Appi Padmanabhan vs Krishnan Sukumaran and Others

K.K. Narendran, J.—This second appeal and the Civil Revision arise out of litigations between the legal representatives of the parties to an Ottikuzhikanom of the year 1110 M.E. The appellant in the second appeal who is the revision petitioner in the civil revision, is a legal representative of Valli Nangeli while, respondents in the second appeal and in the civil revision are the legal representatives of Marthandan Krishnan who executed the Ottikuzhikanom in favour of Valli Nangeli and others. On the basis of the Ottikuzhikanom, a suit for redemption was filed in 1967 as O. S. No. 1101 of 1967 before the Munsif''s Court, Trivandrum. When the decree for redemption was pending execution, the Kerala Land Reforms Act 1 of 1964 was amended by Act 35 of 1969 and thereafter, the appellant Appi Padmanabhan, by an execution application contended that he was a tenant and hence the decree holders could not evict him from the decree schedule properties and for that reason, the execution petition should either be dismissed or the question of tenancy should be referred to the Land Tribunal for its findings. The executing court allowed the contention of tenancy and dismissed the execution petition by its order dated 28-10-1971. The above order became final. Then, Appi Padmanabhan filed O. A. No. 588 of 1973 before the Land Tribunal, Trivandrum u/s 72 B of Kerala Act 1 of 1964 for the assignment of the landlord''s rights in the property covered by the Ottikuzhikanom. The Land Tribunal dismissed the original application holding that the applicant was not a tenant. The above order of the Land Tribunal was challenged by Appi Padmanabhan before the Appellate Authority (Land Reforms), Alleppey, but the Appellate Authority dismissed that appeal and confirmed the decision of the Land Tribunal. It is the above judgment of the Appellate Authority that is challenged in the Civil Revision.

The respondents filed a second suit for redemption of the Ottikuzhikanom as O. S. 1132 of 1973 before the Munsif''s Court, Trivandrum. As the appellant and the other defendants in the suit raised a question of tenancy, the Court referred the question to the Land Tribunal, Trivandrum for its findings. The Land Tribunal by its findings, rejected the tenancy claimed. The trial court accepted that finding and decreed the suit for redemption and recovery of possession of the properties covered by the Ottikuzhikanom. The judgment and decree of the trial court was challenged by Appi Padmanabhan in appeal before the District Court, Trivandrum. The District Court dismissed the appeal and confirmed the judgment and decree of the trial court. In this second appeal, the above judgment and decree of the lower appellate court are challenged by Appi Padmanabhan.

Three questions arise for consideration in these cases. They are: (1) Whether an order passed in execution of a decree for redemption in an execution petition pending on 1-1-1970 that the judgment-debtors are tenants entitled to fixity of tenure under Kerala Act 1 of 1964 as amended by Act 35 of 1969 will be res judicate for a subsequent suit for redemption, (2) whether the Land Tribunal considering an application for purchase u/s 72 B of Kerala Act 1 of 1904 is bound by the findings of the executing court in an execution proceeding pending on 1-1-1970 that the petitioner in the O A. is a tenant under the Act and (3) whether the words ''other proceedings'' in section 108 (3) of Kerala Act 35 of 1969 as amended by Act 25 of 1971 will take in an execution application filed in a proceeding in execution of a decree and if the execution application was filed after 1-1-1970, whether the executing court can give a decision on the question of tenancy raised id the execution application without referring the question to a Land Tribunal.

We will consider the third question first because, the decisions on the other two questions will depend upon the decision of this question. Section 108(3) of Kerala Act 35 of 1969 as amended by Act 25 of 1971, reads:

(3) If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any court, tribunal, officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act, such suit, application, appeal revision, review, proceedings in execution or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by this Act.

Section 125 of Kerala Act 1 of 1964 as substituted by Kerala Act 35 of 1969 bars the jurisdiction of the Civil Court to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the Appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government. But the proviso to section 125 exempts proceedings pending in any court on 1-1-1970 from the bar imposed by section 125. It is to such proceedings that the transitory provisions in section 108 (3) of Kerala Act 35 of 1969 as substituted by Act 25 of 1971 apply. What the subsection insists is that the Court, Tribunal or other authority before which the proceedings were pending should dispose of the claims of any benefit, right or remedy under Kerala Act 1 of 1964 as amended in accordance with the provisions of the Act as amended. But, if the proceedings were not pending on 1-1-1970 and were started only thereafter, the Court or the tribunal, as the case may be, will not have jurisdiction to consider and decide the claims under the Act. Proceedings in execution of a decree is one among different kinds of pending proceedings enumerated in section 108 (3). An execution application by no stretch of imagination can be said to be a proceeding separate from a proceeding in execution of a decree. It can only from part of the execution proceedings and it cannot have a separate existence as a proceedings independent of the proceedings in execution. The ''other proceedings'' mentioned in subsection (3) can only be proceedings under special enactment like the Buildings (Lease and Rent Control) Act. So simply because after the words ''proceedings in execution of a decree'' or the words ''other proceedings'' also appear in subsection (3), it cannot be said that an execution application filed in an execution proceedings will be one of the ''other proceedings'' mentioned in subsection (3). In this case, even though the execution application claiming tenancy was filed after 1-1-1970, it was filed in an execution proceedings pending on 1-1-1970. So, section 108(3) will apply and the executing court gets jurisdiction to decide the question of tenancy raised and the court need not refer the question to a Land Tribunal for its findings. In this view of the matter, the decision (Ext. A-8) of the executing court though rendered after 1-1-1970 is a valid decision by a court competent to decide the question and hence it cannot be ignored in subsequent proceedings.

Appi Padmanabhan filed an original application before the Land Tribunal u/s 72 B for the purchase of the right, title and interest of the respondents-landlords. The Land Tribunal dismissed that application for purchase. This the Land Tribunal could not have done in view of the fact that the executing court had already considered the question and found that he was a tenant under Kerala Act 1 of 1964 as amended, and hence, he could not be dispossessed in execution of the decree for redemption. This decision by the executing court though rendered after 1-1-1970 was in an execution proceedings pending on 1-1-1970. u/s 108 (3) of Kerala Act 35 of 1969 as amended by Act 25 of 1971, the executing court had powers to decide the question of tenancy raised where the proceedings was pending on 1-1-1970. As Ext. A-8 decision was rendered by a competent court, the Land Tribunal was bound by that decision when it considered the application for purchase by Appi Padmanabhan whose claim of fixity of tenure was upheld by the executing court Ext. A-8 order of the executing court is res judicata and the Land Tribunal could not have dismissed the purchase application filed by Appi Padmanabhan. The Appellate Authority also went wrong in dismissing the appeal and confirming the order of the Land Tribunal dismissing the purchase application. As long as Ext. A-8 order of the executing court holding that Appi Padmanabhan and the other judgment debtors were tenants entitled to fixity of tenure stands, the Land Tribunal could not have rejected the purchase application. In this view of the matter, the judgement of the Appellate Authority confirming the order of the Land Tribunal dismissing the purchase application is vitiated by an error of law and calls for interference by this Court u/s 103 of Kerala Act, 1 of 1964.

The question of tenancy raised in the second suit for redemption filed in 1973 was referred to the Land Tribunal by the trial court. The Land Tribunal simply based its decision on its earlier order dismissing the purchase application filed by Appi Padmanabhan u/s 72B of Kerala Act 1 of 1964, even though an appeal was pending against that order. The trial court accepted the findings of the Land Tribunal, rejected the tenancy claimed and decreed the suit for redemption. The lower appellate court confirmed that judgment and decree. In view of Ext. A-8 order of the executing court, when the decree in the earlier suit for redemption was in execution, the trial court should not have referred the question of tenancy for the findings of the Land Tribunal because, a decision on the question of tenancy was already there and that too by a competent court. In that case, that decision of the executing court is res judicata in the subsequent suit for redemption. The fact that the earlier decision of the executing court was based on a ruling which was subsequently reversed, is immaterial. The trial court in the subsequent suit for redemption should have adverted to Ext. A-8 order of the executing court and found that Appi Padmanabhan and the other defendants in the suit are tenants entitled for fixity of tenure. So, the trial court could have only dismissed the second suit for redemption. For the reason stated above, the lower appellate court have gone wrong on a substantial question of law in dismissing the appeal and confirming the judgment and decree of the trial court. In the result, the judgment and decree of the lower appellate court are set aside and the second appeal is allowed with costs. The suit will stand dismissed. The judgment of the Appellate Authority (Land Reforms) confirming the order of the Land Tribunal dismissing the purchase application filed by Appi Padmanabhan u/s 72B is see aside. The purchase application will stand allowed. The Civil Revision is allowed but without costs.