IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 RSA.No. 1093 of 2009() ---------------------- AS.82/2004 of SUB COURT, NEDUMANGAD OS.22/1976 of PRINCIPAL MUNSIFF COURT,NEDUMANGAD .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------------- 1. GNANAMONI ROSAMMA OF ERAYAMKOTTU KIZHAKKUMKARA MELE PUTHUVAL PUTHEN VEEDU, KONNIYOORU MURI, PERUMKULAM VILLAGE, NEDUMANGAD, TRIVANDRUM DISTRICT. 2. SARADA, W/O.ANTONY OF DO. DO. 3. SARADA THANKAMONI, D/O.ANTONY OF -DO- -DO- 4. SARADA AMBIKA, D/O.ANTONY OF -DO- -DO-. 5. SARADA SUSEELA, D/O.ANTONY OF -DO- -DO-. 6. ANTONY OF -DO- -DO-. BY ADV. SRI.S.JAMES VINCENT RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------------- NARAYANA PILLAI THANKAPPAN NAIR, HOUSE NO.30/930, ASHOK BHAVAN, MANACAUD, TRIVANDRUM, FROM KADHALOOR, MUTTATHUKUNJU VEEDU, KADAMBANATTU MURI, PERUMKULAM VILLAGE, NEDUMANGAD, TRIVANDRUM DISTRICT. ADV. SHRI S.RAJEEV - CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/10/2009, ALONG WITH CAVEAT O.P. NO. 657 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1093 of 2009 -------------------------------------- Dated this the 26th day of October, 2009. JUDGMENT Respondent appeared through counsel. 2. Regular Second Appeal is at the instance of defendants in the suit. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 3. A preliminary decree for redemption of mortgage was passed in O.S.No.22 of 1976 directing the plaintiff to deposit Rs.12,142.27 ps. by way of mortgage money and value of improvements. Plaintiff applied for passing a final decree and accordingly a final decree was passed. That was challenged in A.S.No.82 of 2004 by the defendants in the first appellate court. First appellate court confirmed judgment and preliminary decree and hence the Second Appeal raising by way of substantial questions of law whether courts below had jurisdiction to consider the issue of tenancy pleaded by the defendants and whether decision in S.A.No.298 of 1984 operated as res judicata on the plea of defendants. A further question raised is whether mortgage money deposited after the time fixed under Order 34 Rule 7(1)(c) of the Code of Civil Procedure (for short, “the Code”) is sufficient compliance. RSA 1093/2009 2 4. In the preliminary decree proceedings contesting defendants raised a plea of tenancy and alternatively kudikidappu under the Kerala Land Reforms Act (for short, “the Act”). The claim was repelled by the trial court without reference to the Land Tribunal. Alternative claim of kudikidappu was directed to be decided in execution. Contesting defendants challenged the preliminary decree in appeal (A.S.No.431 of 1979) but the finding on tenancy was not challenged. Only quantum of value of improvements awarded was challenged. Finding regarding redeemability of the mortgage was confirmed but the preliminary decree was set aside and remanded to the trial court to pass fresh preliminary decree after re-assessing value of improvements. After re-assessing the value of improvements trial court passed a fresh preliminary decree. That was challenged in A.S.No.151 of 1993 on the ground of insufficiency of value of improvements and that kudikidappu was not protected. Appeal was dismissed. That judgment and decree were challenged in this Court in S.A.No.298 of 1984. This Court held that though the decree of the trial court without referring the issue regarding tenancy to the Land Tribunal was without jurisdiction, first appellate court had the power to consider the issue of tenancy if raised before it and issue necessary orders. In the first appeal (A.S.No.431 of 1979) issue regarding tenancy was not raised and thus the decree of the trial court without jurisdiction merged in the decree of the first appellate court with jurisdiction which became final and that decree operated as res judicata against the contesting defendants. S.A.No.298 of 1984 was dismissed (The decision is reported as Gnanamoni Rosamma & others v. Thankappan Nair another RSA 1093/2009 3 [1989 (2) KLJ 212]. Judgment and decree in S.A.No.298 of 1984 also have become final. Later, trial court passed a final decree which was challenged by the defendants in .A.S. No.578 of 1991. There the contention raised was that mortgage money was not deposited within the time specified under Order 34 Rule 7(1)(c) of the Code and hence, after the prescribed time, there is no mortgagor-mortgagee relationship between the parties. Appeal was allowed against which plaintiff filed S.A.No.233 of 1993 in this Court. This Court by judgment dated 28.7.2004 found that the view of first appellate court that the application for final decree is barred by limitation is not correct and accordingly, allowed the Second Appeal. Trial court was directed to expedite the proceedings and pass final orders on the application at the earliest. It is thereafter that the final decree was passed. In the meantime, when the final decree application was pending there was again a request by the defendants to refer the issue regarding tenancy to the Land Tribunal which the trial court dismissed. That order was challenged by the defendants in this Court in W.P.(C) No.2132 of 2005. By that time final decree was passed and that was under challenge in A.S.No.82 of 2004. This Court as per judgment dated 19.01.2005 in the Writ Petition directed the first appellate court to consider question of fixity of tenure also while considering the appeal untrammelled by the observations made by the trial court in Ext.P8, order which was under challenge in the Writ Petition. In the light of that direction first appellate court in A.S.No.82 of 2004 considered the question but held that in the light of the concluded decision on the plea of tenancy as stated in the judgment in S.A.No.298 of 1984, parties are bound by it RSA 1093/2009 4 and defendants are not entitled to again raise the issue regarding tenancy. cordingly, appeal was dismissed. That is under challenge in this Second Appe l on the substantial questions urged in the memorandum of Second App l and above stated. It is contended by learned counsel for appellants/ efendants that a finding regarding tenancy without referring the matter to t e Land Tribunal as provided under Section 125(3) of the Act is void and hence t is Court can consider the issue regarding tenancy in the Second Appeal. Le rned counsel has placed reliance on the decision of the Supreme Court in Sa karanaray anan Potti v. K.Sreedevi[AIR 1998 SC 1808]. 5. The decision relied on by the learned counsel was one where the case was pending at the time the Amendment Act 35 of 1969 came into force. The preliminary decree was passed before the Amendment Act came into force. The Supreme Court observed that jurisdiction of the civil court is barred and hence the issue regarding tenancy could be re-agitated. Order of this Court was set aside and it was directed to consider the issue regarding tenancy. 6. So far as this case is concerned, there is a concluded finding in S.A.No.298 of 1984 that defendants are not entitled to raise the issue of tenancy for the reasons I have stated above. That judgment and decree have become final. Principles of res judicata would apply to the different stages of the same proceeding. Supreme Court in Sankaranarayanan Potti v. K.Sreedevi (supra) found that the finding regarding tenancy is without jurisdiction and RSA 1093/2009 5 accordingly directed this Court to consider the matter afresh. So far as judgment and decree of the first appellate court in A.S.No.431 of 1979 remained in force the question of tenancy does not arise for consideration. This position has been confirmed in S.A.No.298 of 1984 also. It is only when tenancy 'arises' for consideration that a reference to the Land Tribunal under Section 125(3) of the Act is warranted. A plea which is already concluded by the principles of res judicata cannot again 'arise' for consideration. 7. It is true that in judgment dated 19.01.2005 in W.P.(C) No.2132 of 2005 a direction was issued to the first appellate court before which A.S.No.82 of 2004 was pending to consider the claim of tenancy raised by the defendants notwithstanding the observations made by the trial court while dismissing the application for reference to the Land Tribunal. First appellate court has referred to that judgment also but held that it is bound by the judgment and decree in S.A.No.298 of 1984 which has become final. I must bear in mind, as fairly conceded by learned counsel for appellants/defendants that W.P.(C)No.2132 of 2005 was disposed of without notice to the plaintiff when the matter came up for admission. The judgment in the Writ Petition also does not make reference to the concluded finding on tenancy. If that be so, the observation in the judgment in W.P.(C) No. 2132 of 2005 cannot bind the respondent/plaintiff [See Yesoda v. Kunhambu -1991 (2) KLT 270]. Therefore, issue regarding tenancy raised by way of substantial question of law do not arise for consideration in this Second Appeal. RSA 1093/2009 6 8. Yet another question of law raised is as to the acceptability of the mortgage money deposited after the time fixed under Order 34 Rule 7(1)(c) of the Code, it is contended that at the time mortgage money was deposited there was no mortgagor-mortgagee relationship and there was also no application for extention of time for deposit. That issue was the subject matter of S.A.No.233 of 1993 referred above and the judgment and decree in A.S.No.151 of 1983 which accepted that contention were set aside. It is not disputed that judgment and decree in S.A.No.233 of 1993 also have become final. Therefore, that question also does not survive for consideration in this Second Appeal. 9. No other point arises for consideration. In the light of what I have stated above no substantial question of law do arise for consideration in this Second Appeal. Accordingly Second Appeal fails. It is dismissed in limine. THOMAS P.JOSEPH, Judge. cks