The Executive Officer Vs. P.K.Ambunhi (Died) and anr. - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL FRIDAY, THE23D DAY OF MAY20142ND JYAISHTA, 1936 CRP.No. 311 of 2009 ( ) ------------------------ AGAINST THE JUDGMENT

IN AA1981987 of APPELLATE AUTHORITY (LR), KANNUR DATED3007-2008 AGAINST THE ORDER

IN SM5621982 of LAND TRIBUNAL, KANNUR DATED3008-1986 REVISION PETITIONER(S)/PETITIONER/APPELLANT/RESPONDENT: -------------------------------------------------------- THE EXECUTIVE OFFICER, VISHNUMANGALAM DEVASWOM, PULLUR VILLAGE HOSDURG TALUK. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S)/RESPONDENTS/RESPONDENTS: -------------------------------------- 1. P.K.AMBUNHI (DIED), S/O.THAIVALAPPIL AMBU, R/AT PULLUR VILLAGE HOSDURG TALUK, P.O.HARIPURAM.

2. P.VASUDEVAN NAMBOODIRI, S/O.LATE PATTROTTATH ILLATH KESAVAN NAMBOODIRI R/AT VISHNUMANGALAM, PULLUR VILLAGE, HODDURG TALUK P.O.HARIPURAM.

3. STATE OF KERALA, REP.BY CHIEF SECRETARY, SECRETARIAT THIRUVANANTHAPURAM. R2 BY ADV. SRI.K.JAYAKUMAR R2 BY ADV. SRI.P.B.KRISHNAN R2 BY ADV. SMT.GEETHA P.MENON R2 BY ADV. SRI.P.M.NEELAKANDAN R3 BY ADV. GOVERNMENT PLEADER SRI. P.V. ELIAS THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON2305-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HARILAL, J.

------------------------------------------------------ C.R.P. No.311 of 2009-D ------------------------------------------------------ Dated this the 23rd day of May, 2014 ORDER

The petitioner is the appellant in A.A.No.198/87 on the files of the Appellate Authority (LR), Kannur, as well as the respondent in S.M.No.562/82 on the files of the Land Tribunal, Kannur. The above S.M. was filed by the the respondent herein for the assignment of landlord's right over 60 cents of land in R.S.No.225/7 and 13 cents in R.S. No.225/8 of Pullur Village, Hosdurg Taluk in favour of 'A' party. Subsequently, the 2nd respondent herein got impleaded himself as an interested party holding right over the said item of property by virtue of document No.1193/83 of SRO, Hosdurg. C.R.P. No.311 of 2009 -:

2. :- 2. The case of the respondent/'A' party in the said S.M. proceedings was that the applicant Ambunhi filed O.A. No. 23310/1976 for purchase of landlord's right over the land in question which was dismissed on the ground that the tenancy of Kesavan Namboodiri and Chandran, who are stated to have transferred their rights of tenancy in favour of Ambunhi, have not been proved. The appeal as A.A. No.5114/78 and the revision filed before this Court as C.R.P. No.2608/80 were also dismissed. According to the respondent/'A' party, the property involved in the S.M. proceedings belonged to Vishnumangalam Devaswom owned and managed by the Trustee and the trustees entrusted the item in oral lease in 1940 and in 1954 on Patttrottillath Kesavan Namboodiri and Chandran respectively and the said occupants subsequently leased their rights to Ambunhi in the year 1950 and 1956 on condition to pay rent at the rate of Rs.20/- and 2 paras of paddy per year as each item respectively and accordingly the said Ambunhi is stated to hold tenancy right over the land in question. Thereafter, Kesavan Namboodiri leased out the right over the land in C.R.P. No.311 of 2009 -:

3. :- favour of Ambunhi as per document Nos.2514/75 and 2561/75. Thus, he claimed fixity of tenure over the said land.

3. The respondent filed counter and specifically contended that Erattillath Kesavan Namboodiri and Pattrottillath Kesavan Namboodiri have no right to alienate the Devaswom property in view of the stipulation in Ext.B2 Karar dated 29/10/1927. Therefore, the assignment is bad in law. The Land Tribunal without considering the objection raised by the petitioner herein, allowed the S.M. case. Though the petitioner had preferred A.A. No.198/87 before the Appellate Authority, the Appellate Authority also confirmed the order passed by the Land Tribunal without considering the contentions raised by the petitioner.

4. Feeling aggrieved by the concurrent findings of the authorities below, this revision is filed on various grounds. The illegality and impropriety of the orders passed by the authorities below are under challenge in this revision petition.

5. The learned counsel for the petitioner advanced C.R.P. No.311 of 2009 -:

4. :- arguments challenging the findings of the authorities below. The main thrust of the argument is that the proceedings initiated under S.M.No.562/82 is barred by res judicata. The courts below failed to consider the fact that the 1st respondent had filed an applicationfor purchase of landlord's right in O.A. No.23310/76. But the said application was dismissed by the Land Tribunal, though he had preferred the Appeal as A.A. No.5114/78 before the Appellate Authority. The Appellate Authority also concurred with the findings of the Land Tribunal.

6. Feeling aggrieved, the 1st respondent again preferred C.R.P.No.2608/80 before this Court. This Court also dismissed the same confirming the concurrent findings of the authorities below. According to the learned counsel, the authorities below ought to have dismissed the application in limine as the entire proceedings itself was barred by res judicata.

7. The short question that arises for consideration in this revision petition is whether the present proceedings are barred by res judicata caused by the earlier findings in C.R.P. No.311 of 2009 -:

5. :- C.R.P.No.2608/80.

8. Going bay the impugned order it could be seen that though the petitioner raised the above contention before the Appellate Authority, the Appellate Authority rejected the said contention on a finding that the principle of res judicata is not applicable to the proceedings under the Land Reforms Act before the Tribunal. The learned counsel for the revision petitioner cited two decisions in Jinan, P.V. v. Special Tahsildar (RR) and others (2007 (3) ILR641 and Vittala D. Prabhu v. Nalini Shenoy (2012 (3) KLT70.

9. Going by the above decisions, it could be seen that the law, at the point, had already been settled by this Court through various decisions. In Jinan, P.V. v. Special Tahsildar (RR) and others (2007 (3) ILR641, this Court held as follows: "9. Section 108A of the Land Reforms Act was introduced by Amendment Act 27 of 1979, which came into force on 7-7-1979. Section 108A provides that the provisions of Section 11 of the Code of Civil Procedure, 1908 shall apply to the proceedings before the Land Tribunal. Even before Section 108A was introduced by the C.R.P. No.311 of 2009 -:

6. :- Amendment Act 27 of 1979, a Full Bench of this Court in Koran v. Kamala Shetty (1977 KLT358 had taken the view that the general principles of res judicata would apply to the proceedings before the Land Tribunal. The same question was also considered by another Full Bench in Govindan Gopalan v. Raman Gopalan (1978 KLT315, and it was held that when the question of tenancy has become final, the same need not be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The question of finality of the proceedings before the Land Tribunal was again considered by a Larger Bench of this Court in Kesava Bhat v. Subraya Bhat (1979 KLT766, wherein it was held that the question of tenancy which is barred by res judicata need not be referred to the Land Tribunal. In view of these decisions and in view of Section 108A of the Land Reforms Act, the petitioner cannot be heard to contend that the application filed by him claiming rights under Section 53 of the Kerala Land Reforms Act is maintainable before the Land Tribunal." 10. Coming to the instance case, it is seen that the right claimed in the S.M. proceedings were considered and determined in earlier proceedings in S.M.No.562/82 and the C.R.P. No.311 of 2009 -:

7. :- said findings were confirmed by this Court in C.R.P.No.2608/80. The said right has been raised again in the present S.M. proceedings. The parties and the subject matter of the case are also same. In view of the decisions referred above, I find that the present proceedings initiated in S.M.No.562/82 and confirmed in A.A.No.198/87 are barred by res judicata. Hence the order passed in S.M. No.562/82 of the Land Tribunal, Kannur, and confirmed in A.A.No.198/87 of the Appellate Authority (LR), Kannur, will stand set set aside and this revision petition is allowed. Sd/- (K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge