Padmanabhan vs Tharekkad Simhanatha Bhagavathy Devaswom

V. Chitambaresh, J.—The legal heirs of a tenant of a non residential premises are the revision petitioners and the landlord is the respondent. The landlord sought eviction of the tenant u/Ss. 11(2)(b), 11(3) and 11(7) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (the ''Act'' for short). The tenant contended that he is a ''kudikidappukaran'' as defined under S.2 (25) of the Kerala Land Reforms Act 1963. The rent control court thought it fit to refer the question of tenancy to the land tribunal as envisaged under S. 125 (3) of the Kerala Land Reforms Act, 1963. The land tribunal rendered a decision holding that the tenant is not a ''kudikidappukaran'' as recognised by the Kerala Land Reforms Act. That decision was returned to the Rent Control Court as provided u/S. 125 (4) of the Kerala Land Reforms Act, 1963. The landlord however did not pursue the rent control petition which was eventually dismissed as ''not pressed''. The legal heirs of the tenant thereafter preferred an appeal u/S. 18 of the Act mainly challenging the decision of the land tribunal rendered on reference. The Rent Control Appellate Authority dismissed the appeal as belated and also on the ground that it was not maintainable under the circumstances. The legal heirs of the tenant have now assailed the order of the rent control appellate authority u/s 20 of the Act.

Mr. P.B. Subramanyan appearing on behalf of the landlord has raised a preliminary objection as regards the maintainability of the appeal itself u/s 18 of the Act. He contends that reference to the land tribunal was part of the procedure to be adopted when a question of tenancy is raised in the proceeding. The decision so rendered by the land tribunal was merely procedural and did not adjudicate the right of contesting parties. He relied on the decisions in Charulatha v. Manju (1994 (1) KLT 133) and Thomas John v. Kochammini Amma (1991 (1) KLT 99) in this regard. Those decisions dealt with appeals against orders relating to recording of deposition of a witness and setting aside the report of an Advocate Commissioner. The position here is different in as much as a statutory benefit claimed by the tenant had been negatived by the land tribunal. The order impugned in the appeal in the instant case dealt with substantive rights and was not merely procedural. We therefore overrule the preliminary objection raised on behalf of the landlord as regards the maintainability of the appeal.

Mr. Jacob Sebastian appearing on behalf of the legal heirs of the tenant prays that the decision of the land tribunal rendered on reference should also be set at naught. He contends that his hands are tied since no appeal is provided against the decision rendered on a reference under the Kerala Land Reforms Act, 1963. He is apprehensive that the decision of the land tribunal may operate as resjudicata between the parties in subsequent proceedings. True it is that the decision of the land tribunal u/S. 125 (4) shall be deemed to be part of the finding of the rent control court u/S. 125 (6) of the Kerala Land Reforms Act. But the final verdict in the rent control petition was in favour of the tenant and he could therefore conveniently ignore the adverse finding. It is trite law that an appeal would not lie against a mere finding (See: Smt. Ganga Bai Vs. Vijay Kumar and Others, ). The following excerpt from Sukumaran Nair v. Kumaran Asari & Ors. (1981 KHC 448 : 1981 KLN 723) is apposite to the context:

The decision of the Land Tribunal mentioned in sub-s.(4) of S. 125 becomes part of the decision of the civil court by virtue of the mandate of sub-s.5 of S. 125. Sub-s.(6) specifically states that the decision of the Land Tribunal on the question referred to it shall be deemed to be part of the finding of the civil court for the purpose of appeal. From these provisions, it is clear that a decision of the Land Tribunal referred to in sub-s. (4) of S. 125 is only a finding in a suit or other proceeding pending in the civil court. The final decision in the matter is only that of the civil court and not that of the Land Tribunal to which a question arising in the suit or other proceeding has been referred to for its decision.

The final decision in O.P. No. 13 of 1971 was wholly in favour of the defendant, as the O.P. ended in its dismissal. The decision of the Land Tribunal which by the force of the statute was to be accepted by the civil court is only a finding in the proceedings, the final result of which was entirely in favour of the defendant. It is well settled that an adverse finding in a proceeding which ended in favour of a party, is not res judicata against him in any subsequent proceedings where the same question is raised.

We concur and are in complete agreement with the statement of law in Sukumaran Nair (supra). The apprehension of the legal heirs of the tenant is thoroughly misplaced as they can very well urge the plea of permanent tenancy in any subsequent proceedings. Suffice it to say that the decision of the land tribunal rendered on reference would not operate as a bar to the legal heirs of the tenant. The rent control appellate authority was perfectly justified in dismissing the appeal by the legal heirs of the tenant which was filed challenging a mere finding. The impugned order does not suffer from any illegality, irregularity or impropriety and the rent control revision is hence dismissed.