Narayanan v. Kunchi Amma Parukutty Amma

Shamsuddin, J.:— This revision petition arises out of an execution petition filed by the decree-bolder in O.S No. 541 of 1975 on the file of the Principal Munsiff's Court, Parur.

2. The defendant-judgment debtor is the revision petitioner. The plaintiff who is the respondent herein filed the above suit for eviction of the defendant after removing the shop-building therein and for recovery of arrears of rent. It appears that when the suit was filed, the defendant filed O.A No. 120 of 1974 before the Parur Land Tribunal for purchase of kudikidappu right in respect of the same property alleging that he is a kudikidappukaran. The Land Tribunal rejected the petition on 30-11-1974 holding that the petitioner was not a kudikidappukaran and against that, the defendant filed L.R.A.S No. 523 of 1975 before the Appellate Authority (Land Reforms), Ernakulam. That was also dismissed on 7-10-1976. Thereafter the petitioner herein filed O.S No. 181 of 1974 for injunction restraining the respondent herein from obstructing him from thatching and maintaining the building. That suit was also dismissed.

3. In O.S No. 541 of 1975 the petitioner herein filed a written statement contending that he is a kudikidappukaran. The Munsiff's Court referred the matter to the Land Tribunal under S. 125(3) of the Kerala Land Reforms Act which is referred to hereinafter as ‘the Act’ for short. It was held by the Land Tribunal that the petitioner is not a kudikidappukaran and is only a rentee. Just after the evidence was closed and before the disposal of the suit, the petitioner filed an additional written statement claiming benefit under S. 106 of the Act and contending that he was not liable to be evicted. The learned Munsiff considered his claim under S. 106 of the Act also and passed a decree for eviction of the petitioner hereinafter removing the shop-building and for recovery of rent, overruling his claim under S. 106 of the Act. Aggrieved by the judgment and decree of the learned Munsiff, the petitioner herein filed A.S No. 120 of 1977 before the Additional District Court, Parur. In the appeal, the main contention raised by the petitioner herein was that he was entitled to the benefit of S. 106 of the Act. The appeal was dismissed and the judgment and decree of the trial court was confirmed. The petitioner filed S.A No. 812 of 1978 against the judgments and decrees of the lower courts before this Court and here also the main contention raised was that he was entitled to the protection under S. 106 of the Act. This Court overruled his contention and dismissed the second appeal and granted time till 31-3-1980 to the petitioner to surrender the building to the respondent herein. We are told by the Counsel for the petitioner that a Special Leave Petition was filed by him before the Supreme Court and the matter is now pending in the Supreme Court.

4. The respondent herein filed E.P No. 187 of 1978 for execution of the decree. The petitioner herein filed a counter affidavit contending that the decree passed in O.S No. 541 of 1975 was without jurisdiction for want of reference to the Land Tribunal under S. 125 of the Act on the question of his claim under S. 106 of the Act and therefore the E.P was not maintainable. The executing court rejected his objection and ordered delivery of the building by order dated 17th April, 1980. Aggrieved by the said order the petitioner preferred this Civil Revision Petition.

5. After hearing the arguments on both sides, a learned single Judge referred the revision petition to be heard by a Division Bench, on the ground that the question whether the claim under S. 106 of the Act required reference to the Land Tribunal under S. 125 of the Act was pending before a Division Bench and if the question was answered in the affirmative, the further question whether the decree was a nullity would arise and it was also an important one.

6. In support of the contention that a claim under S. 106 of the Act requires reference to the Land Tribunal under S. 125 of the Act, Sri. T. Devassia, learned Counsel for the petitioner, cited before us the decision in Chidambaram v. Anmachalam (1978 K.L.T 571) and also a Division Bench ruling in Ramadas v. Krishnan (1984 K.L.T 371). In both these decisions it was held that a claim under S. 106 of the Act requires reference under S. 125 of the Act to the Land Tribunal. In Ramadas's case it was further held, relying on a Full Bench decision of this Court in Kesava Bhat v. Surya Bhat (1979 K.L.T 766) that any decision by a civil court without reference to the Land Tribunal would be without jurisdiction and therefore null and void.

7. We are quite in agreement with the principle of the decisions referred to above, but in the instant case, we are unable to accept the contention of the learned Counsel for the petitioner that the decree was without jurisdiction or a nullity.

8. S. 125 of the Act does not contemplate successive references to the Land Tribunal. O.A No. 120 of 1974 was filed before the Land Tribunal, Parur for purchase of kudikidappu right which was dismissed. An appeal filed against the said order was also dismissed. Despite this, the petitioner raised a contention in O.S No. 571 of 1975 that he was a kudikidappukaran, and thereupon the learned Munsiff referred the matter to the Land Tribunal, Parur, under S. 125(3) of the Act and again the Land Tribunal negatived his claim as stated above. It is after closure of the evidence the revision petitioner filed an additional written statement raising a new claim, which was quite inconsistent with the claim, he made earlier in O.A No. 120 of 1974 and in the written statement originally filed in O.S 541 of 1975. It will be a mere abuse of the process of court, if alternative pleas of tenancy under different sections of She statute are raised in successive proceedings or different stages of the same proceedings, requiring every time that there shall be a reference to the Land Tribunal whenever such contentions are raised by the occupant of the land. This shall be much more so, if the occupant of the lands reserves such a contention to be raised in an amendment of the written statement at the fag end of the proceedings. One can comprehend a situation in which a particular claim was not available to a party when written statement was filed originally, but an amendment during the pendency of proceedings confers a new right which would fall under S. 125(3) of the Act. In such cases it has to be held that the courts are bound to make a reference to the Land Tribunal, though there was a reference earlier on the question of a different kind of tenancy. Bhaskaran, J. (as he then was) in the decision in George v. Chakkmni (1977 K.L.T 865) pointed out that the legislature had guardedly used the expression “arising” instead of “raised” in S. 125(3) of the Act and held that to invoke the Section it was not sufficient that a dispute regarding tenancy was raised, the question should on the other hand “arise” in the proceedings and if as a matter of fact the plea was barred by operation of principle of res judicata, the court trying the proceeding had no jurisdiction to try that question over again and in that view the question did not really arise for decision either by the civil court or by the Land Tribunal. A Full Bench of this Court approved this observation in Kesava Bhat v. Subraya Bhat (1978 KLT 766). The plea of tenancy having been negatived by the Land Tribunal in proceedings pursuant to a reference made on an earlier occasion, the civil court is not required to make a second reference on the basis of an inconsistent and belated plea raised towards the close of evidence. It is true that plea of tenancy under S. 106 of the Act now raised related to a different kind of tenancy but on the principle contained in Explanation IV to S. 11 of the Code of Civil Procedure, we are inclined to hold that this was a matter which might and ought to have been raised at the time of earlier reference and therefore the matter does not arise for trial by the civil court or Land Tribunal.

9. It is a well accepted principle that an executing court cannot go behind the decree or question its legality or correctness. Suffice it to extract the following passage from paragraph 5 of the judgment of the Supreme Court in Topanwal v. Kundumol Gangaram (AIR 1960 S.C 388) to appreciate this point.

“(5). The question is whether in such circumstances an executing Court can go behind the decree and give the relief to the appellant which was expressly denied to him in the suit. The question so posed can only have one answer. It is a well-settled principle that a Court executing a decree cannot go behind the decree; it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit. If the contention of the appellant were to be accepted, it would contravene the said principle; for while the decree as construed by us, has directed that it should not be executed against the personal properties of the partners, the executing Court would be directing execution against the same partners. While the decree excluded personal liability the executing court would be imposing the same: This cannot obviously be done.”

10. In V.D Modi v. R.A Rehman ((1970) 1 SCC 670 : A.I.R 1970 S.C 1475), the Supreme Court reiterated this principle as follows:

“A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.”

11. However it was pointed out in the above decision that when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in execution proceedings if objection appears on the face of the record. Where objection as to jurisdiction of the court to pass the decree did not appear on the face of the record and requires examination of the question raised and decided at the trial or which could have been but have not been raised, the executing court has no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.

12. In the instant case, we do not propose to dispose of the revision petition on the principle that the execution court cannot go behind the decree, for the reason that it may be possible to contend that there is lack of inherent jurisdiction on the part of the civil court to decide a matter which is required by S. 125 of the Act to be referred to the Land Tribunal. As pointed out earlier, in Ramadas's case (1984 KLT. 371) the Division Bench of this Court has held that the decision in such cases by a civil court without reference to the Land Tribunal would be without jurisdiction and therefore null and void. We would therefore rest our decision on the broader principle that the claim of tenancy under S. 106 of the K.L.R Act which the petitioner sought to raise in the final stages of the suit appears to us to be a plea which was available to him even in the earlier proceedings and which he might and ought to have raised in those proceedings, and therefore the lower court did not err in not referring that question to the Land Tribunal.

13. The matter may be viewed in another angle. Against the judgment and decree in S.A No. 812 of 1978 of this Court, we are told by the counsel for the petitioner that Special Leave was granted by the Supreme Court to file appeal. If that be so, the proper remedy of the revision petitioner would have been to seek relief of stay from the Supreme Court. We do not know whether it was prayed for and rejected. In any view of the matter, having failed to obtain stay from the Supreme Court, the revision petitioner cannot be permitted to short circuit and question the correctness of the decree in execution proceedings. For the reasons stated above, there is no merit in the revision petition and it is dismissed. However we direct the parties to bear their respective costs.

14. Dismissed.