Khurshida Beegam v. The State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932** ## **OP.No. 24756 of 2001(V)** **----------------------------------** **PETITIONER:** - **-------------------** **KHURSHIDA BEEGAM, W/O. ABDUL GAFOOR, AGED 67, RESIDING AT KAG MANZIL, VIA BELVAYI, P.O. PADAMRNED, MOODBIDRRE, DAKSHIN KARNATAKA, REPRESENTED BY GENERAL POWER OF ATTORNEY HOLDER SRI. M. MOHAMED ABRAHIM, S/O. K.S. ABDUL KHADER, RESIDING AT KOTEKAR, MANGALORE TALUK, DAKSHIN KARNATAKA.** - **BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, ADV.SRI.P.B.KRISHNAN.** **RESPONDENTS:** **------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE SPECIAL TAHSILDAR (LR-II), (LAND TRIBUNAL), KASARAGOD.** **3. SHEIK ABDUL REHMAN,S/O. SHEIK HUSSAIN, MAJAL HOUSE, MULINJA VILLAGE, KASARAGOD TALUK.** **R1 & R2 BY GOVERNMENT PLEADER SRI. DILEEP MOHAN, R3 BY ADV. SRI.V.V.ASOKAN.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P. NO. 24756/2001-V:** ## **ORDER ON C.M.P. NO. 40456/2001 IN O.P. NO. 24756/2001-V** ||**DISMISSED**| |---|---| |**06/09/2010.**|**SD/- ANTONY DOMINIC, JUDGE.**| **//TRUE COPY// P.A. TO JUDGE.** **Prv.** ## ANTONY DOMINIC, J. ------------------------- ## O.P. No.24756 of 2001 (V) --------------------------------Dated, this the 6[th] day of September, 2010 ## J U D G M E N T Petitioner is the land lord of the building, bearing door No.V115 of Mangalpadi Panchayat in Kasaragod District. According to her, the building was originally leased out to the predecessor in interest of the 3[rd] respondent’s mother by rent deed dated 07/02/1971. After the expiry of the tenant, 3[rd] respondent’s mother continued in possession and continued to pay rent @ Rs.25/- till 1985. 3[rd] respondent’s mother expired in 1995. Thereafter the 3[rd] respondent continued in possession. Default was committed in paying the rent and thereupon notice calling upon the 3[rd] respondent to vacate the premises was issued. In the reply, the 3[rd] respondent contended that she is a cultivating tenant. 2. Meantime, at the instance of the 3[rd] respondent, suo motu proceedings under Section 72 C of the Kerala Land Reforms Act was initiated as S.M.No.49/1998. During the pendency of the proceedings before the Land Tribunal, Kasaragod, the petitioner O.P.No.24756/2001 -2- filed RCP No.12/1999 before the Rent Control Court, Kasaragod seeking eviction of the 3[rd] respondent. In the Rent Control Court also, the 3[rd] respondent raised the contention that he is a cultivating tenant. Thereupon the question was referred for adjudication to the Land Tribunal, Kasaragod under Section 125(3) of the Kerala Land Reforms Act. The reference was registered as R.C.No.1/2000. On receipt of the reference, S.M.No.49/98 filed under Section 72C was dropped for want of jurisdiction, in view of the judgment of this Court in Narayana Kamath v. Govinda Prabhu (1992(1) KLT 630). 3. In R.C.No.1/2000, an order was passed requiring the authorized officer to submit his report under Section 105 of the Kerala Land Reforms Act. The authorized officer in turn submitted Ext.P2 report stating that his predecessor in Office had already inspected the land and submitted Ext.P1 report in S.M.No.49/98 and that according to his predecessor’s report (Ext.P1), the 3[rd] respondent and his predecessors were in possession of the property prior to 01/04/1964. On that basis, the authorized officer reported that the 3[rd] respondent may be treated as a cultivating tenant of the land and further action taken on the basis of that report. The petitioner objected to the acceptance of Ext.P2. According to the O.P.No.24756/2001 -3- petitioner, the 2[nd] respondent was statutorily bound to inspect the land, come to independent conclusions and submit his report under Section 105 of the Kerala Land Reforms Act. On this basis, she filed I.A.No.11/2001, requiring the Land Tribunal to remit the matter back to the Authorised Officer for a fresh report. That plea of the petitioner was rejected by Ext.P3 order of the Land Tribunal. It is this order which is under challenge in the original petition. 4. Contention raised by the learned senior counsel for the petitioner is that when the authorized officer is required to submit his report, the authorized officer is bound to inspect the land and to submit a report of his own. It is stated that this duty is cast on the authorized officer under Section 105 of the Land Reforms Act. Learned senior counsel further contended that S.M.No.49/98 initiated under Section 72 C of the Kerala Land Reforms Act was dropped for want of jurisdiction on registration of R.C.No.1/2000. It is stated that once the proceedings are dropped for want of jurisdiction anything done in the said proceedings also will be cease to have any effect. Therefore, it is argued that legally there was no report in existence to be relied on or accepted by the Land Tribunal. In support of this contention, learned senior counsel placed O.P.No.24756/2001 -4- considerable reliance on the judgment of the Apex Court in K.Sivaramaiah v. Rukmani Ammal (AIR 2004 (SC) 508). 5. On the other hand, learned counsel for the 3[rd] respondent contended that it was perfectly open to the authorized officer to submit Ext.P2 report. He contended that even inspite of Ext.P2 report, it was open to the Land Lord to prove his case by adducing evidence, and therefore, no prejudice of any nature has been caused to her. He therefore, contended that Ext.P3 order passed by the Land Tribunal rejecting the I.A. filed by the petitioner does not call for any interference. 6. I have considered the submissions made by both sides. 7. Admittedly, the subject matter of the proceedings in both S.M.No.49/1998 and R.C.No.1/2000 is the same. The parties are also common. The question that is to be reported by the authorized officer in both the proceedings is also same. It is in this background that one has to look at the correctness of the view taken by the Land Tribunal in Ext.P3 order. In my view, although, it is a statutory necessary requirement of the proceedings before the Land Tribunal, both under Sections 72 C and 125 to have the report of the authorized officer, there is nothing preventing the Land O.P.No.24756/2001 -5- Tribunal from relying on or acting upon the report submitted by an authorized officer in another proceedings. This is all the more so for the reason that even in spite of such a report, a land lord or a tenant whoever, is always at liberty to prove his case by adducing independent evidence. Therefore, the technical objection raised by the petitioner, in my view, has no force. 8. As far as the judgment of the Apex Court relied on by the learned senior counsel for the petitioner is concerned, the question considered by the Apex Court was whether anything done in a previous suit which allowed to be withdrawn with liberty to file a fresh suit, will constitute res judicata. Answering this plea, in paragraph 5 of the judgment, the Apex Court held as follows: “5. So far as Original Suit No.7359 of 1989 is concerned, the findings recorded in the judgment therein could have constituted res judicata but the fact remains that the appellate court permitted the withdrawal of the suit and once the suit has been permitted to be withdrawn all the proceedings taken therein including the judgment passed by the trial court have been wiped out. A judgment given in a suit which has been permitted to be withdrawn with the liberty of filing a fresh suit on the same cause of action cannot constitute res judicata in a subsequent suit filed pursuant to such permission of the court.” First of all, the issue decided by the Apex Court in the O.P.No.24756/2001 -6- judgment relied on by the learned senior counsel for the petitioner is a totally different one. That apart, the question was whether the findings in a suit, which was withdrawn, constitute res judicata in a subsequent suit. Bearing in mind the principle that a judgment is an authority for what it actually decides and not what logically follows therefrom, in my view, the principles laid down in paragraph 5 of the judgment relied on by the learned senior counsel for the petitioner can at best be applied in a situation where the question is as to whether the findings in a previous suit, which was withdrawn, constitute res judicata. The reasoning adopted by the Apex Court in the judgment referred to above can have no application to the facts of the case of the petitioner. Therefore, I do not find any merit in the original petition. The original petition is only to be dismissed and I do so. (ANTONY DOMINIC, JUDGE) jg