Kerala High Court
Ramakrishnan vs Sathyabhama on 29 November, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
THURSDAY, THE 29TH DAY OF NOVEMBER 2012/8TH AGRAHAYANA 1934
RSA.No. 725 of 2009 ( )
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AS.80/1996 OF SUB COURT, OTTAPPALAM
OS.43/1985 OF MUNSIFF MAGISTRATE COURT, MANNARKKAD
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APPELLANT/APPELLANT/DEFENDANT :
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RAMAKRISHNAN,
S/O.THAAZHATHE VEETTIL ACHUTHAN
RESIDING AT POTTASSERY AMSOM AND DESOM
MANNARKKAD TALUK.
BY ADVS.SRI.SANTHEEP ANKARATH
SMT.N.N.PRASEEDA
RESPONDENT/1ST RESPONDENT/1ST PLAINTIFF :
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SATHYABHAMA,
D/O. THAZHETHE VEETTIL LATE LAKSHMANAN
RESIDING AT POTTASSERY AMSOM AND DESOM
MANNARKKAD TALUK.
BY ADV. SRI.T.SETHUMADHAVAN ( CAVEATOR )
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 29-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
THOMAS P. JOSEPH, J.
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R.S.A. No. 725 of 2009
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Dated this the 29th day of November, 2012
JUDGMENT
Notice was ordered to the respondent on the substantial questions law Nos. 1 to 3 and 5 formulated in the second appeal.
2. Having heard the learned counsel on both sides, the following substantial question of law is framed for a decision:
"Whether the reference made by the trial court to the Land Tribunal (for short "the Tribunal") under Sec. 125(3) of the Kerala Land Reforms Act (for short "the KLR Act") when the purchase certificate to the extent it concerned the 42 cents involved in the suit in the name of the late Lakshmanan remained in force is legal and proper ?"
3. The respondent and another filed O.S. No. 43 of 1985 in the court of learned Munsiff - Magistrate, Mannarkad for recovery of possession of the suit property, 42 cents with mesne profits. They claimed that the said property belonged in jenm to the Mannarkkad Moopil Stanam and that it was outstanding with one Pakkan on oral lease. On his death, the property devolved on his legal heirs - Ammalu and the second plaintiff. The second R.S.A. No. 725 of 2009 -: 2 :- plaintiff got exclusive possession of the suit property. She gifted the property to the respondent/first plaintiff as per gift deed No. 71 of 1985. Thus the respondent claimed to be the exclusive owner in possession of the suit property. While so, the respondent learned that Lakshmanan, husband of the second plaintiff had executed document No. 1031 of 1981 in favour of the appellant. On the strength of that document the appellant trespassed into the suit property. Hence the prayer for recovery of possession with mesne profits.
4. The appellant contended that the respondent or the second plaintiff had no right over the property. The property was outstanding with Lakshmanan, husband of the second plaintiff on oral lease. The said Lakshmanan obtained purchase certificate from the Tribunal. Lakshmanan assigned the suit property to the appellant as per document No. 1031 of 1981. Thus the appellant claimed to be the owner in possession of the property.
5. Concerning another 1.63 acres, one Ramakrishnan S/o. Kottayi had filed O.S. No. 28 of 1985 against the respondent and the second plaintiff for a decree for prohibitory injunction. He also claimed that he got assignment of the said 1.63 acres from Lakshmanan, husband of the second plaintiff (in O.S. No. 43 of R.S.A. No. 725 of 2009 -: 3 :- 1985). The said Ramakrishnan S/o. Kottayi also claimed that the said Lakshmanan had obtained purchase certificate from the Tribunal concerning the said 1.63 acres. In that suit also, the respondent and second plaintiff claimed that Lakshmanan had no right over the property and that it was outstanding with Pakkan on oral lease.
6. In O.S. Nos. 28 and 43 of 1985, learned Munsiff Magistrate, complying with Sec.125(3) of the KLR Act referred the question of tenancy to the Tribunal for a decision. The Tribunal received the reference on file as O.A No. 4 of 1990 (in O.S. No. 28 of 1985) and O.A. No. 5 of 1990 (in O.S. No. 43 of 1985).
7. While so, Unniyamma, the second plaintiff in O.S. No. 43 of 1985 (and the second defendant in O.S. No. 28 of 1985) filed A.A. Nos. 48 of 1985 and 51 of 1985 before the Appellate Authority (Land Reforms, Trichur) for short the "the appellate authority" - challenging the order in O.A. No. 1140 of 1970 and 1139 of 1970, respectively of the Land Tribunal No.2, Mannarkkad. The said Unniyamma claimed that purchase certificate was issued to the late Lakshmanan, her husband without notice to her. The appellate authority dismissed the appeals. Challenging the order of the appellate authority, R.S.A. No. 725 of 2009 -: 4 :- Unniyamma filed CRP Nos. 1774 of 1988 and 1787 of 1988, respectively. This court by Order dated 07.04.1989 set aside the order of the appellate authority and the Tribunal and remitted O.A. No. 1139 and 1140 of 1970 to the Tribunal for fresh decision.
8. It is while so that the Tribunal received the reference in O.S. Nos. 28 and 43 of 1985. However, the Tribunal proceeded to decide the reference cases (O.A. Nos. 4 and 5 of 1990). The Tribunal found that the Lakshmanan was not a cultivating tenant of the properties involved in O.S. Nos. 28 and 43 of 1985 and returned the reference accordingly.
9. In the meantime, O.S. No. 28 of 1985 filed by Ramakrishnan S/o. Kottayi against the respondent and the second plaintiff in O.S. No. 43 of 1985 (Unniyamma) happened to be dismissed for default on 12.07.1985. That suit ended there.
10. Based on the finding of the Tribunal on reference, learned Munsiff Magistrate found that Lakshmanan, predecessor-in-interest of the appellant had no right over the property and hence by virtue of document No. 1031 of 1981 the appellant has not acquired any right over the property. Rejecting other contentions raised by the appellant, learned Munsiff - Magistrate granted a decree in favour of the R.S.A. No. 725 of 2009 -: 5 :- respondent and the said Unniyamma.
11. Challenging that judgment and decree, the appellant filed A.S. No. 80 of 1996 in the Sub Court, Ottappalam. Pending that suit, Unniamma expired. However, since the respondent claimed that Unniamma had gifted her right over the suit property to respondent as per gift deed No. 71 of 1985 and the respondent was the only legal heir of the said Unniyamma, no steps for impleadment was required and taken. The first appellate court confirmed the order of the Tribunal on reference, the decree passed by the trial court and dismissed the appeal. Hence this second appeal.
12. It is contended by the learned counsel for the appellant that the appellant was not a party to AA No. 51 of 1985 before the appellate authority or CRP No. 1787 of 1988 of this court and hence the order of remand in CRP No. 1787 of 1988 to the extent it concerned the 42 cents assigned by the late Lakshmanan in favour of the appellant as per document No.1031 of 1981 is not binding on the appellant. It is pointed out by the learned counsel that the appellant is Ramakrishnan S/o. Achuthan but the respondent impleaded in AA No. 51 of 1985 and CRP No. 1787 of 1988 is Ramakrishnan S/o. Kottayi who is the plaintiff in O.S. No. 28 of 1985. Therefore, it is argued that R.S.A. No. 725 of 2009 -: 6 :- the decision in CRP No. 1787 of 1988 is not binding on the appellant. The learned counsel further argued that in view of that, the purchase certificate issued in favour of the late Lakshmanan concerning the 42 cents which is the subject matter of the present suit remains intact. If so, the reference in O.S. No. 43 of 1985 to the Tribunal was illegal and uncalled for. The Tribunal was bound by its earlier order in O.A. No. 1139 of 1970 to the extent it concerned the 42 cents since which is the subject matter of this litigation.
13. The further argument learned counsel has advanced is that at any rate, the decision of the Tribunal on reference is illegal since the various documents produced and relied on by the appellant before the Tribunal were not taken into account. It is also argued that the first appellate court has not applied its mind to the finding of the Tribunal as is evident from the fact that what is appended to the judgment of the trial court in O.S. No. 43 of 1985 is not the order on reference in O.S. No. 43 of 1985 but, the order on reference in O.S. No. 28 of 1985 (filed by Ramakrishnan, son of Kottayi) . Therefore, it is argued that the judgment and decree of the courts below are liable to be set aside.
14. The learned counsel for the respondent has contended R.S.A. No. 725 of 2009 -: 7 :- that though there appears to be some discrepancy regarding the name of father of the appellant as incorporated in A.A. No. 51 of 1985 and CRP No. 1787 of 1988, it is of no consequence since this court while deciding CRP No. 1787 of 1988 found that the order in O.A. No. 1139 of 1970 of the Tribunal is liable to be set aside and O.A. No. 1139 f 1970 is remitted to that Tribunal for fresh decision. If is according to the appellant, for whatever reason it be, the order of the tribunal in O.A. No. 1139 of 1970 to the extent it concerned the 42 cents remained intact, he ought to have resisted the reference to the Tribunal under Sec.125(3) of the KLR Act. Not only that the appellant did not resist that reference, he did not also challenge the order of reference. Therefore, on the principles of constructive res judicata the appellant is precluded from contending that the finding of the Tribunal on reference is bad. It is argued that when the plea of res judicata is waived, the subsequent order must prevail - here, finding of the Tribunal on the reference.
15. A further argument the learned counsel has advanced is that it is by a common order that the Tribunal has answered the reference in O.S. Nos. 28 and 43 of 1985 and hence the contention that the reference order has been misplaced, cannot be accepted.
R.S.A. No. 725 of 2009 -: 8 :-
16. In the view of the arguments the learned counsel on both sides addressed as to the misplacement of the order on reference, I obtained information from the trial court regarding that through the Registrar (Judicial). The learned Munsiff - Magistrate has after verification of the records in O.S. No. 28 of 1995 (Ramakrishnan S/o. Kottayi) informed that the order of the Tribunal on reference appended to the records in O.S. No. 28 of 1985 is the one in O.A. No. 4 of 1990. The learned Munsiff - Magistrate has also faxed a copy of the order dated 26.06.1995 in O.A. No. 4 of 1990 (in O.S. No. 28 of 1985) and O.S. No. 43 of 1985.
17. The order of the Tribunal on reference appended to the judgment of the trial court is the order dated 26.06.1995 in O.A. No. 4 of 1990 (on the reference in O.S. No. 28 of 1985) and not on the reference in O.S. No. 43 of 1985.
18. In the first paragraph of the order, the Tribunal states that the reference in O.S. Nos. 28 and 43 of 1985 were taken on file as O.A. Nos. 4 of 1990 and 5 of 1990 (respectively) and that separate orders are issued.
19. It is clear from the observations in the said paragraph of the reference order that the Tribunal has passed separate orders in O.A. Nos. 4 of 1990 and 5 of 1990. The order on O.A. R.S.A. No. 725 of 2009 -: 9 :- No. 4 of 1990 concerned the reference in O.S. No. 28 of 1995 while the reference in O.S. No. 43 of 1985 was taken on file by the Tribunal as O.A. No. 5 of 1990. Therefore, it is clear that the Tribunal has passed a separate order in O.A. No. 5 of 1990 answering the reference in O.S. No. 43 of 1985. The learned counsel for the petitioner has given me a certified copy of the order dated 26.06.1995 in O.A. No. 5 of 1990 (O.S. No. 43 of 1985). Therefore, it is clear that what is appended to the judgment in O.S. No. 43 of 1985 by the learned Munsiff - Magistrate is the order in O.A. No. 4 of 1990 (which is the reference in O.S. No. 28 of 1985). That is what the learned Munsiff - Magistrate also has informed in answer to my query. Therefore, it is clear that the first appellate court was considering the order of reference in O.A. No.4 of 1990 relating to O.S. No. 28 of 1985 and not the correctness of the order of reference in O.A. No. 5 of 1990 relating to O.S No. 43 of 1985 . For that reason, the judgment and decree of the first appellate court is liable to be set aside.
20. Then the next question is whether the reference itself was legal and called for ? That depends on the question whether the appellant is bound by the order of this court in CRP No.1787 of 1988. It is not very much in dispute that in favour of the late R.S.A. No. 725 of 2009 -: 10 :- Lakshmanan, the Tribunal had passed an order of assignment of landlord's rights over 2.05 acres. It is claiming right over 1.63 acres (out of the said 2.05 acres) that Ramakrishnan S/o. Kottayi filed O.S. No. 28 of 1985 and on receipt of the order on reference (in O.A. No. 4 of 1990), he left the suit half way and that suit happened to be dismissed for default. The order of assignment in O.A. No. 1139 of 1970 of the Tribunal concerned the 42 cents which is the subject matter of the present litigation as well.
21. I stated that challenging the assignment order and the purchase certificate issued in O.A. No. 1139 of 1970, Unniyamma (the second plaintiff in O.S. No. 43 of 1985 (and the second defendant in O.S. No. 28 of 1985) filed A.A. No. 51 of 1985 and challenging dismissal of that appeal, filed CRP No. 1787 of 1988.
22. In O.A. No. 1140 of 1970, the Tribunal had issued an order of assignment in respect of another item of property in favour of the very same Lakshmanan. Challenging that order, Unniyamma had filed A.A. No. 48 of 1985 and challenging dismissal of that appeal, she filed C.R.P. No. 1774 of 1988. It is those C.R.P. Nos. 1774 of 1988 and 1787 of 1988 which this court disposed of by a common order dated 07.07.1989. I am R.S.A. No. 725 of 2009 -: 11 :- given a copy of the order in C.R.P. Nos. 1774 and 1787 of 1988. It is seen that in both the cases apart from the respondent, the State and the Receiver, the other person impleaded is Ramakrishnan S/o. Kottayi (plaintiff in O.S. No. 28 of 1985). In other words, the appellant - Ramakrishnan S/o. Achuthan was not made a party in any of the civil revisions referred above
23. In the view of the controversy regarding that, I called for the records of CRP Nos. 1774 and 1787 of 1988. It is seen that in the civil revisions also, 'Ramakrishnan' who is impleaded as the second respondent is 'Ramakrishnan S/o. Kottayi'. The appellant who is Ramakrishnan, S/o. Achuthan was not impleaded as a party in any of the civil revisions above stated. Therefore, the order in CRP No. 1787 of 1988 (with which the appellant is concerned) is not binding on the appellant.
24. The learned counsel for the respondent has made an attempt to salvage the situation by contending that the purchase certificate in O.A. No. 1139 of 1970 issued in favour of the late Lakshmanan concerns 2.05 acres which takes in the 1.63 acres claimed by Ramakrishnan S/o. Kottayi and the 42 cents claimed by the appellant and that when the purchase certificate as a whole is set aside, it means that the purchase certificate to the extent it concerned the 42 cents also is set aside. R.S.A. No. 725 of 2009 -: 12 :-
25. On principle, what the learned counsel argued is correct. But the decision in CRP. No. 1787 of 1988 cannot bind the appellant who was not a party to the said proceeding and who was not heard. Therefore, the order in O.A. No. 1139 of 1970 to the extent it related to the 42 cents over which the appellant is now claiming right should stand.
26. If that be so, a reference of the question of tenancy in O.S. No. 43 of 1985 was uncalled for. That, the appellant did not resist the order of reference or did not challenge it are of no consequence. It is open to the appellant to challenge the ultimate finding of the Tribunal accepted by the trial court in this appeal.
27. I have gone through the memorandum of appeal presented by the appellant in the first appellate court. There, this question is not pointedly referred. The challenge there was to the order in O.A. No. 1140 of 1970. I am persuaded to think that it was a mistake committed by the appellant while drafting the memorandum of appeal in the first appellate court. Moreover, since the respondent had not pleaded in the plaint about the decision in C.R.P No. 1787 of 1988, there was no occasion for the appellant to contend that he had no notice of the said civil revision. Therefore, the said contention of the learned R.S.A. No. 725 of 2009 -: 13 :- counsel for the respondent cannot be accepted.
28. The result of my above discussion is that in so far as the order in O.A. No. 1139 of 1970 of the Land Tribunal No.2, Mannarkkad to the extent it concerned the 42 cents which is the subject matter of the present litigation stands, reference made by the learned Munsiff Magistrate in O.S. No. 43 of 1985 is illegal. It follows that,
1) The finding entered by the Tribunal on that reference is illegal.
2) The first appellate court has not applied its mind to the correctness of the order on reference No.5 of 1990 in O.S.No. 43 of 1985 since what was appended to the judgment of the trial court was the order on O.A.No. 4 of 1990 (reference in O.S. No. 28 of 1985). The judgment and decree of the first appellate court cannot be sustained.
29. The learned counsel for the respondent submitted that the respondent will be taking necessary steps to seek a review of the order in CRP No. 1787 of 1988 to the extent it concerned the order of the Tribunal in O.A. No.1139 of 1970 as it related to the 42 cents which is the subject mater of this suit. It is pointed out by the learned counsel that it is by an inadvertent mistake that R.S.A. No. 725 of 2009 -: 14 :- in CRP No. 1787of 1988, Ramakrishnan was described as S/o. Kottayi instead of incorporating the name and address of the appellant. It is also requested by the learned counsel that since the respondent intends to seek appropriate relief in CRP No. 1787 of 1988 by review or otherwise this court may not dismiss O.S. No. 43 of 1985 on the findings above stated and instead, the matter may be remitted to the trial court so that, in the meantime, it is open to the respondent to seek appropriate relief in CRP No. 1787 of 1988 impleading the appellant as well. I am inclined to accept that request having regard to the facts and circumstances.
30. The substantial questions of law framed are answered as above.
Resultantly, the second appeal is allowed by way of remand as under:
1) Judgment and decree of the Sub Court, Ottappalam in A.S. No. 80 of 1996 and of the Munsiff Magistrate's Court, Mannarkkad in O.S. No. 43 of 1985 are set aside.
2) The finding of the Land Tribunal No.2, Mannarkkad on the reference in O.s. No. 43 of 1985 is set aside.
3) O.S. No. 43 of 1985 is remitted to the Munsiff R.S.A. No. 725 of 2009 -: 15 :- Magistrate's Court, Mannarkkad for fresh decision.
4) Parties shall appear in the trial court on 04.2.2013.
5) The learned Munsiff Magistrate shall await the order of this court in CRP No. 1787 of 1988 and keep the suit pending for some reasonable time in case the respondent has taken steps for appropriate reliefs in that civil revision.
6) It is directed that the question of referring the issue regarding tenancy claimed by the appellant to the Tribunal shall depend on the decision this court may take on the application being made by the respondent, in CRP No. 1787 of 1988.
Sd/-
THOMAS P.JOSEPH,
JUDGE
smv //True copy//
P.A. To Judge