SANKARANARAYANAN POTTI Vs. K. SREEDEVI

JUDGEMENT

(1.) In this revision the second defendant in O. S. 75 of 1958 challenges the order of the court below in I. A. 1307 of 1994. The suit was one for redemption of an Otti (mortgage) dt. 1-12-1944 executed by the tharwad of the plaintiffs in favour of one Parameswaran Pillai and his sons. A preliminary decree for redemption was passed on 22-1-1963. That decree was challenged in appeal. The appeal was dismissed. There was a Second Appeal in this Court as S. A. 334 of 1966 filed by the second defendant. That Second Appeal was dismissed confirming the preliminary decree for redemption passed by the Trial Court on 19-2-1969 but with a direction to allot the share of the first defendant in the suit to the second defendant. An application for the passing of a final decree was made by defendant No. 11 in the suit for redemption on 17-11-1979 as I. A. 5092 of 1979. Defendant No. 2 raised a contention that the application for the passing of the final decree was barred by limitation. The Trial Court by order dt. 7-4-1982 dismissed the application for passing of the final decree on the ground that it was barred by limitation. Defendant No. 11 filed A. S. 198 of 1982 against that decision. The appellate court by judgment dt. 10-1 -1983 allowed the appeal and held that the application for the passing of the final decree was not barred by limitation. The final decree application was remanded to the Trial Court for passing a final decree after considering the other objections raised by the second defendant. An objection that defendant No. 11 was not competent to apply for the passing of the final decree was also rejected. The second defendant filed C. M. A. 114 of 1984 before this court challenging the decision in A. S. 198 of 1982. This court by judgment dt. 19-8-1989 held that the appellate court was right in holding that the application for passing of the final decree was competent at the instance of defendant No. 11 and that it was not barred by limitation. Finding that there was no other objection to the passing of a final decree pursuant to the preliminary decree for redemption, this court confirmed the order of remand noticing that the appellate court itself has directed the Trial Court to go into the other objections raised by the second defendant.

(2.) Pursuant to this decision when the matter was again taken up in the Trial Court the second defendant wanted to file an application I. A. 1307 of 1994 praying that the question as to whether the decree holders were entitled to get a final decree passed in the suit in view of the issuance of a certificate of purchase in favour of defendant No. 2 by a Land Tribunal be decided as a preliminary issue before taking up the application for the passing of the final decree for a decision on the other questions raised therein. This application was made by the second defendant on the basis that subsequent to the affirmation of the preliminary decree by this court in S. A. 334 of 1966 on 19-2-1969, pursuant to the provisions of the Kerala Land Reforms (Amendment) Act, Act 35 of 1969 which came into force with effect from 1-1-1970, he had applied by way of O. A. 599 of 1973 on 24-12-1973 under S.72B of that Act for assignment of the right, title and interest of the decree holders over the decree schedule property on the basis that he was a tenant entitled to fixity of tenure under that Act. According to him that application was allowed on 18-7-1974 and an attempt to file an appeal against that decision did not succeed and a suit attempted to be filed challenging the certificate of purchase issued to him on the basis of that order was also not pursued and got dismissed as not pressed. Defendant No. 2 therefore contended that the said certificate of purchase issued subsequent to the preliminary decree but before the final decision in C. M. A. 114 of 1984 extinguishes the right of the mortgagors to redeem the mortgage and consequently the application for the passing of the final decree had only to be dismissed. This application was opposed contending that the certificate of purchase was issued subsequent to the preliminary decree and pending the suit and hence was not binding on the civil court and the order on it which was passed cannot prevail over the decisions in :he preliminary decree and the subsequent decision in C. M. A. 114 of 1984. The Trial Court accepted the contentions raised by the applicant for the passing of the final decree and dismissed the application made by defendant No. 2 Defendant No. 2 challenges that order in this revision.

(3.) The court below has essentially relied on the decision of this court in Parameswaran Thampi v. Podiyan Thomas ( 1984 KLT 397 ) rendered by a Division Bench on 18-2-1984 as well as the observations of another Division Bench in Bappu @ Moidunni v. Muhammed and another ( 1993 (2) KLJ 548 ) to find that the claim of the petitioner based on the order for purchase said to have been passed by the Land Tribunal subsequent to the preliminary decree for redemption and the certificate of purchase issued pursuant thereto cannot govern or conclude the decision in the suit and cannot prevent the discharge of the obligation by the court to pass a final decree for redemption in terms of the preliminary decree which has become final. Mr. T. R. Govinda Warrier appearing on behalf of defendant No. 2 has sought to question the correctness of the ratio of the decision in Parameswaran Thampi's case (1984 KLT 397). According to him a final decision by the Land Tribunal would operate as resjudicata and a plea of resjudicata would prevail over a plea of lis pendens. Further a plea of lis pendence only enables a plaintiff to contend that any transfer of the property involved in the suit by the defendant in favour of another shall not affect his rights to proceed on the basis of the decree obtained by him. It has no application in a case where the plaintiff assigns his right in favour of the defendant. When the Land Tribunal assigned the right, title and interest of the land owner in this case, what it did was to assign the right, title and interest of the plaintiffs in the suit to the second defendant and in such a situation S.52 of the Transfer of Property Act has no application at all. In the case on hand the assignment of the rights of the plaintiff in favour of the second defendant was a statutory assignment, if at all, and consequently S.52 of the Transfer of Property Act cannot have any application. A Land Tribunal constituted under the Kerala Land Reforms Act was a Tribunal of exclusive jurisdiction entrusted with the power to assign the right, title and interest of the land owner in favour of a cultivating tenant and when a Tribunal of exclusive jurisdiction has acted in terms of the Statute, the decision of the Tribunal or the action taken by it cannot be ignored by the civil court especially when the order passed by the Tribunal has attained finality and would also operate as resjudicata in a subsequent civil proceeding. In the case on hand, according to Mr. Warrier, there was considerable delay in making the application for the passing of the final decree and the Kerala Land Reforms Act had fixed a time limit within which the cultivating tenants had to apply for assignment and the second defendant had necessarily to apply to the Land Tribunal seeking the enforcement of his rights under the Act and such an action cannot be described as one without bonafidess or as an attempt to scuttle the decision making process of the civil court. He finally contended that the preliminary decree was passed prior to 1-1-1970 the date of the coming into force of the Kerala Land Reforms (Amendment) Act, Act 35 of 1969 and that under the amendment additional benefits had been conferred on tenants and defendant No. 2 would be a tenant as per the amended provisions of the Act. I must say with all deference to him, that he did not specify what were the specific provisions under which the second defendant would be entitled to the protection of any of the amended provisions of the Act.