The plea of kudikidappu was found to be barred by the principle of constructive res judicata and successive reference to the Land Tribunal under S.125 of the Kerala Land Reforms Act was deemed incompetent.

Additional defendants 2 and 6 in O.S.No.36 of 1976, Munsiffs Court, Kottyam, are the revision petitioners. Additional defendants 2 to 10 were impleaded in the case as the legal representatives of the sole defendant, who was dead. In this revision the plaintiff and additional defendants 3,4,5,7,8,9 and 10 are the respondents. The suit, as originally laid, is for eviction of the original defendant and for arrears of rent. The plaintiff averred that the plaint schedule building belonged to the plaintiff and the same was rented out to the defendant for conducting a tea shop. The defendant averred that the land on which the plaint schedule building stood, was taken on ground rent by him and he constructed a building and was conducting a tea shop therein and was also residing there. Reclaimed fixity of tenure and claimed protection under S.106 of the Kerala Land Reforms Act. The trial court referred the matter to the Land Tribunal, Kottayam under S.125 of the Kerala Land Reforms Act. The Land Tribunal entered a finding in favour of the original defendant, that he is entitled to fixity of tenure under S.106 of the Act. Based on this finding of the Land Tribunal in O.A.No.18 of 1977, dated 5-4-1978, the trial court dismissed the suit. The plaintiff took up the matter in appeal before the District Court, Kottayam, as A.S.No. 247 of 1980. By judgment dated 11-11-1982, the District Court reversed the finding of the Land Tribunal. It also ordered a remit for fresh disposal of the matter after recording specific findings on other issues. In the appeal filed by the defendant before this Court against the order of remit, C.M.A. No.286 of 1982, this Court confirmed the findings of the District Court by judgment dated 18-9-1987. During the pendency of C.M.A.No.286 of 1982 the original defendant died. Additional defendants 2 to 10 were impleaded as legal heirs. In pursuance to the order of remit, when the matter came up before the Trial Court, the plaintiff filed an amendment application for declaration of title over plaint schedule items land 2. Item No. lis the building in question and item No.2 is the land on which item No.l building is situate. At that time additional defendants 2 to 5 filed a joint written-statement contending that the original defendant and the additional defendants are kudikidappukars as defined in the Kerala Land Reforms Act. Additional defendants 2 to 10 did not claim any independent right do hors any right, which belonged to the deceased defendant. They prayed in the trial court that the question regarding kudikidappu may be referred to the Land Tribunal under S.125 of the Kerala Land Reforms Act. The court below by order dated 8-7-1988, found that additional defendants 2 to 10 claimed rights only under the original defendant, that the original defendant had no case that he was a kudikidappukaran, and the only plea made by the original defendant was that he was entitled to the benefits of S.106 of the Kerala Land Reforms Act, which was found against. It was further held that if the original defendant had any right of kudikidappu.it was a matter which might and ought to have been raised as a plea by him even originally and the failure to do so is fatal and hit by the principle of res judicial. According to the court below, successive or a second reference, to Land Tribunal is incompetent. Reliance was placed on a Bench decision of this Court in Narayanan v. Kunchi Amma ParukuttyAmma (1986 KLT 1340). The legal heirs of the original defendant-additional defendants 2 and 6 - have come up in revision against the aforesaid order passed by the court below in I. A.No.1671 of 1958 dated 8-7-1988.

2. I heard counsel for the revision petitioners, Mr. T Raman Pillai, and counsel for the plaintiff, Mr. Rajasekharan Pillai. Mr. Raman Pillai highlighted two aspects. Firstly, it was argued that even in the original written-statement filed by the defendant he had advanced a plea of kudikidappu. Reference was made to paragra