ALEY ANTONY Vs. OUSEPH CHACKO

JUDGEMENT

(1.) THIS proceeding under Section 103 of the Kerala Land reforms Act (for short the Act) impugns the order of the Appellate Authority (Land Reforms) Thrissur setting aside an order passed by the Land Tribunal, pala allowing an application under Section 80b of the Act filed by one Ouseph antony, Revision Petitioners are the legal heirs of Ouseph Antony, I may summarise the facts as follows;

(2.) THE alleged kudikidappukaran filed the O. A. before the land Tribunal, Pala arraying Sri. Ouseph Chacko, the 1st respondent herein, as the land owner. THE respondent resisted the application on various grounds. THE land Tribunal enquired into the application in detail and ultimately by order dated 17. 10. 1987 dismissed the O. A. holding that it is barred by res judicata in view of the decision in an earlier O. A. O. A. 10 of 1978 on the files of the changanassery Land Tribunal. Aggrieved by this order, the applicant preferred an appeal, L. R. A. S. No. 160 of 1987 before the Appellate Authority (Land reforms ). That Authority by its order dated 17. 2. 1992 remanded the case back to the Tribunal for a fresh decision after adducal of fresh evidence. After remand, neither of the parties adduced fresh evidence. After hearing parties, the Land Tribunal found that the building which is the subject-matter of the application is a hut for the purpose of Section 2 (25) of the Act and further that the original applicant was a kudikidappukaran. Accordingly the Land tribunal allowed the application and directed allotment of 10 cents around the homestead towards the kudikidappu rights. As against the plea of res judicata in the context of the order in O. A. No. 10 of 1978 Changanassery Land Tribunal, the Land Tribunal observed that he has not pressed this point.

(3.) MR. Das, learned counsel for the revision petitioners would argue that this was a case where there was irrefutable evidence to hold that the predecessor-in-interest of his clients, the original applicant was a kudikidappukaran. According to him, the building in question is a hut, the cost of construction being less than Rs. 200/- and it could fetch practically no rent. The applicant was residing therein for about 60 years and he did not have any other building or land suitable for erecting a homestead. According to him, the Appellate Authority had not disturbed these factual findings at all. As regards the points of res judicata, the only ground upon which the Appellate authority set aside the order of the Land Tribunal was not sustainable in the present case, since according to MR. Das, in L. R. A. S. 160 of 1987, the Appellate authority (Land Reforms) had set aside the finding regarding res judicata entered by the Land Tribunal in its previous order and remanded the case back to the Land Tribunal for a disposal on merits. He would argue that the order of remand has become final and therefore the land owner is not entitled to raise the plea of res judicata over again. In short, his argument is that the very plea of res judicata is barred by the principles of res judicata or principles of estoppel. He also argued that when the case came up before the Land Tribunal after remand, the landowner did not press the point of res judicata raised earlier and this is explicit from the order passed by the Land Tribunal after remand. Coming to the merits of the plea of res judicata, MR. Chandramohan Das submitted that O. A. No. 10 of 1978 was filed before the Changanassary Land tribunal which did not have jurisdiction and that the dismissal of the said o. A. was on a finding that the Tribunal did not have jurisdiction. According to him, an order passed by a court or tribunal which did not have jurisdiction over the subject-matter was a nullity and was liable to be ignored. He cited the decision of S. Padmanabhan J. in Bharathi Amma v. Kumaran Peethambaran (AIR 1990 Kerala 88 ). In the said decision the learned Judge would observe inter alia as follows:- An error of law or fact committed by a judicial or quasi judicial body cannot be impeached otherwise than in appeal, etc. , unless it relates to a matter of jurisdiction. When the decision is a nullity for want of inherent jurisdiction, no question of res judicata will arise. Summing up his arguments MR. Das made a fervent appeal not to throw out a meritorious cause on what he describes as a technical plea.