RAGHAVAN NAIR Vs. APPU KIDAVU

JUDGEMENT

(1.) THE plaintiffs are the appellants here. THE suit was filed to set aside a summary order passed in I. A. No. 2588 of 1967 in O. S. No. 70 of 1947 on the file of the Sub Court, Kozhikode, and also to declare the plaintiff's tenancy rights on the suit properties and for an injunction restraining the defendants from entering on the properties. THE suit was decreed by the trail court declaring the plaintiff's tenancy rights and restraining the defendants from entering on the properties. In appeal by defendants 2, 4, 5 and 6 the appellate court confirmed the finding of tenancy, but dismissed the suit as not maintainable. THE appellate court found that the order Ext. A 10 in I. A. No. 2588 of 1967 was an order passed under O.40 Pule I Sub R.2 and therefore the remedy of the aggrieved party is only by way of an appeal and a fresh suit to set aside the order is not maintainable. It is from this decision that the Second Appeal has been filed.

(2.) THE matter came up before one of us and by order dated 4-4-1975 the case was referred to a Division Bench. THE reference order reads:-

(3.) IN appeal, the learned Addl. District Judge of Kozhikode took a different view allowing the appeal there and dismissing the suit. According to the learned District Judge, as regards the question whether there was a tenancy in respect of the plaint properties which the plaintiffs now claimed to have vested in them and asserted possession thereunder, the argument advanced on behalf of the contesting defendants that tenancy created at a time when there was a maintenance arrangement in the tarwad would not survive the partition suit and the decree passed thereunder is not sustainable. The items were not leased out by the maintenance allottee but by the tarwad as such. There was a clinching evidence, according to that court, of the existence of tenancy. The court also said that there was no necessity for the present 3rd defendant to have raised the question of tenancy in the earlier suit. He became vested with the tenancy right only after filing the partition suit on IO-I-1948 as per Ext. A3 document. Even assuming that he had become vested with the tenancy right before the date of filing the written statement, it is not a matter which ought to have been raised in the suit. Any cause of action in regard to a suit arises before the date of the suit. Any subsequent action is not a matter which the party is bound to raise. The Addl. District Judge referred in this connection to the decision of this High Court reported in 1958 KLT. 808 (Abdulla \. Ayisumma). Therefore, the learned Judge held that the principles of res judicata will not be attracted to detract the plaintiffs from putting forward the plea now which the present 3rd defendant who was the 153rd defendant in the partition suit did not put forward in that suit.