GNANAMONI ROSAMMA Vs. THANKAPPAN NAIR

JUDGEMENT

(1.) Defendants 2, 3 and 5 to 7 in a suit for redemption are the appellants. Their plea of tenancy under the Land Reforms Act was negatived without reference to the Land Tribunal. Alternative claim of kudikidappu right was directed to be considered in execution. Value of improvements was assessed and decree for redemption was passed. In appeal, they only challenged the quantum of improvements. Confirming the finding on redeemability, the decree was set aside and the case remanded solely for the purpose of passing a fresh decree after reassessing improvements. Improvements were reassessed and a fresh preliminary decree was passed. In A. S. No. 151 of 1983, filed against that decree, the challenge was only that kudikidappu was not protected and improvements were not property assessed. Second appeal is against the dismissal of that appeal.

(2.) In this second appeal, the grounds taken are three fold They are :

(3.) Learned counsel, in support of his contention, brought to my attention various decisions, including Eapen Chacko v. Provident Investment Co. (P) Ltd, ( 1977 KLT 1 ), Chidambaran v. Arunachalam ( 1978 KLT 571 ), George v. Vareed ( 1978 KLT 691 ), Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 ), Ramadas v. Krishnan Nair ( 1984 KLT 371 ), Narayanan v. Kunchi Amma Parukutty Amma ( 1986 KLT 1340 ) and Subbayya Chettiar v. Ayyappan Pillai ( 1989 (1) KLT 917 ), in order to contend that in a suit filed after 1-1-1970 when a question of tenancy was raised a decision without complying with the provisions of S.125(3) of the Kerala Land Reforms Act is a matter affecting the jurisdiction of the Court and, therefore, void. There cannot be any dispute that the decision of the Trial Court, without reference to the Land Tribunal, is without jurisdiction and as such void. But the appellants filed an appeal against that decree in which the denial of tenancy right was not challenged at all. The appellate decree, confirming the finding of redeemability and remanding the case only for assessing the value of improvements, was not challenged in appeal and allowed to become final eventhough they could have appealed. Against the revised preliminary decree for redemption passed after remand when they filed appeal the only grounds taken up were that kudikidappu right was not protected and value of improvements was not properly assessed. Tenancy claim was not taken up and could not have been taken up in view of the remand order which became final.