HANEEFA Vs. NAINA MOHAMMED ROWTHER

JUDGEMENT

(1.) The two substantial questions of law arising in this Second Appeal are:

(2.) The Second Appeal arises from O.S. 166/67 on the file of the Munsiff, Alathur. Respondents 5 and 7 before the first appellate court, who were impleaded as legal representatives of the deceased first defendant are the appellants. The suit was for redemption and recovery of possession on the basis of a possessory mortgage Ext A1 which was executed on 22-5-1917. Various contentions were raised by the defendants. Ultimately preliminary decree was for redemption on payment of the mortgage amount of Rs. 600/- and value of improvements. Value of improvements and rate of mesne profits were relegated for decision in the final decree. There was an appeal against the preliminary decree before the District Judge, Palghat. It was transferred over to the Subordinate Judge and disposed of by him. The appeal was dismissed. During the pendency of the appeal, the Kerala Land Reforms Act was amended by Act 35/69 which took effect from 1-1-1970 The defendants sought permission of the appellate court to claim the benefits of S.4A of the Land Reforms Act as amended by Act 35/69. The petition was rejected on the ground that it is belated. Against the appellate decree there was second appeal 836/73 before this Court, which was decided on 6-4-1976. It was held that the appellate court was justified in refusing permission to raise the contention based on S.4A. Thereafter, the plaintiffs moved an application for passing a final decree. At that time defendants claimed benefits under S.4A of the Land Reforms Act again. Both the Trial Court and the first appellate court rejected the plea on the ground that the refusal of permission to raise such a plea during the preliminary decree proceedings will operate as a bar in allowing the plea to be raised again. Along with the plaint, the plaintiffs deposited the mortgage amount of Rs 600/- In the final decree proceedings, a commission was issued and on the basis of the commissioner's report Rs. 20/- was allowed as value of improvements. But the courts below awarded mesne profits even from the date of suit.

(3.) The first question to be decided is whether the courts below were justified in law when they refused permission to raise a plea based on S.4A of the Land Reforms Act as amended. Normally a party is entitled to have all his contentions adjudicated by the court on the merits unless the contention is barred. The bar applicable in this case could only be on the basis of S.11, of the Code of Civil Procedure. In order to operate as bar the matter must have been directly and substantially in issue between the parties and it must have been heard and finally decided by the court. So also under Explanation IV to S.11, any matter which might and ought to have been made a ground of defence or attack shall be deemed to have been a matter directly and substantially in issue. The refusal to raise an available plea which might and ought to have been raised at a previous stage and the consequent decision without considering such plea may operate as constructive res judicata. The question is whether the contention raised by the defendants based on S.4A of the Land , Reforms Act as amended is either barred by res judicata or barred under Explanation.1V to S.11 of the Code of Civil Procedure.