CHELLAMMA PILLAI Vs. RAJAPPAN NADAR

JUDGEMENT

(1.) The legal representatives of the plaintiff in a suit for redemption of a transaction dated. 27.11.1121 M.E. are the appellants. The said transaction was described as OttiyumKuzhikanavum. It was executed in favour of the first defendant in the suit. The first defendant assigned his rights to the second defendant. The plaintiff obtained an assignment of the equity of redemption and filed a suit O.S. 637 of 1970 for redemption and recovery of possession. The first respondent original transferee remained ex parte. The second defendant assignee from the first defendant filed a written statement. Copy of the written statement is not exhibited in the present suit. By Ext. B5 judgment the suit O.S. 637 of 1970 was dismissed by the Trial Court with the following judgment: -

(2.) The earlier suit O.S.637 of 1970 was filed after 01/01/1970. The second defendant in that suit, transferee from the original mortgagee had raised a contention that he was a tenant entitled to fixity of tenure under the Kerala Land Reforms Act. Question therefore, arose in that case as to whether the second defendant was a tenant within the meaning of the Kerala Land Reforms Act. Such a question arising in a suit instituted after 1.1.1970 can be decided only in terms of S.125 of the Kerala Land Reforms Act. Under S.125(3) of that Act, the Trial Court was bound to refer the question of tenancy raised by the tenant to the concerned Land Tribunal for decision. The Trial Court had to wait for the finding being returned by the Land Tribunal and had to decide the suit in accordance with the finding entered by the Land Tribunal. The Trial Court had no jurisdiction to decide the question of tenancy by it self. What the Trial Court did in O.S. 637 of 1970 was to merely state that the transaction sought to be redeemed was an Ottiyum Kuzhikanavum and to dismiss the suit on that basis without making a reference of the question to the concerned Land Tribunal for decision in terms of S.125 of the Act. The decision of the Trial Court in addition to being cursory and not in consonance with what a judgment should contain, was also one without jurisdiction. In the suit where a reference to the Land Tribunal is called for under S.125(3) of the Act, and the decision is rendered by the Trial Court itself without making such reference, the decision so rendered would be void. This position is well covered by the decision of the larger Bench in Kesava Bhat v. Subraya Bhat (1979) KLT 766). It was clearly held therein that a decision rendered by a Trial Court without referring the concerned question to the Land Tribunal would be void since on the scheme of S.125 of the Act there was an outster of jurisdiction of the Trial Court to decide, deal with or settle any question as to whether a person was a tenant or not. It is therefore, clear that the judgment and decree in O.S. 637 of 1970 evidenced by Exts. B5 and B6 are void in law. It is also clear from the decision in Mathura Prasads case (AIR 1971 SC 2355) that a decision rendered earlier without jurisdiction would not operate as res judicata. It is therefore clear that the present suit for redemption cannot be said to be barred by virtue of the dismissal of O.S. 637 of 1970 since the decision rendered in O.S. 637 of 1970 is void for non compliance with S.125(3) of the Kerala Land Reforms Act. The Trial Court was therefore right in holding that the said dismissal cannot bar the plaintiff from filing the present suit for redemption since the present suit is within time. The lower appellate court in my view has not adverted to this aspect properly and has erred in ignoring the decision cited before it on behalf of the plaintiffs. The appellate court merely relied on the decision in Madhavan Unnithan v. Sumathi Amma ( 1986 KLT 1206 ) to hold that the second suit for redemption would be barred if the earlier suit for redemption had been dismissed on the ground that the suit transaction was hit by S.4A(l)(a) of the Kerala Land Reforms Act. What the lower appellate court failed to consider was the question whether the earlier decision rendered in O.S. 637 of 1970 was one with jurisdiction or one without jurisdiction in the light of the larger Bench decision in Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 ).

(3.) Learned counsel for the defendants contended that a decision rendered cannot be treated as void and until it is set aside it must be held to be having force. Learned counsel relied on the decision in State of Kerala v. M. K. Kunhikannan Nambiar ( AIR 1996 SC 906 ) and in Isabella Johnson v. Susai ( 1990 (2) KLT 968 (SC) wherein it was held by the Supreme Court: -