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1991 DIGILAW 45 (KER)

Ponnammal v. Gomez

1991-01-25

KRISHNAMOORTHY

body1991
Judgment :- Revision petitioners are judgment-debtors 12 and 14 to 20 who are the legal representatives of the 3rd judgment-debtor. The 13th judgment-debtor who was also a legal representative of the 3rd judgment-debtor released his right in favour of the decree-holder. The suit was for redemption of a mortgage. Preliminary decree was passed on 19-8-1970 and a final decree application was filed on 4-2-77. The final decree was actuary passed on 18-9-79 and the redemption price was deposited on 22-9-1971). It is also to be noted that this suit is instituted in 1968, i.e. before 1970. 2. After the final decree was passed, the decree-holder filed E.P.No. 55 of 1980 for executing the decree and for recovery of possession of the property. The 3rd judgment-debtor died during the pendency of the execution proceedings and his legal representatives, the revision petitioners. filed an objection in execution raising two contentions: i) that they are tenants entitled to fixity of tenure as the mortgage sought to be redeemed is an ottikuzhikanam coming under S.2(39A) of the Kerala Land Reforms Act (hereinafter called the act); and ii) that under Explanation IV to S.2(25) they are kudikidappukars in respect of the property and they are entitled to fixity of tenure. The execution court overruled both the objections and the revision is against the above order. 3. The first question as to whether the petitioners arc ottikuzhikanamdars coming under S.2(39 a) of the Act cannot be raised by the judgment-debtors in execution as the very same question was agitated in the final decree proceedings and in the final judgment it was held that the mortgage in question is not an ottikuzhikanam thereby denying the fixity of tenure of the judgment-debtors. They are concluded by the final judgment and the matter cannot be re-agitated in execution. In that view of the matter, I confirm the finding of the execution court that the judgment-debtors are not entitled to fixity of tenure on the ground that they are ottikuzhikanamdars coming under S.2(39A) of the Land Reforms Act. 4. Coming to the second question, the main ground raised by counsel for the petitioners is that under S.125 of the Act, the civil court has no jurisdiction in any matter arising after 1-1-1970 to decide a question regarding the right of a tenant or a kudikidappukaran. 4. Coming to the second question, the main ground raised by counsel for the petitioners is that under S.125 of the Act, the civil court has no jurisdiction in any matter arising after 1-1-1970 to decide a question regarding the right of a tenant or a kudikidappukaran. Though the suit was instituted in 1968, the execution petition was filed only in 1980 and he relied on the 'Full Bench decision of this Court in George v. Vareed (1978 KLT 691) for the position that even in a suit though instituted before 1970, if the execution application is after 1-1-1970, the civil court's jurisdiction is ousted and the issue regarding the right of a kudikidappukaran has to be referred to the Land Tribunal. He also relied on a decision of Five judges of this Court in 1979 KLT 766 (Kesava Bhat v. Subraya Bhat) for the position that any finding by a civil court on such questions without reference to the Land Tribunal is without jurisdiction and thereby a nullity. On the basis of these two decisions counsel for the revision petitioners contended that the order of the execution court holding that the judgment-debtors are not kudikidappukars is without jurisdiction and that the order will have to be set a side and the matter referred to the Land Tribunal. 5. It is no doubt true that in the Full Bench decision reported in 1978 KLT 691 it was held that if the execution petition was filed after 1-1-1970, even in a suit instituted prior to that date if any question arises as to the right of a tenant or a kudikidappukaran, the matter will have to be referred. So also, in 1979 KLT 766 it was held that such a decision by a civil court without reference to the Land Tribunal is a nullity. But it is to be noted that such a point of jurisdiction of the execution court was not raised before that court. Secondly, the ouster of jurisdiction under S.125 of the Act is only that of the trial court; it does not affect the jurisdiction of the appellate court or a revisional court to decide the question when the matter comes up in appeal or in revision. Secondly, the ouster of jurisdiction under S.125 of the Act is only that of the trial court; it does not affect the jurisdiction of the appellate court or a revisional court to decide the question when the matter comes up in appeal or in revision. If a finding is entered by a court on an issue over which it has no jurisdiction, certainly the matter can be looked into by the appellate court or the revisional court, if the jurisdiction of that court is not ousted by the relevant provisions of law. S.125 is clear' that it excludes the jurisdiction of only the trial court or the executing court. It does not oust the jurisdiction of an appellate or revisional court is clear from S.125(6) of the Act. which is to the following effect:- "(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil court". Our Court has held that S.125 (6) will apply to a revision under S.115 C.P.C. also. In other words, even if the order of the executing court is without jurisdiction, that does not fetter the right of the appellate court or the revisional court in considering that question so long as the jurisdiction of the appellate or revisional court is not excluded or ousted by S.125 of the Act. It has to be taken as if there is no decision by the lower court on that issue and so long as the jurisdiction of the appellate court is not ousted, certainly that court is entitled to go into that question and decide the matter on merits. 6. In Kunjan v. Janaki (1980 KLT 796) an identical question came up for consideration before this court regarding the power of an appellate court, wherein after considering these decisions this Court observed as follows:- "S.125 not only does not limit the power of the appellate court, it requires the appellate court to treat the finding of the Land Tribunal as a finding of the civil court. It necessarily means that the appellate court's powers under the C.P.C. are not taken away. The power of the appellate court as provided for in the C.P.C. is not taken away by the provisions of S.125 of the Land Reforms Act. It necessarily means that the appellate court's powers under the C.P.C. are not taken away. The power of the appellate court as provided for in the C.P.C. is not taken away by the provisions of S.125 of the Land Reforms Act. In an appeal from a decree it is open to the appellate court to go into the correctness of the finding entered into by the trial court. If on a material question there is no finding of the trial court, if there is sufficient evidence, the appellate Court could itself enter a finding or caller a finding from the trial court. The finding on a question of tenancy by the trial court without reference to the Land Tribunal is no finding at all as that court has not followed the provisions of S.125(3). So the appellate court which is not inhibited by any of the restrictions of S.125(3) can go into the question of tenancy and if it docs and enters a finding it cannot be said that that finding was entered into without jurisdiction. The appellate decree after such a finding will not have any of the defects which can be pointed out in the case of a decree of the trial court without complying with the provisions of 5.125(3)". From the above decision it is clear that the power of the appellate court is not in any way restricted by the provisions contained in S.125(3). 7. The only further question is as to whether the revisional court has the same power as an appellate court in such matters. According to me, the revisional court has also got the power, for, S.115(1) C.P.C. provides as follows: "the High Court may make such order in the case as it thinks fit". From the provisions of S.115 C.P.C. it is clear that even incases where a subordinate court has exercised a jurisdiction not vested in it by law, the High Court has got the power to make any order in the case as the circumstances of the case require. If the power of the revisional court to decide a question regarding the right of a kudikidappukaran is not affected by S.125, this Court can in revision consider that question though the execution court has no jurisdiction to go into that question. If the power of the revisional court to decide a question regarding the right of a kudikidappukaran is not affected by S.125, this Court can in revision consider that question though the execution court has no jurisdiction to go into that question. There is no fetter of the power of the High Court either by the provisions of the Land Reforms Act contained in S.125 or by the provisions of S.115 C.P.C. to decide the question of kudikidappu independently on the available evidence. In that view of the matter, I decline to set aside the order of the execution court and direct that court to refer the matter to the Land Tribunal, as it is possible to decide the case on the evidence before me. 8. A mortgagee in possession shall be entitled to claim the right of a kudikidappukaran, if he satisfies the condition mentioned in Explanation IV to S.2(25). One of the conditions necessary to entitle him to claim the rights of a kudikidappukaran is that he should not have any other kudikidappu or residential building or any land exceeding 3 cents in any city or major municipality or 5 cents in any other municipality or 10 cents in any panchayat area or township in possession either as owner or as tenant on which he could erect a homestead. The kudikidappu right is claimed in this case by the legal representatives of the 3rd judgment-debtor. There is ample evidence in this case that they are in possession of more than 10 cents of land which disentitle them from claiming right of a kudikidappukaran under the above quoted Explanation IV. It has come out in evidence that the revision petitioners are in possession of 40 cents of land in Sy.No.H12 in Veiloor Village. The brother of the decree-holder filed a suit O.S.No.66of 1969 for redemption of the aforesaid property against the revision petitioners. In that case they contended that they are entitled to fixity of tenure under the Act. That defence of the revision petitioners was accepted and the suit was dismissed. The. 12th defendant-12th judgment-debtor examined as DW.1 has admitted this fact. This shows that the revision petitioners are in possession of 40 cents of land. Ext.A2 dated 12-11-1979 is a hypothecation bond executed by the 3rd judgment-debtor and the 12th judgment-debtor together in respect of 20 cents of land in the very same survey number. The. 12th defendant-12th judgment-debtor examined as DW.1 has admitted this fact. This shows that the revision petitioners are in possession of 40 cents of land. Ext.A2 dated 12-11-1979 is a hypothecation bond executed by the 3rd judgment-debtor and the 12th judgment-debtor together in respect of 20 cents of land in the very same survey number. That document also shows that they are in possession of another 26 cents of land in the very same survey number. Originally, they were in possession of 36 cents of land out of which 10 cents was gifted under Ext.B1 dated 25-8-78 by the 3rd judgment debtor to his daughter and son-in-law. These documents and the evidence of DW.1 will categorically show that they were in possession of more than 10 cents of land at the time of redemption. Ext.B1 gift deed shows that in the 10 cents of property gifted which was part of a larger extent of 36 cents belonging to the judgment-debtors, there existed a building which was also included in the gift. That shows that the balance 26 cents also is a land fit for erecting a homestead and there is no other evidence to show that it is not. No evidence was adduced by the judgment-debtors also to the effect that their annual income is less than Rs.2000/-. In these circumstances, I have no hesitation to hold that the judgment-debtors have not established that they are kudikidappukars coming under Explanation IV to S.2(25) of the Act, and no interference is called for with the order of the executing court. There is no merit in the C.R.P. and it is accordingly dismissed, but, without any order as to costs.