P.K. JOHN Vs. KALLIYANI

JUDGEMENT

(1.) LOWER appellate court remanded the suit to the trial court with a direction to refer the claim of the defendant that he is a kudikidappukaran to the Land Tribunal as it found that in the circumstances of this case the earlier finding of the Land Tribunal does not operate as res judicata. This appeal is hence filed by the plaintiff challenging the aforesaid order, 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 his 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 ID Sec. 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 relief's. 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 res judicata 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 Asart (1981 K. L N. 723) in support his conclusion that the earlier finding does not operate as a bar of; res judicata. In an application under Sec. II of the Kerala Agriculturists' Debt Relief Act (Act 11 of 1970) the mortgagee contended that he had tenancy right over the mortgaged property. The Land Tribunal, on reference, entered a finding that the said mortgagee had no tenancy right. However, the application under Act 11 of 1970 was dismissed by the trial court on the ground that the applicant had no subsisting right to maintain the application. Subsequently, be 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 res judicata against him is 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 seams to have been persuaded by the illustration quoted from Mulla's Code of Civil Procedure (at page 83 of Vol. - 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 resjudicata 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 filed 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 faces 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 S. C. 442). It was held by the Supreme Court that a finding would became res judicata even if the suit was dismissed on limitation question. A Full Bench of this Court in Khalid v. Sulekha (1986 K. L. T. 11133) following the principle laid down in Gangappa'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.) ENDEAVOUR must be made to avoid the same Land Tribunal to be called upon to decide the same question for a second time. This principle has been sounded in the decision of a Division Bench of this Court in Parmeswaran Thampi v. Podiyan Thomas ( : AIR 1984 Ker 135). A repetition of the procrastinative snail paced exercise in the Land Tribunal over the very same question may, instead of serving the cause of justice extinguish what little confidence retained by the litigants in the system. It is very distressing to note that references to Land Tribunal have turned out to be virtual consignment of the records to torpidity. Statistics show that almost all such references remain unanswered for decade, if not more, and the consequence is that civil courts remain helpless without registering any progress in the suit Litigants prone to dilatory tactics find easy handle in railing apparently untenable and unsustainable claims of Kudikidappu right or tenancy right with the sole sinister motive to stretch the lifespan of the litigation far too long. Event if references to Land Tribunals would have served some desirable objective during the early periods of the working of Land Reforms Law such references are now resorted to in many cases (if not in most of the cases) for abusing the process of law. Civil courts are, any day better suited to decide such questions than the ill equipped and dormant land tribunals especially since such findings of the land tribunals are even now subjected to the appellate jurisdiction of the civil court. Legislature can now seriously think of reconferring jurisdiction on the civil court at least to decide whether the question of tenancy or Kudikidappu right claimed is prima facie unsustainable or not. At least this step would save many litigation from the sure procrastinate nails of the present reference process.