P.C. Balakrishna Menon, J.
1. The only question in this second appeal relates to the effect of conflicting decisions on a plea of res judicata.
2. Defendants 1 and 2 are the appellants. The suit is for redemption of Ext. A2 mortgage and for recovery of possession of the plaint property 84 cents in extent.
3. The property belonged to one Vaili Easwari, On her death her minor children represented by their legal guardian executed Ext. A2 mortgage dt. 27-7-1123 to one Kurumba. There is no dispute that the equity of redemption now vests in the plaintiffs as per sale deed Ext. AI dt. 22-2-1962. There is also no dispute that the mortgage rights now vest in the 1st defendent under Ext. A3 assignment dt. 18-6-1124. The suit is resisted by defendants 1 and 2 contending that thetransaction Ext. A2 is a lease and not a mortgage. The trial Court dismissed the suit holding that Ext. A2 evidences a transaction of lease and not a mortgage. The appellate court reversed the decision of the trial court and decreed the suit. It is against this that the defendants 1 and 2 have come up in second appeal.
4. There was an earlier suit O.S. No. 275 of 1969 by the plaintiffs for redemption of the mortgage and recovery of possession of the property. That suit ended in dismissal on the finding that the suit-transaction is a lease and not a mortgage and the defendants are entitled to fixity of tenure under the Kerala Land Reforms Act. Ext. Bl is the judgment and Ext. B2 is the decree in O.S. No. 275 of 1969. It was relying on the prior decision Ex/Bl that the trial Court dismissed the present suit. The appellate court in decreeing the suit has relied on Ext. A3 order of the Land Tribunal, Nedumangad in C. A. No. 886 of 1975 wherein the Tribunal has held that the suit transaction is a redeemable mortgage and not a lease. The decision in O. S. No. 275 of 1969 does not appear to have been brought to the notice of the Land Tribunal and the Tribunal on the basis of the recitals to the document held that the transaction between the parties is only a redeemable mortgage. The lower appellate Court has rightly held that the subsequent decision of the Land Tribunal is res judicata against the contention of the defendants that the transaction is a lease and not a mortgage.
5. Learned counsel for the appellants submits that the decision of the Land Tribunal evidenced by Ext. A5 is without jurisdiction for the reason that the question relating to the nature of the transaction was already decided by a civil court and the decision in Ext. Bl judgment was res judicata between the parties. According to the learned counsel, a matter which is concluded by the decision of a Civil Court is not open to a fresh consideration by the Land Tribunal and the Tribunal had no jurisdiction to decide the question as to the nature of the transaction between the parties, It is well settled that the principle of res judicata is only a mode of estoppel to prevent a party bound by an earlier decision of a competent court from raising the same contentions in subsequent proceedings. There is no want of jurisdiction for the reason only of an earlier decision for a Court of competent jurisdiction to decide the question raised before it. If aplea of res judicata available to the parties is not raised, it is the duty of the court to decide the question properly brought up for decision by it. If a party entitled to successfully raise a plea of res judicata omits to do so, the court or the Tribunal will be left with no alternative except to decide the question raised before it. If a party without raising a plea of res judicata allows the court or tribunal to decide the question afresh, it is not open to the parties to the subsequent decision to challenge the decision in other independent proceedings as passed without jurisdiction, for the jurisdiction of the court or tribunal to decide the question will not be ousted for the reason of an earlier decision by a competent Court or Tribunal. The plea that the question raised is covered by an earlier decision of a competent court is also one which might and ought to have been taken by the party who relies on the earlier decision, and if the court decides the question without reference to the earlier decision, the plea of res judicata based on the earlier decision will itself be barred by res judicata in subsequent proceedings between the same parties or their representatives in interest.
6. A Full Bench of this Court in the decision in Govindam Gopalan v. Raman Gopalan 1978 Ker LT 313 : (AIR 1978 Ker 217) has held that the Land Tribunal is a court of special jurisdiction and its decision will be res judicata in subsequent proceedings provided that the decision was within the competence of the Tribunal.
7. Ext. A5 decision by the Land Tribunal was on an application submitted by defendants 1 and 2 under Section 72-B of the Kerala Land Reforms Act for purchase of the rights of the plaintiff on the basis that the transaction is a lease and not a mortgage. The question as to the nature of the transaction arose for decision before the Land Tribunal between the parties. The Tribunal had jurisdiction to decide the question and its decision is res judicata against the plea of defendants 1 and 2 that the transaction is a lease and not a mortgage. True there was an earlier decision of a competent Civil Court in Ext. Bl judgment between the parties that the transaction is a lease. But when there are two conflicting decisions of competent Courts it is only the later decision that will prevail and be binding on the parties to the proceedings.
8. In the decision of a Division Bench ofthis Coutt in Kungam v. Janaki 1980 Ker LT 796 it is stated at p. 801.
'When there are two conflicting decisions inter partes the last one should prevail between the parties and the first one regarded as dead see Arumukam Nadar v. Section Pakeer Pillai 1950 Ker LT 32 and Rajani Kumar Mitra v. Ajmaddin Bhuiya AIR 1929 Cal 163.'
9. Counsel for the appellants relies on the decision of the Punjab High Court in Pritam Kaur v. State of Pepsu AIR 1963 Punj 9 (FB) in support of his contention that where a question between the parties was already decided by a competent Court, a decision inter partes by another Court on the matters decided by the former court is without jurisdiction and cannot operate as res judicata in subsequent proceedings. The Punjab High Court relies on the decision in Joy Chand Lal v. Kamalaksha Chaudhury AIR 1949 PC 239 in laying down the above principle. The decision of the Privy Council however does not support the proposition laid down by the Punjab High Court.
10. It is stated in Mulla's C.P.C. Fourteenth Edition at page 164 of Vol. I as follows :
'23. Waiver of plea of res judicata. The plea of res judicata is not one which affects the jurisdiction of the Court. It is a plea in bar which a party may waive. If a party does not raise the plea of res judicata, it will be deemed to be a matter directly and substantially in issue and decided against him.'
The same principle is stated in the decision in Had Bhikaji v. Naro Vishvanath ILR (1885) 9 Bom 432.
11. For the aforesaid reasons, there cannot be any doubt that Ext. A5 decision of the Land Tribunal is binding on the parties and it is no longer open to the appellants to contend that the transaction evidenced by Ext. A2 is not a mortgage but a lease.
12. The appellants have filed C.M.P. No. 18011 of 1984 to admit a copy of the memorandum of appeal in A.A. No. 134 of 1981 of the Appellate Authority, Alleppey as additional evidence in the second appeal. Ext. A5 decision of the Land Tribunal was on 31-1-1976. The appeal appears to have been filed before the appellate authority on 15th June, 1981. In Ground No. 6 of the memorandum of second appeal filed on 19-12-1979 it is statedthat the finding of the Land tribunal is perverse and the same is being challenged in appeal. The appeal is seen filed only on 15th June 1981. The appellant has not made out any ground to admit a copy of the appeal memorandum as additional evidence. The appeal memorandum produced is not even a certified copy.
In the result, the second appeal fails and is dismissed. C.M.P. No. 18011 of 1984 to admit additional evidence is also dismissed. The parties will suffer their respective costs.