Pichi d/o Sundari and Thyagarajan s/o Appavu v Arulan Nadar Ananthapappu Samudayapattuvila Veedu, Muriyankara Desom, Parassala Pakuthy (and others)

OP(C )No.1367 of 2016 ..1.. ``` 2025:KER:27751 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` TUESDAY, THE 25[TH] DAY OF MARCH 2025 / 4TH CHAITHRA, 1947 OP(C) NO. 1367 OF 2016 ``` ``` AGAINST THE JUDGMENT DATED IN OS NO.44 OF 1999 OF I ADDITIONAL MUNSIFF COURT ,NEYYATTINKARA ``` ## **`PETITIONER/S:`** - **`1 PICHI D/O SUNDARI, SAMUDAYAPATTUVILA VEEDU, MURIYANKARA, PARASSALA P.O.`** - **`2 THYAGARAJAN S/O. APPAVU, SAMUDAYAPATTUVILA VEEDU, MURIYANKARA, PARASSALA P.O.`** ``` BY ADVS. SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN ``` ## **`RESPONDENT/S:`** - **`1 ARULAN NADAR ANANTHAPAPPU SAMUDAYAPATTUVILA VEEDU, MURIYANKARA DESOM, PARASSALA PAKUTHY (DIED) 695 614.`** - **`2 THAMARAKSHI D/O THAI, SAMUDAYAPATUVILA VEEDU, MURIYANKARA, PARASSALA P.O. 695014.`** OP(C )No.1367 of 2016 ..2.. **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` - **`3 SOJA`** ``` D/O THAMARAKSHI, SAMUDAYAPATUVILA VEEDU, MURIYANKARA, PARASSALA P.O. 695814. ``` - **`4 SHEEBA`** ``` D/O THAMARAKSHI, SAMUDAYAPATUVILA VEEDU, MURIYANKARA, PARASSALA P.O. 695614. ``` - **`5 SAJU`** ``` S/O ANANTHAPAPPU, SAMUDAYAPATTUVILA VEEDU, MURIYANKARA DESOM, PARASSALA PAKUTHY 695614. ``` ``` 6SHAJI S/O ANANTHAPAPPU, SAMUDAYAPATTUVILA VEEDU, MURIYANKARA DESOM, PARASSALA PAKUTHY-695014. ``` ``` BY ADVS. R2 TO R4 BY ADVS: ARUN V.G. (K/795/2004) INDULEKHA JOSEPH NEERAJ NARAYAN ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(C )No.1367 of 2016 ..3.. **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` **“C.R.”** ## **K.BABU, J.** ------------------------------------- ## **OP(Civil) No.1367 of 2016** --------------------------------------Dated this the 25[th] day of March, 2025 ## **JUDGMENT** The prayers in the Original Petition are as follows:- “(a)Issue appropriate direction or order directing the Additional Munsiff Court-I, Neyyattinkkara, not to proceed on the basis of Exhibit-P5 till the disposal of Exhibit-P6, pending before the Land Tribunal Thiruvananthapuram. (b)Issue appropriate direction or order and quash ExhibitP5 order passed by the Additional Munsiff Court-I, Neyyattinkkara in E.A.140/16 in E.P.100/10 in O.S. 44/1999. (c)Issue appropriate direction or order Grant such other relief that are deemed fit and proper in the circumstances of the case.” (sic) 2. The petitioners are the defendants in O.S.No.44 of 1999 on the file of the Additional Munsiff’s Court-I, OP(C )No.1367 of 2016 **==> picture [20 x 9] intentionally omitted <==** **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` Neyyattinkara. It was a suit for declaration of title, prohibitory injunction and recovery of possession. The plaintiffs lost the case in the trial Court. The First Appellate Court reversed the findings of the learned Munsiff and decreed the suit. In the Second Appeal, this Court confirmed the decree passed by the First Appellate Court. 3. The plaintiffs filed a petition for execution of the decree. In the Execution Court, the defendants filed an application under Section 47 CPC challenging the executability of the decree. The Execution Court rejected the application filed by the defendants as per Ext.P5. Petitioner No.2 filed an application before the Land Tribunal, Thiruvananthapuram, claiming the benefit of cultivating tenants invoking Section 72B of the Kerala Land Reforms Act, 1963 (‘KLR Act’ for short) as per Ext.P6. OP(C )No.1367 of 2016 **==> picture [20 x 8] intentionally omitted <==** **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` 4. I have heard the learned counsel for the petitioners and the learned counsel for the respondents. 5. The plaintiffs pleaded the following:- The original plaintiff had acquired title over the plaint schedule property as per partition deed No.3947/1986 dated 17.11.1986. The property came to the possession of the predecessor-in-interest of the plaintiff based on an ottikuzhikanam. The mortgage has not been redeemed. He has been in possession of the property. The defendants have no right over the property. They attempted to trespass upon the plaint schedule property. After the institution of the suit, the defendants trespassed upon the property and constructed a small building in the basement already constructed by the plaintiff. 6. The defendants filed a written statement along with a counter-claim raising the following contentions:- The plaintiff has no right over the property. The defendants are in possession of the property. A larger OP(C )No.1367 of 2016 **==> picture [20 x 9] intentionally omitted <==** **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` extent of property, including the plaint schedule property, belonged to the predecessors of the plaintiff and defendant No.2 by the name Mathiran, Arulan and Yagappan. They obtained the property as per deed Nos. 2126/1104 ME and 1600/1107 ME. This property was not partitioned. Defendant No.2 is the grand daughter of Mathiran, and the plaintiff is the son of Arulan. The plaintiff is not in possession of the property. He is attempting to trespass upon the property. Hence, the defendants are entitled to a permanent prohibitory injunction as prayed for in the counter-claim. 7. The trial Court dismissed the suit and the counter-claim. The plaintiff challenged the judgment and decree before the First Appellate Court. The First Appellate Court decreed the suit, holding that the plaintiff acquired title over the suit property. 8. The First Appellate Court came to the following conclusions:- OP(C )No.1367 of 2016 **==> picture [20 x 8] intentionally omitted <==** **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` The plaintiff has acquired title over the property. The mortgage in respect of the property had been redeemed earlier. The defendants trespassed upon the plaint schedule property. Based on these findings, the First Appellate Court decreed the suit as follows:- - “(a)Title of the plaint schedule property is declared in favour of the plaintiff. (b)Defendants are directed to hand over vacant possession of plaint A schedule property after demolishing B Schedule structure within three months from today. If the order is not complied, the plaintiff is allowed to recover possession of the property after demolishing the structure through the process of court. (c)Defendants are restrained by a permanent prohibitory injunction from trespassing upon plaint schedule property and committing any waste after handing over possession. OP(C )No.1367 of 2016 ..8.. **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` (d)Appellant is allowed to recover the costs from the respondents.” 9. This Court confirmed the findings of the First Appellate Court in a Regular Second Appeal. 10. In the application filed under Section 47 CPC, the petitioners/defendants essentially raised the following contentions:- (1)The legal heirs of one of the mortgagees named Mathiran were not made parties. (2)The mortgage in respect of the property had not been redeemed. (3)The decree is not executable as the trial Court lacked inherent jurisdiction to proceed with the matter. (4)The petitioners are the co-owners of the property. 11. The petitioners/defendants have raised all these contentions during the trial. The challenges went up to the Second Appeal. All their contentions were disallowed. OP(C )No.1367 of 2016 **==> picture [20 x 9] intentionally omitted <==** **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` 12. A Court executing a decree cannot go into a question as to the correctness or legality of the decree. It can entertain an objection that the decree is a nullity for want of jurisdiction. All questions as to the discharge, satisfaction or execution of the decree can be raised in a petition under Section 47 CPC. This Section has been enacted for the beneficial purpose of eliminating unnecessary litigations by allowing the parties before the Court to obtain adjudication of all questions relating to the execution, discharge or satisfaction of the decree. 13 The essential conditions to apply Section 47 are the following:- (a)the question must be one arising between the parties to the suit in which the decree is passed or their representatives, and - (b) it must relate to the execution, discharge and satisfaction of the decree. OP(C )No.1367 of 2016 ``` 2025:KER:27751 ``` **==> picture [26 x 9] intentionally omitted <==** **==> picture [58 x 58] intentionally omitted <==** 14. The questions raised by the petitioners/defendants do not fall under the scope of the Section 47 CPC. Therefore, the challenge on the dismissal of the application under Section 47 CPC by the Execution Court fails. 15. The defendants have now raised a contention that they are cultivating tenants of the property, and hence, entitled to the benefit of Section 72B of the KLR Act. The defendants had filed Ext.P6 application before the Land Tribunal. They prayed for a direction to the Execution Court not to proceed further in the execution petition till the disposal of the application before the Tribunal. 16. The learned Counsel for the petitioners/defendants relying on _**Penangal**_ _**Prabhakaran Nambiar v. Ahamed Koya**_ [2020 (1) KLT 364] and _**Maniyan v. Ramachandran**_ [1999 (2) KLJ 492] contended that the petitioners are entitled to an OP(C )No.1367 of 2016 **==> picture [26 x 9] intentionally omitted <==** **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` adjudication of their claim for tenancy by the Land Tribunal. I do not find any precedential value in the decisions relied on by the petitioners in support of their contentions. 17. The learned counsel for the respondents relied on a series of decisions to contend that the claim of the defendants before the Tribunal is hit by the principle of constructive res judicata. 18. It is pertinent to note that the petitioners/defendants had not raised any contention claiming tenancy or kudikidappu in the trial of the suit. Their claim was based on the pleading that they are the co-owners of the plaint schedule property. 19. The learned counsel for the respondents relied on _**Victoria v. K.V. Naik and Others**_ [1997(6) SCC 23], _**Kesava Bhat v. Subraya Bhat**_ [1979 KHC 346], _**Vittala D. Prabhu and Others v. Nalini Shenoy**_ [2012 KHC OP(C )No.1367 of 2016 **==> picture [26 x 9] intentionally omitted <==** **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` 443] and _**Devaki Amma Kamalamma v. Grace Appi Amma**_ [2017 (3) KHC 12] in support of his contentions. 20. In _**Victoria v. K.V. Naik**_ (Supra) _**,**_ the mortgagors filed a suit for redemption of the mortgage. The mortgagee claimed fixity of tenure in respect of the entire extent of the land under Sections 4-A(1)(b) and 13 of the KLR Act. Alternatively, the mortgagee claimed to be entitled to deemed kudikidappu right over a portion of the land by operation of Explanation IV to Section 2(25) of the KLR Act. The trial Court negatived the contentions. A Final decree was passed. When the matter came to this Court, it was held that the judgment debtors are precluded from claiming the right of kudikidappu in view of their prior approach to the Land Tribunal on a claim that they are cultivating tenants entitled to an assignment of the right, title and interests of the land owner over the land in question and therefore, their plea of kudikidappu is barred by _res judicata._ OP(C )No.1367 of 2016 **==> picture [26 x 9] intentionally omitted <==** **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` 21. When the matter reached the Supreme Court, it was held that if the plea had not been raised, it operates as constructive _res judicata_ on the principle of “might and ought” and if it is taken and rejected, it operates as _res judicata_ and the same cannot be raised in execution. 22. A Full Bench of this Court in _**Kesava Bhat v. Subraya Bhat**_ (Supra) considered whether the failure to plead rights acquired pending the suit or proceeding constitutes _res judicata_ . The Full Bench held that the principle of constructive _res judicata_ would stand as a bar from agitating her claim in a subsequent proceeding. 23. On a claim of tenancy under Section 106 of the KLR Act raised in the final stage of a suit, which was available to the party even in an earlier proceeding, a Division Bench of this Court in _**Narayanan v. Kunchi Amma Parukkutty Amma**_ [1986 KHC 359] held thus:- “13. In the instant case, we do not propose to dispose of the revision petition on the principle that the execution court cannot go behind the decree, for the reason that it OP(C )No.1367 of 2016 ..14.. **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:27751` may be possible to contend that there is lack of inherent jurisdiction on the part of the civil court to decide a matter which is required by S.125 of the Act to be referred to the Land Tribunal. As pointed out earlier, in Ramadas's case (1984 KLT 371) the Division Bench of this Court has held that the decision in such cases by a civil court without reference to the Land Tribunal would be without jurisdiction and therefore null and void. We would therefore rest our decision on the broader principle that the claim of tenancy under S.106 of the K.L.R. Act which the petitioner sought to raise in the fnal stages of the suit appears to us to be a plea which was available to him even in the earlier proceedings and which he might and ought to have raised in those proceedings, and therefore the lower court did not err in not referring that question to the Land Tribunal. [Emphasis supplied].“ 24. It is also important to note that Section 108A of the Kerala Land Reforms Act provides that Section 11 of the Code of Civil Procedure is applicable to the proceedings under the Land Reforms Act. This view is fortified by the decision of the Division Bench in _**Vittala D. Prabhu and Others v. Nalini Shenoy**_ (Supra). OP(C )No.1367 of 2016 ..15.. **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` Therefore, the proceeding initiated by the petitioners before the Land Tribunal is barred by _res judicata._ The resultant conclusion is that the petitioners are not entitled to the reliefs prayed for. The Original Petition stands dismissed. **Sd/-** **K.BABU, JUDGE** kkj OP(C )No.1367 of 2016 ..16.. **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:27751 ``` ## **`APPENDIX OF OP(C) 1367/2016`** - **`PETITIONERS‘ EXHIBITS EXHIBIT P1: TRUE COPY OF THE MORTGAGE DEED OF 1107.`** - **`EXHIBIT P2:`** ``` TRUE COPY OF THE JUDGMENT IN OS 8/59 OF THE SECOND ADDITIONAL MUNSIFF NEYYATTINKARA DATED 11.2.1963. ``` - **`EXHIBIT P3: TRUE COPY OF THE FINAL DECREE IN OS 1066/67 DATED 5.4.1969.`** - **`EXHIBIT P4: TRUE COPY OF THE APPLICATION UNDER SECTION 47 IN OS 44/99 DATED 12.8.2015.`** - **`EXHIBIT P5: TRUE COPY OF THE ORDER IN EA 390/2015 IN EP 100/2010 IN OS 44/1999 DATED 16.3.2016.`** - **`EXHIBIT P6:`** - **`TRUE COPY OF THE APPLICATION NO.S(S.M) 14/2016 DATED 28.5.2016.`** - **`RESPONDENT EXHIBITS`** - **`Exhibit R2(a)`** - **`The true copy of the plaint in O.S No. 44 of 1999 on the files of the First Additional Munsiff Court, Neyyattinkara`** - **`Exhibit R2(b) The true copy of the written statement filed by the defendants in O.S No. 44 of 1999 on the files of the First Additional Munsiff Court, Neyyattinkara`** - **`Exhibit R2(c)`** - **`The true copy of the judgment of the First Additional Munsiff Court,`** OP(C )No.1367 of 2016 ..17.. ``` 2025:KER:27751 ``` **==> picture [58 x 58] intentionally omitted <==** ``` Neyyattinkara in O.S No. 44 of 1999 dated 25.02.2003 ``` ``` Exhibit R2(d) ``` ``` Exhibit R2(e) ``` ``` Exhibit R2(f) ``` ``` Exhibit R2(g) ``` ``` The true copy of the decree of the First Additional Munsiff Court, Neyyattinkara in O.S No. 44 of 1999 dated 25.02.2003 ``` ``` The true copy of the judgment of the Court of Sub Judge, Neyyattinkara in A.S No. 206 of 2003 dated 08.09.2009 ``` ``` The true copy of the judgment of the Hon’ble High Court of Kerala in RSA No. 557 of 2010 dated 25.05.2015 ``` ``` The true copy of the plaint in O.S No. 294 of 2016 on the files of the Munsiff Court, Neyyattinkara ```