CHANDRASEKHARAN NAIR Vs. LAKSHMI AMMA DEVAKI AMMA

JUDGEMENT

(1.) We are of the opinion that there can be no question of res judicata by reason of the prior orders noticed by the learned Judge. The order in C.M.P. 540, dated 2nd June 1956 was with respect to the question as to whether the exception under S.3C of the Travancore Cochin Act, VIII of 1950 was applicable to the transaction or not. Similarly the order in C.M.P. 7101/1959 was with respect to the question as to whether the exception under S.3(c) of the Kerala Act 1 of 1957 was applicable or not. These orders cannot operate as res judicata on the question as to whether the provisions of the exception under S.3(1)(ii) of Act 1 of 1964 does, or does not, apply to the transaction. As was pointed out by the lower appellate court the provisions are not identical. We may quote S.3C of Act 1 of 1957 and S.3(1)(ii) of Act 1 of 1964:

(2.) Counsel for the appellant contended that the prior orders which we have specified earlier had pronounced on the question as to the nature of the transaction itself, evidenced by Ext. P-4, and that the said finding had become final. We are unable to agree that the earlier orders pronounced generally on the nature and effect of the transaction. They were only examining the question whether the exception under S.3C of Act 8 of 1950 and the exception in the same or similar terms enacted in S.3(c) of Act 1 of 1957 were attracted to the suit transaction. The order dated 2nd June 1956 in C.M.P. 540/1956 expressly records that the only question for consideration was whether the transaction fell under S.3C of Act 8 of 1950. Similarly the order in C.M.P. 7101/59 held that the exception 3(c) in Act 1 of 1957 was the same as S.3C in Act 8 of 1950, and hence the same reasoning and conclusion must follow. It is of no consequence that in deference to the observations of the court the plaintiffs approached the Rent Control Court and obtained Ext. P-2 order. We cannot, therefore, agree with the learned Single judge, that the prior orders operate as res judicata. We hold that the appellants are not barred by res judicata by reason of the prior orders.

(3.) Counsel for the respondent argued before us that on the terms of the document Ext. P-4, it was really a lease of a building together with the land appurtenant thereto and, therefore, covered by the exception under S.3(1)(ii) of the Land Reforms Act. We have gone carefully through the provisions of the document. We are in complete agreement with the learned Judge in holding that the document evidences a lease of the land with the building standing thereon and that the lessees are entitled to claim protection under the provisions of the Land Reforms Act. The extent of the land covered by the demise, the provision for making improvements and for being paid the value thereof, the stipulation of a consolidated rent in respect of the demise for both the land and the building - all these considerations, noted in detail by the learned Judge in his Judgment satisfy us that the suit transaction was really a lease of the land with the building standing thereon.