S. Padmanabhan, J.
1. Defendant appeals. Suit is one for eviction. Respondent is the owner of the premises let out to one Ali. Appellant was the sub-lessee under Ali. In execution of a money decree in O. Section No. 685 of 1965, the rights of Ali and the appellant were sold in Court auction and purchased by the respondent on 8-3-1967, evidenced by Ext. A3. Sale was confirmed and delivery, as seen from Ext. A4, was taken on 20-3-1967. Appellant then executed Ext. A1 lease deed on 17-12-1967 and took the property on lease from the respondent.
2. In the suit for eviction, appellant denied the Court sale and delivery and contended that Ext. A1 was executed in continuation of the earlier lease. He claimed fixity of tenure and relied on Exts. B1 and B5 order and purchase certificate issued by the Land Tribunal, to the effect that he purchased the rights of the land owner and intermediary. Respondent successfully established not only that he was not a party to Exts. B1 and B5 and no notice was issued to him, but also that the appellant is not the applicant. Identity of property is also not established by the appellant. The trial Court and the appellate Court rejected Exts. B1 and B5 and the contentions of the appellant on the grounds that,
(a) the person who obtained Exts. B1 and B5 is not the appellant;
(b) there is nothing to show that respondent is a party to Exts. B1 and B5 or that notice was issued to him; and
(c) the appellant is holding under Ext. B1which is hit by Section 74 of the Kerala Land Reforms Act.
The names and other details of the applicant or respondent in Ext. B1 or B5 do not tally with the appellant or respondent. There is no other connecting evidence also. Therefore, there is no question of Exts. B1 and B5 operating as res judicata.
3. Even though res judicata was considered on merits and found against by both the Courts, the appellate Court took a further stand that plea of res judicata was not raised at all. Even though there is conflict of opinion whether resjudicata affects the jurisdiction of the Court itself or whether it is only a rule of procedure, the bar is applicable only when it is pleaded and established. Jurisdiction of the Court to try the suit or issue is always there and res judicata only bars investigation and decision on matters finally decided inter partes earlier. If the defendants omit to plead and prove res judicata and the Court investigates and decides matters already concluded between the parties without knowing such a decision, it is not void for want of jurisdiction. Plea of res judicata is one which might and ought to have been raised as a defence and established in order to operate as a bar in the exercise of jurisdiction to try and dispose of the matter subsequently. Otherwise the later decision will prevail and the plea of res judicata itself will be barred by constructive res judicata and the later decision overlooking the bar of res judicata alone will prevail. The plea is one which could be waived.
4. In considering whether the defendant pleaded res judicata Courts should not stand on hypertechnicalities. The approach should be with the view that dispensation of justice and not its denial on technicalities is the purpose. Courts should be more concerned with the substance of the plea than its form. What Section 11 imposes is a bar on the Court not to try any suit or issue in which the matter directly and substantially in issue has already been so in issue and decided in a previous suit inter partes on certain conditions. When from the pleadings or the documents produced the Court has reason to think that the suit or any issue is barred by resjudicata, the absence of a specific plea to that effect should not stand in the way. In this case, the appellant produced Exts. B1 and B5 and pleaded that he is a tenant who purchased the rights of the landlord and intermediary and he cannot be evicted. It is true that he did not specifically say that the suit is barred by res judicata. Still the plea and the documents were sufficient to inform the Court that what is involved is res judicata. The Court could proceed with the trial only if the bar of res judicata is not applicable. There cannot be any dispute that if Exts. B1 and B5 are inter partes and binding on the respondent, they will operate as res judicata. Even before Section 108A of the Kerala Land Reforms Act was introduced making the provisions of Section 11 applicable, the general principles of res judicata were considered applicable to proceedings under the Land Reforms Act. Those general principles include what is now incorporated as Explanation VIII to Section 11, C.P.C. An issue heard and decided inter partes by a Court of limited jurisdiction will operate as res judicata in a later suit before a competent Civil Court in spite of the fact that the Court of limited jurisdiction was not competent to try the latter suit or the suit in which that issue was subsequently raised.
5. If Exts. B1 and B5 are inter partes and binding on the respondent, the contention of the respondent that they are void for want of jurisdiction cannot stand. Want of jurisdiction on the ground that Ext. A1 being after commencement of the Kerala Land Reforms Act it is hit by the provisions of Section 74 thereof. Jurisdiction of the Land Tribunal is always there to entertain an application for purchase and decide it and issue purchase certificate. Then what is involved is only that a wrong order was passed allowing an incompetent person to purchase. That was a matter to be pleaded before the Land Tribunal or corrected by appeal or revision. The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-judicial body cannot be impeached otherwise than in appeal unless it relates to a matter of its jurisdiction. The jurisdiction to decide includes the right to decide rightly or wrongly within the limits of jurisdiction. They will be deemed to be invested with the power to err within the limits of their jurisdiction. Res judicata is not concerned with correctness or otherwise of earlier decisions. When the section or the general principles apply- the rnatter is concluded no matter whether what is decided is right or wrong. Ujjam Bai v. State of U. P., AIR 1962 SC 1621. If such decision is allowed to become final it is equally binding as a right decision State of West Bengal v. Hemant Kumar, AIR 1966 SC 1061. None of these questions will arise in this case because Exts. Bl and B5 are not inter partes. These arguments were adverted to only because they were seriously pressed.
6. The Full Bench decision in Kannan v. Kadisa, 1970 Ker LT 756 : (AIR 1971 Ker 61), relied on by the appellant to contend that the court sale will not extinguish the sub-tenancy right will not help him. What was involved in that case was sale of tenant's holding alone when sub-tenant was in possession. What the decision said is that the court sale only operates just like an assignment of a lease or mortgage. Here, under Exts. A3 and A4, the entire rights of the tenant and sub-tenant were sold and delivered and came to the owner who was thereafter in possession. It was after some time that a fresh transaction was entered into under Ext. A1. Entire rights of the tenant and sub-tenant were extinguished by the sale and delivery. The purchaser was the owner himself. The transfer involved in the sale is divestitive and investitive; acquisition of the right by the transferee and loss of it by the transferor. When the purchaser is the landlord himself, what he acquired merges in the property. There is no question of tenancy thereafter subsisting. Application filed by the respondent before the Land Tribunal for rent under Section 26 of the Kerala Land Reforms Act was dismissed for the reason that Ext. A1 is hit by Section 74. That was by the same Land Tribunal which issued Exts. B1 and B5. I said so only because if the respondent was a party there and he had notice, he could have raised objection under Section 74.
7. When every other contention was rejected an argument came claiming the benefits of Section 6A of the Kerala Land Reforms Act. That claim of deemed tenancy involves a mixed question of law and fact. Section 6A in its present form was there long before the suit was filed in 1978. Such a claim was not raised before the trial Court, appellate Court or in the memorandum of second appeal. Even when the second appeal was first argued the question was not raised. It came as a bolt from the blue when all other contentions were rejected. The respondent cannot be taken by surprise like that. For that reason alone, the claim will have to be rejected. But I am considering it for the sake of finality since it was argued on the merits.
8. The provision was introduced by Act 9 of 1967 on 29-7-1967. It reached the present form by amendment and substitution by Act 35 of 1969 on 1-1-1970. As the section now stands, a person in possession of immovable property in any area in the State to which the Malabar Tenancy Act, 1929 extended, whether as mortgage or otherwise, shall be deemed to be a tenant if
(a) the property consists of agricultural land;
(b) he or his predecessor held the land as tenant on or after 1-12-1930; and
(c) the tenancy was terminated after 1-12-1930 and before the commencement of the Act but possession continued uninterrupted.
9. The two objections raised were that the termination was after the Act came into force and possession did not continue after termination and therefore the provisions cannot apply. The provision in its present form enabling a person other than a mortgagor also (as in this case) to claim the benefit came only by Act 35 of 1969. The proviso to Section 1(2) of Act 35 of 1969 makes it clear that any reference to the commencement of the Act in relation to a provision amended, substituted or inserted by the said amending Act shall be construed as the date on which Act 35 of 1969 came into force. If no termination was evidently before the commencement of the Act and the first objection cannot stand. But after termination on 20-3-1967 the appellant had no possession till 17-12-1967 on which date alone he was inducted into possession under Ext. A1 which is a fresh and independent arrangement hit by Section 74. One of the essential conditions is that possession continued uninterrupted in spite of termination. The provision is intended to benefit tenants who continued in possession in spite of terminations. Explanation II excludes interruption of possession immediately following the termination only for a period not exceeding one agricultural year. Agricultural year according to Section 2(2) is from 1-4 to 31-3 next year. Here termination was on 2-3-67. By 31-3-67 that financial year was over. The period covers two financial years though the total period is less than one year. For that reason also, the benefit is not available.
Second appeal is dismissed. No costs.