Kassim Rawther Moosa vs Meeranchi Mytheen Beevi

K.T. Thomas, J.—Pursuant to a decree for specific performance of contract, a document of conveyance was executed in favour of the decree-holder through court. The decree-holder applied for delivery of possession of the property on the strength of the said instrument. When Amin went to the property to effect delivery, the present appellant offered resistance and obstructed delivery, contending that he is kudikidappukaran of the building situated in the property. The decree-holder filed an application for removal of obstruction, under Order 21 Rule 97 of the CPC (for short the Code). The execution court allowed the application holding that "no application under Order 21 Rule 97 would lie at the instance of an obstructor in anticipation of his dispossession in execution of a decree to which he is not a party". The lower appellate court, though differed from the reasoning of the execution court, dismissed the appeal holding that the question of kudikidappu does not arise for consideration and that the appellant has not proved that he has any right, title or interest in the property. It was also found that "the appellant is set up by the 6th defendant for the purpose of delaying the execution". Both sides agreed that the reasoning of the execution court is unsupportable in law. Evidently the ratio in Prabhakaran v. Prakashan (1983 KLT 225) was misapplied by the execution court. This is not a case where the obstructor has filed an application for adjudication of his right or title. The application is under order 21 Rule 97 (1), complaining of resistance or obstruction caused by the appellant. Hence there is no question of any anticipatory application against dispossession. But the lower appellate court held that the obstruction was occasioned without any valid ground. That finding is challenged in this appeal.

Learned counsel for the appellant contended that the lower appellate court ought to have directed the execution court to refer the claim of kudikidappu (raised by the appellant) to the Land Tribunal, as provided in Section 125 (3) of the Kerala Land Reforms Act (''KLR Act'' for shorty. On 6-3-1987 the decree-holder filed the application under Order

21 Rule 97 (1) of the Code. On 9-11-87, counsel for the appellant reported that he has no evidence. On 7-1-1988 the decree-holder filed an application for permitting him to cross-examine the obstructor. Though that was allowed, the obstructor was not cross-examined, presumably because the obstructor did not want to adduce evidence on his part. Learned counsel for the appellant sought to justify the aforesaid stand by contending that the execution court should have referred the matter to the Land Tribunal for determining the question of kudikidappu raised by the appellant. The decision of a Bench of five Judges of this Court in Kesava Bhat v. Subruya Bhat (1979 KLT 766) was cited in support of his contention that contravention of the provisions of Section 125 (3) is a matter of jurisdiction and not merely one relating to procedure.

Section 125 (1) of the KLR Act takes away the jurisdiction of the civil court to decide any question which is to be decided by the Land Tribunal. Sub-section (3) provides the procedure for making reference of such question to the Land Tribunal. If in any suit or other proceeding any question regarding the rights of a tenant or a kudikidappukaran, including the question as to whether he is a tenant or kudikidappukaran, arises the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal. Thus jurisdiction of the civil court is taken away to decide such questions. Can it be held that civil court regains jurisdiction to decide such questions under any special circumstances. The provision contained in Rule 101 of Order 21 of the Code is to be scrutinised in this context and background. Rule 101, as it now stands after amendment by C.P.C. (Amendment) Act 104 of 1976 reads thus:-

Question to be determined.--All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication, of the application shall be determined by, the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction,.....shall be determined by the Court dealing with the application,

The non obstante clause incorporated in the said Rule with the words "notwithstanding anything to the contrary contained in any other law for the time being in force" apparently excludes operation of the provisions of all other. statutes including Section 125 of the KLR Act. With the words "be deemed to have jurisdiction" a legal fiction is made and jurisdiction is reconferred on the civil court to decide all questions including questions relating to light, title or interest in the property in, the special circumstances envisaged in Rules 97 and 99 of Order 21. C.P.C. (Amendment) Act 104 of 1976 came into effect on 1-2-1977. The Land Reforms

Act came into force as early as 1-1-1970 Parliament by incorporating Rule 101, as it stands now with the non obstante clause as wide as it is must be presumed to be aware of all the existing statutes. The object of incorporating Rule 101 is to clothe the execution court with jurisdiction to decide all questions relating to "the right, title and interest in the property". The Committee which pioleted the amendment to the Code felt that absence of jurisdiction, pecuniary or otherwise to decide the questions of rights title or interest in the property may lead to further delay in disposal of Execution matters. It was hence recommended that execution court should be clothed with jurisdiction to decide all such questions so that such questions may be heard and finally decided by the execution court itself. It was to facilitate the aforesaid object that Rule 101 With a widely worded non obstante clause had been incorporated by parliament in the Code. When the object of the amendment is thus understood, the later enactment has the effect of superseding the provision in the earlier enactment through the non obstante clause in such cases where Rule 101 applies.

In Shri Sarwan Singh and Another Vs. Shri Kasturi Lal, it was observed by the Supreme Court thus:-

When two or more laws operate in the same field and each contains a non obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has no conventional protocol, cases of such conflict have to be decided in reference to the object and purpose of the laws under consideration.

Quoting the said observations the Supreme Court in Jain Ink Manufacturing Company Vs. Life Insurance Corporation of India and Another, pointed out that the provisions of a later legislation would naturally prevail over and override the provisions of the earlier legislation, though both of them, dealt with the same subject.

Therefore the conferment of jurisdiction on the civil court overrides the exclusion of jurisdiction as provided in Section 125. of the KLR Act. In an application under Order 21 Rule 97 the civil court gets jurisdiction to decide all such questions without reference to any other court or Tribunal This is the clear meaning of Rule 101.

There is yet another reason to hold that the non obstante clause in Rule 101 of order 21 of the Code would displace Section 125 (3) of the KLR Act in appropriate situations. Article 254 (1) of the Constitution says "If any provision of law made by the legislature of a State is repugnant to any provision of law made by Parliament which Parliament is competent to enact or to any provisions of any existing law with respect to one of the matters enumerated in the concurrent List, then, subject to the provision of clause (2) the law made by Parliament, whether passed before or after the law made by the legislature of such State, or as the case may be, the existing law, shall prevail............" The relevant provisions in Order 21 of the Code were amended by parliament by Act 104 of 1976 which came into force with effect from 1-2-1977. "Civil Procedure" is a subject which falls under item No. 13 of the Concurrent List Clause(2) of Article 254 of the Constitution does not affect the application of clause (I) since Act 104 of 1976 is an enactment brought into force only much after the enactment of Section 125 of the KLR Act. Even otherwise, the proviso to clause (2) of Article 254 says that nothing in the sub-clause shall prevent parliament from enacting any law adding to, amending or varying the law so made by the State legislature. I draw support to this reasoning from the decision of the Bombay High Court in Nusserwanji v. Shirinbai (AIR 1984 Bombay 357). The scope of Rule 101 of Order 21 of the Code was discussed in the said decision and the learned Judge held that it overrides other provisions in other enactments. For the aforesaid reasons, I hold that there is no necessity to make a reference to the Land Tribunal u/s 125 (3) of the KLR Act in proceedings under Order 21 Rule 101 of the Code, even if the question of tenancy of kudikidappukaran arises therein. Such questions can be determined by the civil court which executes the decree.

In this case the appellant, by not adducing any evidence failed to prove that he is in occupation of any building in the property. Therefore I hold that he has no kudikidappu right in respect of any portion of the decree schedule property. Appeal is hence dismissed. No costs.