Important Point
Where amendment in Kerala Land Reforms Act was made pending the Civil Suit for Redemption of Mortgage, the mortgagee (deft. 2) can agitate his contention that he is a protected tenant as per Land Reforms Act before the Civil Court and not before Land Tribunal under the Land Reforms Act.

Headnote:(i) Kerala Land Reforms Act, 1963-Sections 72B and 72K (as amended in 1969)-Definition of tenant amended - Mortgagee becoming protected tenant-Defendant 2 was Otti Mortgagee in 1944 -Plaintiff applied for redemption-Preliminary decree passed - Became final in 1969-Amendment in Land Reforms Act-Whether, pending the civil suit for redemption against defendant 2, defendant 2 can agitate his contention before the Kerala Land Tribunal that he was a protected tenant as per amended Land Reforms Act? (No) whether the Land Tribunal acting under amended provisions had jurisdiction to grant him any such relief? (No)-Effect.
       Held : On a conjoint reading of proviso to Section 125(1) of the principal Act and Section 108(3) of the Amending Act it must, therefore, be held that the question of status of defendant No. 2 under the Amending Act 35 of 1969 could have been decided only by the Civil Court in the pending suit and not by the Land Tribunal under the Amending Act. Consequently, the direct approach made by him to the Land Tribunal under the Amending Act must be held to be premature and incompetent and it must also be further held that consequently the orders obtained by him from the Land Tribunal were rendered by a tribunal which had no jurisdiction to pass such orders and they were nulities. Hence, no question of res judicata would arise in connection with such orders of an incompetent authority. Learned senior counsel for the appellant was right when he contended that the Kerala Land Reforms Act, as amended, is a complete code in itself and it is only the Land Tribunal which can issue purchase certificate under Section 72K and the Civil Court cannot give such a purchase certificate. That may be so. However, such certificate cannot be granted to all and sundry. The claimant must prove that he is a cultivating tenant under the Act. That would be a condition precedent to be established by the claimant before he could get such purchase certificate. The fulfilment of such a condition precedent would require decision on the basic question whether he is a cultivating tenant under the Amending Act or not. If the suit was not pending before the Civil Court and if defendant No. 2 being an otti-holder had gone to the Land Tribunal after the Amending Act came into force, he would have been justified in invoking the jurisdiction of the Land Tribunal and if the Tribunal after hearing the parties had granted such a purchase certificate it would have remained conclusive and binding between the parties, but such is not the fact situation in the present case. In the present case, as seen above, the suit was already pending between the parties. Not only that, defendant No. 2 had suffered the preliminary decree for redemption of suit mortgage by the time Amending Act came into force. Consequently, proviso to Section 125(1) squarely got attracted and did not prevent the Civil Court from deciding such a contention as canvassed by defendant No. 2 regarding his alleged rights flowing from the Amending Act as a protected tenant entitled to purchase the land. Hence, the emphasis put by the learned senior counsel for the appellants on the alleged conclusiveness of the purchase certificate issued to defendant No. 2 by the Land Tribunal under Section 72K, on the facts of the present case, is found to be totally devoid of any efficacy. Point No. 1, therefore, must be answered in the negative against the appellants and in favour of the contesting respondents. (Para 11)
       (ii) Kerala Land Reforms Act, 1963 - Section 125(1) - Kerala Land Reforms (Amendment) Act, 1969-Section 108(3)-Redemption of mortgage-Preliminary decree passed-Final decree proceedings pending-Amendment to Land Reforms Act-Whether the trial Court in the final decree proceedings which are pending between the parties can consider the contention that defendant 2 had got the benefits of the provisions of the Land Reforms Amending Act 1969 as a cultivating tenant to purchase the suit land? (Yes). (Para 12)
       (iii) Kerala Land Reforms Act, 1963 - Section 72B-Redemption of mortgage-Preliminary decree passed-Final decree proceedings pending-Amendment in Land Reforms Act-Civil Court having jurisdiction to decide whether defendant 2 was entitled to benefits as a cultivating tenant to purchase the suit land-Land Tribunal instead deciding this-Effect-The Civil Court will have to decide the entire question de novo fresh on its own merits. (Para 13)
       (iv) Judicial Precedents-Apparent conflict in two decisions by two Judge benches of Supreme Court-Whether there is any real conflict between the decisions of Supreme Court in case of Chettiam Veethi, AIR 1979 SC 1573 and in the case of Mathevan Padmanabhan, 1995 Supp. (1) SCC 479? (No). (Para 14)
       Held : Before parting with the discussion on this point we may take stock of the resultant situation-
        1. In civil suits between the disputing parties pending on or before 1st January 1970 when the Kerala Land Reforms (Amendment) Act, 1969 came into force, if a contention is raised by one of the contesting parties requiring determination of any matter which is by or under the Amending Act required to be settled, decided or dealt with by the authorities functioning under the Amending Act the Civil Court before which such a question arises will not lose jurisdiction to decide such a question of view in the proviso to sub-section (1) of Section 125 of the principal Act read with Section 108(3) of the Amending Act and such a question can be decided by the Civil Court itself by applying the relevant provisions of the Amending Act read with the principal Act so far as the question of the status of tenancy of the contesting party is concerned and once such a question is finally decided in favour of the contesting party and it is held to be entitled to the benefit of the Amending Act then appropriate consequential orders and relief on the basis of the final decision as aforesaid could be obtained from the competent authorities functioning under the Amending Act.
        2. After coming into operation of the Amending Act 35 of 1969 if a question arises whether a person is a cultivating tenant entitled to the benefits of the Amending Act and on civil suit is pending wherein such a person is a party then appropriate proceedings can be initiated by such a person before the competent authority under the Amending Act and if such person is found entitled to the benefits of the Act in the hierarchy of proceedings under the Amending Act then appropriate further relief could be obtained by such person from the authorities under the Act and if purchase certificate is issued to such a person under Section 72K of the Amending Act it would be binding and conclusive between the contesting parties in proceedings before such authorities.
        3. If after coming into operation of the Amending Act 35 of 1969 a civil suit is filed wherein a question arises regarding the status of a contesting party to be a tenant and such a question by then is not already decided finally between the contesting parties by competent authority under the Amending Act, then the Civil Court will have to follow the procedure of Section 125(3) with sub-section (6) thereof and having made a reference to the competent court under the Amending Act obtain appropriate finding on the said question from the said authority and once such finding is received and which will be treated as a finding by the Civil Court itself, subject to the said finding becoming final in the hierarchy of proceedings before the appellate authorities entitled to re-consider the said finding of the Civil Court appropriate further orders in favour of such contesting party which is finally held to be a tenant can be obtained from the competent authority under the Amending Act including certificate of purchase under Section 72K of the Amending Act and such a certificate would be treated as binding and conclusive between the parties.
        4. After the coming into operation of the Amending Act 35 of 1969 and in the absence of any suit by then filed wherein the contesting party claims tenancy rights, if such a person already gets appropriate orders from the competent authorities under the Amending Act and his status as a tenant entitled to purchase the disputed land is finally decided by the competent authorities in the hierarchy of proceedings under the Act and certificate of purchase is obtained under Section 72K of the Amending Act, and thereafter if a civil suit gets filed against it by the other contesting party then in such a civil suit it could be said that the question of determination of right of the contesting party as a tenant would not survive as it was already decided by the competent authority under the Act earlier and the said decision having become final in the hierarchy of proceedings under the Amending Act would operate as res judicata between the parties. Under such circumstances there will be no occasion for the Civil Court to follow the procedure of Section 125(3) read with Section 125(6) and only on the basis of the binding decision of competent authority under the Amending Act between the parties the Civil Court can dispose of such subsequently filed suit. (Para 16)
       Aforesaid are the four categories of situations which would emerge on account of the interaction of the Amending Act 35 of 1969 on the one hand and the Civil Court proceedings on the other between the very same contesting parties as and when such occasions arise. It becomes at once clear that present is a case which falls in the first category. Decision of the Division Bench of this Court in the case of Mathevan Padmenabhan (1995 Supp. (1) SCC 479) was concerned with a case which fell in category No. 3, while the earlier decision of the Division Bench of this Court in the case of Chettiam Veettil (AIR 1979 SC 1573) was concerned with a case which fell in category No. 2. Obviously, therefore, there could never be any conflict between the ratio of the decisions rendered in these two cases. Point No. 4 is, therefore, answered in the negative by holding that there is no conflict between the ratio of the aforesaid two judgments of this Court. (Para 17)
       (v) Otti Mortgage-Redemption -Preliminary decree passed-Final decree proceeding pending-1969 Amendment of Kerala Land Reforms Act-Alternate contention-Whether final decree proceedings are barred by limitation? (Left open to be decided by appropriate future proceedings)-What final order?
       Held : This point for determination is answered by holding that it is not necessary to decide this contention at this stage keeping it open to be decided in appropriate future proceedings before this Court if at all such need arises for the appellants, as discussed earlier. (Para 18)
       Held finally : As a result of the aforesaid discussion on these points it must be held that the order passed by the Trial Court below I.A. 1307 of 1994 on 31st May 1995 as well as the impugned order passed by the High Court in C.R.P. No. 1271 of 1995 decided on 18th October 1995 are not well sustained and are required to be set aside entirely on different grounds as shown by us earlier and not on the grounds which weighed with the Trial Court as well as with the High Court in dismissing the said I.A. I.A. No. 1307 of 1994 filed by original defendant No. 2 is restored to the file of the 1st Additional Sub-Judge, Trivandrum with a direction to decide the said application, as indicated hereinabove, afresh on the question of defendant No. 2’s claim to be entitled to the protection of the Kerala Land Reforms (Amendment) Act 35 of 1969 as a cultivating tenant. In the light of the decision rendered on this I.A. by the Civil Court in the remanded proceedings, it shall proceed further in accordance with law in connection with the question of passing appropriate final decree in the suit. (Para 19)
       Appeal is allowed accordingly. In the facts and circumstances of the case there will be no order as to costs. (Para 20)

Judgment

S.B. Majmudar, J.-Leave granted.

2. I.A. No. 4, Application for substitution of the heirs of deceased original petitioner, is granted. We have heard learned senior counsel for the appellants, heirs of the original petitioner in the S.L.P. as well as learned senior counsel for the respondents finally.

3. A Bench of two Judges of this Court has referred the Special Leave Petition from which this appeal arises for decision of a larger Bench of three Judges by order dated 25th October 1996 and that is how these proceedings have been placed before us for final disposal. The reference as aforesaid has been made presumably on the ground that there is an apparent conflict between two decisions rendered by two Judges Benches of this Court in the case of Mathevan Padmanabhan alias Ponnan (Dead) through LRs. v. Parmeshwaran Thampi & Ors.1 and in the case of Chettiam Veettil Ammad & Anr. etc. etc. v. Taluk Land Board & Ors. etc. etc.2

4. In order to highlight the controversy arising in the present appeal it will be necessary to note a few relevant background facts.

Background Facts

5. The present appellants’ predecessor was defendant No. 2 in a civil suit O.S. 75 of 1958 filed by the original plaintiff for setting aside Sale Deed dated 27th July 1955 executed by defendant No. 1 one of the co-owners of the suit property, in favour of defendant No. 2 and also for redemption of the suit mortgage being otti mortgage (an anomalous mortgage) executed by the original mortgagors in favour of defendant No. 2-mortgagee. We shall refer to the parties to this appeal as defendants and plaintiffs respectively in the latter part of this judgment for the sake of convenience. The said mortgage dated 1st December 1944 was executed by the Tarwad of the plaintiffs in favour one Parameswaran Pillai and his sons. In the said suit for redemption a preliminary decree was passed by the Trial Court on 22nd January 1963 for redemption of the otti mortgage of defendant No. 2 on payment of mortgage amount and value of improvements by the plaintiffs. Defendant No. 2 challenged the said preliminary decree by filing regular appeal A.S. 527 of 1963 before the Appellate Court. The said appeal came to be dismissed on 27th November 1965. Thereafter defendant No. 2 carried the matter in Second Appeal No. 334 of 1966 before the High Court of Kerala. The said second appeal with another cognate second appeal was dismissed by the High Court on 19th February 1969. Thus the preliminary decree for redemption of the suit mortgage and for partition of the suit property became final as no further proceedings were initiated by defendant No. 2 against the aforesaid decision of the High Court in second appeal. Thereafter Original Suit No. 75 of 1958 remained pending at the stage of passing final decree. In the meantime Kerala Land Reforms Act, 1963 (hereinafter referred to as ‘the Land Reforms Act’) which had come into force with effect from 1st April 1964 got amended by Amending Act 35 of 1969. According to defendant No. 2 the said Amending Act gave him a statutory right to purchase the suit mortgage property as he got covered by the wider definition of ‘tenant’ as envisaged by the said Amending Act. On that ground defendant No. 2 filed an application under Section 72B of the Land Reforms Act before the Land Tribunal. The Land Tribunal by its order dated 18th July 1974 issued a preliminary order holding that the applicant was a tenant entitled to purchase landlord’s rights. Thereafter final orders were passed by the Land Tribunal on 28th October 1974 directing issuance of a certificate of purchase in favour of the applicant-defendant No. 2. Accordingly certificate of purchase was issued to him under Section 72K of the Land Reforms Act on 25th July 1975. A few years, later in the pending suit O.S. 75 of 1958, 11th defendant Kamala Bai filed an application being I.A. No. 5092 of 1979 dated 17th November 1979 requesting the Trial Court to pass a final decree in the ligh

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1998 Supreme(SC) 397

Cases Referred (4)