Savithri and others v Narayana Maniyani and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934** ## **CRP.No. 2139 of 1998 (B)** **------------------------** **AA.139/1989 of APPELLATE AUTHORITY (LAND REFORMS), KANNUR. OA.658/1972 of LAND TRIBUNAL NO.III, KASARGOD.** ## **REVISION PETITIONER(S):** - **----------------------** **1. SAVITHRI, D/O KRISHNA BHAT, RESIDING AT PERDALA VILLAGE, P.O.PERDALA, KASARAGOD TALUK.** **2. KAMALA, W/O VISHNU BHAT, RESIDING AT CHERUKUDLU IN PERDALA VILLAGE, KASARAGOD TALUK, P.O.BADIADKA.** **3. SUNANDA, D/O -DO- DO- -DO-** **4. KRISHNARAJ, S/O -DO- DO- -DO-** **5. VIJAYALAKSHMI, W/O S.RADHAKRISHNA BHAT, SAJANKILA HOUSE, P.O.BAYAR, KASARAGOD TALUK.** **6. SOORYA, D/O -DO- RESIDING AT CHERUKUDLU, PERDALA VILLAGE, KASARAGOD TALUK, P.O.BADIADKA.** **7. SUDHAKARA, S/O -DO- DO- IN -DO- -DO-** - **8. VINEETHA, W/O LATE SUDHAKARA, AGED 30, RESIDING AT CHARUKUDLU, PERDALA VILLAGE, KASARAGOD TALUK, P.O.BADIADKA.** - **9. VISHNU SHARMA, S/O -DO- MINOR, AGED 6, IN -DO- -DO-** - **10. VAISHANAVI, D/O -DO- MINOR, AGED 2. IN -DO- -DO-** - **PETITIONERS 9 & 10 REPRESENTED BY THEIR GUARDIAN MOTHER PETITIONER NO.7) ADDITIONAL P8 TO P10 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED P7 VIDE ORDER DATED 11-3-2011 IN I.A.NO.2843/2007 IN C.R.P.No.2139/1998.** - **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) I/B SMT.M.M.TEENA SRI.P.B.KRISHNAN SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN** - **RESPONDENT(S): --------------** **1. NARAYANA MANIYANI (WRONGLY SHOWN AS NARAYANI MANIYANI IN THE JUDGMENT OF THE APPELLATE AUTHORITY) S/O APPU MANIYANI, RESIDING AT CHERUKUDLU, PERDALA VILLAGE, P.O.PERDALA, KASARAGOD TALUK. (DIED)** **CRP.No. 2139 of 1998 (B) -2-** **2. LAXMI, W/O KUNHIKRISHNA MANIYANI, RESIDING AT CHERUKOODLU IN PERDALA VILLAGE, KASARAGOD TALUK, P.O.PERDALA. (DIED)** **3. SAROJINI, D/O -DO- IN -DO- -DO-** **4. CHANDRAVATHI (WRONGLY SHOWN AS SAROJINI IN THE JUDGMENT OF THE APPELLATE AUTHORITY) C/O KHADIGE SRIKRISHNA BHAT, PERDALA VILLAGE, NIRCHAL P.O, KASARAGOD.** **5. SHIVARAMA, S/O -DO- IN PERDALA VILLAGE, KASARAGOD TALUK, P.O.PERDALA.** **6. JAYARAMA, S/O VISHNU BHAT, RESIDING AT CHERUKUDLU, PERDALA VILLAGE, KASARAGOD TALUK, P.O.BADIADKA. NOW RESIDING AT C/O SRINIVASA EMBRANDIRI, T.C.37/408, KOOBAKARA MUDUM STREET, FORT, THIRUVANANTHAPURAM.** **7. RAMACHANDRA BHAT, S/O LALITHA, RESIDING AT KURUMUJJI HOUSE, P.O.MOVVAR, KUMBDAJE VILLAGE, KASARAGOD TALUK AND DISTRICT.** **(RESPONDENTS NO.2 IN THE APPELLATE AUTHORITY, LALITHA IS DEAD. HER L.R. IS HER SON, RESPONDENT NO.7 HEREINABOVE.)** **8. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM.** - **9. BELTHAMMA, W/O LATE NARAYANA MANIYANI, CHERKUDLU HOUSE, KASARAGOD TALUK, P.O.PERDALA, PIN – 671 551.** - **10. LEELAVATHI, D/O -DO- AND W/O GOPALAKRISHNA MANIYANI, YENAKUDAL HOUSE, P.O.UKKINADKA, VIA.BADIADKA, KASARAGOD TALUK, PIN – 671 552.** - **11. RAJEEVI, D/O -DO- AND W/O KELU, KERA HOUSE, P.O.KUNTIKANA, VIA.BADIADKA, KASARAGOD. PIN – 671 551.** - **ALL RESPONDENTS 9 TO 11 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT VIDE ORDER DATED 17-01-2012 IN I.A.NO.852/2011 IN C.R.P.No.2139/1998.** **R1 TO R5 BY ADV. SRI.K.G.GOURI SANKAR RAI R6 BY ADV. SRI.R.SURAJ KUMAR** **R8 BY GOVERNMENT PLEADER P.S.ABDUL KAREEM.** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **amk** ## **K.VINOD CHANDRAN, J** **--------------------------------------------------** C.R.P.No.2139 OF 1998 --------------------------------------------------Dated this the 17[th] day of December, 2012. ## O R D E R The legal heirs of the landlord is in revision and the respondents are the legal heirs of the tenant. Kunhikrishna Maniyani and Narayana Maniyani were before the Land Tribunal No.III, Kasaragod, claiming assignment of rights as cultivating tenants of 60 cents of land in R.S.No.1438/1, 33 cents in R.S.1438/2 and 4.70 acres in R.S.No.1510/1B2 of Perdala Village. Vishnu Bhat, Lalitha and Savithri – children of one Krishna Bhat, were arrayed as the landlords. The Land Tribunal confined the assignment to 30 cents in R.S.No.1510/1B2 and granted the assignment with respect to the two other properties. The revision petitioners are before this Court against the order of the appellate authority dated 12-08-1997 which reversed the findings of the Land Tribunal and directed the grant of assignment of the entire 4 acres 70 cents. The primary contention raised before this Court is that there was a suit O.S.No.166/1970, filed by the Land Tribunal C.R.P.No.2139 OF 1998 2 for injunction from trespass against the tenants and in that a reference was made to the Land Tribunal which was answered against the tenants by O.S.No.268/1977; which operates as _res judicata_ in the instant proceedings. 2. To understand the contention properly, back ground facts are necessary and they are to the following effect. The original landlord had by O.S.No.3/1960 before the Munsiff's Court, Kasaragod filed a suit for injunction from trespass against the original tenant. While the suit was pending, the landlord and the tenant together filed an application for fixation of fair rent by O.S.No.1641/1965 as per the provisions of Section 31 of the Kerala Land Reforms Act, 1964 (Act 1of 1964), (hereinafter referred to as ' the K.L.R Act'). An order was passed on 26-11-1965 fixing fair rent for 60 cents, 33 cents and only 30 cents out of the 4 acres 70 cents comprised in R.S.No.1510/1B2. 3. Subsequently, after the amendment of 1969 with effect from 1-1-1970; O.S.No.166/1970 was filed by the landlord against the tenant, again, for injunction from trespass into the 4 C.R.P.No.2139 OF 1998 3 acres 40 cents which they claimed to be in their possession. In the suit, the defendants contented that the earlier suit was compromised on the landlord admitting to the tenancy with respect to all the three properties. However, when an application for consent was filed before the Land Tribunal, under Section 31, the father of the defendants, the original tenant, an illiterate, was misled into confining the tenancy to 30 cents in R.S.No.1510/1B2. On becoming aware of such fraud played on him, the tenant again approached the Land Tribunal with O.A.No.131/1969, wherein fair rent was fixed for all the three properties, to the full extent claimed; by order dated 29-11-1969. The landlord in the said proceeding, according to the defendants, chose to remain absent and hence an _ex parte_ order was passed. 4. Since in O.S.No.166/1970, the tenant raised a claim under the K.L.R Act, the matter was referred to the Land Tribunal, which reference was numbered as O.A.No.268/1977. In the meanwhile, after the Amendment Act, the tenants had initiated proceedings before the Land Tribunal under Section 72 B of the C.R.P.No.2139 OF 1998 4 Act by O.A.No.658/1972. O.A.No.658/1972 resulted in the order dated 20-11-1975, produced in the above revision, which as noticed above confined the claim to 30 cents out of the 4 acres 70 cents. Hence on reference, the Land Tribunal in O.S.No.268/1977, relied on the said order and rejected the claim of the tenant, by order dated 30-8-1978. 5. Before the trial court despite the order of reference being produced; reliance was placed on the order passed in O.A.No.131/1969 to find possession between 1-4-1964 and 1-1-1970. The trial court dismissed the suit for injunction. In appeal, the same was reversed finding that the property comprised in R.S.No.1510/1B2 was in the possession of the tenant only to the extent of 30 cents and the balance portion was in the possession of the landlord. The appellate court also ventured to make certain observations about the tenancy claimed by the tenants, which as would be presently noticed, is not relevant since the same is effaced by the judgment in the second appeal. 6. The respondents/tenants being aggrieved by the C.R.P.No.2139 OF 1998 5 appellate order was before this Court in the second appeal. The second appeal was dismissed confirming the order of the first appellate court. However, while dismissing the appeal, this Court observed : “The finding as to possession is one on a pure question of fact and does not call for interference by this Court in Second Appeal. I need only state that any observation made in the judgment under appeal relating to the tenancy rights claimed by the defendants is only incidental and for the purpose of considering the question of possession and does not in any way bar the defendants in seeking other appropriate reliefs on the strength of the tenancy title set up by them if so advised”. Hence the finding of the first appellate court regarding the tenancy is of no consequence and this Court by the above observation left the question to be adjudicated in appropriate proceedings. 7. In the meanwhile, the proceedings against the order dated 20-11-1975 in the O.A. was also diligently prosecuted. The appellate authority having reversed the findings of the Land Tribunal, the landlord was before this Court in C.R.P.No.1540/1983. On the prayer of the landlord that he should C.R.P.No.2139 OF 1998 6 be given another opportunity to produce materials to controvert the claim made by the alleged tenants, this Court remanded the matter. The remand was necessitated since this Court found that the appellate authority refused to place any reliance on the decree passed by the first appellate court in A.S.No.107/1980; only since the second appeal was pending. The second appeal having been disposed of, the remand was necessitated. The impugned order in the above revision is the order passed on such remand. 8. On a reading of the impugned order, it is evident that a commissioner was appointed and on inspection it was found that the entire 4.70 acres lies as one plot without any division in to 30 cents and 4.40 acres. The appellate authority on facts found that the tenants have proved their possession in so far as their claim under the K.L.R Act is to be sustained. Three contentions are urged before this Court by the learned Senior counsel Sri.S.V.Balakrishna Iyer, appearing for the revision petitioners. One the compromise entered into in O.S.No.3/1960 together with the joint application filed in O.A.No.1641/1965 would clearly C.R.P.No.2139 OF 1998 7 indicate that the tenancy of the property in R.S.No.1510/1B2 was only with respect to 30 cents. The next contention is that O.A.No.1641/1965 having been filed and an order passed on 26-01-1965 it operates as _res judicata_ and a further application could not have been maintained for fixation of fair rent. The last contention urged is, _res judicata_ by virtue of the order passed on reference from O.S.No.166/1970 dated 30-8-1978 in O.A.No.268/1977. The learned Senior counsel also would rely on _**1988(1) K.L.T 109 (Chikkara v. Sugunan)**_ and _**1991(1) K.L.T 293 (Narayanan v. Kesavan).**_ 9. Sri.K.Gouri Sankar Rai, learned counsel appearing for the respondents/ legal heirs of tenant would however contend that if, as stated by the revision petitioners, the compromise decree in fact went against the claim of the tenants with respect to 4.40 acres, then there would have been no necessity for filing a second suit in the year 1970. It is pointed out that the specific contention of the legal representatives of the tenants were that their predecessor-in-interest was misled by the landlord and in any C.R.P.No.2139 OF 1998 8 evident there is no bar under Act 1 of 1964 for a subsequent application being filed for fixation of fair rent. With respect to the contention of _res judicata_ , the learned counsel would rely on _**1989 (2) K.L.T 763 ( Kurichiyan Chandu v. Kunjuraman Nambiar**_ ), to contend that such a plea having not been raised earlier cannot now be raised. To counter the contention that the subsequent suit of 1970 was filed on a further apprehension of trespass and that possession in any way has been found by the civil courts in favour of the landlord; _**1989(2) K.L.T 396 ( Anantha Kini v. State of Kerala )**_ was relied on. This Court held that the possession lost subsequently to the notified date cannot affect the right for assignment under Section 72B; if the tenant is found to be in possession as on 1-1-1970. 10. As noticed by the first appellate court in A.S.No.107/1980, the terms of the compromise are not clear even from the documents led in evidence before the civil court. It cannot at all be said that the tenant had agreed to confine the claim to the C.R.P.No.2139 OF 1998 9 30 cents. True, O.A.No.1641/1965 confined the fixation of rent to 30 cents, out of 4.40 acres found in R.S.No.1510/1B2. But the tenant had filed O.A.No.131/1969 in which all the three properties to the full extent were the subject matter and fair rent was also fixed as on 29-11-1960. This definitely would be a pointer to the possession as contemplated by the K.L.R. Act. Fixation of fair rent does not decide the claim to tenancy or title of the parties. The provisions as available in the K.L.R Act as has been pointed out by the learned counsel for the respondents does not bar a subsequent application. The subsequent application O.A.No.131/1969 though not produced in the instant proceedings, the same is produced in the suit as Ext.B1 as is evident from the appellate order. The findings of the appellate order, even on a pointed reference to Ext.B1 do not at this point survive, since that has been said to be merely incidental in deciding the possession by this Court in second appeal. Ext.B1 even going by the first appellate judgment, in A.S.No.107/1980 dealt with the entire extent of the properties in R.S.No.1438/1, R.S.No.1438/2 and R.S.No.1510/1B2. In the C.R.P.No.2139 OF 1998 10 circumstances, the order of the appellate authority cannot be said to be vitiated for the reason of non consideration of relevant facts. 11. What remains for consideration is the plea of _res judicata_ raised on the basis of the order passed in O.A.No.268/1977 dated 30-8-1978. As noticed above the subsequent suit was filed in the year 1970 and when the same was pending O.A.No.658/1972 was filed by the tenant under Section 72B of the K.L.R. Act. Even before a reference was made in the suit to the Land Tribunal, orders were passed in the application under Section 72B on 20-11-1975 confining the claim of the tenant to 30 cents with R.S.No.1510/1B2. It was subsequently that the reference was made by the civil court and the Land Tribunal answered it in O.A.No.268/1977. The order in O.A.No.268/1977 dated 30-8-1978 merely followed the Land Tribunal's order in O.A.No.658/1972 dated 20-11-1975. That was the subject matter of an appeal, in which the findings of the Land Tribunal were reversed. It cannot be said order in reference acts as _res judicata_ in the instant proceedings under the K.L.R Act initiated by the tenant. C.R.P.No.2139 OF 1998 11 The Land Tribunal while considering the reference also noticed that an appeal before the appellate authority was pending. It is that appeal that has concluded allowing th claim of the tenant. The plea of _res judicata_ hence cannot hold ground. In the circumstances, on the strength of the reasoning above, this Court is of the opinion that the civil revision petition lacks merit, and is hence dismissed. The parties to suffer their respective costs. **K.VINOD CHANDRAN,** amk -18-12-12 **JUDGE.**