IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 SA.No. 627 of 1995() -------------------- AS.19/1991 of DISTRICT COURT, KASARAGOD OS.31/1984 of SUB COURT, KASARAGOD .................... APPELLANT(S): RESPONDENT:1ST DEFENDANT: ------------------------------------------------------------------------- SMT. SWARNALATHA, W/O.SEETHARAMA SHETTY, RESIDING AT CHERUGOLI IN MANGALPADY VILLAGE AND POST, KASARAGOD TALUK. BY ADV. MR.K.G.GOURI SANKAR RAI RESPONDENT(S): APPELLANTS 2 TO 4:PLAINTIFFS 2 TO 4: ---------------------------------------------------------------------------------------- 1. SUPHALACHANDRA N.NAIK 2. ARATHI NAIK 3. MADHUSUDAN NAIK NO.1 IS THE WIFE AND NOS. 2 AND 3 ARE THE CHILDREN OF N.NARASIMHA NAIK. ALL ARE RESIDING AT MANGALPADY VILLAGE AND POST, KASARAGOD TALUK. R1 TO R3 BY ADVS. SMT.T.D.RAJALAKSHMI, MR.E.R.VENKATESWARAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K. M. JOSEPH, J. -------------------------------------- S.A.NO. 627 OF 1995 G -------------------------------------- Dated this the 24th June, 2009 JUDGMENT Appellant is the first defendant in a Suit filed for recovery of possession on the strength of title. The trial court dismissed the Suit against which on an appeal by the respondents, the first appellate court reversed and decreed the Suit. 2. According to the respondents/plaintiffs, plaint A schedule property belonged to one Pattel Kinhanna Naik. He executed a registered Will in respect of his separate share of the property including plaint A schedule property. He created two successful life estates in favour of one Thyampanna Shetty and his brother Ramayya Shetty. The vested remainder was to devolve on the plaintiffs on the death of the life estate holders. It is the further case of the plaintiffs that the testator died and the first life estate holder also died in May, 1963 and in June, 1972 the second life estate holder also died and they became entitled to possession of the plaint A schedule property on the death of SA.NO.627/95 G 2 Ramayya Shetty on 30.6.1972. The defendants were in possession of the property. The dispute which ultimately survived for consideration before the Court is only regarding the plaint A schedule less 13 cents. The appellant/1st defendant is none other than the daughter-in-law of the first life estate holder. Against the respondents/plaintiffs, she has no legal right and the demand for recovery turning futile, the Suit came to be filed. The appellant contended, inter alia, that she was a tenant. The matter came to be referred to the land tribunal. It was numbered as R.C.No.1/88. The land tribunal, Kasaragod had also initiated suo motu proceedings for assignment of the landlord's right, interest and title over the disputed property. S.M. No.1616/1976 was the number of the proceedings. It was once allowed. There was an Appeal and it was further remanded back by Judgment dated 4.2.1982. After remand, the matter was pending before the land tribunal. It was at that juncture that the trial court was persuaded to hold that a question of tenancy arises under Section 125 of the Kerala Land Reforms Act, 1964 and the matter was SA.NO.627/95 G 3 referred to the tribunal for its decision as mandated under Section 125 of the Kerala Land Reforms Act, 1964. It would appear that the tribunal proceeded to consider the remanded OA. It rendered its finding on the same holding that the property covered by the plaint schedule less 13 cents which, it would appear, came to be compromised between the 2nd defendant and the plaintiff is covered by tenancy rights. It is by the order of the same day, ie. 31.10.1988 that the reference from the civil court as aforesaid, came to be answered. The trial court as was mandated in law, adopted the finding of the land tribunal and proceeded to dismiss the Suit. In Appeal, as already noted, the learned District Judge has reversed the findings of the trial court and decreed the Suit. The first appellate court proceeded to consider the matter with reference to the reasons and came to the conclusion that the finding of tenancy rendered by the land tribunal is erroneous and set aside the findings. 3. Heard the learned counsel for the appellant and the learned counsel for the respondents. Learned counsel for the SA.NO.627/95 G 4 appellant would submit in the first place that this is a case where the respondents/plaintiffs preferred Appeal against the findings of the land tribunal in the remanded OA and it was dismissed as not pressed. He would, therefore, submit that the matter is barred by res judicata. In other words, he would submit that as general principles of res judicata are applicable, the finding in the remanded OA having become final, it is not open to the respondents to agitate the correctness of the finding that the appellant is entitled to tenancy rights. In this regard, he relied on the Judgment of the Full Bench in Muhammad Haji v. Kunhunni Nair (1993 (1) KLT 227). Noting the Judgment of a learned Single Judge of this Court which also has been adverted to by the learned District Judge, wherein this Court took the view that when a reference is made by the civil court under Section 125, it is not open to the land tribunal either to entertain an OA or if an OA is already entertained, to proceed further with it. He would contend that the said view did not prevail at the time when the order was pronounced. In other words, this is a SA.NO.627/95 G 5 case where he points out that a suo motu proceeding has been taken earlier to the date of institution of the Suit, the application was once allowed and in the appeal by the plaintiffs, the appellate authority had remanded back and it is pursuant to the direction of the appellate authority that the matter came to be entertained and at the time when it was entertained, the decision in Narayana Kamath v. Govinda Prabhu (1992 (1) KLT 630) had not been rendered. He would submit that, at any rate, even an erroneous Judgment will be res judicata. Therefore, since a decision was taken by the land tribunal in the OA which has become final by the dismissal of the Appeal against the same as not pressed, it is the said decision which is binding and, therefore, the re-agitation of the same issue before the District Court was impermissible being barred by res judicata. Still further, he would contend that, at any rate, the first appellate court has committed a serious illegality when it decided to call for the records of the suo motu proceedings dated 31.10.1988 wherein the tribunal had considered the evidence and came to SA.NO.627/95 G 6 the conclusion that the appellant is having tenancy rights. He would submit that even if it were found that the land tribunal should not have proceeded to render a decision in the OA, the fact remains that the referred matter from the civil court was answered by the land tribunal by an order which does not refer to the evidence and the reasons are not discernible and it is clearly impermissible for the first appellate authority to look into the evidence which was not before it. He expatiates and submits that the law mandates that when a matter is referred to the land tribunal by the civil court under Section 125, the land tribunal must decide the issue as the only competent body in law which can decide the issue and it must refer back the matter to the civil court with its findings and the matter on the basis of which, it had entered its findings and rendered its decision. Such a procedure was admittedly not done by the land tribunal. The failure on the part of the land tribunal to comply with a legal requirement could not be substituted by the appellate authority resorting to the practice of calling for the records of SA.NO.627/95 G 7 the land tribunal in a separate proceeding, the decision in which is subject to a separate channel of Appeal before the appellate authority which incidentally, in this case, was resorted to by the plaintiffs by filing an Appeal and later getting it dismissed as not pressed. He would submit that it is not certainly open to the first appellate court under the scheme of the Land Reforms Act to sit in Judgment over the finding of the Land Tribunal rendered in the suo motu proceedings and the suo motu proceedings could be challenged only in the manner known to law which is by filing Appeal against the same before the appellate authority. He points out that the learned District Judge though did note this contention and in fact states that he is not doing the same, the first appellate court has sat in judgment over the order. The appellant has formulated the following substantial questions of law and this Court issued notice on the same: “A. Is not the finding of the Lower Appellate Court that Ext.B1 Judgment is without jurisdiction, against the Ruling of the Full Bench in 1993 (1) KLT page 227 ? SA.NO.627/95 G 8 B. Is not the decision of the Lower Appellate Court vitiated for want of a correct interpretation of the Ruling in 1992 (1) KLT page 630 ? C. Does the Ruling in 1992 (1) KLT page 630 lay down that the decision of the land Tribunal, in all cases where there is a civil suit in respect of the same dispute, is without jurisdiction or does it say that the decision of the Land Tribunal is without jurisdiction in cases where the tenant has approached the Land Tribunal pending a civil suit ? D. Has not the Lower Appellate Court committed an error of law in summoning the case filed in S.M. No.1616/1976, and basing its finding on the records in that case, without making the same in evidence ? Is not the procedure adopted by the Lower Appellate Court opposed to the provisions of Order 41 of CPC ? E. On the facts and circumstances of the case, is the decision of the Lower Appellate Court sustainable ?” 4. Learned counsel appearing on behalf of the plaintiffs would support the Judgment of the first appellate court and SA.NO.627/95 G 9 would point out also that the order in the suo motu proceedings and the referred case was rendered on the same day and all that the first appellate court has done is to look to the reasons for the same which were given elaborately in the order passed in the OA and it is open to the first appellate court to do the same in the interest of justice. 5. As far as the question of law which is sought to be raised, regarding bar of res judicata is concerned, I would think that it is to be answered against the appellant. When a question of tenancy arises in a civil suit within the meaning of Section 125 and which is referred to the land tribunal, the land tribunal is obliged to answer the said issue in the referred matter. The scheme of Section 125 is that the land tribunal is the specially constituted tribunal under the Act to decide the question whether a person is a tenant or not. It is expected to render its finding on the basis of the material produced and to return it back to the trial court. The trial court has no discretion, but to accept the findings of the land tribunal and to render its Judgment SA.NO.627/95 G 10 accordingly. However, the law contemplates that the aggrieved party may appeal the decision before the appropriate civil court. The appellate court is free to go into the correctness of the findings of the land tribunal which stands incorporated in the Judgment of the trial court and adjudicate the rights accordingly. In the light of the said scheme of things, if a party were to approach the land tribunal and the said application is entertained in an Original Application or if suo motu proceedings were to be taken, the result would be that it would lead to parallel proceedings and take away the efficacy of the power with which the first appellate court is clothed to deal with the correctness of the findings of the land tribunal as incorporated in the Judgment of the trial court. This appears to be the reason why the learned Single Judge of this Court took the view in Narayana Kamath v. Govinda Prabhu (1992 (1) KLT 630) which reads as follows: “26. In the present case, the Land Tribunal heard the reference and the petition for purchase filed by the tenant jointly and they were disposed of by a common order. May be, the Tribunal SA.NO.627/95 G 11 adopted that procedure as agreed to by the parties. But, the agreement of the parties will not confer a jurisdiction on the Land Tribunal which it otherwise lacks. The decision on the question of tenancy has no doubt to be rendered by the Land Tribunal. But, the civil court having made a reference under S.125(3) of the Act, a finding has to be rendered on the question referred to by the court and the same has to be submitted to the civil court. When once the Land Tribunal proceeded to enquire into that dispute in the reference made by the civil court, the Tribunal should not have either entertained an application for purchase and if it had already entertained the same should not have proceeded to enquire the dispute in that petition. It is not open to the Tribunal to decide the dispute in the petition presented by the tenant and return the reference without answering the same in view of the mandatory provision contained in sub-sec. (4) of S.125. The position that emerges is that the Land Tribunal is not competent to enquire into the dispute of tenancy in a separate application filed by the tenant in case the Land Tribunal has received a reference from the civil court. The only SA.NO.627/95 G 12 course open to the Land Tribunal is to decide the dispute referred to it by the civil court and return the records together with its decision to that court. So long as the decision on the question of tenancy has become final, the Land Tribunal is not competent to permit the tenancy to purchase the rights of the landlord. The petition for purchase filed by the tenant in such circumstances is not maintainable and has only to be dismissed.” Therefore, when in this case, the matter was referred to the land tribunal, though this is a case where suo motu proceedings were started prior to the institution of the Suit, once it received the order referring the matter to it under Section 125, it ought not to have proceeded with the consideration of the suo motu proceedings on the strength of the order of remand. As held by the learned Single Judge, the land tribunal has no power to proceed with the OA, once it receives the order from the civil court. Though it is true that a decision which is erroneous may be res judicata, it is well settled that for a decision to be res judicata, it must be one rendered by a Body which is competent SA.NO.627/95 G 13 to render it. In view of the decision of this Court in Narayana Kamath v. Govinda Prabhu (1992 (1) KLT 630) I hold that the land tribunal could not have proceeded to consider the matter in the remanded SM proceedings and render its decision thereon. The fact that it rendered its decision thereon or that an appeal was carried by the plaintiffs and that further it became final by the Appeal being dismissed as not pressed, will all be besides the point, in view of the lack of competence for the land tribunal to render its Judgment on the point. In this view of the matter, I am of the view that the decision which is rendered by the land tribunal in the suo motu proceedings is incapable of forming the premise for the argument of res judicata and I answer the question accordingly. But, I have to deal with the question of law which is raised by the appellant relating to the procedure adopted by the first appellate court in calling for the records of the suo motu proceedings before the land tribunal. 6. Learned counsel for the appellant relied on a Judgment of this court in Parameswaran Thampi v. Podiyan Thomas (1984 SA.NO.627/95 G 14 KLT 397) as also the Judgment in Appeal rendered by the Apex Court reported in Mathevan Padmanabhan alias Ponnan (Dead) through Lrs. v. Parmeshwaran Thampi and Others (1995 Supp (1) SCC 479) confirming the same. That was, of course, a case where pending a civil suit, the defendant filed an application under Section 72B of the Land Reforms Act. Therein, the Apex Court, inter alia, held as follows: “However, the High Court is clearly in grave error in divesting the jurisdiction of the Land Tribunal to determine the dispute of tenancy etc. as engrafted in sub-section (1) of Section 125 of the Act and conferring jurisdiction on the civil court which it inherently lacks and any decision by the civil court by itself is a nullity. Therefore, the dispute is remitted to the Land Tribunal which would determine the matter and submit its report to the Civil Court for decision according to law.” It is submitted by the learned counsel for the appellant that SA.NO.627/95 G 15 though this Court took the view that a second reference to the land tribunal is not contemplated, the Apex Court interfered with the said finding and directed that the matter should be decided by the Land Tribunal. I see force in the said contention by the learned counsel for the appellant. The suo motu proceedings as was remanded by the appellate authority and the referred matter do not appear to have been considered together by way of any joint trial. Apparently, the evidence was adduced in the suo motu proceedings. No independent reasons are given in the order of the land tribunal dated 31.10.1988, as to how it found the appellant to be a tenant. Essentially by implication, it has repeated the very same decision which it had already taken in the suo motu proceedings, but it did not choose to give any reasons and no reasons accompanied the finding as is required in law. In such a case, I am of the view that the first appellate court, instead of calling for the records from the tribunal relating SA.NO.627/95 G 16 to the decision in the suo motu proceedings, ought to have remanded the matter back to the Land Tribunal. I am of the view that, as noted by the first appellate court itself, it is not open to the first appellate court to sit in judgment over the decision of the land tribunal in the suo motu proceedings. In its search for reasons, which persuaded the land tribunal to take the decision in the referred case, in substance, the first appellate court has proceeded to sit in judgment over the finding of the land tribunal in the SM proceedings. This procedure, to my mind, represents departure from the powers which may legitimately be exercised by the first appellate court. In such circumstances, the Second Appeal is allowed setting aside the Decree and Judgment of the first appellate court and the matter is remanded back to the land tribunal, Kasaragod. The parties shall appear before the land tribunal on 10.8.2009. The land tribunal, in view of the long pendency of the matter, will proceed to consider the matter in accordance with law and take a decision within a period of four months from 10.8.2009. The SA.NO.627/95 G 17 trial court shall on receipt of the records, proceed to dispose of the Suit within a period of two months from the date of receipt of the findings and records from the land tribunal. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge SA.NO.627/95 G 18 K.M.JOSEPH, J. S.A.NO. 627 OF 1995 G JUDGMENT 24th June, 2009