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2002 DIGILAW 283 (KER)

Subramanian v. Kesavan

2002-04-11

P.R.RAMAN

body2002
Judgment :- P.R.Raman,J. Appellant is the plaintiff in the suit O.S.300 of 1964 on the file of the Munsiff’s court, Cochin. 2. The suit was one for recovery of possession based on title. Though the land belongings to the appellant there was a building which a constructed by the defendants. The first defendant is the son and the second defendant was the mother. (The second defendant died during the proceedings and subsequently her legal representatives were impleaded). Defendants 1 and 2 jointly acquire4d an extent of 31 cents pf land and hence according to the plaintiff they are not entitled to kudikidappu right. The suit was decreed as prayed for. There was an appeal and second appeal. As per the decision in the second appeal – S.A. 787 of 1975 – this court allowed the appeal filed by the defendants and remanded the case to the trial court. Subsequently, the plaint was amended and additional written statement was also filed. After considering the evidence available on record, the trial court dismissed the suit. The plaintiff then preferred A.S. 44 of 1981 and that was allowed and the matter was remanded. The trial court again considered all the claims and dismissed the suit. Challenging the same the plaintiff again filed an appeal. But the appellate court confirmed the judgment and decree of the trial court dismissing the appeal. It is against the said judgment and decree that the plaintiff has come up with this second appeal. 3. The substantial questions of law that arise for consideration in this second appeal are: 1. Whether the interpretation of this court’s remand order by the lower appellate court is correct? 2. Is not the remand order against which no appeal is filed is binding on the parties and if so, whether the appellant can re-agitate the question decided in the remand order, based on a subsequent decision of the Supreme Court in another case? 4. The relevant portion of this court’s judgment in S.A. 787 of 1975 has been extracted din the appellate court’s judgment which is reproduced hereunder. It is the undisputed case that the second defendant’s husband was a Kudikidappukaran, and on his death his legal heirs, defendants 1 and 2 his son and wife, were continuing to occupy the hut. 4. The relevant portion of this court’s judgment in S.A. 787 of 1975 has been extracted din the appellate court’s judgment which is reproduced hereunder. It is the undisputed case that the second defendant’s husband was a Kudikidappukaran, and on his death his legal heirs, defendants 1 and 2 his son and wife, were continuing to occupy the hut. We may assume that about 31 cents of house was put up in that properly before Act 1 of 1964 came into force on 1-1-64 and got registered on a subsequent date, was a sham document as contended for by the plaintiff. Even then the question is if the second defendant continued to occupy the hut, whether she will be deprived of the Kudikidappu right merely for the reason that an extent of land was acquired is the joint names of defendants 1 and 2 and a house was put up therin. The view taken by the courts below does not appear to be correct in Achuthan v. Sulochana (1971 KLT 846), Kali Pennamma v. St. Paul’s Convent (1972 KLT 12), Devaki Amma v. Kunhirama Marar (1974 KLT 758), Vasistha Vadhyar v. Mohini Bai (1975 KLT 365) and Dhamodaran v. Vasukutty (1978 KLT 1). 4. Even if the minimum requirements under explanation IIA to Section 2(25) of the Kerala Land Reforms Act are satisfied the second defendant has to be deemed to be a kudikidappukari and her legal heirs, who are stated to be the persons now prosecuting the matter, would be entitled to the relief. So, the question really is, assuming that there was a joint acquisition of land by defendants 1 and 2, and a house has been constructed in that property by them, the second defendant continued to occupy the hut in the plaint schedule property when the suit was instituted or at least between the period 16.8.1968 and 1.1.1970 for the 2nd defendant to claim kudikidappu right. On this aspect of the matter the courts below did not advert such possibility for the reason that they were inclined to hold that inview of the acquisition of the property under Exts. P3 and P4 , and Ext. D1 was considered to be an invalid document, the second defendant could not claim kudikidappu right. 5. On this aspect of the matter the courts below did not advert such possibility for the reason that they were inclined to hold that inview of the acquisition of the property under Exts. P3 and P4 , and Ext. D1 was considered to be an invalid document, the second defendant could not claim kudikidappu right. 5. The appellate court found that if the mere existence of the house would have disqualified the defendants from claiming kudikidappu right, the second appeal would have been dismissed. In other words, according to the appellate court, the High Court was conscious to the existence of the alternate home when the second appeal was allowed and the remand was only to ascertain the occupation by the second defendant of the house in the property after the erection of the house. It was also found that the parties have correctly understood the scope of the remand, is evident from the amendment of the plaint setting up a case that the second defendant has ceased to occupy the hut in the suit property which is duly denied by the defendants. 6. This court held in S.A. 787 of 1975 that the view expressed by the lower court that the second defendant shall be deprived of the kudikidappu right merely for the reason that an extent of land was acquired in the joint names of defendants 1 and 2 and a house was put up therein, of this Court rendered earlier in Achuthan v. Sulochana (1971 KLT 846), Kali Pennamma v. St. Paul’s Convent (1972 KLT 12), Devaki Amma V. Kunhirama Marar (1974 KLT 758), Vasistha Vadhyar v. Mohini Bai (1975 KLT 365) and Damodharan v. Vasukutty (1978 KLT 1). It was also held that when the minimum requirements are satisfied by the second defendant, she has to be deemed to be a kudikidappudari and her legal heirs who are now prosecuting the matter would be entitled to the relief. Hence this Court assumed that there was a joint acquisition of land by defendants 1 and 2 and a house had been constructed in that property, even then, if the second defendant continued to occupy the hut in the plaint schedule property when the suit was instituted or at least between the period 16.8.1968 and 1.1.1970 the second defendant can claim kudikidappu right. It was also observed therein that the court below did not advert to such possibility in the view it took that the acquisition of property under Exts.P3 and P4 by defendants 1 and 2 will invalidate their claim of kudikidappu right. From the above it can be seen that the court below has correctly understood the scope of the that merely because defendants 1 and 2 jointly owned the land and subsequently constructed a house therein will not disentitled them from claiming kudikidappu right, provided they continued to occupy the hut during the material time. 7. The trial court has now found, based on the evidence, that if the second defendant’s husband died before the commencement of the Kerala Land Reforms Act came into force, he was a kudikidappukaran in the nature of the permission granted to him under general law and if he died after the Act came into force, his right would devolve on his legal heirs as per Sec. 78 of the Act. Thus, on the death of second defendant, whatever right she got over the plaint schedule property would devolve upon her legal heirs and the trial court found that the second defendant was entitled to claim kudikidappu right over the plaint schedule property and thus her rights have devolve upon the present defendants. It was also found that the second defendant was the wife of one Ayyan Kunji who had constructed a house in the plaint schedule property with the prior permission of the predecessor in interest of the plaintiff. The cost of construction and rental value of the building are not disputed. It was also found that the second defendant’s right was organized from the point of time of the death of her husband and the joint acquisition of a land will not disqualify her from claiming the right of kudikidappu. 8. The lower appellate court confirmed the judgment and decree of the trial court and also the finding of the trial court that there was no cessation of occupation of the suit property and the hut there in by the second defendant as alleged by the plaintiff based on the documentary evidence Exts. D5, D10, D12, D14, and D25, which is also supported by the oral evidence of DWs 1 and 2. The evidence of PWs1 to 3 to the contrary was rejected by the trial court as unacceptable. D5, D10, D12, D14, and D25, which is also supported by the oral evidence of DWs 1 and 2. The evidence of PWs1 to 3 to the contrary was rejected by the trial court as unacceptable. Thus, the finding of facts that the second defendant did not cease to occupy the hut during the material time being a question of fact found by the trial court and confirmed by the lower appellate court, in the absence of anything to show that the said finding is preserve or omitted to consider any material evidence in the matter, is not liable to be interfered with in the second appeal. 9. However, the learned counsel appearing for the appellant contended that contended that the decision of this court in the remand order that the joint ownership of the defendants will not disentitle them from claiming kudikidappu right is no more a good law in view of the decision of the Supreme Court in Kochukunju Nair v. Koshy Alexander (AIR 1999 SC 2272). Though it is true that the question of law decided by this Court in S.A. 787 of 1975 has since been reserved in the subsequent decision of the Supreme Court as referred to above , in this case, the question presently arises for consideration is whether this court can allow the parties to re-agitate the question already decided in the remand order in S.A. 787 of 1975 against which no appeal was preferred by the parties. In Satyadhyan Ghosal v. Smi.Deorajin Debi (AIR 1960 S.C. 941) the Supreme Court of India, while considering the principle of res judicata held thus: Thus principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicate, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter—whether on a question of fact or a question of law – has been decided between two parties to canvass the matter again. This principle of res judicate is embodied in relation to suits in Sec. 11 of the Code of Civil Procedure; but even where Sec.11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. This principle of res judicate is embodied in relation to suits in Sec. 11 of the Code of Civil Procedure; but even where Sec.11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. It was also held: The principle of res judicata applies also as between two stages in the same litigation to this extent that a court whether the trial court or a high court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. 10. S.A. 787 of 1975 was from the final judgment arising out of the suit itself. Hence applying the above principle it has to be held that the parties cannot be allowed to re-agitate the question in view of the binding decision rendered in the second appeal earlier by this court against which no appeal was preferred. Subsequently in Nainsingh v. Koonwarjee and others (AIR 1970 S.C. 997) the same view was expressed in the following line by the Honourable Supreme Court of India. The High Court, in our option, erred in holding that the correctness of the remand order was open to review by it. The order in question was made under Rule 23, Order 41, Civil Procedure Code. That order was appealable under Order 43 of that Code. As the same was not appealed against, its correctness was no more open to examination in view of Section 105 (2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness. The High Court has misconceived the scope of its inherent powers. Under the inherent power of Courts recognized by Sec. 151 C.P.C.., a Court has no power to do that which is prohibited by the Cod. Inherent jurisdiction of the Court must be exercised subject to the rule that if the code does contain specific provisions which would meet the necessities of the case, such provisions should followed and inherent jurisdiction should not be invoked. 11. Inherent jurisdiction of the Court must be exercised subject to the rule that if the code does contain specific provisions which would meet the necessities of the case, such provisions should followed and inherent jurisdiction should not be invoked. 11. That was a case where the High Court exercised its inherent power under Sec. 151 of the Code of Civil Procedure and held that the court had inherent powers to consider the correctness of the earlier remand order passed by it after rejecting the concluded by the decision of the appellate court made before remand and that the same had not been appealed against. In Achuthan Nair v. Raman & others (1979 KLT 119) it was specifically held by this court After the decision of the Supreme Court in Nainsingh’s case (AIR 1970 S.C. 997) that there is no doubt that the subsequent decision of the High Court or Supreme Court in a different case is not a ground for deviating from the terms of order if remand and that court is bound by its order of remand rendered earlier. 12. Therefore, the position is law is that even though the later decision of the Supreme Court in Kochunju Nair v. Koshy Alexander (AIR 1999 SC 2272) has held that a person who is a co-owner along with others is not entitled to claim that he is a kudikidappukaran in any case, as far as the parties herein are concerned, they are bound by the earlier decision between them in S.A. 757 of 1975 and in view of the fact that no appeal was preferred against that decision, the parties can not be allowed to re-agitate the question now before this court and this court cannot go beyond what has been held in the earlier decision between the parties in S.A. 757 of 1975. In the result, the appeal fails and is accordingly dismissed. In the circumstances, there will be no order as to costs.