IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 SA.No. 140 of 2000(G) --------------------- AS.204/1994 of SUB COURT, NEYYATTINKARA OS.388/1985 of PRL.MUNSIFF'S COURT, NEYYATTINKARA .................... APPELLANTS: ------------------- 1. RETNASWAMY VIDYADHARAN, MARAKKAMUTTATHU VEEDU, VAZHUTHOOR DESOM, NEYYATTINKARA VILLAGE. * DIED LRS IMPLEADED 2. R.BABY SAROJAM SHOWN IN THE DECREE AND JUDGMENT AS AMMALU BABY SAROJAM OF -DO- -DO- 3. RETNASWAMY KRISHNAN, -DO- -DO- 4. KUNJAN SURENDRAN, -DO- -DO- 5. KUNJAN VISWESWARAN -DO- -DO- 6. K.AJITHKUMAR SHOWN IN THE DECREE AND JUDGMENT AS KUNJAN AJITHAN, -DO- -DO- 7. KARUNAKARAN VINOD SEN -DO- -DO- 8. KARUNAKARAN SANEL SEN, MINOR, -DO- -DO- (ADDITIONAL APPELLANT No.9 IMPLEADED) ADDL.APPELLANT NO.9 R.FANCY PHILOMINA, MARAKKAMUTTATHU VEEDU, VAZHUTHOOR DESOM, NEYYATTINKARA VILLAGE. ADDITIONAL APPELLANT NO.9 IS IMPLEADED AS THE LEGAL REPRESENTATIVE OF DECEASED 1ST APPELLANT AS PER ORDER DATED 10/6/05 IN I.A.No.1011/05. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.K.S.SREEKUMAR SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP SA.No. 140 of 2000(G) 2 RESPONDENTS: --------------------- 1. JAMES YOHANNAN, MARAKKAMUTTATHU LILLY SADANAM, VAZHUTHOOR DESOM, NEYYATTINKARA VILLAGE. 2. ENOSE JAPARAJ, MARAKKAMUTTATHU LILLY SADANAM, VAZHUTHOOR DESOM, NEYYATTINKARA VILLAGE HAVING ALSO ILIPPAVILA VEEDU, KUNNAPUZHA, ARAMADA VILLAGE, TRIVANDRUM. 3. JESLET LILLY BAI WIFE OF ENOSE JAPARAJ, RESIDING AT -DO- -DO- ADV. SRI.S.JAMES VINCENT FOR R1 SRI.R.GOPAN FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.140 of 2000 --------------------------------------- Dated this 22nd day of December, 2009 JUDGMENT The second appeal arises from judgment and decree of learned Sub Judge, Neyyattinkara in A.S.No.204 of 1994 confirming judgment and decree of learned Principal Munsiff, Neyyattinkara in O.S.No.388 of 1985. That was a suit filed by the appellants with prayer to set aside Ext.A5, order of Land Tribunal in S.M.P. No.713 of 1971 and to redeem the usufructuary mortgage in respect of plaint A schedule property. Trial court found that Ext.A5 operate as res judicata against the claim of appellants and non suited them. That was confirmed by the first appellate court and hence the second appeal. After hearing both sides the following substantial questions of law are framed for a decision. (i) Is the finding that Ext.A5, order of assignment passed by the Land Tribunal operates as res judicata legally correct? (ii) At law, is not Ext.A5, order void and liable to be ignored as not affecting the title of the appellants to redeem and recover the property?' Learned counsel for appellants would contend that Ext.A5, order of the Land Tribunal is void for two reasons. Firstly, the rule of res judicata under section 11 of the Code of Civil Procedure (for short, “the Code”) S.A.No.140 of 2000 2 cannot apply in so far as the proceeding of Land Tribunal was in 1969, prior to the amendment of section 11 of the Code of Civil Procedure (for short, “the Code”) in the year, 1976 and hence the Land Tribunal which is a court of limited jurisdiction could not have decided the issue involved in the subsequent suit. Hence finding of the Land Tribunal cannot operate as resjudicata in the subsequent suit. Secondly, at any rate in respect of the 20 cents covered by Ext.A2 the rule of resjudicata will not apply since appellant Nos.1 and 3 were not represented before the Land Tribunal. Learned counsel for respondents would resist the contentions and say that even the decision of a court of limited jurisdiction would operate as resjudicata in subsequent proceeding even before the amendment of 1976 since apart from provisions of section 11 of the Code, general principles of resjudicata would apply to decisions of competent courts and Tribunals. It is also contended by learned counsel that appellants were properly and effectively represented by their mother before the Land Tribunal and hence at this distant point of time it is not open to the appellants to contend otherwise. 2. The short facts necessary for consideration of the questions framed above are: Ammalu Nadathi, mother of appellants assigned 20 cents which forms part of the property described in the plaint A schedule to appellant Nos.1 and 3 as per Ext.A2, sale deed dated 09-01-1951. Later, in S.A.No.140 of 2000 3 respect of the entire 1.86 acres and ½ cents referred to in the plaint A schedule which takes in the said 20 cents also (when appellant Nos.1 and 3 were minors) Ammalu Nadathi created a usufructuary mortgage in favour of Kalyani and others as per Ext.A1, a registered mortgage deed dated 17-03-1951. In that transaction plaint B schedule property was offered as security. Appellants now want to redeem the mortgage over plaint A schedule, 1.86 acres and ½ cents. They say that respondents have obtained purchase certificate from the Land Tribunal in S.M.P.No.713 of 1971 as per order dated 17-04-1973. But respondent No.1 is not a cultivating tenant, Ext.A1 is only a security for the amount borrowed and hence order of Land Tribunal is void and not binding on the appellants. The Land Tribunal was on a wrong assumption of law that Ext.A1 created tenancy right in favour of respondents. Hence the suit. Respondents contended that Ammalu Nadathi had as per Ext.A1, entrusted the entire 1.86 acre and ½ cents in favour of respondent No.1 and in S.M.P.No.713 of 1971, Ammalu Nadathi was impleaded as a respondent. She represented the appellants. Land Tribunal found that respondent No.1 is a cultivating tenant of the property and allowed him to purchase landlords' rights. Respondent No.1 has later transferred his right to defendant Nos.2 and 3 as per settlement deed dated 16-08-1977. Respondents maintained that the order of Land Tribunal is valid and binding on all concerned. It operated as resjudicata on the present claim. No mortgage now exists S.A.No.140 of 2000 4 to be redeemed by the appellants. 3. The Land Tribunal as per Ext.A5, order held that Ext.A1 conferred tenancy right on respondent No.1 and that respondent No.1 is a cultivating tenant. In Velayudhan Vivekandan Vs. Ayyappan Sadasivan (1975 KLT 1) this court held that every mortgage cannot be construed as creating right of tenancy. Learned Munsiff found that Ext.A5, order dated 14-07-1977 of the Land Tribunal in S.M.P.No.713 of 1971 would operate as resjudicata. That view has been confirmed by the first appellate court. On the question whether in the light of the decision in Velayudhan Vivekandan Vs. Ayyappan Sadasivan (supra) appellants could re-agitate the issue which is otherwise concluded as per Ext.A5, settled position of law is that the earlier decision would continue to operate as resjudicata even if the view of law has subsequently changed. (See Sumathi Vs. Dakshayani (1975 (1) KLT 141)). In Velayudhan Vivekandan Vs. Ayyappan Sadasivan (supra) what is held is only that question whether the deed of mortgage would actually create tenancy right would depend on the facts and circumstances of the case. It is the settled position of law that even an erroneous decision on a point (not being a pure question of law alone) would operate as resjudicata in subsequent proceedings if other requirements of the provision are satisfied. Therefore, merely for the reason of the subsequent decision of this court in Velayudhan Vivekandan Vs. Ayyappan Sadasivan S.A.No.140 of 2000 5 (supra) appellants cannot say that the decision of the Land Tribunal as per Ext.A5 is not valid and therefore the rule of resjudicata would not apply and the issue has to be re-agitated. 4. Then the next question is whether contention of learned Senior Advocate for appellants that in so far as decision of Land Tribunal (Ext.A5) was rendered before amendment Act of 1976 as per which explanation viii of section 11 was incorporated and came into force the decision of the Land Tribunal would not operate as resjudicata can be accepted. The argument is that Land Tribunal decided the issue in S.M.P.No.713 of 1971 at a time when explanation viii of section 11 of the Code was not in the statute book, the Land Tribunal at that time was not competent to decide in the present case and hence decision of the Land Tribunal cannot operate as resjudicata. That contention, I am afraid cannot be accepted even though explanation viii of section 11 of the Code was brought in only by Amendment Act of 1976. It is settled position of law that general principles of resjudicata would apply even apart from section 11 of the Code. It has been so held in Govindan Gopalan Vs. Raman Gopalan (1978 KLT 315) and Devaki Amma & Ors. Vs. Kunhiraman Nair (1980 KLT 690). It is not disputed that the Land Tribunal at the relevant time, was competent to decide whether the transaction evidenced by Ext.A1 was a mortgage or lease. That has been answered by the Land Tribunal in favour of respondent No.1 S.A.No.140 of 2000 6 which in my view would operate as resjudicata notwithstanding that explanation viii of section 11 was brought only by the 1976 amendment. Hence that contention of learned Senior Advocate is not tenable. 5. Lastly it is argued that so far as the 20 cents assigned to appellant Nos.1 and 3 as per Ext.A2 is concerned, Ext.A5 order will not operate as resjudicata since appellant Nos.1 and 3 were not given notice of the proceeding in S.M.P.No.713 of 1971. Learned Senior Advocate argues that rule of resjudicata would apply only to parties to the proceeding or persons claiming under them. Even if it is assumed that appellant Nos.1 and 3 were aware of the proceeding of the Land Tribunal, mere knowledge of the proceeding is not sufficient to attract the rule of resjudicata. In response it is contended by learned counsel for respondents that there is evidence to show that appellant Nos.1 and 3 were represented before the Land Tribunal and that too, effectively by their mother, Ammalu Nadathi. 6. It is not disputed that at the time Land Tribunal passed Ext.A5, order appellant No.1 and 3 were not minors. It is also not disputed that the purchase certificate is not conclusive against persons who are entitled to individual notice but to whom such notice has not been given. There is no evidence to show that individual notices were served on appellant Nos.1 and 3 and no attempt was made to show that individual notices were served on them. So far as appellant No.1 S.A.No.140 of 2000 7 is concerned respondents rely on Exts.B1 and X1 and the evidence of DW1. Ext.B1 is the c.c of order dated 25-01-1974 of the Land Tribunal on an application for issue of cheque preferred by Ammalu Nadathi, respondent in the Land Tribunal proceedings. After the landlords' rights were assigned to respondent No.1 in that proceeding, compensation payable to the landlord was deposited in the Land Tribunal. To receive that amount Ammalu Nadathi filed application which stated that cheque for the amount may be issued to appellant No.1, her son. Ext.B1 contains the submission from the office of the Land Tribunal that cheque may be issued to appellant No.1. Accordingly the Land Tribunal ordered that cheque be drawn in favour of Ammalu Nadathi and disbursed to appellant No.1. The endorsement on Ext.B1 shows that cheque was received by the advocate for respondent (in the Land Tribunal proceeding). That advocate has given evidence as DW1. He stated that he was appearing for Ammalu Nadathi in the Land Tribunal proceeding, pursuant to Ext.B1 order, he collected the cheque which represented compensation payable to the landlords and that cheque was given to Ammalu Nadathi who in turn issued Ext.X1, receipt which is attested by appellant No.1 as a witness. It is not as if appellant No.1 merely had knowledge about the pendency of proceeding in the Land Tribunal and he being represented by his mother, Ammalu Nadathi in that proceeding but, he was a party in receiving cheque for compensation payable to the landlords including S.A.No.140 of 2000 8 himself and though that cheque was drawn in the name of Ammalu Nadathi, it was delivered to him as seen from Ext.B1. Therefore, I am persuaded to think that it is not mere knowledge of the proceeding that appellant No.1 had but, a case of his acknowledging and ratifying conduct of his mother, Ammalu Nadathi representing him in the Land Tribunal proceeding. A written authority for such representation is not indispensable. In otherwords, it is with authority that Ammalu Nadathi represented appellant No.1 in Land Tribunal proceeding. Thus appellant No.1 had notice of the Land Tribunal proceeding and he was effectively represented by his mother. He has acquiesced in and ratified that conduct of his mother. I must also bear in mind that Ext.A5, order was passed on 17-04-1973 and the present suit is instituted only in the year 1985. Hence he cannot turn around and say that he had no notice and was not represented in the Land Tribunal proceedings. 7. Then the question is whether appellant No.3 is bound by the order of the Land Tribunal. Unlike in the case of appellant No.1, there is nothing on record to show that appellant No.3 had notice of the Land Tribunal proceeding or accepted by his conduct act of Ammalu Nadathi representing him in the Land Tribunal. The mere inaction for twelve years by itself is not sufficient to hold that appellant No.3 had notice about the Land Tribunal proceedings or he accepted the conduct of Ammalu Nadathi representing him in the said S.A.No.140 of 2000 9 proceeding. I must also bear in mind that since purchase certificate is issued without notice to appellant No.3 and he was not properly represented by an agent, purchase certificate is not binding on him to the extend it concerned his share in the suit property. He has sought redemption of mortgage before period of redemption has expired. The period of limitation for redemption of the 'mortgage' (allegedly as per Ext.A1) expired only in the year 1993 while appellant No.3 has brought the suit in the year 1985. Hence finding of the courts below that purchase certificate is binding on appellant No.3 cannot be sustained. To that extent judgment and decree of the courts below are liable to be set aside. That however does not mean that appellant No.3 is entitled to redeem the mortgage in respect of the half share to which he is entitled as per Ext.A2. Again the question whether respondent No.1 was a cultivating tenant in respect of the share of appellant No.3 is required to be decided in the manner provided. Since that matter has not been decided, in view of my finding that the purchase certificate is not binding on appellant No.3, the case has to go back to the court of learned Munsiff for decision of the question whether respondent No.1 is a cultivating tenant in respect of the half share of appellant No.3 in the 20 cents covered by Ext.A2. The substantial question of law framed is answered accordingly. Resultantly the second appeal is allowed in part to the following extent: S.A.No.140 of 2000 10 (i) Judgment and decree of the courts below to the extent it concerned the half share of appellant No.3 in the 20 cents referred to in Ext.A2 are set aside. (ii) O.S.No.388 of 1985 is remitted to the trial court for fresh decision in respect of the said half share of appellant No.3 in the 20 cents referred to in Ext.A2. If Respondent No.1 has raised a plea of tenancy in respect of that half share, learned Munsiff has to enter into appropriate decision on that point as provided under law, if necessary by referring that matter to the Land Tribunal for decision. Based on the finding on that question, learned Munsiff has to decide whether appellant No.3 is entitled to redeem the mortgage in respect of his half share in the 20 cents referred to in Ext.A2. (iii) In other respects the second appeal will stand dismissed. (iv) Appellant No.3 and the respondents shall appear in the trial court on 24-02-2010. Registry shall send the records of case to the trial court immediately. THOMAS P JOSEPH, JUDGE Sbna/