IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD NOVEMBER 2011 / 2ND AGRAHAYANA 1933 WP(C).No. 23121 of 2010(O) -------------------------- EA 434/09 IN EP 208/07 IN OS.688/2005 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... PETITIONER: --------------- SUJATHA, D/O.CHINNA, NALUPURAYIL, THAKAZHI MURI, ALAPPUZHA. BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): -------------------- 1. MARIAYAMMA XAVIER, THADAMPARAMBIL HOUSE, PADAHARAM MURI, THAKAZHY VILLAGE, ALAPPUZHA, PIN-688 023. 2. MARYKUTTY XAVIER, THADAMPARAMBIL HOUSE, PADAHARAM MURI, THAKAZHY VILLAGE, ALAPPUZHA, PIN-688 023. 3. MATHEW XAVIER, THADAMPARAMBIL HOUSE, PADAHARAM MURI, THAKAZHY VILLAGE, ALAPPUZHA, PIN-688 023. 4. JOY XAVIER, THADAMPARAMBIL HOUSE, PADAHARAM MURI, THAKAZHY VILLAGE, ALAPPUZHA, PIN-688 023. 5. ANIYAN XAVIER, THADAMPARAMBIL HOUSE, PADAHARAM MURI, THAKAZHY VILLAGE, ALAPPUZHA, PIN-688 023. VK WP(C).No. 23121 of 2010(O) ----------------------------------- 6. THOMAS XAVIER, THADAMPARAMBIL HOUSE, PADAHARAM MURI, THAKAZHY VILLAGE, ALAPPUZHA, PIN-688 023. BY ADVS. SRI.THOMAS XAVIER-PARTY IN PERSON SRI.SAJAN VARGHESE (AMICUS CURIAE) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 23121 of 2010(O) ------------------------------------ APPENDIX ----------- PETITIONER'S EXHIBITS ---------------------------- EXT.P1. COPY OF THE PLAINT IN OS 688/05 EXT.P2. COPY OF THE ORDER OF THE LAND TRIBUNAL, CHERTHALA IN OA 20/07 EXT.P3. COPY OF THE APPLICATION BEFORE THE LAND TRIBUNAL EXT.P4. COPY OF THE JUDGMENT IN OS 688/05 EXT.P5. COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER AS EA 235/08 EXT.P6. COPY OF THE ORER OF LEARNED MUNSIFF IN EA 235/08 EXT.P7. COPY OF THE JUDGMENT IN WPC NO.33932/2008 EXT.P8. COPY OF THE EA NO.434/2009. EXT.P9. COPY OF THE CASTE CERTIFICATE ISSUED BY THE THAHSILDAR EXT.P10 COPY OF THE ORDER IN EA NO.434/2009 DATED 10.3.2010 RESPONDENT'S EXHIBIT'S ------------------------------ EXT.R-6(A). COPY OF ORDER PASSED BY THE LAND TRIBUNAL CHAMPAKULAM IN O.A. NO.94/70 EXT.R-6(B). COPY OF DECREE PASSED BY THE MUNSIFF COURT IN O.S. NO.587/67 EXT.R-6(C). COPY OF FINAL DECREE PASSED BY THE MUNSIFF'S COURT IN O.S. NO587/67 EXT.R-6(D). COPY OF DELIVERY REPORT IN OS. 587/67 EXT.R-6(E). COPY OF ORDER DATED 15.10.03 PASSED BY THE APPELLATE AUTHORITY (LR) ALAPPUZHA IN AA 91/97 EXT.R-6(F). COPY OF ORDER DATED 5.1.2000 PASSED BY THIS HONOURABLE COURT IN CRP NO.2516/98. VK WP(C).No. 23121 of 2010(O) --------------------------------- EXT.R6-(G). COPY OF JUDGMENT IN OS NO.688/05 DATED 21.7.06 EXT.R-6(H). COPY OF DECREE IN O.S. NO.688/05 DATED 21.7.06. EXT.R-6(I). COPY OF I.A. 3309/06 IN O.S. NO.688/05 EXT.R-6(J). COPY OF OBJECTIONS FILED BY THE RESPONDENT IN I.A. 3309/06 IN O.S. NO.688/05 EXT.R-6(K). COPY OF BY ORDER DATED 20.7.07 PASSED IN I.A. 3309/06 IN O.S. NO.688/05 EXT.R-6(L). COPY OF ORDER PASSED BY THE LAND TRIBUNAL, CHERTHALA IN O.A. 20/07 EXT.R-6(M).COPY OF COMMUNICATION ISSUED BY THE LAND TRIBUNAL CHERTHALA DATED 31.12.08. / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.23121 of 2010 -------------------------------------- Dated this the 23rd day of November, 2011. JUDGMENT This petition under Article 227 of the Constitution of India is in challenge of Ext.P10, order dated 10.03.2010 on E.A.No.434 of 2009 in E.P.No.208 of 2007 in O.S.No.688 of 2005 of the court of learned Additional Munsiff, Alappuzha. 2. 1st respondent is no more and as the 6th respondent who is present in person states, respondents 2 to 6 are legal representatives of deceased 1st respondent. The 6th respondent also holds power of attorney of respondents 2 to 5. Since the 6th respondent appeared in person and the issue involves questions of law and fact, I sought the assistance of Shri Sajan Varghese, Advocate who was appointed Amicus Curia for the purpose. I have heard learned counsel for petitioner, shri Sanal Kumar and Shri Sajan Varghese. 3. Respondents sought execution of the decree in O.S.No.688 of 2005 in E.P.No.208 of 2007 for recovery of possession of the homestead occupied by petitioner and ten cents appurtenant to it. Petitioner claimed that she belongs to the Hindu Sambava Community which is recognized as a Scheduled Caste as per Presidential Notification issued under Article 340 of the Constitution, that she is entitled to kudikidappu over the homestead and land appurtenant and hence is not liable to be evicted from the said homestead and land in view of Section 3 of the Kerala Prevention of Eviction Act, 1966 (for WP(C) No.23121/2010 2 short, “the Act”). Learned Munsiff negatived the contention holding that petitioner has not obtained purchase certificate from the Land Tribunal (for short, “the Tribunal”), her application – O.A.No.60 of 2008 dated 18.06.2008 is pending before the Tribunal, there is no evidence regarding right of kudikidappu claimed by petitioner and her earlier application for the purpose was dismissed by the Tribunal. The executing court also found that there is no evidence to show that petitioner belongs to the Scheduled Caste. On the above findings objection raised by petitioner was overruled and E.A.No.434 of 2009 filed by petitioner under Sec.47 of the Code of Civil Procedure (for short, “the Code”) was dismissed. 4. Shri Sanal Kumar, learned counsel for petitioner contended that under Sec.3 of the Act there is a statutory ban on a landlord evicting a kudikidappukaran from his holding if he is a member of any Scheduled Caste or Scheduled Tribe. According to the learned counsel, the non-obstante clause in Sec.3 of the Act is sufficient to show that notwithstanding that respondents have obtained a decree for eviction in their favour, that decree cannot be executed as petitioner is a member of the Scheduled Caste and is a kudikidappukari. Learned counsel has invited my attention to Ext.P9, photocopy of certificate issued by the Tahsildar, Kuttanadu where it is certified that petitioner belongs to the Hindu Sambava Community which is recognized as Scheduled Caste (as per the Presidential Notification issued under Article 340 of the Constitution). Learned counsel also invited my attention to the previous proceedings in the WP(C) No.23121/2010 3 present suit and other litigations where according to the petitioner, the Tribunal found that the predecessor-in-interest of petitioner is a kudikidappukaran, that finding was accepted by the civil court and it has become final. On account of that finality, respondents cannot contend that petitioner is not a kudikidappukari in respect of the homestead and the land appurtenant to it. In that view of the matter, the executing court ought to have allowed the objection raised by petitioner under Sec.3 of the Act. 5. Shri Sajan Varghese, learned counsel pointed out that so far as Sec.3 of the Act is concerned, that is subject to the public policy contained under Sec.52 of the Transfer of Property Act (for short, “the TP Act”) and Sec.11 of the Code. According to the learned counsel, in the previous litigations, claim of kudikidappu raised by petitioner or her predecessor-in-interest having been negatived and that having become final, the present contention is hit by the said finding. It is contended that at any rate, claim of petitioner that she is entitled to the protection under Sec.3 of the Act ought to have been raised on the trial side in O.S.No.688 of 2005. Instead, a decree was passed exparte in the suit and the attempt of petitioner to get the exparte decree set aside having failed, petitioner cannot contend in the executing court that she is a kudikidappukari entitled to the protection of Sec.3 of the Act. Learned counsel pointed out that in such situations the rule of constructive res judicata based on 'might and ought' theory under Explanation IV to Sec.11 of the Code should apply. Learned counsel has placed reliance on the decisions in John Pillai v. WP(C) No.23121/2010 4 Pappu Kunju (1961 KLT 642), Mohamed Mytheen v. Sreedharan (1976 KLT 919), Sudheer Kumar v. Kunhiraman (2008 (1) KLT 168) and Kaipadath Property Development (P) Ltd. v. State of Kerala (2011 (1) KLT 526) to support the contention that a non-obstante clause is not intended to override any or all provisions of the same Statute or any other law. According to the learned counsel, it is only such of the provisions which directly come in conflict with Sec.3 of the Act to which the non-obstante clause provided therein would apply. 6. The litigation, though not involving petitioner or her predecessor-in- interest started in the year, 1967 with the institution of O.S.No.587 of 1967 for redemption of mortgage. That was based on a mortgage created in favour of one Kesava Pillai in the year, 1950 and the equity of redemption being purchased by one Ouseph Thoma. Respondents filed O.S.No.587 of 1967 against the said Ouseph Thoma for redemption of mortgage and obtained a decree in their favour (Ext.R6(b)) on 14.07.1970. Though Ouseph Thoma, the defendant in O.S.No.587 of 1967 filed A.S.No.63 of 1971 before learned Principal Sub Judge, Alappuzha, that appeal was dismissed. That was followed by a final decree in the suit – Ext.R6(c). Thereafter respondents filed E.P.No.33 of 1973. In that execution, property excluding the homestead and the land appurtenant to it (which is the subject matter of O.S.No.688 of 2005) was delivered to the respondents. Ext.R6(d) is the delivery report dated 25.06.1974 stating that of the total extent of 34.125 cents, excluding the homestead and the WP(C) No.23121/2010 5 land appurtenant the rest of property is delivered to the respondents. In Ext.R6 (d) it is stated that since there was dispute over the homestead and land appurtenant to it , that part of the property could not be delivered to the respondents. 7. Respondents filed O.S.No.379 of 1974 against petitioner and others for recovery of possession of the said homestead and the land appurtenant to it (which is the subject matter of O.S.No.688 of 2005) and for a decree for prohibitory injunction regarding other property. Petitioner and others claimed as legal heirs of the original kudikidappukaran that they are entitled to the protection of kudikidappu under the Kerala Land Reforms Act (for short, “the KLR Act”). That claim of petitioner and others was referred to the Tribunal for a finding under Section 125(3) of the KLR Act and the Tribunal took the reference on file as O.A.No.96 of 1975. In the meantime, petitioner and others had filed O.A.No.545 of 1972 before the Tribunal, for purchase of kudikidappu under Sec.80B of the KLR Act. It is while that application was pending before the Tribunal, that the civil court in O.S.No.379 of 1974 made reference to the Tribunal which the Tribunal took on file as O.A.No.96 of 1975. The Tribunal disposed of O.A.Nos.545 of 1972 and 96 of 1975 by a common order answering the reference in favour of petitioner and others and holding that they are kudikidappukars in the homestead in question. Learned Munsiff, accepting that finding dismissed the suit for recovery of possession of the homestead and land appurtenant but granted a decree for prohibitory injunction against taking yield WP(C) No.23121/2010 6 from the remaining property. Respondents filed A.S.No.203 of 1977 but, without success. I am told that S.A.No.42 of 1981 preferred by the respondents also met with the same result. 8. In the meantime, it would appear that from the order on O.A.No.545 of 1972 (which was tagged on with O.A.No.96 of 1975 and answered in favour of petitioner and others by the Tribunal while answering the reference), respondents filed appeal before the Appellate Authority as A.A.No.824 of 1977. The Appellate Authority allowed that appeal by way of remand. Thereafter, there was an exparte order passed by the Tribunal in O.A.No.545 of 1972 again in favour of petitioner and others. Respondents challenged that order before the Appellate Authority in A.A.No.91 of 1997. By order dated 05.10.2003, the order of the Tribunal on O.A.No.545 of 1972 was set aside and the matter was remitted to the Tribunal on the ground that all the legal heirs of deceased landlord were not made parties to O.A.No.545 of 1972. The Tribunal re-filed O.A.No.545 of 1972 as O.A.No.20 of 2007. By Ext.P2, order O.A.No.20 of 2007 was dismissed on 26.08.2007 for the reason that all the legal heirs of the deceased landlord were not impleaded in that O.A. 9. Next stage of the litigation is O.S.No.1086 of 1986 filed by the respondents against petitioner and others. That suit was for a declaration that the order of the Tribunal on O.A.No.545 of 1972 and the judgment in O.S.No.379 of 1974 are null and void, having been obtained by fraud. That suit WP(C) No.23121/2010 7 was dismissed and the appeal and Second Appeal arising there from also were dismissed. 10. Respondents then filed E.P.No.270 of 1995 in O.S.No.379 of 1974 (where decree for prohibitory injunction concerning the land other than the homestead and land appurtenant was granted in favour of respondents) under Order XXI, Rule 32 of the Code alleging violation of decree for prohibitory injunction (regarding rest of the property). Execution petition was dismissed against which respondents filed C.R.P.No.2516 of 1998. Civil revision was dismissed by Ext.R6(f), order dated 05.01.2000 observing that dismissal of the civil revision is without prejudice to the right of decree holder in E.P.No.270 of 1997 to pursue his remedies against item No.2, homestead and the land appurtenant (in respect of which the Tribunal in O.A.No.96 of 1975 found that petitioner and others are kudikidappukars). 11. Taking a clue from the observation made in Ext.R6(f), order dated 05.01.2000 in C.R.P.No.2516 of 1998, respondents filed the present suit – O.S.No.688 of 2005, for recovery of possession of the homestead and the land appurtenant thereto. It is in that proceeding that petitioner and others remained absent and an exparte decree was passed. Later, petitioner filed I.A.No.3309 of 2006 (Ext.R6(i)) to set aside the exparte decree to which respondents preferred Ext.R6(j), objection. Learned Munsiff dismissed I.A.No.3309 of 2006 by Ext.R6 (k), order. I am told that in the meantime, petitioner filed O.A.No.60 of 2008 before the Tribunal for purchase of kudikidappu under Sec.80B of the KLR Act WP(C) No.23121/2010 8 which is pending. 12. It is in the above backdrop that respondents sought execution of the exparte decree for recovery of possession in O.S.No.688 of 2005 by filing Ext.P5, E.P.No.208 of 2007 where petitioner filed E.A.No.235 of 2008 for stay of execution followed by E.A.No.434 of 2009 under Sec.47 of the Code objecting to executability of the decree in view of Sec.3 of the Act. 13. Now that the factual situation in the matter is described, question is whether petitioner is entitled to the protection of Sec.3 of the Act. Learned counsel for petitioner contended that the finding of the Tribunal in the reference (O.A.No.96 of 1975) in O.S.No.379 of 1974 having been accepted by the trial court and dismissing O.S.No.379 of 1974 followed by the dismissal of A.S.No.203 of 1977 and S.A.No.42 of 1981, finding of the Tribunal as accepted by the civil court has attained finality. That finding remains effective for all purpose whatsoever. It is contended that though an independent application – O.A.No.545 of 1972 filed by petitioner and others was dismissed as above stated, it has no value in the eye of law since O.A.No.545 of 1972 was tagged on with O.A.96 of 1975 (reference) and was allowed. Later, respondents filed appeal against the finding in O.A.No.545 of 1972 and which was remanded by the Appellate Authority to the Tribunal, Tribunal re-numbered the same as O.A.No.20 of 2007 and was later dismissed by Ext.P2, order. According to the learned counsel Ext.P2, order has no effect in the eye of law since the original decision in O.A.No.545 of 1972 became part of the finding of the Tribunal in the WP(C) No.23121/2010 9 reference proceeding – O.A.No.96 of 1975 and that finding of the Tribunal became part of the decision of the civil court. Hence the Appellate Authority had no jurisdiction to entertain an appeal against the finding in O.A.No.545 of 1972. That appeal, the order thereon and subsequent proceedings are non-est. In that view of the matter, it is contended that finding in O.A.No.96 of 1975 that petitioner and others are entitled to kudikidappu in respect of the homestead having attained finality, O.A.No.60 of 2008 can only be treated as an application filed by petitioner for issue of purchase certificate pursuant to the finding entered in O.A.No.96 of 1975 as confirmed in A.S.No.203 of 1977 and S.A.No.42 of 1981. Learned counsel therefore, contended that the finding that petitioner is a kudikidappukari stands. 14. I have referred to the contentions which learned counsel, Shri Sajan Varghese has addressed. Main thrust of the submission is concerning the observation in Ext.R6(f), order dated 05.01.2000 in C.R.P.No.2516 of 1998 and dismissal of O.A.No.20 of 2007 (re-filed from O.A.No.545 of 1972). According to the learned counsel, so far as the decree in O.S.No.688 of 2005 stands, petitioner cannot be allowed to raise a contention that she is a kudikidappukari in respect of the homestead and land upper tenant to it. 15. Before going into the question of application of Sec.3 of the Act, I have to consider the effect of A.A.No.824 of 1977, the order passed thereon and subsequent proceedings in the said proceeding. As aforesaid, O.A.No.545 of 1972 was tagged on to O.A.No.96 of 1975 and the Tribunal answered the WP(C) No.23121/2010 10 reference in favour of petitioner and others. Hence the decision in O.A.No.545 of 1972 became part of the finding on the reference – O.A.No.96 of 1975 and thereby, part of decision of the civil court. When O.A.No.545 of 1972 was tagged on to O.A.No.96 of 1975 (reference from the civil court in O.S.No.379 of 1974), the decision in O.A.No.545 of 1972 became subject to the ultimate decision of the civil court. Therefore, there was no independent existence for the finding in O.A.No.545 of 1972. 16. As aforesaid, the finding in O.A.Nos.545 of 1972 and 96 of 1975 was accepted by the learned Munsiff in O.S.No.379 of 1974. The suit for recovery of possession was dismissed based on that finding. That was confirmed by the appellate court in A.S.No.203 of 1977 and by this Court in S.A.No.42 of 1981. In otherwords, finding of the Tribunal in O.A.Nos.545 of 1972 and 96 of 1975 that petitioner and others are kudikidappukars attained finality by the dismissal of S.A.No.42 of 1981. In that view of the matter, A.A.No.824 of 1977 filed by the respondents from the finding in O.A.No.545 of 1972 was absolutely incompetent and not maintainable. If that be so, the order passed by the Appellate Authority in A.A.No.824 of 1977 and what followed thereafter in that proceeding are without jurisdiction, non est and only to be ignored. Therefore, respondents cannot take shelter under the ultimate dismissal of O.A.No.545 of 1972 re-numbered as O.A.No.20 of 2007 by Ext.P2, order dated 26.08.2007. 17. I shall refer to the observations which learned Judge of this Court WP(C) No.23121/2010 11 made in Ext.R6(f), order dated 05.01.2000 in C.R.P.No.2516 of 1998. In that order, it is seen from paragraph 2 that a contention was raised on behalf of respondents/decree holders (arising from O.S.No.379 of 1974) that there was no certificate of purchase issued by the Tribunal in favour of petitioner and others and that “the proceedings are still pending”. This Court observed: “............ If that be so the remedy of the decree holder would be to file a suit for recovery of possession of the building after the proceedings in the Land Tribunal come to an end and if the decision is in his favour. ............” Dismissal of execution petition in O.S.No.379 of 1974 was confirmed by this Court in C.R.P.No.2516 of 1998 for the reason that with respect to the land appurtenant and the homestead there was no decree for injunction granted in favour of the respondents or against petitioner and others. 18. The observation made by this Court in Ext.R6(f), order dated 05.01.2000 in C.R.P.No.2516 of 1998 can only be understood as a response to the argument advanced on behalf of the decree holder on the premise that no purchase certificate was issued in favour of petitioner and others and that proceedings are still pending. The contention raised by respondents with respect to the pendency of proceedings before the Tribunal was with reference to the proceedings that followed the order in A.A.No.824 of 1977 remanding O.A.No.545 of 1972 to the Tribunal where it was re-numbered as O.A.No.20 of 2007, dismissed by Ext.P2, order on 26.08.2007, which I said, has no legal WP(C) No.23121/2010 12 effect. Hence respondents cannot claim shelter under the observations in Ext.R6(f), order dated 05.01.2000 in C.R.P.No.2516 of 1998. 19. I stated that the finding that petitioner and others are kudikidappukars in the homestead in question has become final by the finding of the Tribunal in O.A.No.96 of 1975 tagged on with O.A.No.545 of 1972, that finding was accepted by the civil court and was confirmed by the first and second appellate courts in A.S.No.203 1977 and S.A.No.42 of 1981. That finding stands. Therefore, as earlier observed proceedings now pending before the Tribunal at the instance of petitioner and others (for purchase of kudikidappu) can only be taken as a request to the Tribunal to issue purchase certificate pursuant to the finding that has already become final. In that view of the matter the executing court was not right in observing that application for purchase of kudikidappu is still pending before the Tribunal and hence the claim of petitioner cannot be accepted. 20. On the question whether petitioner belongs to the Hindu Sambava Community which is recognized as a Scheduled Caste, Ext.P9, certificate is proved the same which I find no reason to discard. 21. Now I shall come to the question whether Sec.3 of the Act is applicable? The said provision reads: “Prevention of eviction:- Notwithstanding anything to the contrary contained in any other law or in any contract, custom or usage, or in any judgment, decree or order of court, no person shall evict or WP(C) No.23121/2010 13 attempt to evict a cultivating tenant or holder of a kudiyiruppu or kudikidappukaran from his holding, kudiyiruppu or kudikidappu if such tenant or holder is a member of any Scheduled Caste or Scheduled Tribe; Provided that nothing in this section shall apply to - (i) lands or buildings or both belonging to or vested in the Government of Kerala or the Government of any other State in India or the Government of India or a local authority or a corporation owned or controlled by the Government of Kerala or the Government of any other State in India or the Government of India. (ii) any lease of land or building or both granted by the Administrative General, Official Trustee or Official Receiver.” Going by the plain meaning of Sec.3 of the Act it appears to me that notwithstanding anything contained in the decree in favour of respondents/landlords, they are interdicted from evicting petitioner from the homestead and land appurtenant as petitioner is a kudikidappukari and is a member of the Scheduled Caste. 22. Now I shall come to the argument advanced by the learned counsel Shri Sajan Varghese. The decisions in John Pillai v. Pappu Kunju, Mohamed Mytheen v. Sreedharan, Sudheer Kumar v. Kunhiraman and Kaipadath Property Development (P) Ltd. v. WP(C) No.23121/2010 14 State of Kerala, referred supra concern applicability of non-obstante clause either to the principle under Sec.52 of the TP Act or public policy enacted by the Statute. It is held that the non-obstante clause will apply only so far as other provisions of the same Statute or any Statute are inconsistent with the object sought to be achieved by the non-obstante clause. That is the principle laid down in the decisions referred to above. True that the decision in John Pillai v. Pappu Kunju relates to agrarian reforms and, it is held that non-obstante clause in the Act referred to therein is subject to Sec.52 of the TP Act. 23. But, to apply the provisions of Sec.11 of the Code the plea must have been available to the petitioner on the trial side in O.S.No.688 of 2005. Explanation IV to Sec.11 of the Code can apply only if the plea was available but, it was not raised. So far as Sec.3 of the Act is concerned, it is clear that when the said provision says that notwithstanding anything contained in any decree or order of court, no person shall evict or attempt to evict a