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N. Sreedharan Vs. N. Krishnan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 154 of 1979
Judge
Reported inAIR1981Ker178
ActsKerala Land Reforms Act, 1964 - Sections 2(25); Code of Civil Procedure (CPC) - Sections 115
AppellantN. Sreedharan
RespondentN. Krishnan
Appellant Advocate N. Nandakumara Menon, Adv.
Respondent Advocate P. Sukumaran Nair and; A.K. Chinnan, Advs.
DispositionPetition allowed
Cases ReferredMohammad v. Imbichibi
Excerpt:
- - 2. the petitioner's learned counsel put forward a strong plea that the order under revision suffers from an error of jurisdiction because the finding entered by the land tribunal and accepted by the execution court was not on an appreciation of the necessary ingredientsof the explanation of which support was sought. in the circumstances of the case, better evidence was necessary more for the respondent to establish his case than for the petitioner to dis-establish the respondent's case. in my view the submission has to fail......the act. at the trial stage the question raised by the defendant was referred to the concerned land tribunal the land tribunal wrongly returned the records observing that the question of kudikidappa claimed under explanation iv to section 2 (25) of the act arose only at the time of redemption. the trial court thereafter proceeded with the suit and passed a decree as prayed for. the decree was put in execution when again the same plea was raised by the respondent, upon which the question was again referred to the land tribunal. the land tribunal returned the finding in favour of the respondent which finding was accepted by the execution court. it is this order that is challenged under revision.2. the petitioner's learned counsel put forward a strong plea that the order under revision.....
Judgment:
ORDER

V. Khalid, J.

1. The petitioner before me is the decree-holder in O. S. No. 1073 of 1974 on the file of the 2nd Additional Minsiff's Court, Trivandrum. The respondent is the judgment-debtor. The suit from which this revision arises was laid for redemption of a mortgage executed by the petitioner in favour of the respondent on 14-3-1969. This document is marked as Ext. A-1 in the suit. The petitioner himself obtained this property under a mortgage deed D/- 7-9-195 (sic). The sub-mortgage in question was' to a consideration of Rs. 2,000. The suit was resisted on the plea that the defendant was a kudikidappukaran within the meaning of Explanation IV to Sec. 2 (25) of the Kerala Land Reforms Act, 1963 (Act 35 of ]9tifl), for short, the Act. At the trial stage the question raised by the defendant was referred to the concerned Land Tribunal The Land Tribunal wrongly returned the records observing that the question of kudikidappa claimed under Explanation IV to Section 2 (25) of the Act arose only at the time of redemption. The trial Court thereafter proceeded with the suit and passed a decree as prayed for. The decree was put in execution when again the same plea was raised by the respondent, upon which the question was again referred to the Land Tribunal. The Land Tribunal returned the finding in favour of the respondent which finding was accepted by the execution Court. It is this order that is challenged under revision.

2. The petitioner's learned counsel put forward a strong plea that the order under revision suffers from an error of jurisdiction because the finding entered by the Land Tribunal and accepted by the execution Court was not on an appreciation of the necessary ingredientsof the Explanation of which support was sought. In other words, the plea of the respondent did not satisfy the requirements of the Explanation nor of Section 2(25).

3. The learned counsel for the respondent while disputing this statement also raided a plea that the revision itself was not maintainable because the Court below had not committed any error of jurisdiction, that it had only accepted the finding returned by the Land Tribunal and that the finding by the Land Tribunal cannot be made the subject-matter of a revision.

4. The property which is the subject-matter of the dispute is described as follows;(Vernacular text omitted.--Ed.) The Tribunal relied upon Exts. P-2 to p-4 to hold that the schedule building was a hut as denned under the Act. The relevant discussion is as follows:

'Exhibit P-1 would show that the applicant's annual income is only Rs. 1,800. Exts. P-2 to P-4 would show that the schedule building is a hut as defined in the K. L. R. Act.'

This discussion is absolutely unsatisfactory. It is the respondent who claims the benefit of the Explanation. It is for him to satisfactorily establish how he comes within the benefit of the Explanation. The Tribunal has not discussed the evidence before it in any detail before finding that the building in question is a hut, Before applying Explanation IV to Section 2 (25), the Tribunal will have to consider the various ingredients, which would make a building a hut. Explanation IV refers to a homestead being used for a residence. Unless the finding is supported by a proper appreciation of the various items of evidence, it cannot be said that there is a proper exercise of jurisdiction by the Tribunal in arriving at the finding that the building concerned is a hut. The petitioner's counsel made a submission before me that the request by his counterpart before the Tribunal to permit him to adduce evidence was not granted. Ground No. 14 of the revision memorandum reads as follows:

'14. The Land Tribunal ought to have allowed the petition filed by the petitioner seeking permission to adduce evidence.'

The respondent's counsel complains that in the copy of the revision memorandum served on him, this ground is absent. The statement is correct. I find ground No. 14 has been inserted in the revision memo-randum and the original ground No. 14 has been changed into 15. The petitioner's counsel submits that he could not serve a correct copy on the other side by oversight. I accept this explanation. If this submission is correct, the Land Tribunal has without justifiable reason declined the request of the petitioner to permit him to adduce evidence. In the circumstances of the case, better evidence was necessary more for the respondent to establish his case than for the petitioner to dis-establish the respondent's case.

5. From Ext. A-1 the petitioner's counsel read out to me relevant portion to show that the dispute relates to two shop rooms and the adjoining rooms. From this description, he built up an argument based on the principle enunciated by the Full Bench in Muhammad v. Imbichibi (1974 Ker LT 738): (AIR 1974 Ker 32) (FB) that a portion of such a building will not come within the benefit of Section 2(25) or the Explanation. I do not propose to consider this aspect in view of the order of remand that I propose to make. The Court below and the Land Tribunal will get an opportunity to examine this contention in detail.

6. The question then remains whether a revision lies against the order of the execution Court which only accepts the finding returned by the Land Tribunal, for the reason that in such a case the court does not commit any error of jurisdiction. Under Sec. 125 (3) it is obligatory on the part of a Court before which a case of tenancy or a kudikidappu is raised to refer such a question to the concerned Land Tribunal. Under Section 125(4) the Land Tribunal has to decide the question referred to it and return the records together with its decision to the Civil Court. Under Section 125(5) the Civil Court has then to proceed to decide the suit or other proceedings before it accepting the findings of the Land Tribunal on the question referred to it. Section 125 (6) reads:

'The decision of the Land Tribunal on the question referred to it for the purpose of appeal be deemed to be part of the finding of the Court.'

The submission made against the exercise of jurisdiction under Section 115, C.P.C. is that the execution Court, in this case, having accepted the finding of the Land Tribunal which it was bound to do, cannot be said to have committed any error of law or of jurisdiction. The Courtis asked to revise the order of the court below. This Court cannot while doing so, consider the correctness of the finding of the Land Tribunal. In my view the submission has to fail. When a Civil Court accepts the finding returned to it by the Land Tribunal and passes a final order either in the suit or in the proceedings pending before it, the finding thereafter becomes part of its decision. Sub-section (6) extracted above makes the position abundantly clear. That being so, when this Court examines the order under revision which contains a finding of the Land Tribunal also, it is open to this Court to consider the jurisdictional error committed by the Tribunal if any in arriving at its finding and if this Court finds any such error of jurisdiction, jurisdiction under Section 115, C.P.C. has necessarily to be exercised.

7. In support of this contention, the petitioner's counsel referred me to a Division Bench ruling of this Court reported in Mohammed v. Musthaffa, (1978 Ker LT 168). There a party aggrieved by the finding of the Land Tribunal moved this Court by a petition under Article 226. A learned Judge of this Court interfered with the finding and allowed the Original Petition. In Writ Appeal, a Division Bench set aside the judgment of the learned single Judge accepting the principle laid down earlier in O. P. 4558 of 1974 that no writ petition would lie at that stage since the decision of the Land Tribunal would form part of the findings of the Munsiffs Court in the judgment in the original suit which could itself be subjected to appeal and Second Appeal. With respect, the principle enunciated here applies to the case on hand.

8. There is one more submission made against the acceptance of the above principle. Under the amended section of the Civil Procedure Code, an order in execution can be subjected to only a revision before this Court and the provisions which enabled the parties to file appeals against orders in execution have been taken away by amendment dated 1-2-1977. Section 125(6) quoted above mentions that the decision of the Land Tribunal on the question referred to it shall for the purpose of appeal be deemed to be part of the finding of the Civil Court. It is not stated in the section that such decision will form part of the finding of the Civil Court for the purpose of revision also. It is useful to note that Section 125 (6) found a place in the statute book in 1970 while the provision enabling a party to file appeals against the orders in execution was removed by the amendment of the C.P.C. only in 1-2-1977. Perhaps this explains the omission of the words 'for revision' in Sec. 125(6). However, according to me it can admit of no doubt that the decision of the Land Tribunal forms part of the finding of the Civil Court, not only for purpose of appeal but also for purpose of revision and that this Court can in appropriate cases interfere with the finding of the Land Tribunal when orders accepting the findings of the Land Tribunal come before it in revision.

9. The finding of the Court below that the sub-mortgages cannot claim the benefit of Explanation IV is confirmed and cannot be re-opened.

In the result, I set aside the order of the Court below, remit the case back to it with a direction to refer the question raised before it as to Kudikidappu to the concerned Land Tribunal for fresh consideration in the light of Explanation IV of Section 2 (25) and the principle enunciated in Mohammad v. Imbichibi, 1974 Ker LT 738 : (AIR 1974 Ker 32) (FB).

The parties will be at liberty to file additional pleadings and adduce evidence in support of their respective case. I make it clear that nothing said in this order will in any way fetter either the Land Tribunal or the Civil Court in disposing of the plea based on Explanation IV independently on merits.


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