KUNJAN Vs. JANAKI

JUDGEMENT

(1.) Judgment debtor No. 2 is the revision petitioner. He challenges the order passed by the executing court holding that the decree put in execution is not a nullity and further that the decree holder is entitled to recover possession of the property from the defendants-judgment debtors. The plaintiff-1st respondent filed a suit for recovery of possession of the property on the basis of a mortgage. The first defendant was impleaded as the mortgagee and the second defendant, her husband, was impleaded as a person looking after the mortgaged property on her behalf. The suit was filed after 1-1-1970. The petitioner had contested the suit stating that he is a tenant in independent possession of the property and that he cannot be dispossessed. The Trial Court did not refer this question to the Land Tribunal. It is not clear whether there was any request for it and it was refused. The Trial Court finding that he is a tenant in independent possession, granted a decree to the plaintiff to redeem the mortgage and to take only a symbolic possession. The plaintiff filed an appeal to the Sub Court The first Appellate Court did not agree with the Munsiff on the question of tenancy and granted a decree to the plaintiff for recovery of possession. The petitioner filed a Second Appeal to this Court as S A. 214 of 1974. In this Court his one prayer was for a remand for the reason that the lower courts acted illegally in going into the question of tenancy. This plea was not accepted in the light of the decision in Alavi v. Radha Varasyaramma ( 1976 KLT 691 F.B.) wherein it had been held that the failure to comply with the provisions of S.125(3) does not affect the jurisdiction of the Trial Court to pass a decree and in any event that does not affect the power of the Appellate Court to go into the question of tenancy and enter a finding thereon. Another ground taken for challenging the decree of the lower courts was that the Land Tribunal had. in an application filed by the petitioner to purchase, taken a decision in favour of the petitioner regarding the tenancy and that has not been taken into account by the first appellate court in taking a decision. This plea was also not accepted on the ground that the Land Tribunal's decision was subsequent to the filing of the suit and therefore the Appellate Court was right in not taking this into account in deciding the appeal. On the question whether the petitioner is a tenant or not the view of the Appellate Court was affirmed. Thereafter the plaintiff-decree holder applied for execution. Then the petitioner pleaded that the decree sought to be executed is null and void and unenforceable. Secondly it was contended that the decree holder has lost her title over the property by the purchase certificate issued by the Land Tribunal in petitioner's favour pending the appeal before the Sub Court, and as it is a new right obtained by him after the suit the decisions of the Appellate and Second Appellate Courts are not a bar to his urging this contention. The executing court did not accept this plea and ordered eviction. It is against that this revision petition is filed.

(2.) The first point pressed for consideration is that the decree sought to be executed is a nullity for the reason that the trial and Appellate Courts have no jurisdiction to go into the question of tenancy and the decree ignoring the provisions of S.125(3) of the Kerala Land Reforms Act is null and void. In support of this plea reliance is placed on the larger Full Bench decision in Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 ). In the majority judgment rendered by Nambiyar C.J. at page 779 it is observed thus:

(3.) An argument was addressed that ordinary powers of an appellate court are not exercisable in an appeal where a person claims a tenancy right. It is contended that S.125 clauses (1) to (6) construed properly would make this position clear. It is argued that S.125(1) is a total bar to the civil court to settle, decide or deal with any question or to determine any matter by or under the Act required to be settled by the Land Tribunal or other authorities under the Act. No order of the Land Tribunal or other authority shall be questioned in a civil court except as provided in this Act. If any such question arises in any suit S.125(3) enjoins the civil court to refer that question to the Land Tribunal and the answer given by the Land Tribunal has to be accepted by the court in passing the decree. The finding of the Land Tribunal is to be deemed to be part of the civil court for the purpose of appeal. By this scheme it is argued, that the power of the appellate court is limited to the consideration of the correctness of the finding of the Land Tribunal and if there is no finding by the Land Tribunal the bar under sub-s.(1) will apply to the Appellate Court also. This contention is clearly unsustainable because S.125 not only does not limit the power of the appellate court, it requires the appellate court to treat the finding of the Land Tribunal as a finding of the civil court. It necessarily means that the appellate court's powers under the CPC are not taken away. This position has further been settled by this Court by two Full Bench decisions, namely, Lissy v. Kuttan ( 1976 KLT 571 ) and Alavi v. Radha Varasyaramma (1976 KLT 691). The larger Full Bench decision in Keshava Bhat v. Subraya Bhat (1979 KLT 766) also proceeds on that basis. It follows that the power of the appellate court as provided for in the CPC. is not taken away by the provisions of S.125 of the Land Reforms Act.