P.K. John vs Kalliyani

K.T. Thomas, J.—lower appellate court remanded the suit to the trial court with a direction to refer the claim of the defendant that he is a kudikidappukaran to the Land Tribunal as it found that in the circumstances of this case the earlier finding of the Land Tribunal does not operate as res judicata. This appeal is hence filed by the plaintiff challenging the aforesaid order, The suit is for declaration of title and recovery of possession of the plaint schedule building and the site appurtenant thereto. The defendant, inter alia, contended that she his kudikidappu right in the building. There was an earlier suit between the parties in which the plaintiff prayed for eviction of the defendant from the same building with arrears of rent. In that suit the defendant while denying the rent transaction alleged in the plaint, raised the claim that he is a kudikidappukaran. The court referred the said question to the Land Tribunal for a finding as provided ID Sec. 125(3) of the Kerala Land Reforms Act. The Land Tribunal found that the defendant is not a kudikidappukaran. However, the earlier suit was dismissed as the plaintiff failed to prove the rent transaction. Though the plaintiff filed an appeal against the said decree in the earlier suit, the appeal was dismissed. A memorandum of cross - objections filed by the defendant against the finding of the Land Tribunal was also dismissed by the appellate court. The present suit was filed thereafter for declaration of plaintiff''s title and recovery of possession with damages for use and occupation of the building. Though the trial court disallowed the claim for damages, it decreed the suit in regard to the main relief''s. The trial court did not accede to the defendant''s request to refer the claim of kudikidappu to the Land Tribunal on the ground that the adverse finding made by the Land Tribunal operates as res judicata But the learned District Judge on appeal by the defendant took the view that since the earlier suit was dismissed, the adverse finding made by the Land Tribunal against the defendant would not operate as a bar Hence the case was remanded to the trial court with a direction to refer the, question to the Land Tribunal.

Reference was made by the learned District Judge to the decision of this Court in Sukumaran Nair v. Kumaran Asart (1981 K. L N. 723) in support his conclusion that the earlier finding does not operate as a bar of; res judicata. In an application under Sec. II of the Kerala Agriculturists'' Debt Relief Act (Act 11 of 1970) the mortgagee contended that he had tenancy right over the mortgaged property. The Land Tribunal, on reference, entered a finding that the said mortgagee had no tenancy right. However, the application under Act 11 of 1970 was dismissed by the trial court on the ground that the applicant had no subsisting right to maintain the application. Subsequently, be said applicant filed a suit for redemption in which the mortgagee again raised the contention that he is a tenant. Learned single Judge on the facts of the said case held in the aforesaid decision that "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 is any subsequent proceedings where the same question is raised". Learned District Judge did not accept the argument that the principle in Sukumaran Nair case is distinguishable on facts. Moreover, the District Judge seams to have been persuaded by the illustration quoted from Mulla''s CPC (at page 83 of Vol. - 12th edition).In the said illustration reference was made to a decision of the Judicial Committee of the Privy Council that a particular finding is not resjudicata when the plea in the earlier suit that the suit was premature had been upheld. The facts of the case as delineated in the illustration indicate that an appeal was filed against dismissal of the suit and the defendant filed cross-objections against the adverse finding made against him, but the appeal was dismissed, upholding the contention that the suit was premature. Upon the said faces it was held that the adverse finding would not operate as res judicata. The emphasis there is that the suit was held to be premature and hence all findings lost the binding effect. The position has undergone a change later in view of the subsequent Supreme Court decision in Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others, . It was held by the Supreme Court that a finding would became res judicata even if the suit was dismissed on limitation question. A Full Bench of this Court in Khalid v. Sulekha ( 1986 K. L. T. 11133) following the principle laid down in Gangappa''s case (cited supra) has held that dismissal of a suit as premature would not forestall the operation of the bar of res judicata in regard to the findings made by the court on merits. So the illustration quoted from the treatise of Mulla is not of much help in deciding the question involved in this case.

A Full Bench of this Court in Koran Vs. Kamala Shetty, has held that the principle of finality or conclusiveness of a prior decision or the general principle of res judicata is applicable even to Quasi-judicial bodies like the Land Tribunals functioning under the Kerala Land Reforms Act. The Full Bench further said that on principle this should be so, as these tribunals are invested with the task of deciding important right sand have to do so on principle of natural justice and fair play.

Endeavour must be made to avoid the same Land Tribunal to be called upon to decide the same question for a second time. This principle has been sounded in the decision of a Division Bench of this Court in Parameswaran Thampi Vs. Padiyan Thomas and Others, . A repetition of the procrastinative snail paced exercise in the Land Tribunal over the very same question may, instead of serving the cause of justice extinguish what little confidence retained by the litigants in the system. It is very distressing to note that references to Land Tribunal have turned out to be virtual consignment of the records to torpidity. Statistics show that almost all such references remain unanswered for decade, if not more, and the consequence is that civil courts remain helpless without registering any progress in the suit Litigants prone to dilatory tactics find easy handle in railing apparently untenable and unsustainable claims of Kudikidappu right or tenancy right with the sole sinister motive to stretch the lifespan of the litigation far too long. Event if references to Land Tribunals would have served some desirable objective during the early periods of the working of Land Reforms Law such references are now resorted to in many cases (if not in most of the cases) for abusing the process of law. Civil courts are, any day better suited to decide such questions than the ill equipped and dormant land tribunals especially since such findings of the land tribunals are even now subjected to the appellate jurisdiction of the civil court. Legislature can now seriously think of reconferring jurisdiction on the civil court at least to decide whether the question of tenancy or Kudikidappu right claimed is prima facie unsustainable or not. At least this step would save many litigation from the sure procrastinate nails of the present reference process.

Principle of res judicate operates when there is a finding on an issue which "has been heard and finally decided" it depends upon the facts of each case to see whether an issue has been finally decided. If the facts of a given case would reveal that a particular finding has reached the stage of finality, such finding operates as res judicata as for the same issue in a subsequent suit.

In this case when the defendant raised the same claim of kudikidappu right in the earlier suit, the Land Tribunal, on reference, entered upon a finding that he is not entitled to kudikidappu right. The said finding was incorporated in the judgment. Though the earlier suit was dismissed, the defendant availed the opportunity to have that finding examined by the appellate court. The decision of the Land Tribunal as per Sec. 125 (6) of the Kerala Land Reforms Act is deemed to be part of the finding of the civil court "for the purpose of appeal". When a party against whom the suit was dismissed chooses to file an appeal he thereby opens the venue for the other parties also to prefer cross-objections against adverse findings made against them Explanation to Rule 22 of Order 41 of the CPC says that a respondent, aggrieved by a finding in the judgment, can file cross-objections even though the decree is wholly in his favour. Sub-rule (2) says that such cross-objection shall be in the form of a memorandum and the provisions of Rule 1 of Order 41 shall apply to such memorandum so far as they relate to the form and contents. Sub-rule (4) says that even if the original appeal is withdrawn or is dismissed for default, the memorandum of cross-objection if filed can be heard and determined. These provisions in Rule 22 of Order 41 would show that memorandum of cross-objection is treated in law as an appeal itself. In view of these provisions a defendant cannot be heard to say in a case where the plaintiff files an appeal challenging the dismissal of his suit that the finding made against him has not become final, unless such finding is reversed or modified in such appeal. If a defendant does not choose to file cross-objection in such appeal, he does so at his risk in having the adverse finding becoming final if the appellate court does not interfere with that finding Be that as if may, the position is worse in a case where the defendant chooses to file cross-objection against adverse finding and the appellate court also concurs with such finding. Then there can be no doubt that the finding became final subject to any interference made the retain second appeal or by the Supreme Court. Ext. A2 which is the certified copy of the judgment in appeal filed against the trial court decree in the earlier suit shows that the finding made by the Land Tribunal was considered and maintained by the appellate court. Hence the finding has become final. Learned counsel for the respondent also contended that since a second appeal could not be filed by the defendant, the said finding cannot be held to have been decided finally. If the defendant did not file a second appeal, that is no ground to treat the finding as one left open. That apart, sustainability of a second appeal depends upon the satisfaction of the High Court that the case involves a substantial question of law. So the last line of argument also will not help the respondent. The finding in the earlier suit therefore operates as res judicata. Hence there is no need to refer the question again to the Land Tribunal.

For the aforesaid reasons, I allow this appeal and set aside the impugned judgment. The lower appellate court is directed to dispose of the appeal on merits regarding the other contentions raised No costs.