IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 SA.No. 261 of 1995(F) --------------------- OS.407/1983 of MUNSIFF COURT, CHANGANACHERRY AS.12/1986 of DISTRICT COURT, KOTTAYAM .................... APPELLANT(S): SAROJINIAMMA RADHAMONIAMMA ANANDAVILASOM VEEDU FROM PALAKKAL, KARUKACHAL MURI KARUKACHAL BY ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. SANTHANAVALLY AMMA ALIAS THANKAMMA ANANDAVALLY AMMA RESIDING AT LEKSHMIVILASOM HOUSE, CHIRAKKADAVU MURI CHIRALLADAVU VILLAGE 2. S.REMA DEVI ALIAS SANTHANAVALLY AMMA REMADEVI OF -DO- 3. S.SHEELA ALIAS SANTHANAVALLY AMMA SARASWATHI DEVI OF -DO- 4. JOY, CONDUCTING BAKERY, KARUKACHAL KAVALA KARUKACHAL MURI OF -DO- 5. VASIJUTTAN, PROPRIETOR, KAIRALI STORES OF -DO- 6. RASHEEDU ISHA, MERCHANT OF -DO- 7. BABY, CONDUCTING BIJI ELECTRONICS OF -DO- 8. KARUNAKARAN, AMBALAPPARAMBIL OF -DO- SA 261/95 -2- 9. MOHANDAS KURUP, CONDUCTING KERALA CENTRAL CHITTY FUND OF -DO- 10. HARIDAS CONDUCTING NG ARTS OF -DO- 11. SUNNY JOHNY CONDUCTING BUIL CANTEEN OF -DO- 12. AJI, CHOICE FOOT WEAR, KARUKACHAL, KARUKACHAL VILLAGE 13. NARAYANDASA KURUP VIJAYADASA KURUP ANANDAVILASOM VEEDU FROM PALAKKAL KARUKACHAL MURI KARUKACHAL 14. C K RAJAMMA FROM ANANDAVILASOM BUNGLOW RESIDING AT PALAKKAMURIYIL, NEDUMKUNNAM MURI, KARUKACHAL VILLAGE (NAMES OF R4, R7, R8 & R11 ARE STRUCK OFF FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 6.2.3004 IN IA 179/04). ADV. SRI.V.G.ARUN FOR R14 SRI.V.G.ARUN SRI.M.NARENDRA KUMAR FOR R1 TO R3 SRI.T.R.HARIKUMAR FOR R14 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.06.2009, THE COURT ON 30.06.2009, DELIVERED THE FOLLOWING: P.BHAVADASAN, J. -------------------------------------------------------- SA No.261 OF 1995 -------------------------------------------------------- Dated 30th June 2009 Judgment The first defendant in OS No.407/83 of the Munsiff's Court, Changanacherry, who suffered a decree at the hands of the trial court and whose first appeal as AS No.12 of 1986 before the District Court, Kottayam, was dismissed, is the appellant. The parties and facts are hereinafter referred to as are available before the trial court. 2. The suit was one for redemption of mortgage and for the value of improvements. Plaintiff No.1 belonged to Kunnampally family. The plaint schedule property forms portion of the property comprised in Schedule I of the partition deed of 1096, which is Ext.A1. The property was alloted for the maintenance of Ayyappan Nair Narayanan Nair, the Karanavan of the family. Another person by name, Narayanan Nair Narayanan Nair too had a right to maintenance from the property. The document also provided for rights to devolve after the death of these SA 261/95 2 persons. In the year 1123 ME, another partition deed was executed. There was a suit in respect of that partition and ultimately, the plaint schedule item No.1 came to vest with Plaintiff No1. The first plaintiff claimed that she had obtained purchase certificate in respect of the said property. The property had been mortgaged as per Document No.25/59 of 1180 ME, which is Ext.A4. Item No.2 is the building. In the plaint, it was pointed out that defendants 3 to 11 are tenants of Item No.2 building. The plaintiffs wanted the mortgage money and they were prepared to surrender the property. The defendants were not amenable to such a course. In a prior suit as OS No.187/67 against Velayudha Kurup Narayana Kurup and the then tenants for setting aside the deed in question, the plaintiffs had sought for recovery of the property. The suit was decreed by the trial court and the mortgage was set aside. An appeal was preferred by the first defendant in that suit. The appellate court reversed the decree on 27.05.1971 ordered redemption on payment of the mortgage amount and the value of improvements. Extension of time was granted to deposit the SA 261/95 3 amount. The plaintiffs in the suit were unable to file an application within the prescribed period. Later, when he filed an application for passing of the final decree with a petition to condone delay, that petition was dismissed. The mortgage still subsists since it has not been redeemed so far. On the basis of the above allegations, the suit was laid. 3. Defendants 1 and 2 resisted the suit. According to them, the suit is barred by limitation and the principle of res judicata. They also claimed protection under S.4A of the Kerala Land Reforms Act. They claimed that they are entitled to the value of improvements, in case the mortgage is to be redeemed. Pointing out that the plaintiffs are not entitled to any relief, they prayed for a dismissal of the suit. 4. For the purpose of the suit, the plaintiffs had PW1 examined and Exts.A1 to A6 marked. The defendants neither did examine any witness nor did they produce any documents. On the basis of the materials adduced before it, the trial court came to the conclusion that none of the contentions set up by the defendants were tenable and hence the preliminary decree SA 261/95 4 was passed. Defendants 1 and 2 carried the matter in appeal before the District Court, Kottayam. The appellate court confirmed the preliminary decree of the trial court and hence the SA. 5. At the time of admission, notice has been issued on all the questions of law formulated in the memorandum of Second Appeal. 6. There is not much dispute on facts. The fact that there was an earlier suit in which a preliminary decree was passed, is not disputed. It is also evident from the records that since no application for passing the final decree was filed within the time stipulated, no final decree had been passed. 7. The learned counsel for the appellant raised the following three points for the consideration of this court. 1) That the suit is barred by limitation. 2) That the suit is barred by the principle of res judicata and 3) that the defendants are entitled to the protection of S.4A of the Kerala Land Reforms Act. 8. The learned counsel appearing for the respondents, on the other hand pointed out that none of the contentions raised SA 261/95 5 by the appellant is tenable and the courts below were fully justified in decreeing the suit. 9. The first question which arises for consideration is whether the suit is barred by limitation. The mortgage is of the year 1181 ME. Regarding devolution of property, there is no dispute. It is therefore, unnecessary to refer to the earlier documents. Even though a preliminary decree was passed in OS No.187/67, the records indicate that no application for passing the final decree was filed within the stipulated time. The result was that there was no final decree in the earlier suit. Since the mortgage continued to subsist, the present suit laid on 16.12.1983 is within the 30 years' period. Since the mortgage money was not deposited in the earlier suit, as already noticed, the mortgage subsists. Viewed from that angle, the courts below were justified in coming to the conclusion that there is no bar of limitation. 10. Coming to the issue of res judicata, that contention of the appellant also is unsustainable. OS No.187/67 true, was a suit for setting aside the mortgage deed. Though the trial court SA 261/95 6 set aside the document, at the appellate stage, the redemption was allowed. A preliminary decree was also passed. The final decree application was not filed within the prescribed time. When it was filed along with a delay condonation petition, that was dismissed. The claim now put forward is that since that final decree application has been dismissed, the present suit is not maintainable. 11. One is unable to understand the above contention. There is no final decree in the earlier suit. The mortgage has not been redeemed. There is nothing to indicate that the said order can operate as res judicata. Thus the above contention too fails. 12. The learned counsel for the appellant placed considerable reliance on his third contention that the defendants are entitled to the protection of S.4A of the Kerala Land Reforms Act. According to the learned counsel, though the issue was raised and heard by both the courts, the decisions rendered by the courts below are wrong. 13. The records indicate that the trial court independently considered the issue of tenancy. Issue Nos.4 and 5 raised SA 261/95 7 before the trial court relate to this aspect of the case. The trial court observed that there was an earlier suit OS No.187/67 and in the said suit, the defendants had raised the contention that they are entitled to the benefit of fixity of tenure and S.106 of the Kerala Land Reforms Act. It was found against them. The appellate court confirmed the same. The present claim of the defendants that they are entitled to the benefit of S.4A of the Kerala Land Reforms Act, cannot be gone into because the appellants are bound by the decision in AS No.210/68. The courts below were of the view that in the light of the said decision, the appellants are estopped from raising a contention in the present nature. Accordingly, that plea was rejected. 14. The contention of the appellant was that they could not have raised the plea based on S.4A in the earlier suit since that claim can arise only in a suit for redemption. It was pointed out by the appellate court that in the earlier suit they had not raised this plea and they had contended that the deed in relation to the proceedings was lease and not mortgage. The judgment in the earlier suit was rendered on 26.5.1971 as could be seen from SA 261/95 8 Ext.A5. 15. The appellate court observed that if the appellant had a case that they are entitled to the benefit of S.4A of the Kerala Land Reforms Act, they ought to have raised that plea in the earlier suit. Since they have not done so, they are estopped from raising the plea now. 16. The question is whether the above findings are correct or not. 17. The learned counsel for the appellant pointed out that the earlier suit was of the year 1967. S.4A of the Kerala Land Reforms Act was incorporated only in 1969 by virtue of Act 35 of 1969 with effect from 01.01.1970. At the time of filing of OS No.187/67, the plea based on S.4A was not available to the appellant. This aspect, according to the learned counsel for the appellant, has not been noticed by both the courts below. 18. There is some substance in the above contention. There is no dispute regarding the fact that at the time when the earlier suit was instituted, S.4A of the Kerala Land Reforms Act was not in the statute book. It was introduced by the SA 261/95 9 Amendment Act of 35/1969. Section 4A of the Kerala Land Reforms Act reads as follows : “Certain mortgagees and lessees of mortgagees to be deemed tenants - (1) Notwithstanding anything to the contrary contained in any law or in any contract, custom or usage or in any judgment, decree or order of court, a mortgagee with possession of land, other than land principal by planted with rubber, coffee, tea or cardamom or the lessee of a mortgagee, or such land shall be deemed to be a tenant if - (a) the mortgagee or lessee was holding the land comprised in the mortgage for a continuous period of not less than fifty years immediately preceding the commencement of the Kerala Land Reforms (Amendment) Act, 1969 ; or (b) the mortgagee or lessee has constructed a building for his own residence in the land comprised in the mortgage and he was occupying such building for such purpose for a continuous period of not less than twenty years immediately preceding such commencement.” (Rest omitted as unnecessary) According to the learned counsel for the appellant, the appellant claimed protection under S.4A(1)(b). He would contend that in the light of the said fact, the trial court should have sent the issue regarding tenancy to a Land Tribunal concerned for a decision as enjoined by S.125(3) of the Kerala Land Reforms Act. It is well settled by now that a defendant in a suit is not bound to put forward a plea on the basis of a cause of action SA 261/95 10 which arises during the pendency of the suit. In order that a plea should operate as res judicata or constructive res judicata, it must be one which not only might have been raised, but also one which should have been raised. (See the decision in Raghavan Nair v. Appu Kidavu (1979 KLT 458). 19. It is true that S.4A was introduced in the Kerala Land Reforms Act by the Amendment Act of 35/1969 during the pendency of the earlier suit. But, as already noticed, the cause of action for such a claim arose long after the earlier suit has been instituted. It was held that such a plea was not available to the defendants at the time when the suit was instituted and that could not have been raised by them at all then. 20. After the suit had been instituted, a new claim became available to the appellants. True, they could have claimed the benefit of it by amending the written statement. But the mere fact that they did not do so, cannot be taken as a ground to deny the benefit if otherwise they were entitled to. It is difficult to support the findings of the court below in this regard. SA 261/95 11 21. There is no estoppel or waiver and the principle of res judicata is also not attracted to the facts of the case. The disinclination on the part of the courts below to accept this plea cannot be countenanced. 22. If, as a matter of fact, the appellant was entitled to take the benefit under S.4A, then, going by S.125(3) of the Kerala Land Reforms Act, the trial court had to stay the proceedings and send the matter to the Land Tribunal concerned for a decision on the question of deemed tenancy. 23. On the above point, the learned counsel appearing for the contesting respondents pointed out that even assuming that the appellants are entitled to take that plea, there is no pleading regarding the benefit under S.4A and therefore, that question does not arise for consideration. 24. Referring to the written statement filed by the appellants, it was pointed out that what they had stated in the written statement was only that they are entitled to the benefit of S.4A. The details which are necessary to bring the claim under S.4A have not been mentioned in the written statement. It is also SA 261/95 12 pointed out that going by the evidence on record, it will not be possible for the appellants to establish a claim because evidence is inconsistent with the plea of deemed tenancy. 25. Replying to the above contention, the learned counsel for the appellant pointed out that the issue as to whether the appellants can succeed on the plea of deemed tenancy cannot be decided by the civil court in view of the embargo created by S.125(3) of the Kerala Land Reforms Act. 26. Section 125(3) of the Kerala Land Reforms Act stipulates that if any question regarding the rights of a tenant or a kudikidappukaran (including the question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the proceedings and refer the matter to the Land Tribunal having jurisdiction over the matter together with the relevant records for decision on that question also. It is trite law that merely because a mere plea is raised, the court is not bound to refer the matter to the Land Tribunal. It is necessary that the issue must arise for consideration in the case. It is true that in the case on hand, the details and particulars regarding SA 261/95 13 the plea based on S.4A has not been made in the written statement. However, the written statement shows that they claimed to be deemed tenants coming under the purview of S.4A and also contended that they are not liable to be evicted. They also pointed out that since they are entitled to fixity of tenure, the matter has to be sent to the Land Tribunal for a decision on that aspect. As already noticed, if prima facie it is found that the issue does arise for consideration, the mere fact that on a deeper probe, it may be found to be otherwise, cannot be taken as a ground to refuse to refer the matter to the Land Tribunal. Any decision on merits in that regard can be taken only by the Land Tribunal. S.125(3) of the Kerala Land Reforms Act interdicts any civil court from taking a decision on that issue. May be that the evidence already adduced in the case or other aspects of the case may suggest that the appellants may not be entitled to protection on the basis of the plea now taken by them. These aspects need investigation and that can be done only by the Land Tribunal. The issue regarding deemed tenancy claimed by the appellant has to be decided by the Land Tribunal. SA 261/95 14 27. In the result, this appeal is allowed. The judgment and decree of the court below are set aside and the matter is remitted to the trial court for disposal in accordance with law in the light of what has been stated above. The parties shall appear before the court below on 03.08.2009. The records will be sent back forthwith. Being a suit of the year 1983, the trial court may make every endeavour to dispose of the matter as expeditiously as possible. P.BHAVADASAN, JUDGE sta SA 261/95 15