Research › Browse › Judgment

Kerala High Court · body

1989 DIGILAW 371 (KER)

Kurichiyan Chandu v. Kunjuraman Nambiar

1989-09-05

BALAKRISHNA MENON, RAMAKRISHNAN

body1989
Judgment :- 1. The defendant appeals against the decree of the lower appellate court reversing that of the trial court and granting a decree for recovery of possession of the plaint schedule property. 2. The plaint schedule property is 3.47 acres of land in R.S.No.121/2 of Periya village in North Wynad Taluk. The total extent of the survey field is 9.10 acres. The plaintiff claims a lease hold title under Ext.A1 marupat of the year 1933 executed by him to one Beeyathumma who had a Kanom right from the Vadakkedath Tarwad. The suit originally instituted was one for a permanent injunction to restrain the defendant from interfering with the plaintiff's possession of the property. The suit was later amended seeking recovery of possession. The defendant is an Adivasi. He contended that the entire survey field was in the possession of his father as a tenant under the plaintiff's tarwad. After the death of the father, the defendant is in possession of the land as a tenant. Both the father and the son were agricultural workers under the plaintiff's tarwad. The plaintiff in course of time reduced portions of the survey field into his possession insisting on surrender of the same by the defendant and his father, and the suit property is what remains of the survey field in his possession is a tenant under the plaintiff. 3. The trial court at the first instance found the defendant's tenancy of the suit property under the plaintiff and by judgment dated 31-5-1974 dismissed the suit. The plaintiff took up the matter in appeal before the District Court, Tellicherry as per A.S.53 of 1975. The plaintiff sought a remand of the suit for the reason that the finding of the trial court upholding the tenancy of the defendant was without jurisdiction for the reason of S.125(3) of the Kerala Land Reforms Act. The learned District Judge by judgment dated 6-7-1976 upheld this contention and remanded the suit to the trial court for fresh disposal after referring the question of tenancy for decision by the Land Tribunal under S.125(3) of the Kerala Land Reforms Act. After remand the Trial Court referred the question for decision by the Land Tribunal and the Tribunal returned the finding dated 29-3-1978 upholding the tenancy set up by the defendant. Ext.C3 is the finding of the Land Tribunal. After remand the Trial Court referred the question for decision by the Land Tribunal and the Tribunal returned the finding dated 29-3-1978 upholding the tenancy set up by the defendant. Ext.C3 is the finding of the Land Tribunal. The trial court accepting Ext.C3 finding of the Land Tribunal dismissed the suit upholding the defendant's tenancy. The lower appellate court has reversed the decision of the trial court and has decreed the suit for recovery of possession of the suit property finding against the defendant's plea of tenancy. It is against this that the defendant has come up in Second Appeal. 4. This Second Appeal is referred to a Division Bench by a learned Single Judge doubting the correctness of the decision of a Division Bench in Subramonian v. Anandanarayanan (1985 KLT 227). In Subramonian's case the Division Bench held that the decision of the Land Tribunal dismissing an application under S.72-B of the Kerala Land Reforms Act for want of evidence is not res judicata in subsequent proceedings. A question of res judicata is raised in the present case for the reason of Ext.A5 order of the Land Tribunal, Manantoddy in O.A.No.829/1970. That was an application by the defendant under S.72-B of the K.L.R. Act for purchase of the rights of the landlord and the intermediary in the suit property on the basis that he is a cultivating tenant of the same. By Ext.A5 order the Land Tribunal has dismissed O.A. 829/1970 on the ground that the applicant has not produced any documents to prove his tenancy. Such a decision by the Tribunal invested with jurisdiction to decide the question of tenancy cannot be said to be a decision not on merits and would have been resjudicata in subsequent proceedings. To dispose of this case, however, it is unnecessary to decide the question of res judicata for the reason of Ext.A5 as such a plea is not open to the plaintiff in view of the remand order in AS. No.53 of 1975 of the District Court, Tellicherry. To dispose of this case, however, it is unnecessary to decide the question of res judicata for the reason of Ext.A5 as such a plea is not open to the plaintiff in view of the remand order in AS. No.53 of 1975 of the District Court, Tellicherry. The plea of res judicata based on Ext.A5 is one that the plaintiff might and ought to have raised in the said appeal and for his failure to raise such a plea and having obtained an order of remand for the purpose of referring the question of tenancy to the Land Tribunal, it is no longer open to the plaintiff to raise the plea of res judicata based on Ext.A5 in these subsequent proceedings. 5. One of us (Balakrishna Menon, J.) in Appi Pennu v. Kalyambi Nanan (1984 K.L.T. 763) stated the principle thus at page 764: "It is well settled that the principle of res judicata is only a mode of estoppel to prevent a party bound by an earlier decision of a competent court from raising the same contentions in subsequent proceedings. There is no want of jurisdiction for the reason only of an earlier decision for a court of competent jurisdiction to decide the question raised before it. If a plea of res judicata available to the parties is not raised, it is the duty of the court to decide the question properly brought up for decision by it. If a party entitled to successfully raise a plea of res judicata omits to do so, the court or the Tribunal will be left with no alternative except to decide the question raised before it. If a party without raising a plea of res judicata allows the court or tribunal to decide the question afresh, it is not open to the parties to the subsequent decision to challenge the decision in other independent proceedings as passed without jurisdiction, for the jurisdiction of the court or tribunal to decide the question will not be ousted for the reason of an earlier decision by a competent court or tribunal. The plea that the question raised is covered by an earlier decision of a competent court is also one which might and ought to have been taken by the party who relies on the earlier decision, and if the court decides the question without reference to the earlier decision, the plea of resjudicata based on the earlier decision will itself be barred by res judicata in subsequent proceedings between the same parties or their representative in interest." 6. For the aforesaid reasons, we are of the view that the plea of res judicata based on Ext.A5 order of the Land Tribunal is not open to the plaintiff for the reason of the decision in A.S.53 of 1975 at an earlier stage of the same litigation. 7. The only further question is whether the defendant has proved his tenancy in respect of the plaint schedule property. The lower appellate court has found against the plea of tenancy as according to that court the Land Tribunal on reference of the question under S.125(3) of the K.L.R. Act had jumped to a conclusion upholding the tenancy for the reason only of certain levy notices produced and also for the reason that the plaintiff had not been able to prove the trespass alleged against the defendant The court below has not considered Ext.A4 series levy notices produced by the plaintiff, Ext.B2 series extracts of the food grain cultivation register maintained in the Village Officer and Ext.B1 series levy notices produced by the defendant. The court below has also not considered the evidence of the witnesses examined in the case to prove the tenancy. Ext. A4 series five in number are the levy notices produced by the plaintiff. These notices are under the provisions of the procurement by Levy 0.1965 issued by the State Government in virtue of the powers conferred on it under S.3 of the Essential Commodities Act. These notices require the cultivator to measure the quantity of paddy specified therein to the Government or its agent. Ext.A4 series notices relate to the period 1966 to 1971. These notices show that the plaintiff was cultivating only a portion of the survey field in these different years. Ext.A4(a) of the year 1966 shows that the plaintiff had cultivated 5.10 acres in R.S. No. 121/2 during that period. Ext.A4 series notices relate to the period 1966 to 1971. These notices show that the plaintiff was cultivating only a portion of the survey field in these different years. Ext.A4(a) of the year 1966 shows that the plaintiff had cultivated 5.10 acres in R.S. No. 121/2 during that period. Ext.A4(b) of the year 1968 shows that he had during that period cultivated 4.3 acres, Ext.A4(c) dated 20-1M969 relates to the cultivation of 4.80 acres, Ext.A4(d) dated 9-11-1970 and Ext.A4(e) dated 1-11-1971 relate to the cultivation of 4.10 acres in R.S.121/2. Exts.B2(a) to B2(c) arc the certified extracts of the Food Grain Register maintained in the Village Office relating to the period 1965-66 to 1972-73. These documents show the possession of different portions of the survey field by the plaintiff and the defendant. The plaintiff had in 1965-66 cultivated an area of 4 acres and had left 1.50 acres uncultivated. The defendant had during that period cultivated 3.60 acres in the survey field. During the year 1966-67 the defendant had cultivated 4 acres while the plaintiff had cultivated S.10 acres in R.S. No. 121/2. During the year 1967-68 the plaintiff had cultivated 4.35 acres and had left 75 cents of land uncultivated. The defendant had during that period cultivated 4 acres in the same survey field. Thus the registers maintained in the Village Office relating to the cultivation of land would show the different areas in the same survey field separately cultivated by the plaintiff and the defendant. Exts.B1(a) to B1(e) are the levy notices issued to the defendant relating to the period ranging from 1966 to 1971 in respect of the area in the survey field cultivated by him. Exts.B1(a) to B1(e) correspond to the entries in the Food Grain Cultivation Register extracts produced as Exts. B2(a) to B2 (c). DW-2 was the Village Assistant of Periya Amsom during the period 1942 to 1961. The plaintiff was the Village man working under DW-2. DW-2 has given evidence that the suit property is in the possession of the defendant in continuation of the possession of his father. DW-2 has also deposed that he had occasion to inspect the property in connection with the preparation of the Food Grains Cultivation Register for assessing the quantity of paddy to be measured by the plaintiff and defendant in respect of the land comprised in R.S.No.121/2. DW-2 has also deposed that he had occasion to inspect the property in connection with the preparation of the Food Grains Cultivation Register for assessing the quantity of paddy to be measured by the plaintiff and defendant in respect of the land comprised in R.S.No.121/2. According to DW-2 the plaintiff had at no time raised any objection to the levy booked in the name of the defendant for the cultivation of a portion of the survey field by him. DW-3 is a neighbour. He has also given evidence relating to the cultivation of the suit property by the defendant. Ext.A5 order of the Land Tribunal which we have found cannot be relied on to sustain a plea of res judicata in these proceedings only shows that the defendant's application under S.72-B of the K.L.R. Act was rejected for his failure to adduce documentary evidence. On the materials now placed before the court, we are satisfied that the defendant has proved his tenancy in respect of the plaint schedule property. The lower appellate court has entered a finding against the tenancy without adverting to any of these materials placed before the court. A finding arrived at without adverting to material evidence is clearly erroneous in law and we are satisfied that the sustainability of such a finding is a substantial question of law arising in the Second Appeal. 8. On our finding as aforesaid that the defendant has established his tenancy right to the suit property, the suit is only to be dismissed. We, therefore, set aside the judgment and decree of the court below and restore the decree of the trial court dismissing the suit. The Second Appeal is allowed. The parties will suffer their respective costs.