Kamalakshi Amma and Others vs P. K. Vijayan and another.

K. P. Radha Krishna Menon, J.—The plaintiffs are the revision petitioners. The suit is for recovery of the plaint schedule property with arrears of rent. The pleadings disclose that the plaint schedule property with a house, cinema hall and the land appurtenant thereto was let out to the respondent on 15-10-1967 on a rental of Rt. 30Q/-r per month. The property sought to be recovered is more particularly described in *B* schedule. B schedule property forms part of *A'' schedule property. The first defendant in his written statement has inter alia, contended-which alone is relevant for the purpose of considering the dispute in the revision petition-that he is entitled to the benefit of Section 106 K. L. R. Act. In support of this, plea he has stated in the written statement thus:-.

He was holding a portion of the plaint schedule property under a lease executed in 1948. The remaining portion is held under different transaction, a lease deed of the year 1962. A cinema shed. was constructed in that portion of the property which is the subject matter of the lease of 1962, prior to the relevant date i.e. 28th May, 1967".

The question whether the lease in question partakes of the character of a lease within the meaning of Section i06 K. L. R. Act, has been referred to the Land Tribunal by the court below, by the order under, challenge.

The learned counsel for the petitioners argues that the order of the Land Tribunal dismissing O. A. 11730/76, flied by the first respondent-first defendant u/s 72B K.L.R. Act disentitles him to press into service Section 106 and content for the position that the suit for eviction is not maintainable since it operates as res judicata and if that be so, the order of reference is bad in law.

Section 72B confers right on the cultivating tenant to purchase the right, title and interest of the landlord in respect of the holding. That O. A. the first defendant had filed before the Land Tribunal was one u/s 72B, is beyond dispute. That means, the case, the first defendant had put forward in the said proceeding, was that he was a cultivating tenant entitled to purchase the right, title and interest of the landlord in respect of the holding in dispute. The petition however, was dismissed.

It is the common case of the parties that in the order of the Land Tribunal, there is a finding which reads:-

The lease in this case was specifically granted for a commercial purpose, and therefore the provision regarding tenancies are not applicable in this case. This is therefore a case for exemption u/s 3(iii) of the K.L.R. Act. Hence the application is dismissed".

The learned counsel for the respondents relying on this observation argues that the plea of the bar of res judicata cannot be raised in this case because the only question, the tribunal decided there was that, in as much as-the lease was for a commercial purpose, the person holding the land under such a lease is not entitled to the benefits of K. L.R. Act. That means according to the learned counsel, the question as to whether the defendants are entitled to the benefit of Section 106 has not been decided by the land Tribunal. Whatever that be, the land Tribunal in a proceeding u/s 72B cannot go into that question as to whether the defendants are entitled to the benefit of Section 106. It is not as if there is no force in this argument.

But the question here is, whether the first defendant can in the present suit raise this question and get the same referred to the Land Tribunal u/s 125 (3).

The learned counsel for the petitioners submits that in view of the Division Bench ruling of this court in Narayanan v. Parukutty Amma (1986 KLT 1340) the first defendant cannot be permitted to press into service the provisions of Section 106 and if that be so, the 1st respondent cannot get the question aforementioned referred to the Land Tribunal under Sec. 125(3). He argues that the plea now raised by the first defendant is inconsistent with the claim he had put forward in the O. A u/s 72B, which, as already stated, was dismissed by the Land Tribunal.. In any event according to the learned counsel, the first respondent shall not be permitted to raise this alternative plea of tenancy in this suit. Considering a similar argument, the Division Bench has held as follows:-.

......It will be a mere abuse of process of court, if alternative pleas of tenancy under afferent sections of the statute are raised in successive proceedings of different stages of the same proceedings, requiring every time that there shall be a reference to the Land Tribunal whenever such contentions are raised by the occupant of the land.......

(emphasis supplied)

It is therefore clear that no person shall be allowed to raise a plea of tenancy in a proceeding if he, on a previous occasion had in another proceeding raised a plea of tenancy falling under a section different from the section under which the tenancy plea is rested in the proceeding. It is trite knowledge that a person can waive any matter which affects his property and any alienable right or privileges of which he is the owner or which belongs to him, whether conferred by statute or arising out of contract. (See Kumaran Nair v. Damodran, 1986 K LLT 461). The respondent-defendant did agitate the tenancy right, he thought, he was having, by filing a petition under Sec. 72B and lost. From fhk proceeding it is clear that the respondent was conscious of the nature of tenancy he was enjoying at the relevant time. It must there fore be held that even assuming he can bring his tenancy claim tinder any other Sections of the K. L. R. Act, he is debarred from claiming it in the proceedings from which this revision arises, by the doctrine of election which in Scotch law is known as the doctrine of approbate and reprobate. A reference in this connection to the ruling of the Supreme Court in Nagukai V. B. Sh&ma Rao (K. X. R. 1956 S. C. 593) is relevant. The Supreme Court hasl!''observed thus:-

The maxim that a person cannot ''approbate and repropate'' is only one application of the doctrine of election, and its operation must be confined to reliefs claimed in respect of the same. transaction and to the persons who are parties thereto......The principle of. election does not forbid a party from claiming the same relief against different persons in different surfs in respect of the same property though the grounds of reiief are different and inconsistent.

(emphasis supplied)

The order referring the question to the Tribunal u/s 125(3), in the light of what is stated above is liable to be set aside. I accordingly set aside the same. The C. R. P. is allowed. No costs.