R.S. MOHANDAS v. S. SANTHAKUMARI AMMA and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 RP.No. 710 of 2009(D) --------------------AGAINST THE JUDGEMENT/ORDER IN AS.648/1992 .................... REVIEW PETITIONER(S): PETITIONER-RESPONDENT NO.2 IN A.S. -------------------------------------------------------- R.S.MOHANDAS, S/O.LATE R.SUBBAIAH, T.C.31/356, FORT, PAZHAVANGADI, THIRUVANANTHAPURAM. - BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR RESPONDENT(S): APPELLANTS 2 TO 5 & RESPONDENTS 3 TO 8 IN A.S. ------------------------------------------------------------- 1. S.SANTHAKUMARI AMMA, - T.C.42/1, "SOUPARNIKA", SREEVARAHAM, MANACAUD P.O., THIRUVANANTHAPURAM. 2. S.LALITHAMBIKA, IN DO. DO. DO. 3. K.SHYAMKUMAR, IN DO. DO. DO. 4. S.MEENAMBIKA, IN DO. DO. DO. 5. R.S.DEVADAS, S/O.LATE R.SUBBAIAH, T.C.31/356, FORT, PAZHAVANGADI, THIRUVANANTHAPURAM. 6. M/S.INDIAN BANK, REPRESENTED BY ITS MANAGER, BRANCH OFFICE, MAIN ROAD, THIRUVANANTHAPURAM. 7. SWARNALATHA, W/O.LARE R.S.RAMADAS, LAKSHMI SADANAM, PAZHAVANGADI, FORT, THIRUVANANTHAPURAM. 8. SUJATHA SENTHIL, D/O. DO, IN DO. DO. 9. ANITHA VISWANATHAN, D/O. DO. IN DO. DO 10. R.SOORAJ, S/O.DO. RESIDING IN DO. DO.DO THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 27/01/2010, THE COURT ON 1.2.2010 PASSED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR,J.** =========================== R.P.No. 710 OF 2009 in A.S.No.648 of 1992 =========================== Dated this the 1[st] day of February,2010 ## ORDER Second respondent in A.S.No.648/1992 filed this petition under Rule 1 of Order XLVII of Code of Civil Procedure to review the judgment dated 27.3.2009 whereunder the appeal was dismissed confirming the dismissal of the suit. Respondents the legal heirs of the original plaintiff filed the suit before Sub Court, Thiruvananthapuram for recovery of possession of plaint schedule property with arrears of licence fee contending that plaint schedule property was granted on license under Ext.B22. In the judgment dated 27.3.2009 construing Ext.B22, it is found that intention of the parties was only to create a lease and not a licence and what was created thereunder is a R.P.710/2009 in A.S.No.648/1992 2 lease and not a licence and therefore the suit filed for recovery of possession on the ground that Ext.B22 is a licence will not lie. Though in view of that finding the question whether respondents in the appeal, being the legal heirs of the assignee of Ext.B22 lease is entitled to protection under section 106 of Kerala Land Reforms Act was not very relevant, holding that as the question was pressed into service and argued by the counsel it is necessary to decide the question, the question was answered. Relying on the decisions of this Court in **Kunhiraman & another v. Chemmarathi & 5** **others (1966 KLJ 452)** following the Division Bench decision in **Mamoo v. Asya (1965 K.L.T. 126),** it was held that the assignee of Ext.B22 lease is not entitled to the protection under section 106 of Kerala Land Reforms Act. Petition is filed to review that finding. 2. Learned senior counsel appearing for the petitioner and learned senior counsel appearing for R.P.710/2009 in A.S.No.648/1992 3 the contesting respondent were heard. 3. Learned senior counsel appearing for the petitioner relying on the decision of the Privy Council in **Chockalingam v. Seethai Ache (A.I.R.1927 Privy Council 252), Krishna Chendra Gajapati Narayana Deo v. Challa Ramanna and others (AIR 1932 Privy Council 50), Ganga Bai v. Vijay Kumar (AIR 1974 SC 1126), Mayilvahanam Roadlines v. Mayilvahanam Travels (1985 K.L.T 325), Khalid v. Sulekha (ILR 1987 Kerala 111) and N.Hanumantha Rao v. Corporation of City of Bangalore (AIR 1996 Karnataka 296)** argued that eventhough by the judgment sought to be reviewed, the appeal was dismissed confirming the dismissal of the suit, still petitioner is aggrieved by the finding therein that the assignee of Ext.B22 is not entitled to the protection of Section 106 of Kerala Land Reforms Act. It is pointed out that in view of the findings of this court, if after sending a notice terminating the license recovery of R.P.710/2009 in A.S.No.648/1992 4 possession of the lease-hold property is sought and the finding that the assignee is not entitled to protection of Section 106 of Kerala Land Reforms Act, allowed to stand it may be held that, in a subsequent suit that finding would operate as res judicata, and if so petitioner will have no defence at all and therefore though petitioner succeeded in the suit as well the appeal, as he is aggrieved by the findings in the judgment, an application for review is maintainable. 4. Learned senior counsel also argued that the finding that an assignee of a lessee is not entitled to the benefit of Section 106 of Kerala Land Reforms Act, following the decisions of this court in Mamoo's case (supra) and Kunhiraman's case (supra) is not the correct law as the amendment to Section 106 of Kerala Land Reforms Act, by which the scope of the word lessor has been widened to include legal heirs and assignee of the lessee was not properly taken note of. It was argued that the R.P.710/2009 in A.S.No.648/1992 5 transitory provisions of Section 108 of Kerala Land Reforms Act which mandates that pending appeals after the coming into force of the Amended Act should be disposed of in the light of the amended provision was omitted to be taken note of by the Division Bench in **Lakshminarayana Shetty v. Andunhi Beary (1971 K.L.T.822)** and the other two earlier decisions were prior to the amendment and the amendment itself was necessitated consequent to the restricted meaning attributed to the “word” lessor in Section 106 by the Court and the legislative intend was not properly appreciated while holding that an assignee is not entitled to the protection of Section 106 of Kerala Land Reforms At. Relying on the decision in **Sankaranarayanan Potti v. K. Sreedevi and others (1998) 3 SCC 751),** it was argued that as declared by the Apex Court, after coming into force of the Kerala Amendment Act 35 of 1969, in view of transitory provision of section 108(3) the question R.P.710/2009 in A.S.No.648/1992 6 could have been decided only in the light of the amended provision and hence the Division decision in Lakshminarayana Shetty's case (supra) was per incuriam and has to be ignored. Reliance was also placed on the decision in **Kochunni v. Kuriakose (1981 KLT 338)** . Learned senior counsel also relied on the decisions in **K.C.Velayudhan and others v. N.V.Venkatakrishnan and others (1993(1) KLJ 274), Ramachandran Pillai v. Joseph John & Others (1978 K.L.T 528), Krishnankutty v. State (1994 (1) KLT 457)** . Learned senior counsel distinguished the Full Bench decision in **Narayanan v. Shalima (2003 (2) KLT 317 (F.B.)** and in **Prabhakaran v. Sulaikabi** **(2007(2) KLT 103)** on the ground that the restricted meaning given to a tenant under the Kerala Buildings (Lease and Rent Control) Act,1965 who was granted only personal protection from eviction on the ground of bonafide need, cannot be imported to the lessee who is granted complete protection R.P.710/2009 in A.S.No.648/1992 7 under section 106 of Kerala Land Reforms Act. Learned senior counsel submitted that in such circumstances, the finding in the judgment that respondents being the legal heirs of the assignee are not entitled to the protection of Section 106 of Kerala Land Reforms Act is to be reviewed and in any case it is to be observed that, the said finding will not operate as res judicata in any subsequent proceedings. 5. Learned senior counsel argued that when the appeal was dismissed confirming the dismissal of the suit and the defendant succeeded in the suit and the appeal he is not aggrieved by the decree and therefore no application for review would lie under Rule 1 Order XLVII of Code of Criminal Procedure and on that sole ground the petition is to be dismissed. Learned senior counsel also argued that none of the decisions relied on by the petitioners would support the maintainability of an application for review by a respondent in an R.P.710/2009 in A.S.No.648/1992 8 appeal, when the appeal was dismissed in his favour. Learned counsel also argued that the scope of an application for review is different from an appeal and by disguise scope of an application for review cannot be widened into an appeal. It is pointed out that this court interpreted the provision of 106 of the Kerala Land Reforms Act and held that an assignee of a lessee is not entitled to claim the benefit unless the assignee had constructed the building within the statutory period as provided therein and that view cannot be challenged by filing a petition for review. Learned senior counsel also argued that even on merits, the application will not lie as the benefit under section 106 cannot be claimed by an assignee of the lessee like the petitioner when the building was constructed by the assignor and not the assignee and therefore the petition is to be dismissed. 6. Rule 1 of Order XLVII of Code of Criminal R.P.710/2009 in A.S.No.648/1992 9 Procedure provides that any person considering himself aggrieved by a decree or order from which an appeal is allowed, but from which no appeal has been preferred or by a decree or order from which no appeal is allowed or by a decision on a reference from a Court of Small Causes and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for review of the decree to the Court which passed the decree or made the order. Therefore an application for review, at the instance of a person considering himself aggrieved by a decree, is maintainable. The review is that of the decree passed. An R.P.710/2009 in A.S.No.648/1992 10 application could be filed, if he considers himself aggrieved by the decree. The appeal was filed challenging the decree and judgment dismissing a suit for recovery of possession. The appeal was dismissed confirming the decree dismissing the suit. It is on that basis, learned senior counsel appearing for the respondent argued that a petition for review is not maintainable. The argument of the learned senior counsel appearing for the petitioner is that even if the decree is in favour of the petitioner, the finding in the appeal holding that petitioner is not entitled to the benefit of Section 106 of Kerala Land Reforms Act is against him and therefore if he is aggrieved by that finding and if that finding may be taken as binding on the petitioner in a subsequent suit by applying the principles of res judicata, petitioner is entitled to get the said finding reviewed, if there are grounds to review as provided under Rule 1 Order XLVII of Code of Civi R.P.710/2009 in A.S.No.648/1992 11 Procedure. It is in support of the said submission learned senior counsel relied on the Privy Council decisions in **Chockalingam's case (supra), Krishna Chendra Gajapati Narayana Deo's case (supra), Ganga Bai's case (supra), Sham Nath Madan v. Mohammad Abdullah (AIR 1967 Jammu and Kashmir 85)and** ## **Mayilvahanam Roadlines's case (supra).** 7. Ordinarily when a suit is dismissed, the findings in the judgment against the defendant will not operate as res judicata, as against the defendant in a subsequent suit as he succeeded in the suit and he cannot file an appeal challenging the decree. In that sense, when the suit was dismissed and the appeal filed by the plaintiff challenging the dismissal of the suit, was also dismissed, the finding in the judgment will not operate as res judicata as against the defendant/respondent in the appeal. If so, an appeal will not lie. If no appeal will lie at his instance, an application for review also will not R.P.710/2009 in A.S.No.648/1992 12 lie. 8. What is sought to be reviewed is not the decree, but the finding in the judgment. The apprehension of the petitioner is in view of the decision of the Apex Court in Ganga Bai's case (supra) where the decision of the Calcutta High Court in Hara Chandra Das v. Bhola Natha Das (1935 ILR 62 Calcutta 701) was not disapproved by the Supreme Court. In Hara Chandra Das's case a suit for pre-emption was dismissed by the trial court on the ground of limitation. In the appeal filed by the plaintiff, the District Court reversed that finding but confirmed the decree dismissing the suit on the ground that the sale effected by the defendants 4 and 5 in favour of defendants 1, 2 and 3 was not validly registered and there being no “sale” there can be no right of pre-emption. Defendants 1 to 3 preferred an appeal to the High Court, against the finding recorded by the District Court that the sale effected in their favour was R.P.710/2009 in A.S.No.648/1992 13 not valid as it was not lawfully registered. On a preliminary objection raised by the plaintiffs to the maintainability of the appeal, as the suit was dismissed, High Court of Calcutta held that though under the Code of Criminal Procedure there can be no appeal against a mere finding “it may be taken to be the view of Courts in India generally, that a party to the suit adversely affected by a finding contained in a judgment, on which a decree is based, may appeal, and the test applied in some of the cases for the purpose of determining whether a party has been aggrieved or not was whether the finding would be res judicata in other proceedings”. The High Court upheld the preliminary objection on the ground that “the issue regarding validity of the sale which was decided against defendants 1 to 3 would not operate as res judicata in any subsequent proceeding and therefore the appeal which was solely directed against the finding on that issue was not maintainable.” Their R.P.710/2009 in A.S.No.648/1992 14 Lordships of the Supreme Court held that the validity or binding nature of an alienation cannot depend on a partition effected after the alienation or else a sale or a mortgage effected by the Karta of a joint Hindu family can easily be avoided by effecting a partition among the members of the joint family. It was held:- “As the matter relating to the partition was not directly and substantially in issue in the suit, the finding that the partition was sham cannot operate as res judicata. Therefore the appeal filed by defendants 2 and 3 against the finding was not maintainable even on the assumption that the High Court of Calcutta is right in its view that though under the Code there could be no appeal against a finding, yet “on grounds of justice” an appeal may lie R.P.710/2009 in A.S.No.648/1992 15 against a finding provided that it would operate as res judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the finding in any other proceedings. It is not necessary here to determine whether the view of the Calcutta High Court is correct.” 9. Eventhough by the judgment dismissing the appeal, the benefit claimed by the second respondent under section 106 of Kerala Land Reforms Act was rejected, as the suit and the appeal were dismissed the finding against the defendant will not operate as res judicata, I find no reason to accept the apprehension expressed that the said finding may operate as res judicata in a subsequent suit so as to maintain an application for review under Rule 1 Order XLVII of Code of Civil Procedure. 10. Even on merits, I do not find that the R.P.710/2009 in A.S.No.648/1992 16 application is to be allowed. The finding in the judgment cannot be challenged on merits so long as the view is possible on the facts and evidence. Remedy is to challenge it in an appeal if appeal will lie. This court interpreting Section 106 of Kerala Land Reforms Act held that the benefit is available only to the lessee and not to the assignee of a lessee, when the building was constructed on a land obtained by the lessee for commercial purpose by the lessee, and not by the assignee. There is force in the submission of the learned senior counsel that the question whether a party is entitled to the benefit of Section 106 of Kerala Land Reforms Act which arises for consideration in an appeal pending before the court on 1.1.1970 after the commencement of the amended provision of Section 106, even if the proceeding was initiated earlier to the commencement of the amended provisions, in view of the transitory provision in Section 108(3), the question is to be R.P.710/2009 in A.S.No.648/1992 17 settled in accordance with the amended provision and not in accordance with the unamended provision, as declared by the Apex Court in Sankaranarayanan Potti v. K. Sreedevi (1998) 3 SCC 751. Though the decision in Parameswaran Pillai v. Venkiteswara Prabhu & Others (1974 K.L.T.210) was rendered by the Division Bench only on 17.1.1974 and the decision in Lakshminarayana Shetty (supra) was rendered on 26.8.1971 subsequent to the coming into force of Kerala Act 35 of 1969, the question was not settled in the light of the amended provision of section 106 but on the unamended provision, as against the mandate under section 108(3) of Kerala Land Reforms Act. It is also true that both the earlier decisions in Mamoo's case (supra) and Kunhiraman's case (supra) were decided earlier to the enactment of Kerala Act 35 of 1969, in accordance with the unamended provisions in Section 106 and not in accordance with the expanded meaning of the lessee, by the amended R.P.710/2009 in A.S.No.648/1992 18 provision. 11. But the claim for benefit under section 106 of Kerala Land Reforms Act was not rejected on the ground that the lessee, as defined under section 106 of Kerala Land Reforms Act does not include an assignee as provided in the explanation under the amended Section. Instead the decision was rendered based on the view that to claim the benefit by the lessee he has to construct the building or if the assignee is to get the benefit he has to construct the building. Though there is force in the argument that the said aspect may have to be reconsidered, in view of the submission that the amendment to Section 106 of Kerala Land Reforms Act expanding the meaning of lessee was necessitated for the reason that this court had given a restricted meaning, so as to exclude the benefit to legal heirs and assignees, I do not find that the said question is to be reconsidered by reviewing the judgment. Suffice to say that R.P.710/2009 in A.S.No.648/1992 19 it is an aspect to be considered in detail in an appropriate case at the appropriate occasion . Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------R.P.NO.710 /2009 IN A.S.No.648/1992 --------------------- ORDER 1ST FEBRUARY,2010