Arumughan, S/o Pathiyamparambil Purayan v. Kunhavaran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 4TH MARCH 2011 / 13TH PHALGUNA 1932** ## **SA.No. 410 of 1998(F)** **----------------AS.237/1990 of DISTRICT COURT, PALAKKAD OS.110/1982 of SUB COURT, OTTAPPALAM** **.................** ## **APPELLANT : APPELLANT / PLAINTIFF :** **------------------------------------------------------------** **ARUMUGHAN, S/O. PATHIYAMPARAMBIL PURAYAN, RESIDING AT PATTITHARA AMSOM, ALOOR / DESOM IN OTTAPALAM TALUK. (*DIED)** *** ADDL. A2 TO A6 IMPLEADED** - ***2. SANTHAKUMARI P.P., AYYANKOLLATH HOUSE, P.O. MALAMAKKAVU, VIA. KUMBIDI, DISTRICT PALAKKAD.** - ***3. SAVITHRI P.P., SREE DURGA HOUSING SOCIETY, WEENA NAGAR, PLAT NO. 34, DATTA WADI, NAGAPUR, MAHARASHTRA.** - ***4. SUBHADRA P.P., ASWATHY, HOUSE NO. 35/69, KEERTHY NAGAR P.O., PALLIPPURAM, PALAKKAD – 6.** - ***5. LEELA P.P., MENCHERY HOUSE, P.O. CHOWANNUR, VIA KUNNAMKULAM, DIST. THRISSUR.** - ***6. MANIKANDAN P.P., PATHIYAM PARAMBIL HOUSE, P.O. PATTITHARA, VIA TRITHALA, PALAKKAD.** - ***ADDL. A2 TO A6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 30.1.07 IN IA. NO. 160/07.** **BY ADV. SRI.P.R.VENKETESH** ## **RESPONDENTS : RESPONDENTS / DEFENDANTS :** **----------------------------------------------------------------------** **1. KUNHAVARAN, S/O. THATTATHAZAHATH AYDRU, PATTITHARA AMSOM, ALOOR DESOM, OTTAPALAM TALUK (DIED) (STRUCK OUT)** **...2/-** **SA.No. 410 of 1998(F) -2-** ## **2. KUNHIPPA, S/O. KUNHAVARAN, DO. DO. (DIED) (STRUCK OUT)** ## **3. KUNHAHAMMED, RESIDING AT PATTITHARA AMSOM, ALOOR DESOM, OTTAPALAM TALUK.** ## **** ADDL.R4 & R5 IMPLEADED** - ****4. MOIDEEN, THATTATHAZHATHU, PTTITHARA AMSOM, ALOOR DESOM, PATTITHARA P.O., OTTAPALAM TALUK.** - ****5. KUNHAIDRU, --DO- -DO-** ***THE NAMES OF R1 & R2 ARE STRIKE OUT FROM THE PARTY ARRAY AND THE NAMES OF ADDL R4 & R5 ARE ADDED BEING THE LRS' OF THE DECEASED FIRST RESPONDENT VIDE ORDER DATED 04/03/2011 IN C.M.P. NO. 160/2003.** **R3 BY ADVS. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SRI.M.C.SEN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2011, ALONG WITH SA NO. 441 OF 1998, THE COURT ON 04/03/2011 DELIVERED THE FOLLOWING:** **Mn** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 410 & 441 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2011. ## **JUDGMENT** Two suits, namely, O.S. 11 of 1982 and 110 of 1982, were jointly tried and disposed of by a common judgment. The defendant in O.S. 11 of 1982 is the plaintiff in O.S.110 of 1982. O.S. 110 of 1982 was dismissed and O.S. 11 of 1982 was decreed. The aggrieved person carried the matter in appeals as A.S. 235 of 1990 as against the decree in O.S. 11 of 1982 and A.S. 237 of 1990 against the decree in O.S. 110 of 1982. Both the appeals were dismissed. S.A. 441 of 1998 is directed against the judgment and decree in A.S. 235 of 1990 and S.A.410 of 1998 is directed against the judgment and decree in A.S. 237 of 1990. The plaintiff in O.S. 110 of 1982, who is the defendant in O.S. 11 of 1982 is the appellant. Since O.S.11 of 1982 has been treated as the leading case, parties and facts are referred to as they are available in the said suit. 2 S.A. Nos.410 & 441/1998. 2. The facts fall within a very narrow compass. The second plaintiff had taken the suit property on lease from a Mana as per lease deed dated 12[th] Meenam 1127. The second plaintiff had later purchased the jenm right over the property and became the absolute owners. The second plaintiff had assigned her entire rights to the first plaintiff as per Ext.A1 dated 1.10.1981. The defendant is the son of the first husband of the second plaintiff. The second plaintiff and the defendant fell apart and that resulted in institution of a suit as O.S.99 of 1976 before the Munsiff's Court, Pattambi. In the said suit the defendant had contended that he is entitled to fixity of tenure. The case was referred to the Land Tribunal concerned and the Land Tribunal entered a finding in his favour and returned it to the trial court. But the suit happened to be dismissed for default. Therefore the findings are not binding on the plaintiffs in this case. Soon thereafter the defendant filed O.S. 98 of 1981, a suit for injunction. An interim injunction was obtained by him and thereafter he trespassed into the suit property. The 3 S.A. Nos.410 & 441/1998. defendant has no manner of right over the suit property and the plaintiff is entitled to recover the same from him. Saying so, the suit was laid. 3. The suit was resisted by the defendant. He denied that the plaintiff had any manner of right over the suit property. He contended that in the earlier suit between the parties, it has been held that he is a tenant and that is binding on the parties. In view of the said finding, the suit is only to be dismissed. 4. Based on the above pleadings, issues were raised by the trial court. Since question of tenancy was raised in the case, the trial court referred the matter to the Land Tribunal for a decision on tenancy. Before the Land Tribunal P.Ws. 1 to 4 were examined and Exts.A1 to A4 were marked from the side of the plaintiff. The defendant examined D.Ws. 1 to 3 and had Exts.B1 to B82 marked. Exts.X1 and X2 are also marked. The Land Tribunal returned the finding that the defendant is not a tenant as claimed by him. The trial court accepting that finding and after giving 4 S.A. Nos.410 & 441/1998. an opportunity to the parties to adduce evidence before the said court held in favour of the plaintiffs in O.S.11 of 1982 and decreed the suit. The aggrieved defendant carried the matter in appeal before the District Court, Palakkad. The District Court on a re-evaluation of the evidence in the case concurred with the findings of the trial court and dismissed both the appeals. 5. Learned counsel appearing for the appellant pointed out that both the courts below have erred in law in decreeing the suit. It was contended that in the earlier suit, ie., O.S. 99 of 1976, filed by the second plaintiff against the appellant, he had raised the question of tenancy and that had been referred to the Land Tribunal. The Land Tribunal had returned the finding that the appellant is a tenant entitled to fixity of tenure. However, in order to get over the said finding, the plaintiff did not prosecute the suit further and got it dismissed for default. The mere fact that the suit was dismissed for default does not wipe off the decision of the Land Tribunal, which had become final and S.A. Nos.410 & 441/1998. 5 therefore the second reference in the present suit was quite uncalled for. Learned counsel pointed out that the reasons given by the courts below for sustaining the second reference are clearly illegal. 6. The facts are not in dispute. The defendant is none other than the son of the first husband of the second plaintiff. The plaintiffs have a case that during their temporary absence, the defendant was managing the entire property and thereafter he began to assert rights over the property. It is true that in an earlier suit by the second plaintiff against the defendant in O.S.11 of 1982 the issue of tenancy was raised by the defendant therein. The same was referred to the Land Tribunal and the Land Tribunal returned a finding that the defendant in the said suit was entitled to fixity of tenure. It is seen from the records that thereafter the plaintiff did not prosecute the suit and it came to be dismissed for default. It is this aspect that is highlighted by the appellant in support of his appeal. S.A. Nos.410 & 441/1998. 6 7. At this point of time, it will be useful to refer to the questions of law formulated in the memorandum of appeal. They read as follows: _“(a) Without a finding of tenancy is entered by a competent Land Tribunal in a case referred by the civil court, will not that finding be res judicata in respect of the same subject matter in a later suit, even if the suit in which the finding was entered into on reference was suffered to be dismissed for default._ _(b) Is not the finding under Ext.B12 res judicata for the contentions of the respondents denying claim of the appellant herein?_ _© When the property is admittedly outstanding on a lease, can the jenmam be transferred by his previous owner after 1.1.1970 as the prior owner of a property outstanding on lease when Act I of 1964 came into force, any right in respect of the property which could be transferred otherwise than a right to receive compensation under Section 72(b) of the K.L.R. Act._ _(d) Can a suit on title lie or to be decreed on the basis of an invalid sale deed of 1974?_ 7 S.A. Nos.410 & 441/1998. _(e) Can a suit for recovery of possession on the strength of title be entertained unless an unquestionable title is established against the defendant in the suit?”_ However, this court while admitting the appeal on 29.7.1998 confined the notice on the substantial questions of law (c) to (e) formulated in the memorandum of appeal. This court declined to issue notice on questions of law (a) and (b) formulated in the memorandum of appeal. Those issues related to the question as to whether the earlier finding of the Land Tribunal evidenced by Ext.B12 will act as res judicata or not. This court felt at the time of admission that those questions did not arise for consideration in the Second Appeal. One has to find out the reason for the same. One need not labour much in this regard because both the courts below have given reason as to why the earlier findings could not be treated as res judicata or not binding on the parties. 8 S.A. Nos.410 & 441/1998. 8. In the present suits, as already stated, the defendant had raised the issue of tenancy. The trial court did raise an issue as to whether the defendant is a tenant under the second plaintiff entitled to fixity of tenure in O.S.11 of 1982. When the issue was sought to be referred to the Land Tribunal, the said order was challenged by the appellant before this court in C.R.P. No.1088 of 1983. The contention before this court was that in the light of the earlier finding that the defendant was a tenant entitled to fixity of tenure, a second reference was uncalled for. 9. This court relying on the principle laid down in the decision reported in **Kesava Bhat v. Subraya Bhat** (1979 K.L.T. 766) held that the earlier suit being one for injunction simplicitor, a reference was uncalled for. It was also held that the finding of the Land Tribunal in the earlier suit, ie., O.S. 99 of 1976, was not incorporated by the Sub Court in its judgment since the suit was dismissed for default. This court observed while disposing of C.R.P. 1088 of 1983 that since the plaintiff could not have filed appeal S.A. Nos.410 & 441/1998. 9 against the order, the finding could not be said to be final. Finally this court observed as follows: _“There is another reason why it must be held that the finding of the Tribunal in O.A.91 of 1977 is not conclusive or res judicata. There is no revision or appeal against the finding as such. The finding in a valid reference becomes part of the decision of the civil court in as much as civil court accepts the decision of the Tribunal and in an appeal against the decree of the civil court the finding is liable to be challenged. In the present case the finding did not as a matter of fact become part of the decision of the civil court in as much as the suit was dismissed for default. Therefore neither party had an opportunity to challenge the finding in appeal. In this view also, it has to be held that the finding is not conclusive between the parties, though it may be piece of evidence which could be placed before the court. The finding in the suo motu proceedings also is not conclusive in as much as the respondents have a right of appeal and appeal time is not over. I therefore do not find any error of jurisdiction or error of law in the_ S.A. Nos.410 & 441/1998. 10 _impugned order in making a reference under Section 125(3) of the Act.”_ 10. Learned counsel appearing for the appellant contended that the observations made by this court while disposing of C.R.P.1088 of 1983 are totally unacceptable in law. Learned counsel pointed out that the decision reported in **Kesava Bhat's case** (supra) does not laid down an absolute principle that in a suit for injunction, there cannot be a reference at all. It only stated that in a suit for injunction, where the issue was regarding possession alone, a reference may be uncalled for. However, learned counsel pointed out that if an issue of title did arise for consideration in a suit for injunction, a reference was necessary. Learned counsel went on to point out that from Ext.B10 dated 14.6.1978, which is the certified copy of the judgment in O.S.99 of 1976 it could be seen that an issue regarding tenancy was infact raised and it was under those circumstances a reference had been made. Learned counsel contended that the court then felt that the issue regarding S.A. Nos.410 & 441/1998. 11 tenancy did arise for consideration and it was under those circumstances an issue in that regard had been raised. The court below was therefore perfectly justified in referring the matter to the Land Tribunal for a decision on the question of tenancy in view of the embargo under Section 125(3) of the Kerala Land Reforms Act. It could not be said that since the suit was dismissed for default and since the plaintiff in the suit could not carry the matter in appeal, the order cannot be conclusive or binding on the parties. The dismissal of O.S. 99 of 1976 was a making of the plaintiff himself, and he could not take advantage of the same. Learned counsel went on to point out that even assuming that the plaintiff could not have challenged the finding, the fact remains that as far as the Land Tribunal is concerned, its finding on the earlier occasion is final and binding on the Land Tribunal and it cannot entertain a second reference. 11. As regards the refusal of this court to issue notice on questions A and B formulated in the memorandum of second appeal, which related to the issue of res judicata, S.A. Nos.410 & 441/1998. 12 learned counsel for the appellant pointed out that Section 100 does not bar this court from raising the issues of law again, if it is felt that the issue arises for consideration in the facts of the case. Learned counsel also relied on Order 41 Rule 33 read with Order 42 CPC, which enables this court to pass such decrees as the case warrants and there is no fetter on the powers of the court to do so. Learned counsel relied on the decision reported in **Pralhad v. State of Maharashtra** ((2010) 10 SCC 458) for the above proposition. 12. According to the learned counsel for the appellant, the Land Tribunal was not competent to entertain a second reference and it should have refused to answer the issue referred to it by the Sub court while dealing O.S. 11 of 1982 and O.S.110 of 1982. At any rate, according to learned counsel, the decision of the Land Tribunal on a reference in these cases has no legal effect. 13. Per contra, learned counsel appearing for the contesting respondents pointed out that the above S.A. Nos.410 & 441/1998. 13 arguments are without any merits whatsoever. This court had occasion to consider whether the reference in the present suits was justified while disposing of C.R.P.1088 of 1983. This court has categorically found that the earlier finding is neither conclusive nor the reference was justified in the earlier suit. It cannot be disputed, according to learned counsel, that the earlier suit was one for injunction alone and therefore a reference was without authority. According to learned counsel, being an invalid reference, the finding of the Land Tribunal in the earlier suit, ie., O.S. 99 of 1976 is non-est in law. Even assuming that it is not so, this court while disposing of C.R.P.1088 of 1983, wherein reference in the present suit was challenged before this court, it has been held that the second reference is not bad in law and the earlier finding is not conclusive. That finding, according to learned counsel, acts as res judicata in the subsequent stage of the present suit against the defendant. 14. There is much to be said on both sides. It cannot be said that the contentions raised by the learned 14 S.A. Nos.410 & 441/1998. counsel for the appellant are without basis. It is seen from the records that in the earlier suit O.S.99 of 1976 the issue regarding tenancy was infact raised and the matter was referred to the Land Tribunal for a decision on that issue. It is also seen that the Land Tribunal, which is the sole competent authority to decide the issue, had decided in favour of the defendant herein. That finding was returned to the Sub Court. Thereafter it is seen that the plaintiff did not prosecute the suit and it came to be dismissed for default. It is significant to notice the portion extracted in paragraph 16 of the lower appellate court judgment, which reads as follows: _“Suit for perpetual injunction restraining the defendant from trespassing upon the plaint schedule property ............... from interfering with the plaintiff's peaceful possession over the properties and for cost.”_ S.A. Nos.410 & 441/1998. 15 The lower appellate court then went on to hold that in the light of the order in the C.R.P., it could not be said that the earlier order is binding on the parties. 15. As rightly pointed out by the learned counsel for the appellant, it may not be proper and correct to say that in a suit for injunction, there can never be a reference to the Land Tribunal for a decision on the question of tenancy. A reading of the decision in **Kesava Bhat's case** (supra) does not show that there is an absolute prohibition in referring the question of tenancy in a suit for injunction. The decision only goes to show that normally in a suit for injunction, the question of possession alone is relevant and in that context a reference is uncalled for. But the decision also takes notice of the fact that there may be circumstances in which in a suit for injunction, a reference may be necessary. Therefore it could not be said that as contended by the learned counsel for the appellant the earlier reference was invalid and the decision could be simply ignored. It could not be at all said that the earlier S.A. Nos.410 & 441/1998. 16 decision by the Land Tribunal was without jurisdiction and is non-est. 16. The contention of the learned counsel for the appellant that by getting the suit dismissed for default, the plaintiff in the said suit could avoid a finding against him is not a legally correct view, cannot be said to be without basis. However, judicial propriety prevents this court from going into this issue in the light of the decision in C.R.P.1088 of 1983. 17. This court while disposing of the above C.R.P. had found that the earlier finding of the Land Tribunal in O.S.99 of 1976 is neither conclusive nor binding on the parties in a subsequent suit and that it is only a piece of evidence. It is not for this court to sit in judgment over the said finding. The observations and the findings in C.R.P.1088 of 1983 has become final and conclusive. 18. May be that the learned counsel for the appellant is right to a certain extent that even though this court had refused to issue notice to some of the questions of S.A. Nos.410 & 441/1998. 17 law formulated in the memorandum of second appeal, when the matter is being heard, if this court feels that the questions did arise for consideration, that can be re-agitated. One must remember that at the stage of admission, the court does not go into the records since it did hear the arguments elaborately. But in the case on hand, obviously this court refused to issue notice on the questions A and B raised in the memorandum of appeal because of the decision in C.R.P. 1088 of 1983. Learned counsel for the appellant may also be justified in his argument that even assuming that notice has not been issued on those questions of law, in view of Order 41 Rule 33 read with Order 42 this court may be justified in passing a proper order if it thinks that the judgment and decree of the court below is not sustainable in law and warrants interference. 19. But the above questions are academic in nature. In the present case the decision in C.R.P.1088 of 1983 is binding on the appellant, who had challenged the order of reference to the Land Tribunal before this court. S.A. Nos.410 & 441/1998. 18 The Land Tribunal as well as the lower appellate court have considered the evidence on record in considerable detail and have come to the conclusion that the appellant is not a tenant entitled to fixity of tenure. The findings, being essentially based on evidence on record and being question of facts, do not call for interference especially when it is not shown that the findings are either perverse or unjustified or unwarranted by the evidence on record. On facts, substantial questions of law C, D and E do not arise for consideration. The result is that, these appeals are without merits and they are liable to be dismissed. I do so. However, there will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.