Bavunni v. Koyammud Haji — 1989 DIGILAW 357 (KER)

JUDGMENT : S. PADMANABHAN, J. 1. Plaintiff was admittedly in possession of the suit property under Alengad Samooham, the ultimate jenmi. He mortgaged it to the first defendant on 23-2-1970 under Ext. A1 for Rs. 1,000/-. Ext. A1 provided for payment of michavaram to the jenmi and surplus profits to the plaintiff. The document recited that possession of the property with the standing crops was given to the first defendant. It also enabled the plaintiff to set off arrears towards the mortgage amount. The suit for redemption was filed in 1975 alleging that the entire mortgage amount is wiped off by the arrears and more amounts are due. Second defendant is the brother of the first defendant. He was impleaded because of the stand taken by first defendant in the reply to the suit notice, following some false document created in his favour, that he is in possession. First defendant denied having obtained possession under Ext. A1. He, therefore, disowned liability for michavaram and excess profits and claimed the mortgage amount with interest. Second defendant claimed to be in possession having obtained in 1970 the rights of one Ammunhi Mohammed, who is said to have been in possession as lessee of the plaintiff for the past several years. He claimed fixity of tenure. 2. The tenancy claimed by the second defendant was referred to the Land Tribunal. Before the Land Tribunal, there was S.M.P. No. 2515 of 1976 in favour of the plaintiff and against the jenmi for purchase of his rights. While that was pending, second defendant filed O.A. No. 4 of 1978 against the jenmi as well as the plaintiff and first defendant for purchase of their rights claiming to be the cultivating tenant. Both the proceedings were tried together and disposed of by a common order on 30-5-1979 allowing S.M.P. No. 2515 of 1976 in favour of the plaintiff and dismissing O.A. No. 4 of 1978 on the finding that second defendant is not a tenant. 3. Instead of conducting an enquiry on the reference, the Land Tribunal forwarded the common order as answer to the reference. Before the trial court, the plaintiff and first defendant adduced evidence regarding possession. Trial court accepted the order of Land Tribunal and found that second defendant, is not a tenant. On the evidence adduced before it, the finding was that first defendant is in possession. Before the trial court, the plaintiff and first defendant adduced evidence regarding possession. Trial court accepted the order of Land Tribunal and found that second defendant, is not a tenant. On the evidence adduced before it, the finding was that first defendant is in possession. A preliminary decree for redemption was passed on the finding that the mortgage amount is wiped off by the arrears and making the first defendant liable for mesne profits. 4. First defendant alone appealed. Second defendant satisfied himself with filing a memorandum of cross objection alone. Appellate court, on a detailed analysis of the evidence, agreed with the trial court in its finding that first defendant is in possession pursuant to Ext. A1 and the claim of the second defendant is not correct. The cross objection was dismissed on the finding that it being directed against the plaintiff, who is only a co-respondent, is not maintainable. Second Appeal No. 354 of 1984 is by the first defendant and second appeal No. 360 of 1984 by the second defendant. These second appeals present certain interesting questions of law. 5. The first question is whether the appellate court is legally correct in dismissing the memorandum of cross objection as not maintainable. The position of law in that respect was considered in a series of decisions, including Raman Pillai Gopala Pillai vs. Madhavan Pillai Ayyappan Pillai, 1958 KLT 846 , Abubacker vs. Abdulrahiman Beary, 1960 KLT 348 , Panna Lal vs. State of Bombay, AIR 1963 SC 1516 , Rameshwar Prasad vs. Shambehari Lal Jaganath, AIR 1963 SC 1901 , Nirmala Bala Ghose vs. Balai Chand Ghose, AIR 1965 SC 1874 , Koksingh vs. Smt. Deokabai, (1976) 1 SCC 383 : AIR 1976 SC 634 , Choudhary Sahu vs. State of Bihar, (1982) 1 SCC 232 : AIR 1982 SC 98 and State of Kerala vs. Padmavathi, 1983 KLT 17 . The law in that connection is now well settled. As a general rule, the right of a co respondent to urge a cross objection should be limited to his urging it against the appellant. The law in that connection is now well settled. As a general rule, the right of a co respondent to urge a cross objection should be limited to his urging it against the appellant. It is only by way of exception to this general rule that one respondent may urge cross objection as against other respondents, the exception holding good, among other cases, in those in which the appeal by some of the parties opens out questions which cannot be disposed of completely without matters being allowed to be opened up as between co-respondents. Thus, when the questions raised in the cross objection are common, both to the appellant and co-respondent, the cross objection may be entertained as against both. It is only inexceptional cases where the decree proceeds on a common ground or the interest of the appellant is intermixed with that of the respondent that a respondent could be allowed to urge a cross objection against a co-respondent. To fall within that category, the relief claimed Against the appellant should be so intermixed with the relief to be granted, to the co-respondent that the relief in the appeal cannot be granted without entertaining the cross objection. The first part of Order 41 Rule 22 only permits a respondent who did not file an appeal or cross objection to support the decree and for that purpose state that any finding against him ought to have been in his favour and not to challenge the decree itself. The normal way by which a decree is to be challenged is only by an appeal or cross objection. Order 41 Rule 33 is no doubt widely worded. But it is also meant to meet only exceptional cases in furtherance of justice. It applies only when no appeal or cross objection is filed. That is limited to cases where interference in favour of the appellant becomes necessary and in such interference adjustment in favour of the respondents who did not file appeal or cross objection also becomes necessary to adjust equities and avoid conflicting decisions. 6. In this case, the only question common between defendants 1 and 2 is the question, of possession. Both say that first defendant is Out of possession and second defendant is in possession. 6. In this case, the only question common between defendants 1 and 2 is the question, of possession. Both say that first defendant is Out of possession and second defendant is in possession. A finding that first defendant did not get possession need not go to show that the second defendant got possession or that he has tenancy right. Tenancy claim of the second defendant is unconnected with the case of the first defendant and it is directed only against the plaintiff. Possession of the first defendant alleged by the plaintiff and disowned by him can be disposed of completety even without considering the tenancy claim of the second defendant. The tenancy claim raised by the second defendant in the cross objection is not directed against the first defendant who alone is the appellant and it was directed only against the plaintiff who was a co-respondent. The decree does not proceed against them on common ground and their interests are not intermixed in such a way that relief to the first defendant in the appeal cannot be granted without entertaining the cross objection. No relief was granted to the first defendant in the appeal and hence Order 41 Rule 33 did not come into play at all. There is nothing legally wrong in the appellate court rejecting the cross objection as not maintainable. That means, the decree rejecting the tenancy claim of the second defendant was allowed to become final. 7. To get over that difficulty, it was argued thus. The reference from the civil court was not decided by the Land Tribunal as enjoined by Section 125(3) and (4) of the Kerala Land Reforms Act. Instead, a common order in two independent proceedings, liable to appeal and revision under the Kerala Land Reforms Act, alone was sent. That order was taken up in appeal before the appellate authority and it was set saide and the matter remanded to the Land Tribunal. The challenge against that order before this court by an original petition was also unsuccessful. Thus, the order, which is the basis of the decrees of the trial court and appellate court, is no longer in existence. Therefore, the matter has to go back to the trial court for a fresh reference to the Land Tribunal. I do not think that I could agree. 8. Thus, the order, which is the basis of the decrees of the trial court and appellate court, is no longer in existence. Therefore, the matter has to go back to the trial court for a fresh reference to the Land Tribunal. I do not think that I could agree. 8. The maximum that could be conceded is that there was an irregularity on the part of the Land Tribunal in not having returned the decision on the reference along with the records. The entire order was unnecessary for the civil court which was not concerned with the order in the S.M.P. But when the answer to the reference was exactly the order in O.A. No. 4 of 1978, a fresh enquiry and decision was not only unnecessary, but redundant also. The appellate court could have called for the records if there was an appeal by the second defendant and he requested to call for the records. The trial court could and did only accept the order in O.A. 4 of 1978 as the decision on the reference in order to dispose of the suit. Under Section 125(3) and (4), the reference and decision could be only on the question whether the second defendant is a tenant and what his tenancy rights are, Whether first defendant is in possession or not as mortgagee was not within the power of the Land Tribunal to decide. Irrespective of the question whether the decision on the reference is an independent one or part of a finding in a composite order in an independent proceeding, as soon as the finding that second defendant is not a tenant is accepted and acted upon by the trial court it became part of the decree. The trial court has no other go under Section 125(5) but to accept that finding and dispose of the suit. But under Section 125(6), for the purpose of appeal, the decree including that finding is that of the trial court. The appellate court will have all the powers under the Code of Civil Procedure against the decision including that finding. It is not only entitled to exercise all the powers of the appellate court, but also bound to do so. 9. The appellate court will have all the powers under the Code of Civil Procedure against the decision including that finding. It is not only entitled to exercise all the powers of the appellate court, but also bound to do so. 9. It may be absurd to think that in a situation like this the legislature wanted the decision to be reviewed by two parallel sets of higher authorities or courts resulting in the anomaly of conflicting decisions which will also stand in the way of finality. In my opinion, after the finding of the Land Tribunal that the second defendant is not a tenant was accepted and the suit decreed by the trial court, the only portion of the combined order that was appealable under the Kerala Land Reforms Act before the appellate authority was the order in S.M.P. No. 2515 of 1976 which alone continued to maintain its position as the order of the Land Tribunal. The order in O.A. No. 4 of 1978, which merged in the trial court decree and formed part of it, ceased to have its independent status as an order of the Land Tribunal. It was thereafter liable to be challenged only before the Court competent to entertain an appeal against the decree of which that finding formed part. That is the effect of Section 125(6) of the Land Reforms Act. The appellate authority had no jurisdiction to entertain an appeal against that part of the order and decide it. The order of remand by the appellate authority is void being without jurisdiction to the extent it set aside the order in O.A. No. 4 of 1978 and remanded the matter. The dismissal of an original petition before this court challenging the remand order will not have the effect of legalising the remand order in S.M.P. No. 2515 of 1976. Now that proceeding alone could be considered and decided by the Land Tribunal. As held by a Division Bench of this court in Parameswaran Thampi vs. Podiyan Thomas, 1984 KLT 397 , the Land Tribunal and appellate authorities are creations of the statute and controlled by its provisions. They cannot travel beyond the limits of jurisdiction conferred on them by the provisions of the Kerala Land Reforms Act. As held by a Division Bench of this court in Parameswaran Thampi vs. Podiyan Thomas, 1984 KLT 397 , the Land Tribunal and appellate authorities are creations of the statute and controlled by its provisions. They cannot travel beyond the limits of jurisdiction conferred on them by the provisions of the Kerala Land Reforms Act. When the order made on reference is deemed to be the finding of the trial court for the purpose of appeal, there is the statutory recognition of the supremacy of the decision of the, appellate court. The final decision in such cases is that of the civil court. When the civil court is thus seized of the matter, a party cannot collaterally attack the finding before the appellate authority in order to nullify the decision of the civil court. If necessary, it has to wait and abide by the final decision of the civil court which will be binding on all parties concerned. Any decision of the appellate or revisional authority under the Kerala Land Reforms Act in violation of the mandate of Section 125(6) will not affect the jurisdiction of the civil court or its decision. Therefore, There is no need for a remand to make another reference. 10. Even on the merits, the claim of the second defendant cannot stand. Before the Land Tribunal, he was examined as PW3 and Ammunhi Mohammed as PW1. An independent witness was examined as PW2 and plaintiff gave evidence as PW1. Documents were also produced. The Land Tribunal wrote a considered order. Before the Land Tribunal. PW2 admitted that the rent receipts in favour of the second defendant, all created only on or after the year 1970, were issued at the instance of the first defendant and actual cultivation was by the first defendant. PW-1 Ammunhi Mohammed also said that there was a mediation by which he surrendered the property to the first defendant after receiving some amount. That means, even if it is conceded that he had possession, he surrendered possession only to the first defendant. The story that he had possession and he surrendered either to the first defendant or to the second defendant is evidently incorrect. The Land Tribunal clearly found that the contention of defendants 1 and 2 is the result of collusion. Ext. A1 clearly indicates that possession was given to the first defendant. The story that he had possession and he surrendered either to the first defendant or to the second defendant is evidently incorrect. The Land Tribunal clearly found that the contention of defendants 1 and 2 is the result of collusion. Ext. A1 clearly indicates that possession was given to the first defendant. He did not disclaim possession and his contention came only in the reply notice and written statement. If he did not get possession, he would not have kept quiet particularly in view of his liability. On the evidence before the trial court also, both the trial court and the appellate court found possession with the first defendant. The only question that had to be referred under Section 125(3) and decided by the Land Tribunal under Section 125(4) is regarding rights of a tenant including the question whether a person is a tenant. The question whether actual possession is with the first defendant or second defendant or somebody else, in the nature of the case, could have been effectively decided only by the civil court. That was decided by both the courts by independent evidence. Tenancy of second defendant was decided against him and that too rightly. Defendants 1 and 2 wanted the contention to have dual result. In the first place, it can help the first defendant in avoiding the liability under Ext. A1 and at the same time get back the mortgage amount and interest. Secondly, if possible, second defendant could get the property also. Though the first defendant pleaded that only after Ext. A1 he came to know that he will not get possession, he said in the box that even before Ext. A1, he was aware of that fact and there was a promise to give possession later. All the aspects were considered in detail by the Land Tribunal and the courts below. The decrees do not require any interference. 11. Second appeals are dismissed. No costs.