Chellamma Pillai and Others vs Chellayyan Nadar and Another

P.K. Balasubramanyan, J.—The legal representatives of the plaintiff in a suit for redemption of a transaction dt. 27-11-1121 M.E. are the appellants. The said transaction was described as ''Ottiyum Kuzhikanavum''. 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 defendant 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:--

Issues framed. The suit is based upon a Otti and Kuzhikanam of 1113. Otti Kuzhikanamdars are entitled to fixity of tenure under Act 1 of 1964 as amended by Act 35 of 1969 and the suit ought not to have been entertained and as it has been entertained and as it is not maintainable in law it is to be dismissed. The suit dismissed. No costs.

The issues framed in that suit are also not exhibited in the present suit. But it is clear that the second defendant in that suit raised a contention that he was entitled to fixity of tenure under S. 13 of the Kerala Land Reforms Act and the transaction sought to be redeemed was not a redeemable mortgage. The plaintiff filed the present suit for redemption on the basis that a second suit for redemption was maintainable in the light of the principle settled by the Federal Court in Subba Rao v. Raju (AIR 1950 FC 1). The defendants resisted the suit by contending that the earlier decree in O.S. 637 of 1970 dismissing the suit on the ground that the transaction was an Ottiyum Kuzhikanavum'' would operate as res judicata to bar the present suit. The trial court overruled that contention of the defendants taking the view that the earlier decision of the trial court was without jurisdiction and it was also superfluous. The decision of the Supreme Court in Mathura Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B. Jeejeebhoy, was relied on. Accepting the finding of the Land Tribunal that the transaction sought redemption of was only a redeemable mortgage the trial court passed a preliminary decree for redemption permitting the plaintiffs to redeem the mortgage and recover possession of the property on deposit of the mortgage money. The defendants appealed. The lower appellate court took the view that the dismissal of the earlier suit O.S. 637 of 1970 would operate as res judicata and would bar the plaintiffs from filing the present suit for redemption. The lower appellate court held that the suit for redemption was in time and that the defendants have not established any claim for value of improvements. The lower appellate court reversed the decree of the trial court and dismissed the suit. This is challenged before me in this Second Appeal by the legal representatives of the plaintiff. The earlier suit O.S. 637 of 1970 was filed after 1-1-1970. The second defendant in the 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 Section 125 of the Kerala Land Reforms Act. u/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 itself. 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 Section 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 a suit where a reference to the Land Tribunal is called for u/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 ouster 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 Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B. Jeejeebhoy, 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 Section 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 Unnilhan 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 Section 4A(1)(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).

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 Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others, and in Isabella Johnson v. Susai ( 1990(2) KLT 968 (SC) wherein it was held by the Supreme Court:-- A decision on the question of jurisdiction of the Court or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. A court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata. It is well settled that there can be no estoppel on a pure question of law and in this case the question of jurisdiction is pure question of law.

According to me this decision supports the proposition that if in the earlier suit the trial court had assumed a jurisdiction it did not have and had rendered a decision, the same had to be treated as void and the same could not operate as res judicata in the subsequent suit. It is significant to note that in this decision the Supreme Court overruled the earlier decision of the Supreme Court in Avtar Singh and Others Vs. Jagjit Singh and Another, which took the view that the civil court''s decision regarding lack of jurisdiction will operate as res judicata in a subsequent suit. It can also be seen that the Supreme court relied on the decision in Mathura Prasad Bajoo Jaiswal and Others Vs. Dossibai N.B. Jeejeebhoy, in support of its conclusion and also referred to another decision of the Supreme Court in Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his Lrs., in support of its conclusion. The other decision relied on by learned counsel is the one in State of Kerala Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others, wherein it was held that in administrative law void orders would be operative inter parties until set aside by higher forum. That the position in administrative law is the one indicated in Kunhikannan Nambiar''s case cannot be in doubt. But when in a case like the present where the civil court assumed jurisdiction over an issue when its jurisdiction stood ousted by Section 125(1) of the Kerala Land Reforms Act and decided that issue, it could not be said that the decision so rendered would not be void and would still operate as res judicata until it is set aside. It is clear as propounded by His Lordship Justice Venkatarama Ayyar in Kiran Singh and Others Vs. Chaman Paswan and Others, that it is a fundamental principle that a decree passed by a court without jurisdiction is a nullity and that its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution or even in Collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass any decree and such a defect cannot be cured even by consent of parties. It is therefore clear that the decision rendered in O.S. 637 of 1970 being one without jurisdiction has to be treated as void and so treated the same cannot operate as res judicata in the present suit for redemption.

The lower appellate court has held in agreement with the trial court that the present suit for redemption is within time. The Land Tribunal has returned the finding that the transaction sought to be redeemed is only a mortgage and does not amount to a lease and does not Confer any fixity of tenure on the defendants. On a survey of the finding so rendered by the Land Tribunal with reference to the document in question it is clear that there is no justification in interfering with the finding returned by the Land Tribunal on the reference made to it in the present suit. In that view all that is called for is a reversal of the judgment and decree of the lower appellate court and the restoration of the judgment and decree of the trial court. For the reasons stated above I set aside the judgment and decree of the lower appellate court and restore the preliminary decree for redemption passed by the trial court. In the circumstances of the case I direct the parties to suffer their respective costs in this court.