RAMAN NARAYANAN Vs. SANKARAN SIVARAMAN

JUDGEMENT

(1.) The short point to be considered is whether respondents 1 and 2 who claimed tenancy under S.4A(1)(b) of the Kerala Land Reforms Act and having lost it can claim benefits of Kudikidappu under S.80 B of the Act. Admittedly the claim of respondents I and 2 under S.4A(1)(b) of the Act was negatived by this Court and the Supreme Court. Under S.4A (1)(b) a mortgagee who after constructing a building for his own residence in the land comprised in the mortgage and occupying it for a continuous period of not less than twenty years immediately preceding the commencement of Kerala Land Reforms (Amendment) Act 1969, shall be deemed to be a tenant entitled to fixity of tenure and other benefits under the Act. The proviso to S.4A(1)(b) stipulates that such a mortgagee shall not be deemed to be a tenant if be, or, where he is a member of a family, such family was holding any other land exceeding two acres in extent on the date of publication of the Kerala Land Reforms (Amendment) Bill, 1968, in the Gazette. Respondents 1 and 2 contend that the failure to raise the plea of kudikidappu right at the initial stage will not be detrimental to their case as they are legally entitled to raise such a contention at the time of redemption. Admittedly the mortgagors had deposited the value of improvements and the mortgage amount. It was thereafter that they filed the execution petition before the executing Court. Respondents 1 and 2 resisted the execution petition by claiming deemed tenancy tinder S.4A(1)(b) of the Act. They did not raise the plea of kudikidappu though they could have raised it alternatively. There was no legal hurdle against respondents 1 and 2 from raising the plea of kudikidappu before the executing Court, at least alternatively when they contended that they are entitled to the benefit of deemed tenancy under S.4A(1)(b) of the Act. The plea of kudikidappu was not raised in the execution proceedings by respondents I and 2. Nor such a plea was raised in the appeal, Execution Second Appeal and appeal before the Supreme Court. As the mortgage amount was deposited the question of kudikidappu really arose when the execution petition was filed. Respondents I and 2 for reasons best known to them confined their claim under S.4A(1)(b) of the Act. Having lost that claim irretrievably they cannot raise a plea of kudikidappu, at their own whims and fancies and that too belatedly. A claim cannot be made piece meal to the total detriment of the opposite party.

(2.) Counsel for respondents 1 and 2 relied on Ratnamma v. Kamalamma Pillai, ( 1983 KLT 227 ) and contended that the right of kudikidappu springs up only on redemption of the mortgage and merely because deemed tenancy alone was claimed earlier the plea of kudikidappu is not barred. In 1983 KLT 227 case claim of tenancy was raised in the suit for redemption itself and it was found against and in the execution stage the claim of kudikidappu was again raised. That is not the position in the case in band. In the present case respondents 1 and 2 claimed deemed tenancy and perused it unflinchingly upto the Supreme Court and at no point of time they alternatively advanced the plea of kudikidappu. As there was no difficulty for them to raise the plea of kudikidappu in the execution proceedings at least alternatively when they pleaded benefit under S.4A(1)(b) of the Act and as they failed to do so it is not open to them to raise the very same contention at a belated stage and at their own convenience as that plea is barred by constructive res judicata Explanation IV to S.11 CPC. makes it undoubtedly clear that a matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation VII was inserted by CPC. Amendment Act 104 of 1976. By Explanation VII, S. II is made applicable to execution proceedings.