DEVAKI AMMA Vs. PHILIPOSE

JUDGEMENT

(1.) ADDITIONAL defendants 2 and 6 in O.S.No.36 of 1976, Munsiffs Court, Kottyam, are the revision petitioners. Additional defendants 2 to 10 were impleaded in the case as the legal representatives of the sole defendant, who was dead. In this revision the plaintiff and additional defendants 3,4,5,7,8,9 and 10 are the respondents. The suit, as originally laid, is for eviction of the original defendant and for arrears of rent. The plaintiff averred that the plaint schedule building belonged to the plaintiff and the same was rented out to the defendant for conducting a tea shop. The defendant averred that the land on which the plaint schedule building stood, was taken on ground rent by him and he constructed a building and was conducting a tea shop therein and was also residing there. Reclaimed fixity of tenure and claimed protection under S.106 of the Kerala Land Reforms Act. The trial court referred the matter to the Land Tribunal, Kottayam under S.125 of the Kerala Land Reforms Act. The Land Tribunal entered a finding in favour of the original defendant, that he is entitled to fixity of tenure under S.106 of the Act. Based on this finding of the Land Tribunal in O.A.No.18 of 1977, dated 5 -4 -1978, the trial court dismissed the suit. The plaintiff took up the matter in appeal before the District Court, Kottayam, as A.S.No. 247 of 1980. By judgment dated 11 -11 -1982, the District Court reversed the finding of the Land Tribunal. It also ordered a remit for fresh disposal of the matter after recording specific findings on other issues. In the appeal filed by the defendant before this Court against the order of remit, C.M.A. No.286 of 1982, this Court confirmed the findings of the District Court by judgment dated 18 -9 -1987. During the pendency of C.M.A.No.286 of 1982 the original defendant died. Additional defendants 2 to 10 were impleaded as legal heirs. In pursuance to the order of remit, when the matter came up before the Trial Court, the plaintiff filed an amendment application for declaration of title over plaint schedule items land 2. Item No. lis the building in question and item No.2 is the land on which item No.l building is situate. At that time additional defendants 2 to 5 filed a joint written -statement contending that the original defendant and the additional defendants are kudikidappukars as defined in the Kerala Land Reforms Act. Additional defendants 2 to 10 did not claim any independent right do hors any right, which belonged to the deceased defendant. They prayed in the trial court that the question regarding kudikidappu may be referred to the Land Tribunal under S.125 of the Kerala Land Reforms Act. The court below by order dated 8 -7 -1988, found that additional defendants 2 to 10 claimed rights only under the original defendant, that the original defendant had no case that he was a kudikidappukaran, and the only plea made by the original defendant was that he was entitled to the benefits of S.106 of the Kerala Land Reforms Act, which was found against. It was further held that if the original defendant had any right of kudikidappu.it was a matter which might and ought to have been raised as a plea by him even originally and the failure to do so is fatal and hit by the principle of res judicial. According to the court below, successive or a second reference, to Land Tribunal is incompetent. Reliance was placed on a Bench decision of this Court in Narayanan v. Kunchi Amma ParukuttyAmma (1986 KLT 1340). The legal heirs of the original defendant -additional defendants 2 and 6 - have come up in revision against the aforesaid order passed by the court below in I. A.No.1671 of 1958 dated 8 -7 -1988.

(2.) I heard counsel for the revision petitioners, Mr. T Raman Pillai, and counsel for the plaintiff, Mr. Rajasekharan Pillai. Mr. Raman Pillai highlighted two aspects. Firstly, it was argued that even in the original written -statement filed by the defendant he had advanced a plea of kudikidappu. Reference was made to paragraphs 3 and 10 of the written -statement. Secondly, it was argued that even if there was no such olea.in view of subsequent events, namely that the plaintiffs have amended the suit, a plea of kudikidappu is competent and entertainable. The court below was in error in holding that the plea of kudikidappu is barred by the principle of constructive res judicata. Counsel for the plaintiff (respondent) Mr. Rajasckharan Pillai on other hand, contended that the averments in written statement should be taken as a whole, without any emphasis on isolated words or passages, that there is only a vague and ambiguous reference as ('kudithamasathinumayi') in paragraph 3 of the written statement, that there is no plea of 'kudikidappu' in the original written statement, that the only plea taken by the defendant was that he is entitled to the benefit of S.106 of the Kerala Land Reforms Act, that there was no alternative plea that the defendant is entitled to 'kudikidappu' right and that in the absence of such a plea, the court below was justified in holding that successive references are not contemplated by S.125 of the Kerala Land Reforms Act and the plea now advanced by additional defendants 2 to 10, who do not have any independent or better right than the original defendant is patently incompetent and unsustainable.

(3.) ON hearing the rival pleas of the parties, I am of the view that the decision of the lower court does not merit interference in exercise of the powers vested in this court under S.115 of the C.P.C., since the order passed by the court below does not suffer from any jurisdictional error or illegality. I perused with care the averments contained in paragraphs 3 and 10 of the written statement. Except a vague or ambiguous reference ('kudithamasathinumayi') in paragraph 3 of the written statement, there is no plea by the defendant that he is entitled to kudikidappu right. What is more, a reading of the written -statement as a whole, will unambiguously show that what was claimed, was only the benefit under S.106 of the Kerala Land Reforms Act. I hold that there was no plea in the original written - statement that the defendant was entitled to any kudikidappu right. That apart, if, as a matter of fact, the averments are capable of taking in an alternate case, regarding kudikidappu, that should have been the subject matter of the reference to the Land Tribunal even initially. What was referred to the Land Tribunal was only regarding the benefit claimed by the defendant under S.106 of the Kerala Land Reforms Act. The defendant had no plea, then, that alternatively, and in any view, he is entitled to the right of a 'kudikidappukaran, and that matter should also be referred to the Land Tribunal. In such circumstances, where the defendant joined issue with the plaintiff, solely claiming the benefit under S.106 of the Kerala Land Reforms Act, it is too late for defendants 2 to 10 to contend that they are entitled to raise a plea regarding kudikidappu. As held by this Court in Narayanan's case (1986 KLT 1340), successive reference to the Land Tribunal under S.125 of the Act is not competent, in normal circumstances. The matter is barred by resjudicata also. I repel the plea to the contrary.