IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 CRP.No. 809 of 2008 --------------------------------- OS.37/2008 of PRL.MUNSIFF, KASARAGOD .................... REVN. PETITIONERS/RESPONDENTS/PLAINTIFFS: 1. SANJIVI 2. VISHNU SHANBHOGUE 3. MURALI SHANBHOGUE 4. SHOBHA RANI 5. K.VEENA 6. K.PRASANNA SHANBHOGUE 7. YAMUNA 8. GAYATHRI 9. KIRANA NO.1 IS THE WIDOW AND 2 TO 9 ARE THE CHILDREN OF GOPALAKRISHNA SHANBHOGUA, RESIDING AT KUDLU HOUSE, KUDLU VILLAGE, KASARAGOD TALUK, P.O.RAMDAS NAGAR. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS/PETITIONERS/DEFENDANTS: 1. SUSHEELA 2. BALAKRISHNA 3. MOHINI 4. PRABHAKARA 5. SHIVAPRASAD NO.1 IS THE WIDOW AND 2 TO 5 ARE THE CHILDREN OF KUNHA. NO. 1,2,4 AND 5 ARE RESIDING AT GUDDA MANA IN KUDLU VILLAGE AND POST, KASARAGOD TALUK, NO.3 IS W/O.AMARNATH, RESIDING AT HAIGAMANA HOUSE IN ULLAL, ULLALA VILLAGE AND POST, BANGALORE TALUK ADV. SRI.T.SETHUMADHAVAN FOR R1-5 SRI.PUSHPARAJAN KODOTH FOR R1-5 SRI.K.JAYESH MOHANKUMAR FOR R1-5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. -------------------------- C.R.P.No.809 of 2008 -------------------------- ORDER The revision petitioners are the plaintiffs in O.S.No.37/08 and were the respondents in I.A.No. 1198/08 filed by the defendants in the suit, who are arraigned as respondents herein. 2. The prayer in this revision petition is for setting aside the order passed on I.A.No.1198/08 in O.S.No.37/08, whereby, the court below ordered a reference of the case to the Land Tribunal for consideration of the questions of tenancy and kudikidappu raised by the respondents/defendants. It is not in dispute that the defendants in the suit, who are the respondents herein, are the legal representatives of late Kunha, S/o Krishna, who was A party in S.M.No.2203/75 and that the revision petitioners are the legal representatives of late Sri.Gopalakrisha Shanbhogue, the first respondent in S.M.No.2203/75, who is the brother of the second CRP 809/08 2 respondent therein. 3. The order in S.M.No.2203/75 has been produced and marked in the court below as Exhibit B1 and a copy thereof has been passed on to me for perusal by the counsel for the petitioners. The said order shows that the claim for assignment of tenancy right advanced by late Kunha, S/o Krishna, the predecessor in interest of the respondents herein, was negatived by the Land Tribunal and the proceedings were dropped, as he was found to be not a tenant, but only an occupant of the house existing in the holding. It is also in evidence that after the dismissal of the said S.M. Proceedings vide Exhibit B1 order dated 26.11.1976, the respondents herein as A party initiated S.M.No. 142/92 before the Land Tribunal and that was allowed granting benefits of assignment of landlord's rights in favour of the respondents. The said order was assailed by the petitioners filing A.A.No.62/96 before the Land Reforms CRP 809/08 3 Appellate Authority and vide judgment dated 17.11.1997 passed therein, the appellate authority remanded the matter to the Land Tribunal directing it to consider whether the order in S.M.No.2203/75 will act as res judicata in assigning the holding in favour of the respondents. 4. It is contended before me by the counsel for the respondents that inasmuch as the claim for assignment of landlord's rights is pending consideration in S.M.No.142/92, in view of the remand order passed by the appellate authority, it is for the Land Tribunal to consider as to whether Exhibit B1 order will operate as res judicata against the tenancy rights claimed by the respondents and that therefore, it cannot be said that the order of reference under Section 125(3) of the Kerala Land Reforms Act (hereinafter referred to as 'the Act') for consideration of the tenancy issue to the Land Tribunal, impugned in this revision, is untenable. On the other hand, it is CRP 809/08 4 vehemently contended before me by the learned counsel for the petitioners, in view of the decision of the Apex Court in Vijayan v. Kamalakshi Amma (1994 (1) KLT 942), that in view of Exhibit B1 order, no right can be claimed by the respondents either as a tenant under Section 72B of the Act or as a kudikidappukaran and that all such claims are barred in view of Exhibit B1 order. The Apex Court was considering a case where a civil suit was filed for eviction of a tenant as the Rent Control Court referred the parties to the civil suit in view of bona fide denial of title of the landlord. In the said suit so filed by the landlord, the tenant claimed fixity of tenure under Section 106 of the Act and resisted the suit contending that he cannot be ejected. He also claimed for a reference under Section 125(3) of the Act. Accordingly, reference was ordered by the trial court. The order was challenged before this Court and this Court set aside the order, which was further assailed before CRP 809/08 5 the Apex Court. The Apex Court observed that the defendant in that case had filed O.A.No.11730/86 before the Land Tribunal claiming that the lease was for agricultural purpose and the agricultural tenant is entitled to get assignment of land under Section 72B of the Act and the Land Tribunal, vide order dated 29.11.1976, found that the lease was of commercial building and not an agricultural land and therefore, the defendant Vijayan, who was the appellant before the Apex Court, was not entitled to assignment of right, title and interest in the holding and that in view of the said finding, a further claim of benefit under Section 106 of the Act cannot be advanced by the appellant by reason of the rule of “might and ought” envisaged in Explanation IV to Section 11 CPC. The observations of the Apex Court in the judgment are extracted below: “We have already seen that the Land Reforms act is beneficial legislation and has conferred certain benefits on the tenants. CRP 809/08 6 The tenant is expected to raise all the pleas available under the statute at the relevant time. It is a sheer abuse of the process of the court to raise at each successive stages different pleas to protract the proceedings or to drive the party to multiplicity of proceedings. It would be fair and just that the parties to raise all available relevant pleas in the suits or the proceedings when the action is initiated and the omission thereof does constitute constructive res judicata to prevent raising of the same at a later point of time. Thereby it must be deemed that they are waived. Accordingly, we hold that the High court is right in rejecting the claim of the appellant and the appeal is accordingly dismissed but without costs.” Making the above observations, the Apex Court dismissed the appeal filed by the defendants confirming the order of this Court. 5. The said decision squarely applies to the facts of this case. In Exhibit B1 order, the predecessor of the respondents claimed rights of a cultivating tenant under Section 72B of the Act CRP 809/08 7 only. If at all the predecessor of the respondents did have at least right of kudikidappu, which he could have claimed in the alternative, he could have advanced that claim also in Exhibit B1 proceedings. He having not done that, he has forfeited his rights to advance any further claim even limiting the claim to kudikidappu. The contentions advanced by the learned counsel for the respondents, based on the remand order of the appellate authority, directing the Land Tribunal to consider S.M.No.142/92 afresh, considering also the question as to whether Exhibit B1 order will operate as res judicata, is that it does not stand in the way of ordering a reference under Section 125(3) of the Act to the Land Tribunal, so that the Land Tribunal can consider the claim afresh abide by the directions in the remand order in A.A.No. 62/96. When a revision petition assailing an order of reference made under Section 125(3) of the Act comes up before this Court for consideration, it is CRP 809/08 8 not for this Court to keep hands tied deferring the parties to wait till a decision is taken by the Land Tribunal, especially when, in the light of the decision of the Apex Court cited supra, the Land Tribunal does not have to pass any orders adjudicating any claim, except to hold that the claim is barred by res judicata. 6. It is the further contention of the counsel for the respondents that issues are raised in the suit with reference to the claim advanced by the respondents for tenancy right and kudikidappu right and that by reason of Section 125(3) of the Act, it is only proper that those issues are referred to the Land Tribunal for decision. I am not prepared to accept the contention as the issues stated to have been framed in the suit regarding tenancy right and kudikidappu right claimed are issues which do not actually arise for consideration at all in view of Exhibit B1 order of the Land Tribunal, which has become final, not having been CRP 809/08 9 appealed against and the decision of the Apex Court, which has held that a claim, which had not been advanced in the first proceedings, will be barred by principles of constructive res judicata in a subsequent proceedings. Hence, the order of the court below ordering reference of the case to the Land Tribunal under Section 125(3) of the Act for finding on issues regarding tenancy right and kudikidappu right deserves to be set aside and I do so. The court below shall delete the issues regarding tenancy right in view of Exhibit B1 order, which has become final and proceed with trial of the suit. This revision petition is, thus, allowed. 6th January, 2009 (K.P.Balachandran, Judge) tkv