ACHUTHAN NAIR Vs. RAMAN

JUDGEMENT

(1.) The revision petitioner is the plaintiff in O. S. No. 859 of 1967 on the file of the Munsiff, Irinjalakuda, a suit for injunction restraining the defendants from interfering with the plaintiff's possession in respect of a paddy field. Defendants 5, 6 and 10 claimed that they were cultivating the property as varam tenants and were entitled to fixity of tenure. The suit was dismissed on 17th August, 1971 after the coming into force of the Land Reforms Amendment Act (35 of 1969) holding that the plaintiff failed to prove his possession on the date of the suit. The decision of the Trial Court was reversed in appeal by the Subordinate Judge, Irinjalakuda. Defendants 5, 6 and 10 filed S. A. No. 366 of 1974 of this Court. By the time the case came up for hearing, a Full Bench of this Court had held in Anantha Narayana Iyer v. Paran ( 1976 KLT 403 ) that in view of S.125 (3) of the Land Reforms Act the civil court had no jurisdiction to decide the question whether a person is a tenant and that the question should be referred to the Land Tribunal. Following the decision in Anantha Narayana Iyer v. Paran ( 1976 KLT 403 ) Namboodiripad J. set aside the judgment and decree of the courts below and remitted the case back to the Trial Court with a direction to proceed with the matter in accordance with that decision. The Munsiff made a reference of the dispute regarding tenancy to the Land Tribunal under S.125(3) of the Land Reforms Act (Act I of 1964 as amended by Act 35 of 1669). By the time the records reached the Land Tribunal, the Supreme Court decided Eapen Chacko v. Provident Investment Co. ( 1977 KLT 1 ) overruling Anantha Narayana Iyer v. Paran (1976 KLT 403) and holding that S.125(3) of Act 1 of 1964 as amended by Act 35 of 1969 was prospective in operation and that cases pending before the civil courts on 1-1-1970. the date of commencement of Act 35 of 1969, need not be referred to the Land Tribunal. Relying on that decision the Land Tribunal returned the records to the Munsiff for necessary action. The Munsiff considered the issue afresh and held that the Land Tribunal had no jurisdiction to decide whether a reference made to it was legal or proper and that under S.125(4) of the Land Reforms Act if a reference is made to the Land Tribunal under S.125(1), the Land Tribunal is bound to decide question of tenancy. The Court also held that the subsequent decision of the Supreme Court in Eapen Chacko v. Provident Investment Co. (1977 KLT 1) did not make the order of remand in S. A. 366 of 1974 inoperative or invalid and that it was binding on the parties unless and until vacated in appropriate proceedings. Holding the above view, the Court directed retransmission of the records to the concerned Land Tribunal. It is against this order that the revision petition is filed;

(2.) A good number of decisions were cited at the Bar challenging the correctness of the order passed by the Munsiff. The learned counsel for the petitioner would contend that the direction in the order of remand based as it was on Anantha Narayana Iyer v. Paran (1976 KLT 403) is unsustainable in view of the subsequent decision of the Supreme Court, that if the Land Tribunal has no jurisdiction to decide a question of tenancy in cases pending on 1-1-1970, the order of remand by this Court would not confer jurisdiction and that in any case in view of Art.141 of Constitution the Munsiff was bound to follow the decision in Eapen Chacko v. Provident Investment Co. (1977 KLT 1). It is further argued that in view of the later decision of the Supreme Court, there is no bar of res judicata and the Trial Court is competent to decide whether if should refer the question of tenancy to the Land Tribunal.

(3.) There is no doubt that if the decision of the Supreme Court in Eapan Chacko v. Provident Investment Co. ( 1977 KLT I ) is to be followed, the Trial Court is competent to decide the question of tenancy and a reference to the Land Tribunal is unnecessary. But so far as parties to the present proceedings are concerned, they are bound by the order of remand. It is now fairly settled that a wrong decision of a court having jurisdiction is as much binding between the parties as a right one and is superseded only by appeals to higher tribunals or other procedure like review which the law provides. (See State of West Bengal v. Hemant Kumar ( 1966 SC 1061 ). An order of remand falls under two classes, those falling under O.41 R.23, Code of Civil Procedure where an appeal is provided under O.43 R.1 (u) and those which are not appealable. In the former case the order of remand would become final unless appealed against. Where no appeal is provided, the order will be treated as an interlocutory one and the concerned party can challenge the findings in the remand order in an appeal filed against the final decision in the case. But where the appellate court has acted within its jurisdiction in remanding a case, it is the duty of the subordinate court to carry out the terms of the order of remand because but for the order of remand it has no seisin of the case. The jurisdiction to retry the case is circumscribed by the terms of the order of remand. This is so even in cases where the order of remand is not otherwise sustainable in law. (See K. Mudaliar v. K. Pillai ( AIR 1970 Mad. 328 ). It is not open to the Subordinate Court to criticise the order of remand passed by the High Court and refuse to act upon it. (See Sultan v. Ayyappan, AIR 1952 TC 538 ). The court to which a case is remanded has no jurisdiction to enter into questions which fall outside the terms of the remand order.