to S.2(25) of the Act should not be influenced by Mathew's case As I said earlier, I am bound by the direct decision of the Supreme Court giving a wider interpretation to Explanation IIA to S.2(25). It is not commendable for this Court to speculate on the question of interpretation of a particular provision of the Act given by the Supreme Court after an elaborate consideration. I should remember that although a severe adherence to precedent may produce undesirable effects it is clearly essential to a state of affairs in which the law will be certain. "Law exists to ensure the order which the forces in control of a society desire to impose. Its object is uniformity of action, so that one member of society may know bow, in certain circumstances, another is likely to behave, this being the essence of security. "Law exists to ensure the order which the forces in control of a society desire to impose. Its object is uniformity of action, so that one member of society may know bow, in certain circumstances, another is likely to behave, this being the essence of security. (Vide - Wade, The Concept of Legal Certainty page 185.) I may also quote that "if a judge finds a decision which is a precedent for the case before him and which would also fail to do justice between the parties, his first duty is to examine and see whether, on their facts, the earlier cases are like the one in hand and should it be impossible to draw a real distinction, his next duty is, Dot blindly to accept the prior rulings, but, before adopting them as controlling precedents, to satisfy himself as to their binding character and correctness in law" Vide Von Mosclizisker "Stare Decisis in Courts of Last Resort." I believe what Lord Eldon has said: "It is better that the law should be certain than that every judge should speculate upon improvements in it". Lord Diplock warns in clear terms the necessity for accepting a precedent to maintain judicial discipline thus: " It is inevitable in a hierarchical system of Courts that there are decisions of the Supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary. When I sat in the Court of Appeal I sometimes thought the House of Lords was wrong in overruling me. Ever since that time there have been occasions when alone or in company, I have dissented from a decision of the majority of this House. But the judicial system only works if someone is allowed to have the last word and if that last word, once spoken, is loyally accepted". (See Cassell Ltd. v. Broom e (19721 All ER 801 at 874). 12. Before concluding this judgment I may also refer to an argument advanced by the counsel for the petitioners. He submitted before me that the question has to be considered in the light of the doctrine of lis pendens. He said that the present decision holding that the respondents in the Civil Revision Petitions are entitled to purchase kudikidappu right will certainly bit the doctrine of lis pendens. He submitted before me that the question has to be considered in the light of the doctrine of lis pendens. He said that the present decision holding that the respondents in the Civil Revision Petitions are entitled to purchase kudikidappu right will certainly bit the doctrine of lis pendens. Further, he said that the effect of the doctrine of lis pendens has not been taken away by the Full Bench decisions of this Court. He referred me to Mohammed Mytheen v. Sreedharan (1976 KLT. 919 FB). A Full Bench of this Court held thus: "As far as defendant I is concerned, Ext.A24 shows that he took the land on tharapattam and also that he purchased a building which was situate on that land and which at that time was owned by the defendant. There is no scope for applying S.2(2) of the Act to defendant 1 as be had not been permitted to occupy the land in possession of another or to erect a but therein or given permission to occupy abut therein. He was a transferee pendente lite. He cannot therefore claim any right of a kudikidappukaran". Further, the counsel pointed out the following passage: "The approach I think must be to find out whether the law which is said to be abrogated be such non-obstante clause occupied the same field or dealt with the same object. Laws which fall under that category must certainly be abrogated by the non-obstante clause. This principle should not however be extended to other laws enacted on the basis of public policy meant for protection of interests and for finality of pronouncement of courts which have nothing to do with the objects and the purposes sought to be achieved by the statute. I am therefore unable to accept the first contention that by the wording of Explanation IIA read with the S.127, if the occupation of the land and the dwelling house between the dates mentioned in the explanation is satisfied the occupant must be held to be a kudikidappukar if the transfer which gave rise to such occupation was pendente lite". 13. The counsel for the respondent submitted before me that in this case there is no transfer pendente lite. This is a case where the kudikidappukars have trespassed into the land when there was a suit for redemption and constructed the sheds. 13. The counsel for the respondent submitted before me that in this case there is no transfer pendente lite. This is a case where the kudikidappukars have trespassed into the land when there was a suit for redemption and constructed the sheds. The second Full Bench decision reported in Xavier v. Antony (1982 KLT. 769) considered the question of doctrine of lis pendens and said that there is no scope for invoking the doctrine. It said thus: "We may at once say that on the facts of this case, there is no scope for invoking the doctrine of lis pendens or for applying the principle stated in Mohammed Mythen's case, for the subject matter of the suit, the dwelling house and its site, have not been, pendente lite, transferred or sold by the Ist defendant or his legal representatives, defendants 3 and 5, on whom the Ist defendant's rights devolved, to anyone. It is essential for the application of the doctrine of lis pendens, that the property that is transferred, should not only be an immovable property but also one, any right to which is directly and specifically in question in the suit, during the pendency of which the transfer is effected". But, it has to be noted that the Full Bench further said "In Mohammed Mythen's case, the defendants-appellants who claimed kudikidappu rights were found to have been inducted into the suit property during the pendency of a partition suit concerning that property wherefore the transfer of possession of the land to the defendants-appellants was held to be subject to the decree in the partition suit, and that the decree was stated to be one which would bind the defendants-appellants. The Full Bench, there, approvingly noticed that this Court has consistently taken the view that the Act has not abrogated the doctrine of lis pendens. It was held therein that the transfers in favour of the defendants-appellants therein who claimed kudikidappu rights under Explanation IIA, being transfers pendente lite i.e., during the pendency of the partition suit, are vitiated by lis pendens". 14. The counsel for the respondents referred me to Rajendar Singh v. Santa Singh (AIR. 1973 SC. It was held therein that the transfers in favour of the defendants-appellants therein who claimed kudikidappu rights under Explanation IIA, being transfers pendente lite i.e., during the pendency of the partition suit, are vitiated by lis pendens". 14. The counsel for the respondents referred me to Rajendar Singh v. Santa Singh (AIR. 1973 SC. 2537) wherein the Supreme Court observed: "The doctrine of lis pendens is intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. The act of taking illegal possession of immovable property or continuance of wrongful possession, even if the wrong-doer be a party to the pending suit, cannot be viewed as a'dealing with' the property otherwise than by its transfer so as to be covered by S.52 of the Transfer of Property Act. The prohibition which prevents the immovable property being 'transferred or otherwise dealt with' by a party is apparently directed against some action which would have an immediate effect, similar to or comparable with that of transfer, but for the principle of lis pendens. Taking of illegal possession or its continuance neither resemble nor are comparable to a transfer". 15. The counsel for the petitioners submitted before roe that there is evidence in this case that the respondents put up the sheds with the active connivance of the mortgagee and that the rule laid down in Rajendar Singh's case is not applicable in this case and that the rule that has to be followed is the rule laid down in Mohammad Mytheen's case. 16. On a careful analysis of the case and on an anxious appreciation of the facts, certainly I feel that there is no justness or "truth in action" in allowing the respondents to purchase the kudikidappu right. From the facts disclosed, it is clear and plain that the whole attempt was to defeat the mortgagor redeeming the property and by allowing the trespassers to purchase 10 cents each as kudikidappu, the petitioner will immediately lose 60 cents of property for which be has obtained a decree for redemption with the respondents on the party array. 17. From the facts disclosed, it is clear and plain that the whole attempt was to defeat the mortgagor redeeming the property and by allowing the trespassers to purchase 10 cents each as kudikidappu, the petitioner will immediately lose 60 cents of property for which be has obtained a decree for redemption with the respondents on the party array. 17. I know that a just solution for a particular case is the crucial factor in the decision process and I always try to remember that equitable rule of decision that considerations of justice are directly relevant to the justification of any decision. But it should be considerations of justice according to law and not according to the intuition and discretion of the Judge. Henry Campbell Black in his, Hand Book on the Law of Judicial Precedents, has written. "The primary idea of a precedent is that of a rule judicially established and presumptively binding. It is not to be considered in the light of a model which may safely be followed, nor as an example which will justify subsequent judicial action in the same direction. It declares or enunciates the rule or principle of law which must (not may) be followed in the decision of similar causes in the future, by the same court and by those courts which are under its revisory jurisdiction or which can be disregarded only in exceptional cases and for the very strongest reasons". 18. It may not be quite appropriate for roe to distinguish Appukuttan's case on the premise that there is clear evidence in this case that the persons who are claiming kudikidappu are found to be trespassers though I feel that this may amount to a strong distinguishing feature which may make these cases to stand out from the rule laid down in Appukuttan's case. I say no more about this question. I see no ground to interfere with the judgment of the Appellate Authority and the order of the Land Tribunal. The revision petitions are only to be dismissed. I do so. In the circumstances, I make no order as to costs. Dismissed.