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2003 DIGILAW 617 (KER)

N. B. Abdul Haji v. Koyakerilleth P. Abdulrahiman

2003-09-26

A.LEKSHMIKUTTY

body2003
Judgment :- The plaintiff in O.S.No. 17/1988 on the file of the Sub Court, Hosdurg is the appellant. He filed the suit for recovery possession of the plaint schedule property on receipt of the value of improvements. Plaint schedule property is comprised in Survey No. 98/3 of Balla village it originally belonged on jenmom right to one Kannan. The right of Kannan later came to Perunthattil Cheriyakkan. One C.H. Ahamed alias Cherakandath Ahammed filed S.C.No. 82/1965 before the Sub Court Hosdurg against Cheriyakkan for realization of money. In execution of the decree passé in S.C.No. 82 of 1965, the plaint schedule property was brought for sale and was purchased by the decree holder C.H. Ahamed. He took delivery of the property. Thereafter. Ahamed assigned the plaint schedule property to the plaintiff as per a registered sale deed dated 8-7-1991. Thus the plaintiff became the absolute owner of the plaint schedule property. The original owner Kannan granted a lease (Nilavadaka Karar) on 8-8-1986 to one Vasudev Prabhu for putting up a shop building in the plaint schedule property. The period of lease was for 12 years and as per the terms of the lease, the lessee is liable to surrender possession of the property and building to the lessor on receipt of the value of the building. On the strength of the nilavadaka karar, Vasudevan Prabhu put up a shop building in the plaint schedule property. Later one Devaraya Kamath filed S.C. No.106/1939 against Vasudeva Prabhu for realization of money. In execution of the said decree the right of Vasudeva Prabhu over the plaint schedule property was brought for sale and decree holder himself purchased the right of Vasudeva Praphu. The decree holder took delivery of the plaint schedule building also. Thereafter, Devaraya Kamath assigned his right over the plaint schedule property to Kannan as per a registered sale deed dated 25-11-1953. Who in turn assigned the same to the first defendant as per a registered sale deed dated 30-5-1961. Thereafter the first defendant filed O.A.No.3474/1976 before the Land Tribunal Kanhangad alleging that he is a cultivating tenant. The said O.A. was dismissed and it was confirmed in appeal and revision. The first defendant sub let all the rooms in the plaint schedule building to defendants 2 to 4. Thereafter the first defendant filed O.A.No.3474/1976 before the Land Tribunal Kanhangad alleging that he is a cultivating tenant. The said O.A. was dismissed and it was confirmed in appeal and revision. The first defendant sub let all the rooms in the plaint schedule building to defendants 2 to 4. Defendants 2 to 4 in turn subject one room to the 5th defendant which was later surrendered back to defendants 2 to 4. The first defendant is not in possession of any of the rooms situated in the plaint schedule property. Therefore, the defendants are not entitled to the benefit of Sec.106 of the Kerala Land Reforms Act. Hence the suit is filed for recovery possession of the plaint schedule property. 2.Defendants 1 to 4 filed joint written statement disputing the plaint claim. The devolution of interest in favour of first defendant was also admitted. The dismissal of the application for purchase of jenmom right was also admitted. It is further contended that the first defendant is a lessee entitled to the benefit of Section 106 of the K.L.R. Act, and for adjudication, the matter is referred to the Land Tribunal. The allegation of sub lease was denied. Defendants 1 to 4 are in permissive occupation of the plaint schedule building. The plaintiff is not entitled to recover possession of the plaint schedule property. 3.Both sides adduced oral as well as documentary evidence. The question of tenancy was referred to the Land Tribunal and the Land Tribunal found that the first defendant is a tenant under Section 106 of the K.L.R. Act. The court below ultimately dismissed the suit. Against the said Judgment and decree, the present appeal is filed by the plaintiff. 4.The question to be considered is whether the first defendant is entitled to get the benefit under Section 106 of the K.L.R. Act and whether the claim is barred by res judicata. There is no dispute with regard to the devolution of property. It is admitted by the plaintiff that the first defendant got the assignment of the nilavadaka Karar executed by the original landlord. Now the only dispute is confined to the benefit claimed by the first defendant under section 106 of the Act. Section 106 of the K.L.R. Act reads as follows: 106. It is admitted by the plaintiff that the first defendant got the assignment of the nilavadaka Karar executed by the original landlord. Now the only dispute is confined to the benefit claimed by the first defendant under section 106 of the Act. Section 106 of the K.L.R. Act reads as follows: 106. Special provision relating to leases for commercial or industrial purposes-(1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of court, where on any land leased for commercial or industrial purposes, the lessee has constructed buildings for such commercial or industrial purposes before the 20th May 1967, he shall be liable to be evicted from such land but shall be liable to pay rent under the contract of tenancy and such rent shall be liable to be varied every twelve years. Explanation-For the purposes of this section: - a) ‘lessee’ includes a legal representative or an assignee of the lessee; and b) “building” means a permanent or a temporary building and includes a shed. 5. Now it is argued by learned counsel for the plaintiff that the claim of the first defendant that he is a tenant under Section 106 of the K.L.R. Act is barred by res judicata. The fist defendant has filed O.A.No. 3474/1976 before the Land Tribunal for assignment of landlords right under Section 72 b claiming that he is a cultivating tenant. The said application was dismissed which was confirmed in appeal and revision. So the first defendant now cannot claim that he is a tenant under Section 106 of the K.L.R. Act. The fact that the first defendant filed O.A.3474/1976 for assignment of landlords right in admitted by him. But according to the first defendant that will not preclude the first defendant from claiming the benefit under Section 106 of the Act. It is further submitted by learned counsel for the defendants that the plaintiff is stopped from contending that the right of the first defendant’s claim as commercial tenant. It is averred in the plaint itself that O.A. 3474/1996 was dismissed on the ground that the first defendant is a commercial tenant and not a cultivating tenant as stated in the original application. 6. It is averred in the plaint itself that O.A. 3474/1996 was dismissed on the ground that the first defendant is a commercial tenant and not a cultivating tenant as stated in the original application. 6. The question whether the tenancy is to be referred to the Land Tribunal and whether the claim is barred by res judicata was considered by this Court. The contention of the plaintiff was that since the first defendant has filed O.A.No.3474/1976 under Section 72 B of the K.L.R.Act for purchase of jenmom right which was dismissed by the Land Tribunal, the present claim is barred by res judicata. The said O.A. was dismissed on the ground that the lease was for industrial and commercial purpose falling under the exception as per Section 3(1)(iii) of the Act and hence the present petition to refer the matter to the Land Tribunal was resisted. The trial court as well as the first appellate court found that it need not refer to the Land Tribunal. The first respondent took the matter before this Court and this Court held that it is not barred by res judicata. So according to the first respondent once is has been decided by this Court that the claim of Section 106 is not barred by res judicata, the plaintiff is estopped from contending that the claim under Section 106 is barred by res judicata. The said decision has become final as far as the parties are concerned. 7. In paragraph 10 of the said judgment this Court categorically stated that there is no finding that would prevent the revision petitioner from raising such a contention. In other words, the present contention raised by the revision petitioner is not barred by res judicata and therefore, on that ground it cannot be said that the said contention does not arise within the meaning of Section 125(3) of the Act. Learned counsel for the appellant relies on the decision reported in Vijayan v. Kamalashi Amma (1994 (1) KLT 942) in order to substantiate the contention that the claim of the first defendant is hit by explanation IV to Section 11 of C.P.C. Since the first respondent has opportunity to raise the plea that he is entitled to get the benefit under Section 106 of the Land Reforms Act, he choose to file an application under Section 72B. So the present claim is barred by res judicata.] 8. So the present claim is barred by res judicata.] 8. As per the decision reported in Mohanlal v. Binoy Krishna (A.I.R. 1953 S.C.65) even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. Here in the instant case this Court in specific terms found that the claim under Section 106 of the Kerala Land Reforms Act is not barred by res judicate. Further it is to be seen that an application has been filed by the first defendant for purchase of the landlords right. The facts of the case reported in 1994 (1) KLT 942 is different from the present case. There is no question of taking alternative plea in the said independent application filed by the first respondent. In the above said decision the landlord has filed a petition for eviction under the rent control Act. The tenant disputed the title of the landlord. In the meantime the tenant filed and application under Sec.72B which was dismissed. In a subsequent suit for eviction, the tenant claimed that he is entitled to the benefit of Section 106. There the Supreme Court found that he cannot raise such a contention since the same had not been raised earlier. 9. Under Section 11 of the C.P.C. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigants under the same title, in a Court competent to try such subsequent suit or the suit which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation IV to Section 11 of the C.P.C.postulates that any matter which might and ought to have been made ground of “defence or attack” in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Admittedly O.A.No. 3474/78 is an application filed by the first defendant claiming that he is a cultivating tenant and the application was dismissed on the ground that tenancy in question is a commercial tenancy. Admittedly O.A.No. 3474/78 is an application filed by the first defendant claiming that he is a cultivating tenant and the application was dismissed on the ground that tenancy in question is a commercial tenancy. So the facts of the said case has no application in the present case. Further in respect of the question of res judicata, this Court found that the claim of Section 106 of the K.L.R. Act is not barred by res judicata. The said finding is binding on the parties and the appellant is estopped from raising such a plea again. The plaintiff has no case that the tenancy in question is not a commercial tenancy. It is also admitted by the plaintiff that in pursuance of the nilavadaka karar, the lessee has constructed a shop building in the property. Therefore, the first defendant is entitled to get the benefit under Section 106 of the K.L.R. Act and the plaintiff is not entitled to recover the property. I find no reason to set aside the judgment passed by the trial court and the Appeal Suit is dismissed.