G. Viswanatha Iyer, J.:— Judgment-debtor No. 2 is the revision petitioner. He challenges the order passed by the executing court holding that the decree put in execution is not a nullity and further that the decree-holder is entitled to recover possession of the property from the defendants-judgment-debtors. The plaintiff 1st respondent filed a suit for recovery of possession of the property on the basis of a mortgage. The first defendant was impleaded as the mortgagee and the second defendant, her husband, was impleaded as a person looking after the mortgaged property on her behalf. The suit was filed after 1-1-1970. The petitioner had contested the suit stating that he is a tenant in independent possession of the property and that he cannot be dispossessed. The trial court did not refer this question to the Land Tribunal. It is not clear whether there was any request for it and it was refused. The trial court finding that he is a tenant in independent possession, granted a decree to the plaintiff to redeem the mortgage and to take only a symbolic possession. The plaintiff filed an appeal to the Sub Court. The first Appellate Court did not agree with the Munsiff on the question of tenancy and granted a decree to the plaintiff for recovery of possession. The petitioner filed a Second Appeal to this Court as S.A 214 of 1974. In this Court his one prayer was for a remand for the reason that the lower courts acted illegally in going into the question of tenancy. This plea was not accepted in the light of the decision in Alavi v. Radha Varasyaramma (1976 KLT. 691 F.B) wherein it had been held that the failure to comply with the provisions of S. 125(3) does not affect the jurisdiction of the trial court to pass a decree and in any event that does not affect the power of the Appellate Court to go into the question of tenancy and enter a finding thereon. Another ground taken for challenging the decree of the lower courts was that the Land Tribunal had, in an application filed by the petitioner to purchase, taken a decision in favour of the petitioner regarding the tenancy and that has not been taken into account by the first appellate court in taking a decision. This plea was also not accepted on the ground that the Land Tribunal's decision was subsequent to the filing of the suit and therefore the Appellate Court was right in not taking this into account in deciding the appeal on the question whether the petitioner is a tenant or not the view of the Appellate Court was affirmed. Thereafter the plaintiff-decree-holder applied for execution. Then the petitioner pleaded that the decree sought to be executed is null and void and unenforceable. Secondly it was contended that the decree-holder has lost her title over the property by the purchase certificate issued by the Land Tribunal in petitioner's favour pending the appeal before the Sub Court, and as it is a new right obtained by him after the suit the decisions of the Appellate and Second Appellate Courts are not a bar to his urging this contention. The executing court did not accept this plea and ordered eviction. It is against that this revision petition is filed.
2. The first point pressed for consideration is that the decree sought to be executed is a nullity for the reason that the trial and Appellate Courts have no jurisdiction to go into the question of tenancy and the decree ignoring the provisions of S. 125(3) of the Kerala Land Reforms Act is null and void. In support of this plea reliance is placed on the larger Full Bench decision in Kesava Bhat v. Subraya Bhat (1979 KLT. 766). In the majority judgment rendered by Nambiyar, C.J at page 779 it is observed thus:
“We cannot accept the above exposition of law by the Full Bench (Alavi v. Radha Varasyaramma 1976 KLT. 691) that there is no ouster of jurisdiction by S. 125(3) as correct. We are of the opinion that there is an ouster of jurisdiction of the civil court to decide a question of tenancy, by S. 125(1) of the Act. Such a question must be referred to the Land Tribunal under S. 125(3), and dealt with as provided by that clause and the other clauses of that Section. 1976 KLT. 691, stating a contrary position cannot be accepted as correct and we overrule the said statement of legal principle. A contravention of the provisions of S. 125(3) is a matter of jurisdiction and not one relating to procedure.”
3. In view of this binding pronouncement it may be open to the petitioner to contend that the trial court's decree was rendered without jurisdiction. But the majority has left open the question whether if, on appeal from the trial court decision, the Appellate Court goes into the question of tenancy and renders a decision that decision will be a nullity. At page 784 this question is mentioned in paragraphs 12 and 13 and left open with this observation. “We do not wish to pronounce on this aspect.” Here the trial court decision was in favour of the petitioner. The plaintiff appealed against that decree. The petitioner had no complaint either in the trial court or in the First Appellate Court that the trial court had no jurisdiction to go into this question. A decree made without jurisdiction possesses nonetheless the qualties of a decree as between the parties thereto and if there is a statutory appeal from the decree made in suits of that character, the decree does not become unassailable by appeal. If a jurisdiction is usurped by a court in passing a decree against which an appeal would lie if it had been passed with jurisdiction, that appeal cannot be defeated on the ground that the decree was made without jurisdiction—see Gangadhar v. Shekharbasini (AIR. 1917 Calcutta 320 at page 325). S. 99 C.P.C indicates that an appeal is maintainable against the decree which has been passed without jurisdiction. Further this position is not now open to doubt in the light of the decision of the Supreme Court in Janarahan Reddy v. State of Hyderabad (AIR. 1951 S.C 217). At page 225 it is observed thus:—
“It is well settled that if a Court acts without jurisdiction, its decision, can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e, an appeal would lie to the Court to which it would lie if its order was with jurisdiction.”
4. This is the position not only in civil matters but also in criminal proceedings and administrative matters—see Calvin v. Carr ((1979) 2 All. E.R 440 (P.C)). In the light of the principle stated in these authorities it follows that an appeal filed by the plaintiff against the decree of the trial court was perfectly maintainable. To what extent the appellate court can interfere and exercise a power to decide the question mooted before it, will depend on the powers of the appellate court provided for in the CPC. An argument was addressed that ordinary powers of an appellate court are not exercisable in an appeal where a person claims a tenancy right. It is contended that S. 125 clauses (1) to (6) construed properly would make this position clear. It is argued that S. 125(1) is a total bar to the civil court to settle, decide or deal with any question or to determine any matter by or under the Act required to be settled by the Land Tribunal or other authorities under the Act. No order of the Land Tribunal or other authority shall be questioned in a civil court except as provided in this Act. If any such question arises in any suit S. 125(3) enjoins the civil court to refer that question to the Land Tribunal and the answer given by the Land Tribunal has to be accepted by the court in passing the decree. The finding of the Land Tribunal is to be deemed to be part of the civil court for the purpose of appeal. By this scheme it is argued, that the power of the appellate court is limited to the consideration of the correctness of the finding of the Land Tribunal and if there is no finding by the Land Tribunal the bar under sub-section (1) will apply to the Appellate Court also. This contention is clearly unsustainable because S. 125 not only does not limit the power of the appellate court, it requires the appellate court to treat the finding of the Land Tribunal as a finding of the civil court. It necessarily means that the appellate court's powers under the CPC are not taken away. This position has further been settled by this Court by two Full Bench decisions, namely, Lissy v. Kuttan (1976 KLT 571) and Alavi v. Radha Varasyaramma (1976 KLT. 691). The larger Full Bench decision in Kesava Bhat v. Subraya Bhat (1979 KLT 766) also proceeds on that basis. It follows that the power of the appellate court as provided for in the C.P.C is not taken away by the provisions of S. 125 of the Land Reforms Act.
5. In an appeal from a decree it is open to the appellate court to go into the correctness of the finding entered into by the trial court. If on a material question there is no finding of the trial court, if there is sufficient evidence, the Appellate Court could itself enter a finding or call for a finding from the trial court. The finding on a question of tenancy by the trial court without reference to the Land Tribunal is no finding at all as that court has not followed the provisions of S. 125(3). So the appellate court which is not inhibited by any of the restrictions of S. 125(3) can go into the question of tenancy and if it does and enters a finding it cannot be said that finding was entered into without jurisdiction. The appellate decree after such a finding will not have any of the defects which can be pointed in the case of a decree of the trial court without complying with the provisions of S. 125(3). This decision is clear in the light of the decision of the Supreme Court in Janardhan Reddy v. State of Hyderabad (AIR. 1951 S.C 217) page 225. The Supreme Court observes thus:—
“Evidently, the appellate Ct. in a case which properly comes before it on appeal, is fully competent to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction and thereby decides wrongly that the trial Ct. had the jurisdiction to try and convict it cannot be said to have acted without jurisdiction and its order cannot be treated as a nullity.”
6. On this aspect there is no difference between a civil case or a criminal case. The principle that applies is that there is a finality of judgment which applies to civil as well as criminal cases and is implicit in every system wherein provisions are to be found for correcting errors in appeal or in revision.
7. In this connection it is necessary to refer to the decision of the Supreme Court in U.P State v. Mohd. Noor (AIR. 1958 SC. 86) cited by the learned counsel for the petitioner. The passage relied on in the above decision is paragraph 11 which reads thus:—
“On the authorities referred to above it appears to us that there may conceivably be cases—and the instant case is in point—where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity by reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that.”
8. That was a case where a police official was dismissed from service by the Deputy Superintendent of Police and that order was confirmed in appeal by the Inspector General of Police. The principles of natural justice had been violated in passing the order of dismissal by the District Superintendent of Police. In a proceeding under Article 226 the question arose whether the High Court can interfere and it was in connection with that the observations quoted above were made. The earlier decision of the Supreme Court in Janardhan Reddy v. State of Hyderabad (AIR. 1951 SC. 217) was cited in support of the order passed by the Departmental authorities in appeal. S.R Das, C.J distinguished that case thus:—
“In the first place it must be noted that the two observations quoted from the decision of this Court on which reliance is placed on behalf of the appellant State were made in a case where the alleged error, irregularity or illegality was committed by a special tribunal which had not merely the trappings of a court but was a court of law presided over by a Judge with legal training and background and bound by rules of evidence and procedure laid down for it and the appeal from its decision lay before the highest and final court of the State—a superior court of record. But orders made on departmental “trial” held by an officer in the department without any legal training and orders passed by his superiors in the same department on appeal or in revision which, in the words of Harries, C.J in Assistant Collector of Customs v. Soorajmull Nagarmull, 56 Cal W.N 453 at p. 467 : (AIR. 1952 Cal 656 at p. 663) were only in the nature of an appeal from Caesar to Caesar and which might not be regarded with any great confidence by persons brought before them can hardly be equated with reasonable propriety with the orders passed by the Special Tribunal and an appeal therefrom by the Hyderabad High Court with reference to which bodies alone the said observations had been made.”
9. It follows that as the Appellate Court's jurisdiction under the CPC are not in any way restricted, even if the decision of the trial court was rendered without jurisdiction, not amounting to an inherent want of jurisdiction regarding the subject matter and parties, the decision of the appellate court will be valid and binding on the parties to the decision. This conclusion accords with the decision, on this aspect, of Vadakkel, J. in Shahul Hameed v. Hassan (1980 KLT. 522) and Alavi v. Radha Varasyaramma (1976 KLT 691) and the judgment of one of us in Kesava Bhat v. Subraya Bhat 1979 KLT. 766).
10. In this case as stated earlier the trial court decision on the question of tenancy was in favour of the petitioner. On appeal the Appellate Court and the Second Appellate Court found against the petitioner and these decisions are binding on the petitioner and it is idle for him to contend in execution that the decree sought to be executed is rendered without jurisdiction and as such a nullity. After the trial court decree was reversed in appeal it is the Appellate decree that is put in execution, the right of the decree-holder to execute the decree stems from it. This will be the case even if the appellate court affirms the trial court decree.
11. One more point is urged by the petitioner in support of his objection that the decree-holder has no right to execute the decree. It seems that the petitioner while contesting the suit had filed an application before the Land Tribunal for a purchase certificate alleging that he is a tenant and the respondent is a landlord. It appears that the trial court judgment in favour of the petitioner was made use of as evidence before the Land Tribunal and the Land Tribunal issued a purchase certificate on 4-8-1973. At a late stage and on the day the Appellate Court heard the case this certificate was sought to be admitted and relied on as an additional evidence in support of his claim of tenancy. The first Appellate Court without admitting that document disposed of the appeal. This was urged as a ground for interference in the Second Appeal filed by the petitioner. But this Court did not accept it as a ground and also stated that as the decision by the Land Tribunal was rendered subsequent to the filing of the suit the lower appellate court was right in not taking that order into consideration. In spite of these the petitioner's counsel now urges that with the issue of a certificate by the Land Tribunal the decree-holder's right over the property is lost and he has no right to execute the decree. First of all the claim of the petitioner on the basis of the decision of the Land Tribunal and the issue of the purchase certificate has been negatived in the Second Appeal. Assuming it is not so, it is a case where two cross actions were had between the parties and the petitioner could have, but for his default and latches, pleaded that the plaintiff's appeal is barred by res judicata with the decision of the Land Tribunal. For, the rule of res judicata is not limited to the court of first instance, it applies equally to the appellate and second appellate courts and miscellaneous proceedings. If his case is that the Land Tribunal having jurisdiction has decided and issued a purchase certificate to him and that decision is conclusive and binding on the plaintiff, the petitioner's attempt to urge this in appeal having failed, he is barred from urging it again in execution. When there are two conflicting decisions inter parties the last one should prevail between the parties and the first one regarded as dead—see Arumukam Nadar v. S. Pakeer Pillai (1950 KLT 32) and Rajani Kumar Mitra v. Ajmaddin Bhuiya (AIR. 1929 Calcutta 163). If his case is that with the grant of the purchase certificate by the Land Tribunal, the plaintiff's right is lost that is a matter which, if urged at the proper time in the proper manner, would have been an effective answer to the right of the plaintiff to recover the property for him. His attempt having failed, he is barred by the principle of res judicata. It may be that he obtained this title pending the suit, but it cannot be said that in all cases he can wait to put forward this right for a later occasion. In this we are supported by the decision of a Division Bench decision of this Court in S.A 746 of 1976. In paragraph 14, Poti, J. has observed thus:—
“What is said of the right of the plaintiff to reserve the cause of action arising by reason of subsequent developments could equally well be said of pleas available to the defendant by way of defence to the plaint claim by reason of developments subsequent to the suit. Can it be said that in any and every case it is open to the defendant to reserve his defence available on account of subsequent legislation to a fresh suit. It may be in appropriate in cases where such defence is a direct answer to the claim of the plaintiff and if set up would result in the suit being thrown out. Supposing the cogaizance of the suit is barred by reason of subsequent legislation or the grant of the relief claimed in this suit is prohibited by reason of amendment of existing law it would be a direct answer to the case of the plaintiff and that answer must be urged so that in considering the relief the court takes note of such defence founded on subsequent event.”
12. In support of this observation a number of authorities are cited. We respects fully agree with that conclusion. In this connection the petitioner referred to the decision of a Division Bench of this Court in A.S.A 4 of 1977. In that case while a second appeal on a question of value of improvements was pending. S. 4A was enacted by Act 35 of 69 and the mortgagee did not put forward a plea under S. 4A. The second appeal was dismissed on 2-12-1970. In execution he pleaded for this benefit. It was held by the High Court thus:
“At the time the Second Appeal was filed, Act 35 of 1969 had not been passed. The rights now pleaded by the appellant were therefore rights which came into existence during the pendency of the Second Appeal. There is enough authority—indeed the statutory provisions of Act 35 of 1969 only confirm this position—that the appellant was not bound to put forward rights created during the pendency of the appeal in the pending appeal itself.”
13. The facts in this case are different. Here after the petitioner obtained the purchase certificate he filed in this Court S.A 214 of 1974. This title if valid is an effective ground to defeat the plaintiff in the Second Appeal. But he failed in that attempt in the second appeal. The decision may be wrong. But that is res judicata. It is really a case where the Appellate Court's powers were invoked under Order XLI Rule 33 and the failure of the petitioner to successfully urge this point in appeal cannot be said to give him a fresh right to put forward a defence in execution. The right which the petitioner claims is destructive of the title of the plaintiff. It is with him on the party array, after his acquisition of the alleged right, that the first Appellate Court and the second Appellate Court allowed the plaintiff to recover possession of the property from him. He cannot urge this right again in execution. This is not a right which he obtained after the Second Appellate Court's decree. Hence all his claims on the basis of the purchase certificate are of no avail against the plaintiff's right to recover possession of the property in execution of the first and second Appellate Court decree. In the result the Civil Revision Petition is dismissed with costs.
Dismissed.
14. Leave to appeal to the Supreme Court is asked for. We are not satisfied that any substantial question of law of general importance arises in this case which in our opinion is to be decided by the Supreme Court. Leave is refused.
15. Leave refused.
Comments