Interlocutory decisions are not res judicata; the civil court must refer tenancy issues to the Land Tribunal.

1The defendant in OS No. 45 of 1980 of the Munsiff's Court, Neyyattinkara, challenges in this revision, the order of that Court dated 16-8-1980 declining to refer the question of tenancy raised by him in the suit to the Land Tribunal for decision, under S.125(3) of the Kerala Land Reforms Act.

2 The suit is for redemption of a mortgage and for recovery of possession of property. One of the contentions raised by the defendant is that he is a tenant entitled to fixity of tenure. Issue 2 in the suit is whether the defendant is a tenant entitled to fixity of tenure under the provisions of the Kerala Land Reforms Act. The lower court has declined to refer the issue to the concerned Land Tribunal under S.125(3) of the Land Reforms Act, on its view that the question regarding tenancy claimed by the defendant does not arise for consideration for the reason that a competent Land Tribunal has already found that the defendant is not a tenant. The finding of the Land Tribunal referred to in the order of the Munsiff was in a prior proceeding in OP No. 13 of 1971 filed by the 1st petitioner for redemption of the mortgage in accordance with the provisions of S.11 of Kerala 11 Act of 1970. The defendant was the 2nd respondent in those proceedings. He raised a similar contention that he is a tenant entitled to fixity of tenure and that question was referred under S.125(3) of the Act for decision by the Land Tribunal. The Land Tribunal decided the question finding against the defendant's plea of tenancy, and returned the finding and the records to the Munsiff's Court for final decision in the matter. The Munsiff's Court by order dated 5-1-1980 dismissed OP No. 13 of 1971 on the ground that the petitioner therein viz. the first plaintiff had already assigned his rights to third parties and he had no subsisting right to maintain the application for redemption of the mortgage. The present suit is filed by the petitioner in OP 13/1971 as the first plaintiff and his assignees as plaintiffs 2 to 4.

3 According to the learned Munsiff, the finding of the Land Tribunal on reference on the question of tenancy raised in OP No. 13/1971 would preclude the defendant from raising the plea of tenancy in the present suit and issue 2 does not therefore arise for decision in the suit. The lower court has in the view that it has taken, declined to refer the question of tenancy to the Land Tribunal as required by S.125(3) of the Land Reforms Act.

4 The decision of the Land Tribunal under sub-s.(4) oh reference issued to it under sub-s.(3) of S.125 of the Act, is only a finding at an interlocutory stage of the proceedings and until such decision is accepted by the civil court as required by sub-s.(5) of S.125 and the case finally determined it cannot be said that a decision at an interlocutory stage on one of the questions arising in the suit will be res judicata in any subsequent proceedings. In the present case, the final decision in O. P. No. 13/71 was one of dismissal of the main case itself and any finding at an interlocutory stage against the defendant is not res judicata barring the plea of tenancy raised by the defendant in the present suit. The effect of a decision at an interlocutory stage is stated by the Supreme Court in Lonankutty v. Thomman & Another (AIR 1976 SC 1645) is as follows:
"23. It is necessary to add that the decision rendered by the High Court by its judgment of remand dated July 8, 1964 in Second Appeal No. 1149 of 1950 that the contention raised by the respondents is not barred by res judicata can be reopened in this appeal against the final judgment of the High Court. The decision of this Court in Satyadhyan Chosal v. Sm. Deorajin Debi, 1960 (3) SCR. 590 : AIR 1960 SC 941 is directly in point on this question. Relying upon certain decisions of the Privy Council it was held by this Court that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be cha