Ulahannan Kurian vs Ipe Thomas

M. Fathima Beevi, J.—The short point that arises for decision in this revision is whether a reference u/s. 125(3) of the Kerala Land Reforms Act 1 of 1964 is incompetent where such a reference has already been made in a prior proceedings between the same patties. The revision petitioner is the respondent in B. R. C. (O. P.) No. 24/1979 on the file of the Rent Control Court, Kottayam. The original petition was Tiled by the respondent herein for eviction u/s. 11 of the Kerala Buildings (Lease and Rent Control) Act on the allegation that the petitioner is the tenant of a building within the meaning of that Act. The revision petitioner contended inter alia that the petitioner herein is not the tenant of a building and that he is the lessee of land for a commercial purpose, who has put up buildings in the land prior to the stipulated date and that the petitioner is hence entitled to the benefit of S. 106 of the K. L. R Act. The claim of the revision petitioner as a tenant entitled to the benefit u/s. 106 of the Act is not admitted and the question whether he is such a tenant arises for determination in the proceedings before the Rent Control Court. The revision petitioner filed I. A No. 2208/79 u/s. 125(3) of the Act for referring his claim for benefit u/s. 106 of that Act to the Land Tribunal. That application was rejected by the Rent Control Court, the appellate authority and the revisional court declined to interfere. This revision is therefore filed u/s. 115 C. P. C.

The respondent herein had earlier filed an application for eviction as O. P. (R. C.) No. 36/74 wherein the identical contention was raised by the tenant. There was a reference to the Land Tribunal of that question u/s. 125(3) of the Act. The Land Tribunal entered the finding against the petitioner herein and returned it to the Rent Control Court. Thereafter the respondent did not appear in the Rent Control Court and the O P. (R. C.) No. 36/74 was dismissed for default of the landlord-petitioner therein.

The authorities below had considered second reference u/s. 125(3) of the Act incompetent in the present proceedings for the sole reason that the earlier decision of the Tribunal on a similar reference binds the parties and operates as res judicata. 4. It cannot be disputed that on the pleadings in the case the question as to whether the petitioner is a lessee entitled to the protection of S. 106 of the K. L. R. Act arises for decision and that the said question has to be referred to the Land Tribunal in terms of S. 125(3) of the Act. The earlier reference in the prior proceedings between the parties has become infructuous as the decision of the Land Tribunal on the reference could not be incorporated as a finding of the Rent Control Act in the final disposal of the original petition which has been dismissed for default. The decision of the Land Tribunal mentioned in sub-sec. (4) of S. 125 becomes part of the decision of the civil court by virtue of the mandate of sub-sec. (5) of S. 125. Where the decision of the Land Tribunal is not incorporated in the final order of the authority which made the reference that decision cannot have any legal existence or legal consequence. The reference is made at the interlocutory stage in order to enable the court to dispose of the matter pending before it effectively by obtaining the finding of the authority of exclusive jurisdiction on questions arising under the Land Reforms Act. The finding of the Land Tribunal on such reference is not an operative order in itself which could be enforced by the parties independent of the decision of the civil court. Therefore in a case where the suit or the proceedings before the civil court had been decided in favour of the party at whose instance the reference had been made, without recording the findings on merits, the finding of the Land Tribunal does not form part of the decision of the civil court and has no effect in law.

The adverse finding of the Tribunal cannot be challenged by the party when the original petition itself is dismissed for default. As pointed out by the Supreme Court in Civil Appeal No. 4211/83, when the application for eviction was dismissed against the revision petitioner he could not prefer an appeal against any finding given by the Rent Control Court or the Land Tribunal even if it is assumed that the finding of the Land Tribunal has become part of the finding of the Rent Control Court. The revision petitioner is not therefore precluded by reason of the earlier reference from making an application u/s. 125(3) of the Act in the pending proceedings. This view'' finds support in the decision of this Court in Sukumaran Nair v. Kumaran Asari & Others (1981 K.L.N. 723). On similar facts Balakrishna Menon, J., said:

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.

It was observed that:

The decision of the Land Tribunal under sub-section (4) on reference issued to it under sub-section (3) of Section 125 of the Act, is only a finding at an interlocutory stage of the proceedings and until such decision is accepted by the civil court as required by sub-section (5) of Section 125 and the case finally determined it cannot be said that a decision at an interlocutory stage on one of the questions arising in the suit will be res judicata in any subsequent proceedings.

I am in respectful agreement with the view thus expressed and I hold that a second reference is not incompetent on account of the existence of the prior reference in the proceedings which finally entered in favour of the revision petitioner.

The learned counsel for the respondent submitted that the Land Tribunal is bound by its earlier finding and that it will be a futile exercise to call upon it to decide the question afresh by a second reference. The submission has to fail. When a civil court accepts the finding returned to it by the Land Tribunal and passes a final order the finding thereafter becomes part of its decision. The decision of the Land Tribunal forms part of the finding of the civil court for purposes of appeal and revision. Therefore even if the Land Tribunal accepts its earlier decision the subsequent decision would be a fresh finding forming part of the finding of the Rent Control Court open to challenge before the appellate authority by virtue of the provision contained in sub-sec. (6) of S. 125. The party cannot be deprived of that right by declining to make a reference when the question arises on the pleadings. The lower authorities have therefore clearly erred in law in concluding that a reference does not lie at the instance of the revision petitioner. The revisional authority has accepted the contention of the respondent that the appeal itself was incompetent as the order is one on interlocutory application. Interlocutory orders which determine substantive rights have to be challenged in case an appeal is provided. Section 18 of the Rent Control Act provides for an appeal by the aggrieved party. The order of the Rent Controller declining to make a reference to the Land Tribunal is not a mere procedural order. It is one affecting the right of the revision petitioner as a tenant. On the principles stated by the Supreme Court in Central Bank of India Vs. Shri Gokal Chand, the appeal is maintainable, even though the order appealed against is one on an interlocutory application.

For the foregoing reasons the revision petition is allowed with costs setting aside the orders of the lower authorities and directing the Rent Control Court to pass appropriate orders allowing I. A. No. 2208/79.