The appellate court had the jurisdiction to assess tenancy and kudikidappu claims, and the non obstante clause in S.13 of the Kerala Land Reforms Act did not abrogate the bar of res judicata.

S. Padmanabhan, J.

1. Defendants 2, 3 and 5 to 7 in a suit for redemption are the appellants. Their plea of tenancy under the Land Reforms Act was negatived without reference to the Land Tribunal. Alternative claim of kudikidappu right was directed to be considered in execution. Value of improvements was assessed and decree for redemption was passed. In appeal, they only challenged the quantum of improvements. Confirming the finding on redeemability, the decree was set aside and the case remanded solely for the purpose of passing a fresh decree after reassessing improvements. Improvements were reassessed and a fresh preliminary decree was passed. In A. S. No. 151 of 1983, filed against that decree, the challenge was only that kudikidappu was not protected and improvements were not property assessed. Second appeal is against the dismissal of that appeal.

2. In this second appeal, the grounds taken are three fold They are :

(a) The decree for redemption without referring the claim of tenancy and kudikidappu to the. Land Tribunal is illegal and void;

(b) Rejection of kudikidappu right by the appellate court is not justified; and

(c) Value of improvements assessed is not proper. Kudikidappu right, if any, will arise only on redemption. The matter could and must be considered only in execution. No ground was made out for interference in the assessment of value of improvements. If so, the only question for consideration is whether rejection of the tenancy right requires interference.

3. Learned counsel, in support of his contention, brought to my attention various decisions, including Eapen Chacko v. Provident Investment Co. (P) Ltd, (1977 KLT 1), Chidambaran v. Arunachalam (1978 KLT 571), George v. Vareed (1978 KLT 691), Kesava Bhat v. Subraya Bhat (1979 KLT 766), Ramadas v. Krishnan Nair (1984 KLT 371), Narayanan v. Kunchi Amma Parukutty Amma (1986 KLT 1340) and Subbayya Chettiar v. Ayyappan Pillai (1989 (1) KLT 917), in order to contend that in a suit filed after 1-1-1970 when a question of tenancy was raised a decision without complying with the provisions of S.125(3) of the Kerala Land Reforms Act is a matter affecting the jurisdiction of the Court and, therefore, void. There cannot be any dispute that the decision of the Trial Court, without reference to the Land Tribunal, is without jurisdiction and as such void. But the appellants filed an appeal against that decree in which the denial of tenancy right was not challenged at all. The appellate decree, confirming the finding of redeemability and remanding the case only for assessing the value of improvements, was not challenged in appeal and allowed to become final eventhough they could have appealed. Against the revised preliminary decree for redemption passed after remand when they filed appeal the only grounds taken up were that kudikidappu right was not protected and value of improvements was not properly assessed. Tenancy claim was not taken up and could not have been taken up in view of the remand order which became final.

4. Section 105(2) of the Code of Civil Procedure says that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. Correctness of a remand order cannot be subjected to further investigation and consideration in view of the above said provision. Courts cannot correct such orders of remand which have become final when the remedy of appeal provided by law was not resorted to. If any authority for this position is required, it could be had from the decision in Kunhammed v. Pathumotti (1984 KLT 1055) and the decisions referred to therein.

5. It is well settled that the decision of a court rendered without jurisdiction and as such void could be challenged in appeal in the same way as a decision rendered with jurisdiction. In other words a decision with jurisdiction and one without jurisdiction are equally appealable. (Janardhan Reddy and others v. Th