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Govindan Gopalan Vs. Raman Gopalan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1273 of 1977
Judge
Reported inAIR1978Ker217
ActsKerala Land Reforms Act, 1964 - Sections 101(3) and 125(3); Kerala Land Reforms (Amendment) Act, 1969; Code of Civil Procedure (CPC) , 1908 - Sections 11
AppellantGovindan Gopalan
RespondentRaman Gopalan
Appellant Advocate C.V. Vasudevan,; K.G. Devarajan and; C.N. Sasidharan
Respondent Advocate K.S. Rajamony and; A. Shahul Hameed, Advs.
DispositionPetition dismissed
Cases ReferredSee Bhagwan Dayal v. Reoti Devi
Excerpt:
.....of mortgage deed and matter decided by court - petitioner filed suit under section 125 (3) before land tribunal to decide question of tenancy - respondent contended that in view of earlier order no necessity to refer matter again as suit barred by res judicata - decision of land tribunal as to existence of tenancy was res judicata in subsequent suit and bar for further decision on same point by land tribunal - question of tenancy decided by land tribunal after coming into force of act of 1969 - identical issue raised in subsequent proceedings so no need for reference to land tribunal under section 125 (3) - petition dismissed. - - it is well settled that a tribunal of limited jurisdiction cannot confer on it jurisdiction by a wrong decision on a jurisdictional fact. whether a..........(3) of the kerala land reforms act requesting the court to refer the question of tenancy to the land tribunal. the revision petitioner had also filed o. a. 16 of 1974 before the land tribunal, chadayamangalam under section 72-b of the land reforms act for purchase of the landlord's right. the land tribunal allowed the petition; but the appellate authority reversed the finding. the order of the appellate authority was upheld by this court in c.r.p. no. 2471 of 1976. when i. a. 1891 of 1974 came up for hearing, the respondent contended that in view of the order in c.r.p. no. 2471 of 1976, there was no necessity to refer the matter again to the land tribunal as the said order was res judicata. the objection was upheld. the above decision is challenged in the revision petition.2. the.....
Judgment:

Janaki Amma, J.

1. The respondent filed O.P. No. 47 of 1973 before the Munsiff's Court, Kottarakkara for redemp-tion of a mortgage under Section 11 of Kerala Act 11 of 1970. The revision petitioner contended that he was a tenant in respect of the land. He filed LA. 1891 of 1974 under Section 125 (3) of the Kerala Land Reforms Act requesting the Court to refer the question of tenancy to the Land Tribunal. The revision petitioner had also filed O. A. 16 of 1974 before the Land Tribunal, Chadayamangalam under Section 72-B of the Land Reforms Act for purchase of the landlord's right. The Land Tribunal allowed the petition; but the appellate authority reversed the finding. The order of the appellate authority was upheld by this Court in C.R.P. No. 2471 of 1976. When I. A. 1891 of 1974 came up for hearing, the respondent contended that in view of the order in C.R.P. No. 2471 of 1976, there was no necessity to refer the matter again to the Land Tribunal as the said order was res judicata. The objection was upheld. The above decision is challenged in the revision petition.

2. The Division Bench of this Court which heard the revision petition wasfor upholding the order of the Munsiff as it was in conformity with the decision in Koran v. Kamala Shetty (ILR 1977 (2) Ker 1: 1977 Ker LT 358 (FB)). A Full Bench of this Court held in that case that the general principles of res judicata are applicable to decisions by Land Tribunals. The Division Bench, however, felt that some of the observations in A. S. No. 222 of 1975 supported the case of the revision petitioner (for a short note on the case see 1975 Ker LT (SN) 74). Hence the reference to the Full Bench.

3. A. S, No. 222 of 1975 arose out of a suit for recovery of possession of certain property on the basis of title. Defendants 1 to 5 claimed that they were in possession under a registered lease deed of 1957. One of the issues raised was the jurisdiction of the Civil Court to try the case in view of Section 125 (3) of Act 1 of 1964 as amended by Act 35 oi 1969. S. 125 reads:

'125. Bar of jurisdiction of civil courts-

(1) No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government:

Provided that nothing contained in this sub-section shall apply to proceedings pending in any court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969.

(2) No order of the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Govt, made under this Act shall be questioned in any civil court, except as provided in this Act.

(3) If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the rele--vant records for the decision of that question only.

(4) The Land Tribunal shall decide the question referred to it under Sub-section (3) and return the records together with its decision to the civil court.

(5) The civil court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it.

(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil court.

(7) No civil court shall have power to grant injunction in any suit or other proceeding referred to in Sub-section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that subsection has arisen, till such question is decided by the Land Tribunal, and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act,1969, or before such question has arisen, shall stand cancelled.

(8) In this section, 'civil court' shall include a Rent Control as defined in the Kerala Buildings (Lease and Rent Control) Act, 1965.'

The trial court held that Section 125 (3) relating to reference to Land Tribunal applies only to suits instituted after 1-1-1970, the date of commencement of the amended Act. The court upheld the lease set up by defendants 1 to 5. The appeal was against the above decree. It so happened that after the institution of the suit, defendants 1 to 5 filed O. A. 203 of 1970 before the Land Tribunal, Kasara-god for fixation of fair rent of the properties and also O. A. 17 of 1971 before the same Tribunal under Section 72-B of the Land Reforms Act for purchase of the right, title and interest of the landlords. The appellants filed objections. As there was an order of stay issued by this Court, the petition could be taken up only after the disposal of the suit by the Munsiff. A preliminary order was passed holding that the petitioners were cultivating tenants which was followed by a final order on 29-10-1975 declaring the purchase price. The amount was deposited in due course. A contention was raised in appeal that in view of the grant of certificate of purchase the appellants lost their right, title and interest in the property. The Division Bench followed the decision of the SupremeCourt in Ujjam Bai v. State of Uttar Pradesh (AIR 1962 SC 1621). The Bench observed:

'We are afraid that Sri Rama Shenoi's contentions have no legal force. In the first instance the jurisdiction that is exercised by the Land Tribunal to decide a question whether a person is a tenant or not when an application for purchase of landlord's rights comes before it, is the jurisdiction to decide a jurisdictional factor. If the tenancy is disputed, for the Tribunal to proceed further in the matter, it has to come to a decision whether there is tenancy or not. This jurisdiction all tribunals have and is specifically so stated in Section 101 (3) of the Act. But such a decision is not conclusive in the sense, a civil court's jurisdiction to go into the question is ousted. Whether a person is a tenant or not can still be raised in the civil court in a properly framed suit. But then the civil court will have to decide it strictly in accordance with Section 125 (3) to (6). In regard to proceedings for fixation of fair rent or purchase before a Land Tribunal, in the matter of determination of the question of tenancy which might incidentally arise therein, the Tribunal's jurisdiction is of limited nature. It is well settled that a Tribunal of limited jurisdiction cannot confer on it jurisdiction by a wrong decision on a jurisdictional fact.'

4. The Division Bench held that in spite of a decision by a Land Tribunal as to the existence or otherwise of a tenancy in proceedings for fixation of fair rent or in proceedings relating to purchase of landlord's right if the question as to the existence of tenancy again conies before the civil court, the Civil Court is still competent to decide that question; but for deciding the question the Civil Court should follow the procedure in Section 125 (3) to (6) of the Kerala Land Reforms Act. The Bench, however, held that the question did not arise in the case inasmuch as the applications before the Land Tribunal were filed pendente lite and the decision of the Land Tribunal could only be subject to the decision of the Civil Court. The case was remanded for fresh disposal after following the procedure in Section 125 (3) of the Land Reforms Act.

5. A. S. No. 222 of 1975 was decided on 10-8-1976. Even earlier, another Division Bench of this Court had occasion to consider the effect of a finding by a Land Tribunal in a subsequent civilsuit between the same parties in the case in Thomas v. Radhakumari Devi (1975 Ker LT 475) decided on 12th Dec. 1974. That was a suit filed by the plaintiffs for a declaration of the leasehold right in respect of the plaint schedule property and consequential reliefs. The tenancy right was disputed. It so happened that there was an application for fixation of fair rent before the Land Tribunal which was dismissed holding that the plaintiffs were not lessees. The decision was confirmed in appeal and also in revision by the High Court. The trial court held that in view of the above decision, the plaintiffs were precluded from claiming any right based on the tenancy. In appeal, the District Judge held that the claim of tenancy was barred by res judicata in view of the decision of the Land Tribunal. S. A. 672 of 1972 was filed against the decision. A Bench of this court overruled the contention and held that the decision of the Land Tribunal could not operate as res judicata in the absence of the necessary condition of the competency of the Tribunal to try the subsequent suit. The Division Bench held :

'It is only in respect of disputes or matters exclusively within the jurisdiction of a Tribunal that its decision would be binding on the parties in a subsequent civil proceeding and not its decision on incidental disputes or matters which arise in the course of adjudicating on the disputes and matters falling exclusively within its jurisdiction -- see Venkatarama Rao v. Venkayya, AIR 1954 Mad 788 (FB); Bhagvan Dayal v. Reoti Devi, 1962 (3) SCR 440: (AIR 1962 SC 287); Gopalakrishnan Nair v. P. Amma, 1970 Ker LT 888. No doubt under Section 101 (3) of the Kerala Land Reforms Act the Land Tribunal is competent to decide the question whether a person is a tenant or not in deciding the question of fixing fair rent of the property. But the jurisdiction of the Land Tribunal to decide the question is not an exclusive one. Whether a person is a tenant in lawful possession, or a trespasser, is essentially a question for a civil court to decide, not, in the last resort, for a tribunal of limited jurisdiction like the Land Tribunal constituted under (Kerala) Act 4 of 1961 unless there is an express or implied bar to cognizance within the meaning of Section 9 of the Civil P. C.'

It would appear that the suit and the application for fair rent in the abovecase were filed before the Kerala Land Reforms Act was amended substituting Section 125 in its present form. According to the law as interpreted prior to the amending Act of 1969, the question whether a person was a tenant was essentially for the civil court to decide (See Kumaran v. Ramachandra Iyer, (1969 Ker LT 822) and Gopala Krishnan Nair v. Land Tribunal, Chengannur (1967 Ker LT 184)) Therefore, the reasoning in Thomas v. Radhakumari Devi (1975 Ker LT 475) has no application after the amendment of 1969.

6. Other decisions by single Judges were also referred to in the course of the hearing. In S. A. No. 30 of 1974 (Ker) the suit was for declaration of plaintiff's title and recovery of possession of a building. The defendant contended that he was a kudikidappukaran and not liable to be evicted. There was a prior decision of the Land Tribunal wherein his application for purchase of kudikidappu right under Section 80-B of the Land Reforms Act was turned down by the Land Tribunal. It was contended that the above order was binding on the parties. The trial court as also the appellate court decreed the suit. The question arose as to whether the procedure prescribed under Section 125 (3) should have been followed by the trial court. The learned single Judge (Shri Bhaskaran, J.) who disposed of the second appeal set aside the decision of the courts below and remanded the case to the trial court for fresh disposal after referring the question of kudikidappu to the Land Tribunal as provided in Section 125 (3). Although the judgment made reference to the question whether the finding would amount to res judicata, there was no formal opinion expressed on the point.

7. C.R.P. No. 339 of 1974 (Ker), was in connection with a reference under the Land Acquisition Act. A question of tenancy was raised and it was contended that the matter should be referred to the Land Tribunal. But it so happened that there was a prior decision by the Civil Court wherein it was held that the person concerned was entitled to fixity of tenure as a tenant. This court held that in view of the above decision, there was no necessity to refer the question to the Land Tribunal.

8. C.R.P. No. 972 of 1976 was filed by the 2nd defendant in a suit for redemption. He claimed to be a tenant entitled to fixity of tenure, and that thequestion of tenancy should be referred to the Land Tribunal under Section 125 (3) of the Act. The plaintiff opposed the claim on the ground that there were prior proceedings before the Land Tribunal wherein it was held that the defendant was a varamdar under the mortgage and as such outside the purview of the Land Reforms Act. Ext. A1 produced in that case was an order of the Land Tribunal in O. A. 214 of 1973 rejecting the claim of the mortgagee for recovery of arrears of rent on the ground that the relationship did not amount to a tenancy. Ext. A2 was a copy of the proceedings of the Land Tribunal in O. A. 1151 of 1966 rejecting a petition for fixation of fair rent filed by the revision petitioner. That petition was also dismissed on the identical ground. When the suit came before the trial court, that court held that there was no necessity for a reference to the Land Tribunal inasmuch as the Land Tribunal had already decided the issue in the prior proceedings. The finding was challenged in the revision petition. The matter came before one of us (myself). Though reference was made to the decisions in A. S. No. 222 of 1975 and also in Thomas v. Radhakumari Devi (1975 Ker LT 475), the bar of res judicata was not put forward in this Court. The prior proceedings were between the mortgage and the person who was cultivating the land and not between the mortgagor and the mortgage. The application for fixation was prior to the amendment Act of 1969. Section 125 as it stood then was not in the present form, and the Land Tribunal had not been provided with exclusive jurisdiction to decide questions relating to existence of tenancy relationship. The subsequent proceedings before the Land Tribunal related to claim for recovery of rent by the mortgage from the alleged varamdar. The mortgagor was not bound by the order passed in the case. Hence there was no scope for any bar of res judicata. The case was remanded for compliance of the provision in Section 125 (3) to (5).

9. Reference may also be made to the decision in George v. Chakkunni (1977 Ker LT 865). The case therein was for recovery of possession of certain items of property. The defendants contended that the matter should be referred to the Land Tribunal in view of their claim of tenancy right. The plaintiff opposed the claim on the ground thatthe identical contentions had been raised by the defendants in a prior Land Acquisition case and had been rejected. In a revision petition filed against the decision of the trial court, a distinction was sought to be made between the words 'arising' and 'raised' and it was contended that the reference need be made only in case the question really arose for decision and not merely raised by a party. The case was remanded to decide the question of res judicata.

10. The question whether a prior decision of the Land Tribunal would amount to res judicata was for the first time raised and considered by this Court in the Full Bench decision in Koran v. Kamala Shetty, 1977 Ker LT 358: (AIR 1978 Ker 172) (FB). The revision petitioner filed application before the Land Tribunal for purchase of his kudikidappu under Section 80-B of the Land Reforms Act. Objection was raised against the maintainability of the petition on the ground that he had filed - application on two prior occasions before the same Tribunal for the identical relief and both of them had been dismissed. The question arose as to whether the principle of res judicata applied to the case. After a survey of the case law, the Full Bench held:

'There is thus sufficient authority to hold that the principle of finality or conclusiveness of a prior decision, or the general principle of res judicata is applicable to quasi-judicial bodies like the Land Tribunals functioning under the Kerala Land Reforms Act. On principle it appears to us that this should be so, as these tribunals are invested with the task of deciding important right and have to do so on principle of natural justice and fair play. In these circumstances, the rules of res judicata are-applicable to them.'

11. The point to be considered is how far the observation in A. S. No. 222 of 1975 already quoted would fit in with the ratio of the decision in Koran v. Kamla Shetty (1977 Ker LT 358) : (AIR 1978 Ker 172) (FB). The facts of the two cases are not identical. While in the case before the Full Bench the bar of res judicata was raised in proceedings before the Land Tribunal and the prior orders and the subsequent orders were of the Land Tribunal, in A. S. No. 222 of 1975 and in the present revision petition the bar of res judicata was raised in suits pending before civil courts. Thecommon feature is that the petitions in all the cases were filed before the Land Tribunal after the Amending Act 35 of 1969 came into force. In the case before the Full Bench, since the orders were passed by the same Tribunal, the simple question involved was whether the general principles of res judicata should be applied in matters pending before the Land Tribunal. The question in the present revision petition, as was the case in A. S. No. 222 of 1975, is whether the decision of a quasi-judicial authority like the Land Tribunal will be res judicata in a suit pending in a civil court.

12. It is now settled law that 'provisions of Section 11 of the Civil Procedure Code are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata any previous decision on a matter in controversy decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial.' (See Gulabchand v. State of Gujarat (AIR 1965 SC 1153)).

'The object of the rule of res judicata is always put upon two grounds -- the one public policy, that is, in the interest of the State that there should be an end to litigation and the other the hardship on the individual that he should be vexed twice on the same cause.' (Per Blackburn in Lockyer v. Ferryman (1877) 2 AC 519 -- See also Daryao v. State of U. P. (AIR 1961 SC 1457). The rule of res judicata in so far as suits inter se are concerned is contained in S, 11 of the Civil P. C. But even in suits decisions made by quasi-judicial tribunals can be res judicata based on general principles provided such tribunals had the jurisdiction to decide the issues involved.

'The condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application to suits alone, When a plea ofres judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction, like revenue courts, land acquisition Courts, administration Courts etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the Statute.'

(Per Mahajan J. In Raj Lakshmi Dasi v. Banamali Sen (AIR 1953 SC 33). It is now settled law that a decision of a Court of Special jurisdiction will be res judicata in a Court of general jurisdiction provided the decision was within the competence of the former Court.

13. In Union of India v. Nanak Singh (AIR 1968 SC 1370), a decision in a writ petition was held to be res judicata in a subsequently instituted suit. On the other hand, if the earlier decision is by a court or tribunal which is not competent to decide the issue involved in the subsequent suit or proceedings, the decision of the tribunal does not operate as res judicata. See Bhagwan Dayal v. Reoti Devi (AIR 1962 SC 287) and Workmen of the Cochin Lighterage Corpn. v. M/s. Paul Abrao (1974 Ker LT 61) : (1974 Lab IC 790).

'Competent jurisdiction is an essential condition of every valid res judicata, which means that, in order that a judicial decision relied upon, whether as a bar, or as the foundation of an action, may conclusively bind the parties, or (in the case of in rem decisions) the world, it must appear that the judicial tribunal pronouncing the decision had jurisdiction over the cause or matter, and over the parties, sufficient to warrant it in so doing.

A tribunal may exceed its jurisdiction either by embarking upon an inquiry outside its province, or, while confining its inquiry within the proper limits, by making an order in excess of its powers. In either case the result will be to nullify the decision as a res judicata; in the former case, by the effect of the events we have mentioned upon the declaratory part of the decision, and, in the second, by their effect upon its jussive or prohibitory provisions.'

(Res judicata -- Spencer Bower and Turner, 2nd Edition, P. 92).

14. Bearing the above principles in mind, it remains to be decided whether under the provisions of the Kerala Land Reforms Act, as amended by Act 35 of 1969, a Land Tribunal has exclusive jurisdiction to decide the question of tenancy as to make its decision res judicata in a subsequent proceeding before a Civil Court. Mention may be made to Section 101 (3) which has been referred to in A. S. 222 of 1972. Section 101(3) reads:

'Where in any proceeding before the Land Tribunal a question arises whether a person is a small holder or not or whether a person is or is not a tenant or whether the right, title and interest of the landowner and the intermediaries, if any, in respect of any holding, have or have not vested in the Government under Section 72, it shall be competent for the Land Tribunal to decide the question.'

Left to itself the provision means only that the Land Tribunal is competent to decide whether a person is a tenant or not for the purpose of the proceedings before him. It does not take away the jurisdiction of the Civil Court to decide the point. But under Section 125 (1), no Civil Court is to have jurisdiction to settle, decide or deal with any question or to determine any matter which is under the Act required to be settled, decided or dealt with or to be' determined by the Land Tribunal. Section 125(2) contains a prohibition against a decision of the Land Tribunal being questioned in a Civil Court except as provided in the Act. Section 125 (3) directs that the question as to the existence or otherwise of a tenancy should at the first instance be decided by the Land Tribunal. The above provisions clearly indicate that while dealing with the question of tenancy under the Act, the Land Tribunal is no longer deciding a jurisdictional fact but an issue which is exclusively within the competence of the tribunal. The fact that an appeal lies against the decision of the Civil Court which has merely to accept the decision of the Land Tribunal on the question referred to it does not affect the exclusive jurisdiction of the Land Tribunal to decide the question of tenancy or reduce it to a Tribunal of limited jurisdiction. The result is that the decision of the Land Tribunal as to the existence of a tenancy will be res judicata in a subsequent civil suit orproceedings and will be a bar for a further decision on the same point by the Land Tribunal or a court in a subsequent suit or proceedings. If the question of tenancy has been decided by a Land Tribunal after the coming into force of the Land Reforms Amendment Act, 35 of 1969 as provided in the Act, there need not be a reference to the Land Tribunal under Section 125 (3) of the Act if the identical issue is raised in subsequent proceedings. A. S. 222 of 1975 (1975 Ker LT (SN) 74) and S. A. 30 of 1974 (Ker) in so far as they contain observations contrary to the principles mentioned above will stand overruled.

The Civil Revision Petition is dismissed. The parties will bear their costs.


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