P.C. Balakrishna Menon, J.
1. The 2nd respondent in I. A. No. 432 of 1976 in E. P. No. 34 of 1976 in O. S. No. 470 of 1969 of the Munsiff's Court, Taliparamba is the appellant The suit is for recovery of possession of property covered by a renewed marupat dated 27-5-1937 executed by one Elichi alias Chemarathi in favour of the plaintiff's predecessor-in-interest. The document is a composite deed; a portion of the property 13 1/2 X 24 six feet koles in extent was demised in Kuzhakanom and the right to take the usufructs of the properly alone was given in regard to the remaining extent. The total extent of the property is said to be 36 1/2 X 58 six feet koles. The first respondent in I. A. No. 432 of 1976 is the only defendant in the suit. He is the son of the executant of the marupat, namely Elichi alias Chemarathi. The property involved in the suit in respect of which recovery was sought is only the extent excluding the portion which was admittedly demised in kuzhi-kanom. The defendant-lst respondent raised a contention that the entire property is held as per the marupat in kuzhikanom right by his mother Elichi alias Chemarathi, that be has fixity of tenure in respect also of the property sought to be recovered and he is also entitled to all the rights of a tenant under the Land Reforms Act. The marupat sued on was marked in the suit as Ext. A-2 and the prior marupat which was renewed under this document was marked as Ext. A-1. The trial court overruled all the contentions of the defendant and decreed the suit for recovery of possession on 22-6-1972. There was an appeal-- A. S. No. 201 of 1972 --by the first respondent in the District Court, Tellicherry. The appeal was dismissed confirming the decision of the trial court. There was a further appeal to this Court as S. A. No. 1215 of 1972. This Court also held that the suit property is held under an arrangement for appropriating the usufructs only of the trees in the property and therefore the plaintiff is entitled to recovery of possession. The decrees of the courts below were accordingly confirmed. Thus the decree for recovery of possession of the suit property against the first respondent in I. A. No. 432 of 1976 has become final.
2. The plaintiff as per E. P. No. 34 of 1976 applied for execution of the decree and for delivery of possession of the property. When the Amin went to deliver the property, resistance was offered by the 2nd respondent-appellant whereupon the plaintiff filed the present application I. A. No. 432 of 1976 under Order 21, Rule 97, C. P. C. for the removal of obstruction of the 2nd respondent and for delivery of the property to him. On notice issued to the 2nd respondent she filed a statement contending that since she is not a party to the decree, the decree is not binding on her, the property is held under the marupat dated 27-5-1937 executed by Elichi alias Chemmarathi, wherein it is wrongly stated that the rights created under the marupat is only a melpatton that the document evidences a kuzhikanom lense in respect of the suit property also. Elichi alias Chemmarathi had four children and on her death her tenancy rights in the property devolved on her children including the mother of the 2nd respondent by name Faidal. She is, therefore, entitled to remain in possession of the property as kuzhikanomdar in her own right as one of the legal representatives of deceased Elichi alias Chemmarathi. It may be stated that the petition I. A. No. 432 of 1976 by the decree-holder for removal of obstruction does not state that he made due enquiries in regard to the legal representatives of Elichi alias Chemmarathi and that he was satisfied that the first respondent alone was her legal heir. On the other hand, the contention in the petition is that the obstructor has no right in the property, and she is being set up by the judgment-debtor to defeat and delay the decree obtained against him as early as in 1972 and confirmed in appeal and second appeal.
3. On the plea of tenancy raised by the obstructor 2nd respondent the executing court referred the question of tenancy to the land Tribunal, Taliparamba. The Land Tribunal returned a finding dated 8-1-1977 to the effect that the obstructor 2nd respondent is a tenant entitled to fixity of tenure. This finding is based on a prior order of the same Land Tribunal in C. A. No. 1470 of 1976 which was marked by the Tribunal as Exhibit B-1 and the purchase certificate issued to the 2nd respondent was marked as Ext. B-3. The executing court, as required by Sub-section (5) of Section 125, accepted the finding of the Land Tribunal and dismissed the application for removal of obstruction holding that the obstructor is a tenant entitled to fixity of tenure under the Kerala Land Reforms Act. The decision of the executing court is dated 28-2-1977 by which time the Code of Civil Procedure Amendment Act, 104 of 1976 bad come into force. Order 21, Rule 103, C. P. C. as amended provides that an Order under Rule 98 on an application under Rule 97 of Order 21 shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. The decree-holder accordingly filed an appeal before the Sub-Court, Tellicherry.
The learned Subordinate Judge following the decision in Mohammed Sulaiman Saheb v. Mohammad Ismail Saheb, (AIR 1966 SC 792) held that the first respondent, one of the legal representatives of Elichi alias Chema-rathi, represented her estate in the suit, the decree therein is binding on all the legal representatives including the obstructor 2nd respondent and in that view of the matter the decree-holder is entitled to execute the decree even against the obstructor. On the contention raised by the obstructor 2nd respondent that she is entitled to fixity of tenure under the Land Reforms Act, the learned Subordinate Judge held that under the document sued on namely, the marupat Ext. A-2 in the suit, there is only a melpattom that is created, which does not confer any right to the land. A melpattom is only a transfer of usufructs and the transferee is not a tenant of the land. The finding of the land Tribunal was considered by the learned appellate Judge as required under Section 125 (6) of the amended Land Reforms Act. The learned Judge found that the decision in the prior C. A. No. 1470 of 1976 is not final and conclusive for the reason that it is subject to an appeal before the appellate authority and that documents are produced in appeal to show that the order of the Land Tribunal had been appealed against and a stay was also granted by the appellate authority (Land Reforms). The learned subordinate Judge at paragraph 7 of the judgment held that the real nature of the transaction has been the subject of adjudication in the suit by the trial court, the appellate court as well as the High Court and it has been found that the demise in respect of the suit property relates only to the melanubhavam right over the trees. There is no tenancy created and Elichi alias Chemarathi who executed the marupat Ext. A-3 had no right to the land in respect of the suit property. There was only a melpattom created under the document. The learned Subordinate Judge further held :--
'It may be contended that the second respondent was not a party to that suit and as such she is not bound by that finding. But it has already been found that there has been substantial representation of the estate by the impleadment of the first respondent. As such the second respondent also is bound by the decision. That being so it is not open to her to challenge the finding nor can she contend for the position that the document evidences a lease and not a melpattom. In any view of the case the document evidences only a melpattom except the portion granted by way of kuzhikanom lease.'
The learned Subordinate Judge considered the question on the merits and in para. 9 of his judgment held as follows :
'On a perusal of the relevant recitals contained in the document it has already been found that it evidences a melpattom excluding the small portion held in kuzhikanom rights. The finding of the Land Tribunal that respondents are tenants has therefore to be set aside. Respondents are found to be not tenants of the property sought to be delivered. It is made clear that they have got tenancy rights over an area of 13 1/2 x 24 six feet koles which is seen to have been excluded from the decree schedule.'
The learned Subordinate Judge accordingly reversed the decision of the executing court and ordered delivery of the property to the decree-holder in execution of the decree in O. S. No. 470 of 1969 obtained by him against the first respondent. It is against this decision of the Subordinate Judge that the decree-holder has filed this Second Appeal.
4. The main contention raised by Shri Kelu Nambiar on behalf of the appellant is that the decision of the lower appellate court that the decree is binding on the second respondent on the theory of representation of the estate by the first respondent, one of the legal representatives of deceased Elichi alias Chemarathi, is unsustainable in law. In support of this argument he relies on the decision in N. K, Mohammed Sulaiman v. N. C. Mohammad Ismail reported in AIR 1966 SC 792. The Supreme Court at paragraph 14 of its judgment held as follows :
'14. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate.'
Shri Kelu Nambiar relies also on the decision reported in Harihar Prasad Singh v. Valmiki Prasad Singh, (AIR 1975 SC 733). Referring to an earlier decision of the Supreme Court reported in AIR 1965 SC 1049 it is observed in paragraph 32 of the judgment :--
'As pointed out by this Court in (1965) 1 SCR 231 : (AIR 1965 SC 1049) the almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and the decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record.'
The decision in AIR 1966 SC 792 is also referred to in para. 33 of the judgment. On the strength of these decisions it is contend-ed that unless it is shown that the decree-holder had impleaded the first respondent, the sole defendant in the suit, as the legal representative of Elichi alias Chcmarathi after bona fide enquiry as to her legal representatives, the decree docs not bind the other legal heirs and the second respondent is not bound by the decree. In the petition I. A. No. 432 of 1976 for removal of obstruction of the 2nd respondent the petitioner alleges that the resister has no right over the property and that she is set up by the judgment-debtor 1st respondent There is no averment that any enquiry was made as to who are the legal representatives of deceased Elichi alias Chemarathi. Under these circumstances there cannot be any doubt that the decree in the suit will not bind the obstructor, the 2nd respondent. I accept this contention of Shri Kelu Nambiar as sound in law and the decree as such is not in any way binding on the second respondent.
5. But that cannot be the end of the case. The contention raised on behalf of the obstructor in para. 4 of her counter to the application for removal of resistance is that she is one of the legal representatives of deceased Etichi alias Chemarathi who was holding the property under the Marupat of 1937 which was wrongly assumed to be a melpattom by the decree-holder and suit was filed against the first respondent. According to the obstructor in effect and substance the document is a kuzhikanom lease under which Elichi alias Chemarathi had fixity of tenure as a tenant of the property and her rights devolved on her legal representatives including the obstructor who is not a party to the decree and is therefore entitled to remain in possession in her own rights. This question, of course, requires consideration in the view that I have taken that the decree is not binding on the second respondent-obstructor for the reason that it is not shown that the decree-holder, in filing the suit and impleading only the first respondent, had made bona fide enquiries as to the legal representatives of deceased Elichi alias Chemarathi.
The question of the obslructor's right to the property as a legal representative of the exetantant of the marupat of the year 1937 therefore clearly arose in these proceedings. If the decree in the suit is binding on the second respondent, obstructor, no such question would arise as held in a decision of a Full Bench of this Court reported in Kesava Bhat v. Sabraya Bhat. 1979 Ker LT 766 : (AIR 1980 Ker 40) (FB). In paragraph 13 of the judgment of the Full Bench it is held referring to the decision in George v. Chak-kunni, (1977 Ker LT 865) as follows :--
'.. ... .. Attention was called to the decision of a learned Judge of this Court in George v. Chakkunni, (1977 Ker LT 865). Our learned brother Bhaskaran J. very rightly noticed that the legislature had guardedly used the expression 'arising' instead of 'raised'. It was observed that to invoke the section it is not sufficient that a dispute regarding the right of tenancy is raised, and that the question should, on the other hand, 'arise' in the proceedings. The learned Judge was of the view that if, as a matter of fact, the plea is barred by the operation of the principles of res judicata, the Court trying to proceed has no jurisdiction to try that question over again, and in that view, the question does not really 'arise' for decision. We give our assent to this exposition of the principle by the learned Judge.'
It is therefore clear that if the decree passed in the suit is to be held as binding on the second respondent-obstructor, the question of tenancy would not have arisen for a reference to the Land Tribunal and the executing court itself would have decided the case by ordering removal of obstruction of the second respondent and delivery of the property to the decree-holder. What we find in the case, however, is that the question of tenancy pleaded by the 2nd respondent was referred to the Land Tribunal for its decision apparently, for the reason that the executing court was not inclined to take the view that the question of tenancy does not arise. The Land Tribunal returned a finding in favour of the obstructor holding that she is a tenant entitled to fixity of tenure basing its decision wholly on the order in a prior application before it, namely, C. A. No. 1470 of 1976 marked before the Land Tribunal as Exhibit B-1 and the purchase certificate Ext. B-3 issued on that basis. Even though the finding of the Land Tribunal refers to Exts. A-1 to A-6 before it as papers connected with the suit, Ext. A-7 the house tax assessment register extract and Exts. A-8 to A-11 Land Revenue receipts, on a reading of the finding of the Land Tribunal it is clear that the finding is based entirely on the decision in C. A. No. 1470 of 1976 and the purchase certificate issued in pursuance thereto. The 2nd respondent-obstructor had produced a registration copy of the marupat (Ext. A-2 in the suit) before the executing court as per I. A. No. 699 of 1976 and that court had passed an order on 24-7-1976 accepting the document in evidence.
It is also seen that the decree-holder had produced before the executing court the judgments in the suit, appeal and second appeal and also certain other documents as per his application I. A. No. 715 of 1976. This application was also ordered by the executing court on 24-7-1976 and the order is to admit these documents in evidence. No reference is seen made in the finding of the Land Tribunal to these documents admitted in evidence by the executing court. But the lower appellate court has relied on the decision in the suit, appeal and second appeal in the matter of construction of the document namely, the marupat dated 27-5-1937. It has also referred to the documents produced before it as additional evidence to show that the decision in C. A. No. 1470 of 1976 relied on by the Land Tribunal has not become final, it vis subject to appeal before the appellate authority and there had been also an order of stay passed by the appellate authority. The lower appellate court has therefore independently considered the nature of the transaction under which the property was held by the predecessor-in-title of the obstructor, and following the decision relating to the interpretation of the same document by this Court holding that it is only a document relating to the usufructs of trees without any right in the land created in favour of the predecessor-in-title of the obstructor, has ordered the removal of obstruction and delivery of the property to the decree-holder.
6. In the view that I have taken that the decree in the suit is not binding on the 2nd respondent-obstructor I would have in the ordinary course remanded the case to consider the case of tenancy and fixity of tenure claimed by her under the Land Reforms Act But in paragraph 4 of the counter-statement to the application for removal of obstruction the obstructor rests her claim entirely on the marupat executed by her predecessor-in-title Elichi alias Chemarathi and claims that the rights created under the document is a kuzhikanom and not a mere right to take the usufructs of trees. She had also produced the document as per I. A. 699 of 1976. It was this question that was considered by the lower appellate court independently of the wrong view it took that the decree binds the 2nd respondent-obstructor, and following the interpretation of the very same document by this court the lower appellant court has come to the conclusion that the marupat in respect of the suit property relates only to the usufructs of trees.
Since the claim of the obstructor to tenancy is specifically confined to this document, the only question for consideration in the application under Order 21, Rule 97, C. P. C. is as to the nature of the transaction evidenced by the document under which the predecessor-in-title of the 2nd respondent was holding the property. This document was construed by this court as per its judgment dated 30-5-1975 in S. A. No. 1215 of 1972. In para. 3 of the judgment the contention of the defendant is adverted to and the question as to the real nature of the transaction is considered as follows:--
'The principal contention raised on behalf of the appellant is that he is holding not only a Mel Anubhavam right over the trees is the suit property, but is holding the property itself on kuzhikanam. It was alternatively argued that the appellant was actually in possession of the land besides enjoying the trees and that he was therefore a tenant protected from eviction. I find it impossible to accept those contentions. Exts. A-1 and A-2 expressly draw a distinction between the kuzhikanam property on the north-east of the suit property and while conferring a kuzhikanam right in respect of the former they specifically provide that the right is respect of the suit property is only that of Mel Anubhavam. The manner in which the two sections of the property have been dealt with and the relevant recitals clearly show that there was no kuzhikanam rights granted over the suit property. They also show that the right under which the appellant is claiming is limited to the enjoyment of the trees.' Even though this decision in S. A. is not binding on the obstructor, the decision relates to the interpretation of the document on the basis of which the 2nd respondent-obstructor also claims tenancy and fixity of tenure. I see no reason to take a different view from the view expressed by this Court in the second appeal in regard to the nature of the document and the rights created thereunder. Whatever be the mistake committed by the lower appellate court in its decision on the binding nature of the decree on the second respondent-obstructor, I do not find the 2nd respondent has any case for tenancy or fixity of tenure on the basis of the document on which she places entire reliance.
7. The following questions of law are raised on admission of the second appeal. (1) whether the lower appellate court was correct in applying the doctrine of substantial representation to the facts and circumstances of the case. (2) Whether the lower appellate Court was correct in holding that the decision in O. A. No. 1470 of 1976 will not operate as res judicata and (3) Whether the pendency of an appeal against the decision in O. A. 1470 of 1976 would deprive that decision of its force of constituting res judicata or of creating an estoppel. On the first question of law raised in the second appeal my answer is, the decision of the lower appellate court is not correct in applying the doctrine of substantial representation on the facts and circumstances of the case discussed above. On questions 2 and 3 raised relating to the plea of res judicata and estoppel on account of the decision in O. A. No. 1470 of 1976 my answer is, the decision has not become final because of the pendency of an appeal against the same and the principles of res judicata and estoppel do not apply. However in view of the merits of the case decided against obstructor by the lower appellate court, and considered by me as above, I see no ground to interfere in this second appeal. The second appeal is accordingly dismissed, but in the circumstances of the case the parties are directed to suffer their costs throughout