JOHN Vs. KALLIYANI

JUDGEMENT

(1.) THE suit is for declaration of title and recovery of possession of the plaint schedule building and the site appurtenant thereto. THE defendant, inter alia, contended that she has kudikidappu right in the building. THEre was an earlier suit between the parties in which the plaintiff prayed for eviction of the defendant from the same building with arrears of rent. In that suit the defendant, while denying the rent transaction alleged in the plaint, raised the claim that he is a kudikidappukaran. THE court referred the said question to the Land Tribunal for a finding as provided in S. 125 (3) of the Kerala Land Reforms Act. THE Land Tribunal found that the defendant is not a kudikidappukaran. However, the earlier suit was dismissed as the plaintiff failed to prove the rent transaction. Though the plaintiff filed an appeal against the said decree in the earlier suit, the appeal was dismissed. A memorandum of cross-objections filed by the defendant against the finding of the Land Tribunal was also dismissed by the appellate court. THE present suit was filed thereafter for declaration of plaintiff's title and recovery of possession with damages for use and occupation of the building. Though the trial court disallowed the claim for damages. , it decreed the suit in regard to the main reliefs. THE trial court did not accede to the defendant's request to refer the claim of Kudikidappu to the Land Tribunal on the ground that the adverse finding made by the Land Tribunal operates as resjudicata. But the learned District Judge, on appeal by the defendant took the view that since the earlier suit was dismissed, the adverse finding made by the Land Tribunal against the defendant would not operate as a bar. Hence the case was remanded to the trial court with a direction to refer the question to the Land Tribunal.

(2.) REFERENCE was made by the learned District Judge to the decision of this Court in Sukumaran Nair v. Kumaran Asari (1981 KLN. 723)in support his conclusion that the earlier finding does not operate as a bar of resjudicata. In an application under S. 11 of the Kerala Agriculturists' Debt relief Act (Act 11 of 1970) the mortgagee contended that be had tenancy right over the mortgaged property. The Land Tribunal, on reference, entered a finding that the said mortgagee bad no tenancy right. However, the application,under act H of 1970 was dismissed by the trial court on the ground that the applicant had no subsisting right to maintain the application. Subsequently, the said applicant filed a suit for redemption in which the mortgagee again raised the contention that he is a tenant. Learned single judge on the facts of the said case held in the aforesaid decision that "the decision of the Land tribunal which by the force of the statute was to be accepted by the civil court is only a finding in the proceedings, the final result of which was entirely in favour of the defendant, it is well-settled, that an adverse finding in a proceeding which ended in favour of a party, is not resjudicata against him in any subsequent proceedings where the same question is raised". Learned District Judge did not accept the argument that the principle in. Sukumaran Nair case is distinguishable on facts. Moreover, the district Judge seems to have been persuaded by the illustration quoted from Mulla's code of Civil Procedure fat page 83 of Vol I-12th edition ). In the said illustration reference was made to a decision of the Judicial Committee of the privy Council that a particular finding is not res judicata when the plea in the earlier suit that the suit was premature had been upheld. The facts of the case as delineated in the illustration indicate that an appeal was tiled against dismissal of the suit and the defendant filed cross-objections against the adverse finding made against him, but the appeal was dismissed upholding the contention that the suit was premature. Upon the said facts it was held that the adverse finding would not operate as res judicata. The emphasis there is that the suit was held to be premature and hence all findings lost the binding effect. The position has undergone a change later in view of the subsequent supreme Court decision in Gangappa v. Rachawwa (AIR 1971 SC 442 ). It was held by the Supreme Court that a finding would become res judicata even if the suit was dismissed on limitation question. A Full Bench of this Court in Khalid v. Sulekha (1986 KLT. 1113) following the principle laid down in Ganaappa's case (cited supra) has held that dismissal of a suit as premature would not forestall the operation of the bar of res judicata in regard to the findings made by the court on merits. So the illustration quoted from the treatise of mulla is not of much help in deciding the question involved in this case.

(3.) PRINCIPLE of res judicata operates when there is a finding on an issue which "has been heard and finally decided". It depends upon the facts of each case to see whether an issue has been finally decided. If the facts of a given case would reveal that a particular finding has reached the stage of finality, such finding operates as resjudicata as for the same issue in a subsequent suit.