IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 SA.No. 716 of 1994(B) ------------------------------- A.S. NO.108/1993 OF SUB COURT, TIRUR, O.S. NO.78/1981 OF MUNSIFF COURT, TIRUR .................... APPELLANT/1ST RESPONDENT/PLAINTIFF: -------------------------------------------------------------- 1. KOOTTAPULAKKAL KUNHAHAMMED'S SON MOIDEEN KUTTY BY MUKTIAR AMARIYIL AHAMED KUTTY, TIRUR TALUK, THIRUNAVAYA AMSOM, PALLAR DESOM, MALAPPURAM DIST. *ADDL. APPELLANTS: 2. MAMMY HAJEE, THOTTIVALAPPIL MANKODAVATH, S/O. BAPPU ALIAS MOOSAKUTTY, THIRUNAVAYA AMSOM, PALLAR DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 3. ABDURAHIMAN, -DO- -DO- -DO-. 4. ABDUL AKHAS, S/O. AHAMMEDKUTTY, -DO- -DO-. *ADDL. APPELLANTS 2 TO 4 ARE IMPLEADED VIDE ORDER DT. 13/02/2007 IN I.A. 1611/2005 AS L.R.s OF THE DECEASED APPELLANT. BY ADV. SRI.K.RAMACHANDRAN, SRI.P.RAMACHANDRAN, SRI.K.MOHAMMED FAISAL NAHA. RESPONDENTS/ APPELLANTS/ D1 & D4 TO D16: --------------------------------------------------------------------- 1. PURATTIYIL VELAYUDHAN NAIR (DIED), S/O. LATE LAKSHMI AMMA. S.A. NO. 716/1994-B: 2. KUNHAHAMMED, S/O. ENI HAJI (DIED). 3. PARAPPIL KUNHAHAMMED'S SON ENI. 4. PARAPPIL ENI HAJI'S SON HAMZA. **5. PARAPPIL SAIDALI'S CHILDREN ENI ALIAS BAPPU. (DIED) 6. ISMAIL. #7. AYISUMMA, (DIED). 8. ALI. 9. HUSSAIN. 10. HAMEED. 11. RUKIYA UMMA. 12. SAFIYA. 13. SHAJITHA. 14. BEEKUTTY UMMA. 15. 2ND RESPONDENT'S CHILDREN PARAPPIL NAFEESA. 16. PARAPPIL ABDU. 17. PARAPPIL ABDUL RAZAK. 18. PARAPPIL RAMLA. 19. VETTAN PATHUMMA UMMA, W/O. PARAPPIL KUNHAMMED. 20. DECEASED 1ST RESPONDENT'S WIFE KUNNATH PARVATHYKUTTY AMMA, D/O. LAKSHMI AMMA. 21. DECEASED 1ST RESPONDENT'S CHILDREN CHANDRASEKHARAN NAIR. 22. SAROJINI AMMA. 23. UNNIKRISHNAN NAIR. S.A. NO. 716/1994-B: 24. ARAVINDAKSHAN NAIR. 25. INDIRA. 26. MOHANAN. 27. RAJAN. 28. SREENIVASAN. 29. ANANDA KUMAR. 30. SOUBAGHYA LAKSHMI. ##31. THOTTAVALAPPIL MANKADAVATH BAPPU ALIAS MOIDEENKUTY' SON BAVA ALIAS MOIDEENKUTTY. (DIED) # LRs OF DECEASED R7: 32. PARAMBIL KUNJU MOIDU, AGED 45 YEARS, HUSBAND OF 7TH RESPONDENT AYISUMMA. 33. NASSAR, AGED 20 YEARS, S/O. 7TH RESPONDENT. 34. NIMSHI, AGED 11 YEARS, REP. BY HER FATHER PARAMBIL KUNJU MOIDU. ALL ARE RESIDING AT MELE PATTAMBI TOWN, PALAKKAD DISTRICT. # L.Rs. OF DECEASED R7 ARE IMPLEADED AS SUPPLEMENTAL R.32 TO R.34 AS PER ORDER DATED 25/08/98 ON C.M.P. NO. 940/98. ** LRs OF DECEASED R5: 35. KODIYAMPADATH RUKIYA, W/O. DECEASED 5TH RESPONDENT. 36. SELVAS, TRIKKANDIYOOR AMSOM, THOKKOMURI DESOM.P.O., THEKKUMURI, TIRUR TALUK. 37. RAHNA, -DO- -DO-. 38. ANISH, -DO- -DO-. ** ADDITIONAL RESPONDENTS 35 TO 38 IMPLEADED AS THE LEGAL HEIRS OF DECEASED 5TH RESPONDENT VIDE ORDER DT. 29/01/08 IN C.M.P. 1642/1998. S.A. NO. 716/1994-B: ## LRs OF DECEASED 31ST RESPONDENT: 39. T.M. KADEEJA, W/O. C.H. ABDUL KHADER, ANEERA MANZIL, TIRURANGADI, MALAPPURAM DISTRICT. 40. RAMLA.T.M, W/O. LATE ABOOBACKER, KARATTUKADAVATH HOUSE, P.O. VETTAM - 67602, VIA. V.P. ANGADI, MALAPPURAM DISTRICT. 41. SAKEENA T.M., JANATHA BAZAR, P.O. NIRAMARUTHOOR, TIRUR, MALAPPURAM DISTRICT. 42. RAHMATH.T.M., CHEMBETH HOUSE, P.O. PERUMPADAPPA, MALAPPURAM DISTRICT. 43. T.M. RABIYA, W/O. KUNJALIKKUTY, WHITE HOUSE, CHETHIPPADI, PARAPPANANGADI, PIN - 676 319, MALAPPURAM DISTRICT. 44. MIHRUNNEESSA.T.M, KODANIYIL HOUSE, P.O. THALAKKADATHOOR, TIRUR, MALAPPURAM DISTRICT. 45. SALMA T.M, KOTTILIL HOUSE, P.O. MUNDOOR, MALAPPURAM DISTRICT. 46. T.M. MOOSAKUTTY, THOTTIVALAPPIL, MANGADAVATH HOUSE, P.O. VAIRAMCODE, MALAPPURAM DISTRICT. 47. T.M. AMEER FAIZAL, P.B. NO. 13461, RIYADH 11493, K.S.A. 48. SHEREENA.T.M, W/O. HAMEED N.K., NADUVIL KARUMAN KUZHIYIL HOUSE, P.O. KADANCHERY VIA. KALADI, MALAPPURAM DISTRICT. 49. T.M. SHEMEER, AGED 30 YEARS, DO. DO. S.A. NO. 716/1994-B: 50. AISHUMMA, KAINIKKARA, W/O. T.M. BAVA, A/S. MOIDEENKUTTY, THOTTIVALAPPIL, MANKADAVATH, P.O. VARIANKODE, VIA. THIRUNAVAYA, MALAPPURAM DISTRICT. ## ADDITIONAL RESPONDENTS 39 TO 50 IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 31ST RESPONDENT VIDE ORDER DTD. 29/01/08 IN I.A. NO. 228/2008 IN I.A. 183/2007. R3 TO R19 & 27 BY ADV. SRI.T.KRISHNANUNNI, R31 BY ADV. SRI.P.K.ABOOBACKER (EDAPPALLY), R36 TO R47 BY ADV. SRI.P.CHANDRASEKHAR. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 353/1999 IN S.A. NO. 716/1994-B DISMISSED 07/02/2008. SD/- M.SASIDHARAN NAMBIAR, JUDGE. //TRUE COPY// prv. M.SASIDHARAN NAMBIAR,J. =========================== S.A. NO. 716 OF 1994 =========================== Dated this the 7th day of February, 2008 JUDGMENT Plaintiff in O.S.78/1981 on the file of Munsiff Court, Tirur is the appellant. Defendants and legal heirs of deceased first defendant are the respondents. The reliefs sought for in the plaint are (1) to set aside the order of Munsiff Court, Tirur in E.A.51/1979 and confirmed by this court in C.R.P.No.1431/1981 and also the order recording delivery in E.P.111/1971 in O.S.412/1962 and (2) permanent prohibitory injunction restraining defendants from interfering with the peaceful possession of the plaint schedule properties by appellant. Plaint schedule property admittedly originally belonged to deceased first defendant. He admittedly executed a usufructory mortage deed in favour of second defendant. First defendant instituted O.S.36/1952 before Munsiff Court, Tirur for redemption and recovery of possession. It was S.A.No.716/1994 2 subsequently transferred to Munsiff Court, Parappanangadi and renumbered as O.S.412/1962. A decree for redemption was passed. Second defendant challenged the decree contending that the transaction is not a mortgage but a lease by filing an appeal. First appeal was dismissed. S.A.1086/1968 was filed before this court. That second appeal was also dismissed. First defendant filed E.P.111 of 1971 for execution of the decree. It was resisted by second defendant. By that time Kerala Land Reforms Act 35 of 1969 came into force. Second defendant claimed benefit under section 4A of Kerala Land Reforms Act contending that he is a deemed tenant. It was rejected by the executing court. Second defendant challenged it before this court in C.R.P.1182/1978. That was also dismissed. When executing court directed delivery of the property, appellant filed O.S.119/1978 for permanent prohibitory injunction restraining first defendant from taking delivery of the plaint schedule property in execution of the S.A.No.716/1994 3 decree in O.S.412/1962. In the suit an application for an order of temporary injunction was filed. It was dismissed. It was challenged before Sub Court, Tirur by filing C.M.A. In the C.M.A the counsel appearing for first defendant undertook that first defendant will not take delivery of possession till 28.1.1979. Contending that the Sub Judge was on leave on 27.1.1979 onwards, appellant approached District Court, Manjeri on 29.1.1979 and obtained an order of stay of delivery. But before receipt of the order of stay amin effected delivery. Through his power of attorney holder who was examined as PW1 before the trial court, who also instituted the suit on behalf of appellant as his power of attorney holder, an application was moved before the executing court contending that the property cannot be delivered in view of order of stay passed by the District Court. That petition was dismissed as by that time Amin had already filed a report stating that the propety was delivered. Appellant then S.A.No.716/1994 4 filed E.A.51/1979 before the executing court praying to set aside the delivery and not to record delivery contending that delivery was not taken and if at all it is only a paper delivery. That petition was dismissed on 20.4.1981 after recording of evidence including examination of appellant. That order was challenged before this court in C.R.P.1431/1981. Under Ext.B8 order the said C.R.P was dismissed confirming the order of the executing court in E.A. 51/1979. Delivery was thereafter recorded. 2. Through the power of attorney holder appellant instituted O.S.78 of 1981 contending that he was not dispossessed and plaint schedule property was not taken delivery of and the mortgagee had earlier granted an oral lease in favour of Edavazhiparambil Koru in 1954 and under Ext.A1 registered assignment deed that lease hold right was obtained by appellant from Koru and since then appellant has been in possession of the property as a tenant and therefore respondents are S.A.No.716/1994 5 not entitled to interfere with his peaceful possession of the property. Contending that as found by the executing court and this court delivery was not taken, a decree to set aside the said orders passed by the executing court and this court was also sought. A decree for injunction was sought contending that appellant has been in possession of the property covered under Ext.A1, from 1961 onwards. 3. First defendant resisted the suit contending that actual delivery of the property mortgaged was taken on 29.1.1979 and the claim of the appellant that delivery wAs not taken is barred by principles of res judicata in view of the order passed by the executing court in E.A.51/1979 and confirmed by this court under Ext.B8 order in C.R.P.1431/1981. It was furhter contended that appellant is claiming right, title and possession under fradulent documents under the mortgagee and as the mortgage was redeemed and possession was taken, appellant is not entitled to any of the S.A.No.716/1994 6 decree as sought for. 4. Learned Munsiff finding that question whether appelllant is a tenant or not under the Kerala Land Reforms Act arises for consideration in the suit referred that question to the Land Tribunal, Tirur, under section 125(3) of Kerala Land Reforms Act. The Land Tribunal, as per finding dated 20.2.1993, answered the question holding that appellant is a deemed tenant as provided under section 7 of Kerala Land Reforms Act. Learned Munsiff on the evidence of Pws.1 to 4, DW1, Exts.A1 to A10, Exts.B1 to B78 and X1 series found that finding of Land Tribunal is binding on him. Accepting that finding it was held that appellant is a tenant entitled to the protection of Kerala Land Reforms Act. Learned Munsiff also found that finding in E.A.51/1979 and Ext.B8 order in C.R.P. will not operate as res judicata as they are summary proceedings in nature. Learned mUnsiff on appreciation of evidence further found that delivery effected in the execution S.A.No.716/1994 7 petition was only a symbolic one and actual delivery was not taken. It was found that appellant continued to be in possession of the property under Ext.A1 and it was not disturbed in the E.P. A decree setting aside the order recording delivery of the property in E.P.111/1971 as well as the orders of the executing court in E.A.51/1979 and the order passed by this court in C.R.P.1431/1981 was granted. Respondents were restrained by a permanent prohibitory injunction from causing any obstruction to his peaceful enjoyment of the plaint shcedule properties. First defendant challenged the judgment before Sub Court, Tirur in A.S.108/1993. On the death of first defendant, his legal heirs were subsequently impleaded as additional appellants. Learned Sub Judge on reappreciation of evidence found that in the nature of the relief sought for in the suit question whether appellant is a cultivating tenant or not is not relevant, for a decision of the dispute involved in the suit and so trial court S.A.No.716/1994 8 should not have referred the question of tenancy to the Land Tibunal under section 125(3) of Kerala Land Reforms Act. Relying on Section 7 of Kerala Land Reforms Actit was found that the order passed by the executing court in E.A.51/1979 and Ext.B8 order passed in the Civil Revision Petition by this court would operate as res judicata on the case of the appellant as to whether first defendant decree holder had taken delivery of the property in the execution petition or not and in view of that order appellant is not entitled to contend that delivery was not taken. Learned Sub Judge also found that appellant has no case that the orders in E.A.51/1979 or C.R.P.1431/1981 was obtained by practising fraud on the court and in absence of a case of fraud the orders cannot be set aside. Learned Sub Judge also found that appellant did not establish his possession of the plaint schedule property. It was therefore held that appellant is not entitled to the decree to set aside the orders or for injunction granted by the trial S.A.No.716/1994 9 court. Setting aside the judgment of the trial court, appeal was allowed. The suit was dismissed. It is challenged in the second appeal. 5. Second appeal was admitted formulating the following substantial questions of law. 1. Can a court of law ignore the rights conferred under a special statute, on a tenant, independent of other proceedings, on the ground that suit involves various other questions also? 2. Can the principles of res judicata is applicable against a party, in respect of certain proceedings which are summary in nature and decided against him on previous proceeidngs, when no issue as such was framed and decided in the earlier S.A.No.716/1994 10 proceedings. 3. Can an appeal court dispose an appeal having issued notice to the party without completing the service or without hearing him. 4. Is the court justified legally in not taking appropriate action to undo the injustice done, just before the communication of an order of stay by the Superior Court, in the light of the law declared by the Supreme Court in AIR 1967 S.C.1386? 5. Is not the presumption of official acts liable to be rebutted by cogent appropriate evidence, either S.A.No.716/1994 11 oral or documentary, and can a court of law simply ignore the same on the ground that there is a presumption in favour of the official act? 6. Learned counsel appearing for appellant and leared senior counsel appearing for contesting respondents were heard. 7. Though substantial question No.3 was formulated on the contention of the appellant that notice on second respondent was not served by first appellate court, before disposing the appeal, records of the first appellate court show that notice on the second respondent was served by affixture and he was declared ex parte after recording service of notice. In such circumstance, though the said substantial question of law was formulated on the facts as revealed from the records, it is not involved in the appeal. 8. Learned counsel appearing for appellant vehemently argued that when the trial court found S.A.No.716/1994 12 that question of tenancy arises for consideration and referred that question to the Land Tibunal and the Land Tribunal found that appellant is a tenant entitled to the protection of the Act as provided under section 7 of Kerla Land Reforms Act, first appellate court was not justified in ignoring the findings on the basis that it is not relevant. It was aruged that in view of the finding of the Land Tribunal, appellant is entitled to be in possession of the property as a tenant and the decree granted by the trial court should not have been interfered. 9. As rightly found by the first appellate court in the nature of the pleadings and relief sought for, question whether appellant is a tenant entitled to the protection of Kerala Land Reforms Act does not arise for consideration. In that suit declaration of status of appellant as such was not sought for. Decree to set aside the orders in the execution petition and E.A.51/1979 and C.R.P was sought only on the basis that the delivery taken in the execution petition was only a symbolic delivery S.A.No.716/1994 13 and not actual delivery. Decree for injunction was also sought on that basis, alleging that he continued his possession as possession was not taken by the decree holder. Admittedly after delivery was effected in E.P.111 of 1971,appellant himself filed E.A.51 of 1979, an application before the executing court contending that delivery was not taken. Executing court after recording the evidence rejected the contention and found that it was not a symbolic delivery and actual delivery of the property was taken. Appellant challenged that finding before this court by filing a revision under section 115 of the Code of Civil Procedure. This court in C.R.P.1431 of 1981 also found that finding of the executing court that delivery was taken and it was not a symbolic delivery was correct and case of appellant that delivery of the property was not taken, cannot be accepted. When appellant did not seek a declaration his status as a tenant either, under Ext.A1 assignment deed or as a deemed tenant under section 7 of S.A.No.716/1994 14 Kerala Land Reforms Act and only sought a decree to set aside the order passed by the executing court in E.A.51/1979 as well as Ext.B8 order of this court. Confirming that order, the question of tenancy does not arise for consideration. Therefore the question whether appellant is a cultivating tenant entitled to the protection of Kerala Land Reforms Act does not arise for consideration, in the nature of the reliefs sought for in the suit and that finding of first appellate court is perfectly correct. 10. Then the question is whether appellant is entitled to contend that delivery was not taken in view of the finding of the executing court in E.A.51/1979 as well as Ext.B8 order of this court. On the date of effecting delivery itself, appellant approached the executing court contending that in view of the order of stay passed by the District Court delivery cannot be effected. But before the order of stay, Amin had already effected delivery. A report before the executing court that property S.A.No.716/1994 15 has been deliveredwas submitted by the amin . E.A.51/1979 was filed thereafter. The contention raised in E.A.51/1979 was that it was only a symbolic delivery and physical delivery was not taken. It was disputed by the decree holder. The very same power of attorney holder of appellant who filed the suit was examined before the executing court. Executing court on the evidence did not accept his case and found that possession of the property was in fact delivered. Executing court upheld the delivery. This court considered the correctness of that order in C.R.P.1431 of 1981. Under Ext.B8 order, it was found that delivery receipt evidencing delivery of the property was signed by three of the building tenants, who were admittedly occupying the building in the property delivered and they endorsed that delivery was taken. It is in such circumstance executing court found that delivery was taken. The question is whether in the light of the said finding appellant can be permitted to contend that actual delivery S.A.No.716/1994 16 was not taken and whether the orders passed by the executing court or this court can be set aside. 11. It cannot be disputed that the question which was raised in E.A.51 of 1979 and decided by the executing court and later under Ext.B8 order by this court was whether there was actual delivery of the property or was it only a symbolic delivery. After recording evidence, the question was decided against appellant. Though the trial court found that being a summary proceedings, the order passed by the executing court in E.A.51/1979 as well as Ext.B8 order passed by this court in the revision will not operate as res judicata, as rightly found by first appellate court in view of Explanation VII and VIII of Section 11 of Code of Civil Procedure all those orders will definitely operate as res judicata. Explanation VII mandates that provisions of Section 11 shall apply to a proceedings for execution of the decree. Explanation VIII provides that an issue heard and finally decided by a court of limited jurisdiction, competent to decide such S.A.No.716/1994 17 issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit in which such issue had been subsequently raised. In the light of the finding in E.A.51/1979 and Ext.B8 order, that too after granting opportunity to the appellant to adduce evidence and recording the evidence, it is not open to the appellant to challenge the said orders by filing a suit to set aside the same on the ground that proper evidence was not adduced in the earlier proceedings to prove that delivery was not taken. The question whether there was delivery of possession or it was only a symbolic delivery was directly and substantially in issue in E.A.51 of 1979 between the same parties, the findings against the appellant in the former proceedings would operate as res judicata. Hence on the facts and evidence, finding of first appellate court that property was delivered to first defendant in execution of the decree in O.S.412 of 1962 is S.A.No.716/1994 18 perfectly correct. There is no case that the orders in the execution petition or Ext.B8 order of this court was vitiated by fraud. In the absence of a case that orders were obtained by playing fraud on the court, appellant cannot seek a decree to set aside those orders by filing a suit later. First appellate court therefore rightly found that appellant is not entitled to a decree to set aside the order in E.P.111 of 1971 or E.A.51/1979 or Ext.B8 order in the C.R.P. 12. Then the only question is whether appellant is entitled to a decree for injunction sought for. Decree for injunction was sought for on the basis that appellant continued to be in possession of the property under Ext.A1 assignment of the lease hold right, obtained from the mortgagee. The mortgage was redeemed as per the decree in O.S.412 of 1962. Ext.A1 shows that the lease was granted to the assignor of the appellant, by the mortgagee while the suit for redemption and recovery of possession was pending. Evidence S.A.No.716/1994 19 establish that pursuant to the decree for redemption, first defendant decree holder had taken delivery of the property. In spite of the order in E.A.51 of 1979 which was confirmed by this court under Ext.B8, appellant did not apply under Rule 99 of Order XXI of Code of Civil Procedure complaining dispossession. He did not obtain repossession of the property after his dispossession. Appellant has no case that subsequent to the delivery which was recorded by the executing court inspite of his objection that it was only a symbolic delivery and actual delivery was not taken. Appellant has no case that he obtained possession of the property after its delivery was taken in execution of the decree. In the light of the findings in E.A.51/1979 as confirmed by this court in Ext.B8, it can only be found that appellant did not continue to be in possession of the property. As he has no case that he obtained possession of the plaint schedule property subsequent to Ext.B8 order, he is not entitled to the decree for S.A.No.716/1994 20 injunction also. The appeal is therefore dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- S.A..NO.716 /1994 --------------------- JUDGMENT 7TH FEBRUARY,2008