BHARATHI AMMA Vs. KUMARAN PEETHAMBARAN

JUDGEMENT

(1.) Plaint A schedule property, covered by Ext. A1 mortgage in favour of the first defendant, is 45'/2 cents. .B Schedule.20 cents forming part of A schedule was sub-mortgaged by the first defendant to the plaintiff under Ext, A2 in 1961. C schedule is the balance 2554 cents in the possession of the first defendant. After purchasing the equity of redemption from the jenmies in 1967 under Ext. A3, plaintiff sued the first defendant for redemption in O.S. No. 277 of 1970. After reference to the Land Tribunal, the claim of tenancy put forward by the first defendant was accepted and the suit dismissed. The decree was confirmed in appeal, evidenced by Exts. Bl and B2. There was no second appeal. Under the Debt Relief Act, the first defendant filed O.P. No. 11 of 1971 to redeem Ext. A2 sub-mortgage for B schedule property against the plaintiff. The claim of the plaintiff for fixity of tenure under the Land Reforms Act was rejected after reference to the Land Tribunal reserving kudikidappu right to he agitated in execution. Ext. A2 was ordered to be redeemed and it was confirmed in appeal and that decision also has become final.

(2.) The claim of tenancy of the first defendant was accepted in Exts. Bl and B2 in view of the law interpreted in the Full Bench decision is Rev. Fr. Victor Fernandez v. Albert Fernande 1971 KLT 216 : ( AIR 1973 Ker. 55 ). which held the field then. That decision on the question of law relating to tenancy was later overruled by a larger Bench in Velayudhan Vivekanandan v. Ayyappan Sadasivan 1975 KLT I. The present suit is for redemption of A schedule property covered by Ext. Al on the ground that in view of Velayudhan case 1975 KLT I .the earlier decisions, which are legally wrong, cannot operate as res judicata. Accepting the plea of res judicata, Trial Court dismissed the suit. But the appellate court ignored the two earlier decisions in the suit and the original petition, so far as B Schedule.20 cents is concerned, and declared EM. Al as extinguished to that extent though the remaining part of the decree was confirmed accepting the plea of res judicata. First defendant died and his legal representatives have come up in second appeal.

(3.) Learned District Judge rejected the plea of res judicata in relation to B schedule property for two reasons. Firstly, he said that since the mortgagee was not in possession of B schedule property, a decision on the question of tenancy and fixity of tenure was absolutely irrelevant in the first suit. So also, he held that the question whether the plaintiff is entitled to get the mortgage charge in respect of B schedule property extinguished was not decided in that case. For these reasons, he held.