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George v. Chakkunni
Factual and Procedural Background
The revision concerns a suit for recovery of seven items of property based on title, in which defendants 1 and 2 claimed tenancy rights over certain items, contested by the plaintiff. The 2nd defendant died during the suit, and his legal representative was impleaded. The dispute narrowed primarily to the contention between the plaintiff and the 1st defendant. Two key issues were framed: whether certain tenancy and kudikidappu rights should be referred to the land tribunal, and whether the tenancy claim by some defendants was barred by res judicata. The learned subordinate judge referred the tenancy and kudikidappu questions to the land tribunal, deciding that the plea of res judicata should be considered along with other issues. Earlier judgments established that the 1st defendant had no leasehold interest over items 1 to 5, confirmed by the district court and this court on appeal. However, a subsequent suit initially held that defendants 1 and 2 had leasehold interest, a finding later vacated by this court. The revision challenges the subordinate judge’s referral order based on these facts.
Legal Issues Presented
- Whether the civil court is bound to refer a disputed question of tenancy to the land tribunal when the opposite party resists the reference on the ground that the question has already been decided by a competent court and is barred by res judicata.
- Whether the plea of tenancy raised in the suit is barred by res judicata and thus does not arise for decision in the suit.
Arguments of the Parties
Counsel for the 2nd Respondent
- The civil court is bound under Section 125(3) of the Kerala Land Reforms Act to refer any dispute regarding the right of a tenant to the land tribunal.
- Supported this position by citing decisions in Appuni v. Nani (1973 KLT 438), Sankaran v. Rajammal (1974 KLT 488), and Lissy v. Kuttan (1976 KLT 571).
Counsel for the Revision Petitioner
- The disputed question of tenancy was already settled by competent courts in earlier proceedings, as evidenced by ext. A-1, A-2, and A-6 judgments.
- The plea of tenancy is barred by res judicata and therefore does not arise for decision in the present suit.
- The learned subordinate judge erred in referring the tenancy question to the land tribunal merely because it was raised in pleadings without considering whether it truly arose in the suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Appuni v. Nani (1973 KLT 438) | Civil court's obligation to refer tenancy disputes to the land tribunal under Section 125(3) of the Kerala Land Reforms Act. | Recognized as authority that tenancy disputes must be referred, but did not consider res judicata bar in that context. |
| Sankaran v. Rajammal (1974 KLT 488) | Same as above: referral of tenancy disputes to land tribunal. | Supported the principle of mandatory referral for tenancy disputes; did not address res judicata issue. |
| Lissy v. Kuttan (1976 KLT 571) | Affirmed the civil court’s duty to refer tenancy disputes to the land tribunal. | Applied the principle of referral but did not deal with the interplay of res judicata. |
Court's Reasoning and Analysis
The court examined whether the civil court must refer a tenancy dispute to the land tribunal when the opposing party pleads res judicata, asserting that the tenancy question had already been conclusively decided by competent courts. It noted the distinction between a tenancy question "arising" in the proceeding and merely being "raised" in pleadings. The legislature’s use of the word "arising" in Section 125(3) of the Kerala Land Reforms Act indicates that referral is only required if the tenancy dispute truly arises for decision. Since the plea of res judicata conclusively bars re-litigation of the tenancy question, the court trying the suit lacks jurisdiction to decide it again, and thus the question does not arise for referral. The learned subordinate judge erred by ordering referral solely because the tenancy issue was raised, without first determining whether the plea of res judicata barred the tenancy claim. The court held that the res judicata plea is a jurisdictional bar and must be considered as a preliminary issue before any referral to the land tribunal.
Holding and Implications
The revision is allowed.
The court set aside the impugned order referring the tenancy question to the land tribunal. The matter is remanded with directions that the learned subordinate judge must first decide as a preliminary issue whether the plea of tenancy is barred by res judicata. The referral to the land tribunal should only be made if the plea is found not to be barred. The court emphasized expeditious disposal, directing the subordinate judge to decide the preliminary point within three months. No order as to costs was made. No new precedent was established; the decision directly affects the parties by clarifying the procedural sequence when tenancy disputes are raised alongside res judicata pleas.
1. The short question that arises for decision in this revision is whether the civil court is bound to refer to the land tribunal a disputed question of tenancy, Raised by one of the parties, Where the opposite party resisted the claim for reference to the land tribunal, On the ground that the very same question had already been settled by a competent court having jurisdiction in earlier proceedings between the parties, And the plea, Being barred by res judicata, Did not arise in the subsequent suit.
2. The suit is one for recovery of seven items of properties on the strength of title. Defendants 1 and 2 set up a plea that they were tenants in respect of certain items of the suit properties, While the plaintiff contended that they were not tenants under him. It would appear that the 2nd defendant died during the pendency of the suit on 21 - 6 - 1972 and that the 4th defendant was impleaded as his sole legal representative. The counsel for the revision petitioner submitted that the disputed question of tenancy raised by the 2nd defendant was settled between the parties, A compromise evidencing the terms of the settlement having been filed. It is also submitted by the counsel that virtually the contest in the suit now is between the plaintiff on the one hand, And the 1st defendant on the other, As, On a petition filed by the plaintiff, It has already been recorded that the decree to be passed in the suit might be made subject to the reservation of the kudikidappu right claimed by defendants 7 to 13,16,17,19 and 21. Issue nos. 16 and 20 in the suit read as follows.
"16. Whether the question regarding the kudikidappu right claimed by defendants 7 to 13, And 21 should be referred to the land tribunal?
20. Whether the claim of tenancy setup by defendants 1,3 and 5 is barred by resjudicata and if not whether the question has to be referred to the land tribunal for its decision?"
the finding dated 23 - 1 - 1976 entered by the learned subordinate judge on issue nos. 16 and 20 is as follows:
". In the circumstances i am inclined to hold that it is proper that the question of tenancy raised by defendants 1, 3 and 5 also is referred to the land tribunal along with the plea of tenancy set up by defendants 2 and 4 and the kudikidappu right set up by the 17th defendant. The plea of res judicata can conveniently be considered along with the other issues. It is accordingly found that the question of tenancies set up by the defendants 1 to 5 and the kudikidappu rights set up by the 17th defendant should be referred to the land tribunal for its decision. It is made clear that the plea of resjudicata raised by the plaintiff will be considered along with the other issues,"
3. We have already noticed, From the submission made by the counsel for the revision petitioner, That the dispute between the plaintiff on the hand and the first defendant on the other alone survives for decision;
and in that sense, We are, In this revision, Concerned only with the finding of the learned subordinate judge on issue no. 20.
4. There was previously a laud acquisition reference, L a. O. P. No. 21 of 1959, On the file of the sub court, Ottapalam. By ext. A - 1 judgment dated 7 - 4 - 1961 it was held in that reference that the 1st defendant was not having leasehold interest over items 1 to 5 as claimed by him. (he has not put forward any claim of leasehold interest over items 6 and 7) the plaintiff and the 1st defendant were parties to the proceedings leading to ext. A - 1 judgment. The finding that the 1st defendant had no leasehold interest under the plaintiff, Entered in ext. A - 1 judgment, Was confirmed as per ext. A - 2 judgment dated 5 - 4 - 1972 in a. S. No. 136 of 1961 on the file of the district court, Palghat. The second appeal, S. A. 311 of 1963, Filed against exts. A - 1 and a - 2 judgments, Was dismissed by a division bench of this court on 25 - 1 - '68 as per ext a6 judgment.
5. The counsel for the 2nd respondent herein submitted that though the concurrent finding in exts. A - 1. A - 2 and a - 6 judgments is to the effect that the 1st defendant had no leasehold interest claimed by him over items 1 to 5, In a subsequent suit, O. S. No. 30 of 1961, On the file of the sub court, Trichur, By the judgment dated 19 - 2 - 1963, Of which ext. B - 3 is a certified copy, It was held that defendants 1 and 2 had leasehold interest in the suit properties. He however, Hastened to concede that this court, Subsequently, As per ext. A - 5 judgment dated 22 - 1 - 1966 in a. S. No. 505 of 1963, Had vacated that finding, Leaving it open without being decided. The counsel for the revision petitioner pointed out that ext. A - 5 judgment is not of much relevance on the question of res judicata, Inasmuch as ext a - 6 judgment dated 25 - 1 - 1968 determining the dispute over the tenancy was passed by this court long after the date of ext. A - 5 judgment.
6. Now, Coming to the legal question involved in this revision, The counsel for the 2nd respondent submitted that where a question regarding the right of a tenant is disputed in a suit or other proceeding, The civil court is bound to refer the matter to the land tribunal for its decision, And that is what exactly the learned subordinate judge has done by the impugned order. In support of his contention he cited the decisions of this court reported in appuni v. Nani (1973 klt. 438) ; sankaran v. Rajammal (1974 klt. 488) ; and lissy versus kuttan (1976 klt. 571 f. B.). It is true that it is well settled by now that where there is a dispute regarding the right of a tenant, The civil court is bound to refer the matter to the land tribunal for its decision in terms of s. 125 (3) of the kerala land reforms act. Act,1 of 1964 as amended by act 35 of 1969. It would, However, Appear that a contention in the nature of the one that has arisen in this case, As to whether the civil court is bound to refer the question regarding the right of tenancy for the decision of the land tribunal, Where there was also a contention that the plea of tenancy is barred by res judicata, Did not come up for consideration in the above cases. There could be no doubt that there is subtle distinction between a question regarding the rights of a tenant or of a kudikidappukaran "arising" on the one hand, And a question regarding rights of a tenant or a kudikidappukaran "raised" on the other band. All that the 2nd respondent in this revision could contend is that a question regarding bis alleged right as a tenant has been raised in his pleadings. This by itself, In my view, Is not sufficient to compel the learned subordinate judge to make a reference of that question to the land tribunal for its decision under s. 125 (3) of the kerala land reforms act. The rule of res judicata, Based on the theory that it presumes conclusively the truth of the former decision, Prohibits an enquiry in limine, And ousts the jurisdiction of the court to try the question already adjudicated upon. It is also well settled that the plea of resjudicata, Like the plea of limitation, Is a plea of law which concerns the jurisdiction of the court which tries the proceeding. In this case the revision petitioner had contended before the learned subordinate judge that the question regarding right of tenancy had already been decided by competent courts in earlier proceedings as evidenced by exts. A - 1, A - 2 and a - 6 judgments, And therefore it did not arise for decision in the suit awaiting trial.
the legislature has in s. 125 (3) of the act guardedly used the expression "arising" instead of "raised". To invoke the section it is not sufficient that a dispute regarding right of tenancy is raised: the question should on the other hand, Arise in the proceedings. It, As a matter of fact, The plea is tarred by the operation of the principles of res judicata, The court trying the proceeding has no jurisdiction to try that question over again, And, In that view, That question does not really arise for decision either by the civil court or by the land tribunal to which the reference is sought. Considered in this background of the legal position, I hold that the learned subordinate judge was in error in referring the disputed question of tenancy to the land tribunal for its decision merely for the reason that it has been raised in the pleadings of the 1st defendant, Without considering whether it really arises or not in the proceeding in the face of the plea of res judicata raised by the opposite side.
for the foregoing reasons the revision is allowed, The order impugned is set aside, And the matter is remanded to the learned subordinate judge with a direction to consider the issue whether the plea of tenancy is barred by res judicata as a preliminary point and to make the reference to the land tribunal only in case the finding is that the plea is not barred by res judicata. In view of the fact that the suit has been pending from the year 1970, The learned subordinate judge should make a decision on the preliminary point as early as possible, At any rate, Within three months from this date. If the records have been received from the court below, That will be sent down forthwith. There will be no order as to costs.
allowed.
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