Second Appeal Nos. 215 & 227 of 2000

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY ,THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** **SA.No. 227 of 2000** **AGAINST THE JUDGMENT AND DECREE IN AS 79/1992 of ADDITIONAL SUB COURT,NORTH PARAVUR DATED 30-11-1998** **AGAINST THE JUDGMENT AND DECREE IN OS 44/1985 of MUNSIFF COURT,ALWAYE DATED 27-01-1990** ## **APPELLANT (APPELLANT/2ND DEFENDANT):** **1 R.NARAYANA PAI THANDIKKAPARAMBU, ALUVA KARA, ALUVA VILLAGE. (DIED. LRS. IMPLEADED)** ## **ADDITIONAL APPELLANTS IMPLEDED :** **AddlA2 N.GOPALAKRISHNA PAI, S/O.LATE NARAYANA PAI, SANGAMAM, RAIL VIEW LANE, ALUVA. AddlA3 N.VENUGOPALA PAI, MADATHIPARAMBIL HOUSE,AZAD ROAD, ALUVA. AddlA4 N.THRIVIKRAMA PAI, RAIL VIEW LANE, ALUVA-1. AddlA5 N.PRAMEELA PAI, MADATHIPARAMBIL HOUSE, ALUVA. (LRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AS PER ORDER DATED 09.06.2003 ON IA.NO.20/2003.** **BY ADV. SRI.DINESH R.SHENOY** **RESPONDENTS/RESPONDENTS (PLAINTIFFS/4,5,7,8 & DEFENDANTS 3 TO 6:** **1 RAJEEV KAMATH S/O.SADANANDA KAMATH,BANK CLERK IN MADATHIPARAMBIL. 2 S.PRAVEEN KUMAR, ENGINEER,MADATHIPARAMBIL.** SA Nos.215 & 227 of 2000 2 - **3 PRADEEPKUMAR, S/O.SADANANDA KAMATH,.DO.** - **4 SUJATHA S.KAMATH, D/O.SADANANDA KAMATH,.DO.** - **5 P.SAKUNTHALA BHAI, W/O.GUNA PAI, RESIDING AT KAINIKKAR HOUSE, AMBALA ROAD, PERUMBAVOOR KARA, .DO. PAKUTHY. (DIED. LRS. RECORDED)** - **6 K.G.DINAKARA RAVU, S/O.GUNA PAI, .DO.** - **7 K.DHANALAKSHMI, D/O.GUNA PAI, .DO.** - **8 SASIKALA, D/O.GUNA PAI, .DO..DO.** **(R6 TO R8 ARE RECORDED AS LRS OF DECEASED R5 AS PER ORDER DATED 05.03.2013 IN MEMO DATED 26.02.2013 CF.1643/2013.** ## **ADDITIONAL RESPONDENTS IMPLEADED :** ## **AddlR9 PRABHAKARA SHENOY KARUVELIPARAMBU, VADUTHALA.** - **AddlR10 SOMALATHA R.KAMATH, ASEERVAD BUILDING ,KALYAN EAST, MAHARASHTRA.** - **AddlR11 PUSHPALATHA PRABHU, SKYLINE HOUSING ESTATE, KALYAN EAST.** - **AddlR12 KANJANA SHESHAGIRI RAO, VISHNUKRIPA,COCHIN-13.** - **AddlR13 MANORAMA NAIK, SHILPA, ELOOR P.O.,** - **AddlR14 N.RAMENDRA PAI, KARTHIKA, ALUVA-683 101.** - **AddlR15 GEETHA SASIKUMAR, SWATHI, COCHIN-2.** - **AddlR16 N.JAYAKUMAR, GAYATHRI, ALUVA-1.** SA Nos.215 & 227 of 2000 3 **(LRS OF DECEASED SOLE APPELLANT ARE IMPLADED AS ADDL.RESPONDENTS 9 TO 16 AS PER ORDER DATED 09.06.2003 ON IA.NO.20/2003.** **BY ADVS. SRI.V.V.ASOKAN (SR.) (R1, R2, R3 & R4) KUM.T.S.SAUMYA (R9, R12 TO R16) SRI.SUNIL SHANKER (R2)** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2019, ALONG WITH SA.215/2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA Nos.215 & 227 of 2000 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY,THE 19[th] DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** ## **SA.No. 215 of 2000** **AGAINST THE JUDGMENT AND DECREE IN AS 80/1992 of ADDITIONAL SUB COURT,NORTH PARAVUR DATED 30-11-1998** **AGAINST THE JUDGMENT AND DECREE IN OS 49/1985 of MUNSIFF COURT,ALWAYE DATED 27-01-1990** ## **APPELLANT (APPELLANT/2ND DEFENDANT):** **1 R.NARAYANA PAI THANDIKKAPARAMBU, ALUVA KARA, ALUVA VILLAGE. (DIED - LRS. IMPLEADED)** ## **ADDITIONAL APPELLANTS IMPLEADED :** **AddlA2 N.GOPALAKRISHNA PAI, S/O.LATE NARAYANA PAI,SANGAMAM, RAIL VIEW LANE, ALUVA.** **AddlA3 N.VENUGOPALA PAI, MADATHIPARAMBIL HOUSE,AZAD ROAD,ALUVA. AddlA4 N.THRIVIKRAMA PAI, RAIL VIEW LANE,ALUVA-1. AddlA5 N.PRAMEELA BAI, MADATHIPARAMBIL HOUSE,ALUVA. (ADDL.APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 19.11.2003 IN CMP.1209/2003.) BY ADV. SRI.DINESH R.SHENOY** SA Nos.215 & 227 of 2000 5 |**RESPONDENT**|**(RESPONDENTS/PLAINTIFFS 3,4, 6,7 & DEFENDANTS 3**|**TO 6**<br>**:**| |---|---|---| |**1**|**RAJEEV KAMATH**|| ||**S/O.SADANANDA KAMATH, BANK CLERK IN**|| ||**MADATHIPARAMBIL.**|| - **2 S.PRAVEEN KUMAR, ENGINEER, MADATHIPARAMBIL.** - **3 PRADEEP KUMAR, S/O.SADANANDA KAMATH,.DO.** - **4 SUJATHA S.KAMATH, D/O.SADANANDA KAMATH, .DO.** - **5 P.SHAKUNTHALA BHAI, W/O.GUNA PAI, RESIDING AT KAINIKKARA HOUSE, AMBALA ROAD, PERUMBAVOOR KARA, .DO.PAKUTHY. (DIED. LRS IMPLEADED)** - **(IT IS RECORDED THAT THE 5TH RESPONDENT IS NO MORE AND RESPONDENTS 6 TO 8 ALREADY IN THE PARTY-ARRAY ARE HER LEGAL HEIRS AS PER THE ORDER DATED 05.03.2013 VIDE MEMO C.F.1639/2013.** - **6 K.G.DINAKARA RAVU, S/O.GUNA PAI, DO.** - **7 K.DHANALAKSHMI, S/O.GUNA PAI, DO.** - **8** SASIKALA, D/O.GUNA PAI, DO. ## ADDITIONAL RESPONDENTS IMPLEADED : - **AddlR9 PRABHAKARA SHENOY KARUVELIPARAMBU, VADUTHALA.** - **AddlR10 SOMALATHA R.KAMATH, ASEERVAD BUILDING, KALYAN EAST, MAHARASHTRA.** - **AddlR11 PUSHPALATHA PRABHU, SKYLINE HOUSING ESTATE, KALYAN EAST.** - **AddlR12 KANJANA SHESHAGIRI RAO, VISHNUKRIPA, COCHIN-13.** - **AddlR13 MANORAMA NAIK, SHILPA, ELOOR P.O.** - **AddlR14 N.RAMENDRA PAI, KARTHIKA, ALUVA,683 101.** SA Nos.215 & 227 of 2000 6 **AddlR15 GEETHA SASIKUMAR, SWATHI,COCHIN-2.** ## **AddlR16 N.JAYAKUMAR, GAYATHRI, ALUVA -1.** **(ADDL.RESPONDENTS 9 TO 16 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 19.11.2003 IN CMP.1209/2003.)** **R1 TO R4 BY ADV.SRI.V.V.ASOKAN (SR.) SMT.JIJIMOL.J.VADAKKAN (CAVEATOR) R9 TO R16 BY ADV.SRI.JOJO GEORGE R2 BY ADV.SRI.SUNIL SHANKER** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.3.2019, ALONG WITH S.A.NO.227 OF 2000, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA Nos.215 & 227 of 2000 7 ## **Second Appeal Nos.215 and 227 of 2000** ## **J U D G M E N T** Among these second appeals, S.A.No.215 of 2000 arises from O.S.No.434 of 1976 on the files of the Munsiff's Court, Perumbavoor, re-numbered as O.S.No.49 of 1985 on the files of the Munsiff's Court, Alwaye and S.A.No.227 of 2000 arises from O.S.No.403 of 1965 on the files of the Munsiff's Court, Perumbavoor, re-numbered as O.S.No.44 of 1985 on the files of the Munsiff's Court, Alwaye. Though the suits were tried separately, as the subject matter of the suits are portions of a property, the appeals preferred by the common second defendant in the suits challenging the decisions in the suits were heard and disposed of by a common judgment. As such, I am disposing of these second appeals by this common judgment. 2. An item of property measuring 51 cents and a building therein was obtained by one Reghunatha Kamathy in terms of a partition deed effected in his family in the year 1954. 5 cents out of the said 51 cents and the building therein is the subject matter of O.S. No.49 of 1985 and the remaining 46 cents of property is the subject matter of O.S. No.44 of 1985. Among the suits, O.S. No.44 of 1985 was instituted by Reghunatha Kamathy and O.S.No.49 of 1985 was instituted later by his successor. Both the suits were for recovery of SA Nos.215 & 227 of 2000 8 ## possession of the suit properties. 3. The plaintiff in O.S.No.44 of 1985 initially filed R.C.P. No.17 of 1965 against defendants 1 and 2 in the said suit alleging that the first defendant is the tenant of the building and he has inducted his brother, the second defendant as a sub-tenant in the building, and claimed eviction of the building on the ground that the sub-lease is objectionable. The second defendant, among others, contested the Rent Control Petition contending that he is a lessee of the land and not a sub-tenant of the building under the first defendant. The Rent Control Court found that the denial of the landlord-tenant relationship between the plaintiff and the first defendant by the second defendant is bonafide and consequently relegated the plaintiff to the civil court for redressal of his grievance. In the meanwhile, the plaintiff filed O.S.No.403 of 1965, which was later converted as O.S.No.44 of 1985, for a decree of permanent prohibitory injunction in respect of the immovable property where the building is situated. The said suit was later converted as a suit for recovery of possession of the 46 cents of property excluding the 5 cents and the building situated therein. Thereupon, since the order in R.C.P.No.17 of 1965 has become final, as the plaintiff in O.S.No.44 of 1985 died in the meanwhile, his successor instituted O.S.No.434 of 1976, which was later converted as O.S.No.49 of 1985 for recovery of possession of the building and the 5 cents of SA Nos.215 & 227 of 2000 9 ## property on which the building is situated. 4. In O.S.No.49 of 1985, the first defendant remained ex parte. The second defendant contested the suit, contending that he is a lessee of the land entitled to fixity in terms of the Kerala Land Reforms Act, 1963 ('the Act'). The very same stand was taken by the second defendant in O.S.No.44 of 1985 also. In the light of the contention taken by the second defendant, the issue of tenancy was first referred in O.S.No.49 of 1985 to the Land Tribunal for a finding under Section 125(3) of the Act. The said reference was numbered by the Land Tribunal as O.A.No.70 of 1977. In the meanwhile, the second defendant preferred an original application as O.A.No.1472 of 1976, invoking Section 72B of the Act for assignment of the right, title and interest of the landlord in the property on the basis that he is a cultivating tenant in the property entitled to fixity. O.A.Nos.70 of 1977 and 1472 of 1976 were tried together. It was found by the Land Tribunal in the said proceedings that the second defendant is not a lessee entitled to fixity under the Act. Consequently, O.A.No.1472 of 1976 was dismissed and a finding to that effect was rendered in O.A.No.70 of 1977. Though the second defendant challenged the decision in O.A.No.1472 of 1976 in appeal, the decision of the Land Tribunal was affirmed by the appellate authority. The second defendant challenged the decision of the appellate authority in SA Nos.215 & 227 of 2000 10 C.R.P.No.1879 of 1984 before this court and the same was dismissed clarifying that the decision in the said case will not preclude the appellate court in examining the correctness of the decision taken by the Land Tribunal, if a decision is rendered on that basis in O.S.No.49 of 1985. 5. It is seen that in the meanwhile, without taking note of the fact that there was a reference under Section 125(3) of the Act in the suit, on an application preferred by the second defendant as I.A.No.802 of 1987, in O.S.No.49 of 1985, the trial court made a second reference of the issue of tenancy raised by the second defendant under Section 125(3) of the Act. The said reference was numbered by the Land Tribunal as O.A.No.181 of 1987. It is also seen that in the meanwhile, having regard to the contention taken by the second defendant in O.S.No.44 of 1985 also, the court made a reference under Section 125(3) of the Act. The said reference was numbered by the Land Tribunal as O.A.No.134 of 1988. O.A.Nos.181 of 1987 and 134 of 1988 were tried together. In the said proceedings, the Land Tribunal found that the second defendant is a lessee entitled to fixity. 6. Later, when O.S.No.49 of 1985 was taken up, the trial court took the view that the second reference made in the suit under Section 125(3) of the Act was without jurisdiction and consequently, decreed the suit holding that the plaintiff is entitled to recover SA Nos.215 & 227 of 2000 11 possession of the suit property and the building therein on the strength of his title. In O.S.No.44 of 1985, the court took the view that the finding rendered on the reference made therein is hit by the principles of res judicata in the light of the finding rendered earlier in the reference made in O.S.No.49 of 1985. The said suit was also consequently decreed holding that the plaintiff is entitled to recover the suit property on the strength of his title. Though the second defendant challenged the decisions in the suits in appeals, the appellate court affirmed the decisions of the trial court. The second defendant is aggrieved by the decisions in the suits as affirmed in appeals. 7. Heard the learned counsel for the legal representatives of the appellant as also the learned counsel for the contesting respondents. 8. The learned counsel for the appellant pointed out that in so far as the second reference in O.S.No.49 of 1985 and the reference in O.S.No. 44 of 1985 were made overruling the objections raised by the plaintiff that the Tribunal is precluded from considering the question of tenancy in the light of its decision on the earlier reference made in O.S.No.49 of 1985, the plaintiff should have challenged the orders of reference and since the plaintiff has not challenged the orders of reference, it has to be taken that the plea of res judicata, on SA Nos.215 & 227 of 2000 12 the basis of which the references were objected to, has been waived by the plaintiff. According to the learned counsel, the plaintiff was therefore, not entitled to raise the said plea of res judicata before the Tribunal and the decision rendered by the Tribunal on the references cannot be said to be without jurisdiction. It was also contended by the learned counsel that, even otherwise, the plaintiff in the suit is not entitled to raise the plea of res judicata based on the decision in O.A.No.70 of 1977 as the finding rendered therein was not accepted by the court and made part of the decision in O.S.No.49 of 1985. According to the learned counsel, the finding in O.A.No.70 of 1977 will have the force of law only when it is accepted and appended to the judgment in the suit. The learned counsel also contended on facts that the materials on record in O.A.Nos.181 of 1987 and 134 of 1988 before the Land Tribunal would establish that the second defendant is a lessee of the land and the appellate court was not justified in reversing the said factual finding rendered by the Land Tribunal. The learned counsel for the appellant has also contended that the specific case pleaded by the plaintiff in O.S.No.49 of 1985 is that the first defendant therein is a tenant of the building in the plaint schedule property therein; that the second defendant is the sub-tenant inducted by him in the building and that the said sub-tenancy is objectionable. As such, it was the submission of the learned counsel that since the said suit is SA Nos.215 & 227 of 2000 13 one filed pursuant to the decision of the Rent Control Court in RCP No.17 of 1965, the court can order eviction of the second defendant from the building only if it is found that the plaintiff is entitled to an order of eviction in terms of the provisions contained in the Kerala Buildings(Lease & Rent Control) Act. According to the learned counsel, the entitlement of the plaintiff to get an order of eviction of the building has not been considered by the courts below. It was contended by the learned counsel that the impugned judgments are liable to be set aside on that score too. 9. Per contra, the learned counsel for the plaintiff vehemently contended, placing reliance on the Full Bench decision of this Court in **Muhammad Haji v. Kunhunni Nair** [1993 (1) KLT 227(FB)], that the second reference in O.S.No.49 of 1985 and the reference in O.S.No.44 of 1985 were without jurisdiction. According to the learned counsel, a reference under Section 125 (3) is contemplated only when the question of tenancy over a land arises for consideration in a suit or other proceedings and once the question raised is referred and adjudicated between the same parties, the question does not arise for consideration again between the same parties in subsequent suits and other proceedings. According to the learned counsel, in the said view of the matter, the second reference in O.S.No.49 of 1985 and the reference in O.S.No.44 of 1985 can be regarded only as a nullity. The SA Nos.215 & 227 of 2000 14 learned counsel has also contended, placing reliance on the materials on record, that the common finding rendered by the Land Tribunal in the second reference in O.S.No.49 of 1985 and the reference in O.S.No.44 of 1985 is perverse and the appellate court cannot be found fault with for having held that the second defendant has not made out a case of tenancy before the Land Tribunal. The learned counsel for the respondents, placing reliance on the decision in **Jacob John and others v. Dr.John P.Mathai and Another** [2013 (4) KHC 274], also submitted that once title is found in favour of the landlord in the suit, merely because he had been driven to file a suit in terms of the order passed in a rent control proceedings, the necessity of ordering eviction under the Rent Control Act does not arise. According to the learned counsel, such an adjudication is required when either it is admitted by the defendants in the suit that he is a building tenant or when it is found by the court that the arrangement involved is a building tenancy. As such, according to the learned counsel, in so far as the first defendant did not contest the suits and the second defendant has no case that he is a building tenant, it cannot be contended that the impugned decisions are bad. 10. Having heard the learned counsel on either side, the substantial questions of law on which notice was ordered in the second appeals were re-framed thus : SA Nos.215 & 227 of 2000 15 (a) Were the courts below justified in ignoring the common finding rendered by the Land Tribunal in O.A.No.181/1987 and O.A.No.134/1988? (b) Were the courts below justified in holding that the second defendant is precluded from raising the plea of tenancy in the light of the common finding rendered by the Land Tribunal in O.A.No. 70 of 1977 and O.A.No.1472 of 1976 ? (c) Whether the finding rendered by the appellate court that the second defendant is not a lessee of the land entitled to fixity in terms of the Act, reversing the finding to the contrary rendered by the Land Tribunal, can be said to be perverse ? (d) Were the courts below justified in granting the decree sought for in the suits without considering the entitlement of the plaintiff seek eviction of defendants 1 and 2 under the Kerala Buildings (Lease & Rent Control) Act ? 11. Question (c) : As noted, the consistent case set up by the plaintiff in the suits is that the building in the suit property was one let out to the first defendant; that the first defendant has inducted the second defendant in the building and that the second defendant later trespassed into the property. The second defendant refuted the said case and contended that he is a lessee of the land entitled to fixity in terms of the provisions of the Act. Before I deal with the question formulated for decision, it is necessary to refer to the pleading of the second defendant as regards the lease. Among the SA Nos.215 & 227 of 2000 16 suits, O.S. No. 44 of 1985 is the earlier suit. In paragraph 4 of the written statement filed by the second defendant in the said suit, the plea taken is that the land was taken on lease orally by the second defendant along with is mother and sister from the predecessor of the plaintiff and they were residing in the building in the property on that basis. In paragraph 2 of the additional written statement filed by the second defendant in the very same suit, the stand taken as regards the tenancy is that the property was taken on lease orally by his mother from the manager of the family of the plaintiff namely Lekshmana Kammathy during 1118 ME. Ext.R4 before the Land Tribunal in the second reference is the reply notice sent by the counsel for the second defendant to the counsel for the plaintiff in O.S. No. 49 of 1985 prior to the suit. In Ext.R4, the second defendant admits that the building in the property is one leased out by the plaintiff to the first defendant. As regards the lease of the land, the stand taken therein is that while the second defendant was residing with the first defendant in the building, the property was leased out orally by the plaintiff to the second defendant. In paragraph 8 of the additional written statement filed in the said suit, the second defendant has stated that what is stated by his counsel in R4 is true and correct. It is, therefore, clear that the second defendant has no consistent case as regards the lease of the land. True, as what is pleaded by the second SA Nos.215 & 227 of 2000 17 defendant is an oral lease, one cannot expect any document in proof of the transaction. At the same time, going by the pleadings, as the lease arrangement is said to be continuing for several years, it is only probable that at least some of the collateral dealings would have been evidenced by documents. No such document was produced by the second defendant. Although it was pleaded that the lease was granted on an annual rent of Rs.216/-, nothing is brought on record to show that the rent has been paid by the second defendant to the plaintiff at any point of time. On the other hand, the second defendant has attempted to establish the arrangement by oral evidence. One witness was examined for the said purpose before the Land Tribunal as AW2. The evidence tendered by AW2 would only indicate that the second defendant was in possession of the property. There is, in fact, no dispute to the said fact. The learned counsel for the appellant vehemently contended, placing reliance on the oral evidence tendered by the second defendant and AW2, that the structures in the property other than the building are structures erected by the second defendant. Merely for the reason that the second defendant has erected some structures in the property and the said conduct was not objected to by the plaintiff, it cannot be contended that there was a lease arrangement in respect of the land. In the aforesaid circumstances, it cannot be contended that the view taken by the SA Nos.215 & 227 of 2000 18 appellate court that the second defendant has not made out a case of tenancy over the land before the Land Tribunal is a perverse one, warranting interference by this Court in a proceedings under Section 100 of the Code of Civil Procedure. The question is answered against the second defendant. 12. Questions (a) and (b) : In the light of the finding on question (c), it is unnecessary to consider these questions for the disposal of the second appeals. Nevertheless, I deem it appropriate to cosider these questions also as they were raised and argued with all vehemence by the learned counsel for the appellant. As noted, the plea of tenancy was raised by the second defendant in O.S.No.49 of 1985 and the trial court has referred the said plea for adjudication to the Land Tribunal under Section 125(3) of the Act. The said reference which was numbered by the Land Tribunal as O.A.No.70 of 1977 was considered along with O.A.No.1472 of 1976 preferred by the second defendant for purchase of the right, title and interest over the land under Section 72B of the Act. The Land Tribunal held in the common order passed in this connection that the second defendant is not a cultivating tenant of the land and a finding to that effect was forwarded to the court in O.S.No.49 of 1985. In the light of the common finding aforesaid, O.A.No.1472 of 1976 was dismissed. The second defendant challenged the decision in O.A.No.1472 of 1976 in SA Nos.215 & 227 of 2000 19 appeal and the appellate authority affirmed the said decision. The second defendant challenged the decision of the appellate authority before this Court in C.R.P.No.1879 of 1984 and this court also affirmed the decision of the Land Tribunal in O.A. No.1472 of 1976. Since the decision impugned in the above civil revision petition was a common order passed in the reference made in O.S. No.49 of 1985 also, this court made it clear that the said order would not preclude the appellate court from considering the correctness of the decision, if the suit is decided on the basis of the said finding. Merely for the reason that the court has made the said clarification in the order passed in C.R.P.No.1879 of 1984, it cannot be said that the order passed by the Tribunal in O.A.No.1472 of 1976 has not become final. O.A.No.1472 of 1976 being a proceedings instituted by the second defendant for purchase of the right, title and interest in the property on the basis that he is a cultivating tenant, the finding therein that he is not a cultivating tenant would operate as res judicata against him in subsequent suits and proceedings where the said question arises for consideration. Instead of attempting to challenge the decision in O.A. No.70 of 1977 in appeal, the second defendant got the issue of tenancy referred again and attempted to contend that he is a lessee of the land on the basis of the finding rendered in the said reference. The said course adopted by the second defendant being one against the SA Nos.215 & 227 of 2000 20 scheme of the Act and the principles of res judicata, the same cannot be approved. The contention raised by the learned counsel for the appellant that the finding in O.A.No.70 of 1977 is not one that was incorporated in the judgment in O.S.No.49 of 1985 as the suit was still pending when the second reference was made and therefore, the same would not operate as res judicata, is unsustainable as the said contention is raised without taking note of the fact that the order passed by the Tribunal in O.A.No.1472 of 1976 has attained finalty. True, the second reference in O.S.No.49 of 1985 and the reference in O.S.No.44 of 1985 were objected to by the plaintiff and the reference was made overruling the said objection. There is no dispute to the fact that the orders of reference have not been challenged by the plaintiff. The question therefore, is whether it can be contended that the plea of res judicata taken by the plaintiff before the Land Tribunal in the second reference can be treated as one waived. It is trite that a reference under Section 125(3) of the Kerala Land Reforms Act is contemplated only when a question of tenancy arises for consideration in a suit or other proceedings. It was held by a Full Bench of this Court in **Muhammad Haji** that once that question is decided by a competent tribunal, it cannot be said that the question would arise for consideration between the same parties in a subsequent suit or proceedings. It was also held by this court in the said case that if a SA Nos.215 & 227 of 2000 21 reference is made in a case where the question does not arise, the decision rendered on that reference by the Land Tribunal would be without jurisdiction. In the light of the decision of the Full Bench referred to above, the finding rendered by the Land Tribunal on the subsequent reference can only be a nullity. In the light of the aforesaid, these questions are also answered against the second defendant. 13. Question (d): True, O.S. No. 49 of 1985 was a suit instituted in furtherance to the order passed in a rent control proceedings where the rent control court found that the denial of the title of the plaintiff by the second defendant is bona fide. As rightly pointed out by the learned counsel for the contesting respondents, it was held by this Court in **Jacob John** that once title is found in favour of the landlord in the suit, an adjudication as to the entitlement for eviction in terms of the provisions of the Kerala Buildings (Lease & Rent Control) Act, arises only when it is admitted by the defendant in the suit that he is a building tenant or when it is found by the court that the arrangement involved between the parties in the case is building tenancy. In the instant case, as noted above, the case set up by the plaintiff in both the suits was that the building in the suit property was let out to the first defendant and the first defendant has inducted the second defendant in the building and later the second SA Nos.215 & 227 of 2000 22 defendant trespassed into the property where the building is situated also. The first defendant has not contested the suits. The second defendant has denied the building tenancy alleged by the plaintiff in the plaints. Instead, it was contended by the second defendant that he is a lessee of the land entitled to fixity in terms of the provisions of the Act. In the circumstances, according to me, in the light of the decision aforesaid, the suits are liable to be treated as suits on title for recovery of possession, and an adjudication as to the entitlement of the plaintiff for eviction of the building under the Kerala Buildings (Lease & Rent Control) Act need not be undertaken in such cases. The question is answered accordingly. In the light of the findings on the questions formulated for decision, the second appeals are without merits and the same are, accordingly, dismissed. **Sd/-** ## **P.B.SURESH KUMAR** ## **JUDGE** TGS