Holding

The Land Tribunal lacked jurisdiction; its orders are nullities and cannot operate as res judicata, and the civil court must decide the tenancy issue, so the appeal is allowed and the matter remanded.

Summary

The case concerned an Otti mortgagee (defendant No. 2) who, after a preliminary decree of redemption, claimed to be a "cultivating tenant" under the Kerala Land Reforms (Amendment) Act, 1969 and obtained a purchase certificate from the Kerala Land Tribunal. The appellant sought to have the final decree proceedings in the pending redemption suit dismissed on the ground that the Tribunal's order was final and conclusive. The Supreme Court held that, because the redemption suit was still pending, the question of tenancy had to be decided by the civil court under Section 125 of the Kerala Land Reforms Act read with Section 108(3) of the Amendment Act. The Land Tribunal therefore lacked jurisdiction, its orders were void, and no res judicata arose. Consequently the application IA 1307/1994 must be decided afresh by the trial court, and the appeal was allowed, remanding the matter for fresh determination.

Issues considered

Whether the Kerala Land Tribunal had jurisdiction to decide the claim of tenancy and issue a purchase certificate when a civil suit for redemption was pending.
Whether the Tribunal's orders are binding as res judicata on the parties.
Whether the civil court could entertain the tenancy issue despite the proviso to Section 125(1) of the Kerala Land Reforms Act.
Whether there is a conflict between the decisions in Mathevan Padmanabhan and Chettiam Veettil.
Whether the final‑decree proceedings are barred by limitation.

Legislation cited

Code of Civil Procedure, 1908s. 105(2), s. 11, s. 9
Kerala Land Reforms Act, 1963s. 11, s. 125(1), s. 125(3), s. 125(6), s. 9
Kerala Land Reforms (Amendment) Act, 1969s. 108(2), s. 108(3), s. 72B, s. 72K

Subjects

Land reformsOtti mortgageCultivating tenantPurchase certificateJurisdictionRes judicataSection 125Section 108Limitation

Judgment

A SANKARAN ARA YANAN POTT! (DEAD) BY L.RS.

K. SREEDEVI AND ORS.

MARCH 26, 1998

B [S.B. MAJMUDAR, K. VENKATASWAMY AND A.P. MISRA, JJ.]

Land Reforms :

Kera/a Land Reforms Act, 1963 Amended in 1969-Section 72B-Final
C decree proceedings in mortgage suit pending-Claim of mortgagee as a
Cultivating tenant-Subsequent amendment of Land Reforms Act-Conferring
benefits on cultivating tenant-Mortgagee's application raising preliminary
objection-Rejected by Civil Court in limine-Whether rejection valid-Held
no, it is for the Civil Court to decide ivhether the mortgagee can claim the
D :ienefit of amendment.

Civil Procedure Code. 1908-Sections 9 & 11-Kera!a Land Reforms
Amendment Acl 1969-Section 108(3), 125(1; Mortgage suit pending
between parties- Mortgagee's claim as a tenant before Land Tribunal-
Certificate of purchase obtained by tenant-Whether binding 011 the Civil
E Court-Held, No-Order of Land Tribunal is without jurisdiction and hence
a nullity-Held, finding of Tribunal 11ot res judicata.

The appellants' predecessor was an Otti mortgagee of the properties
which originally belonged to Respondent No. I and his other co-owners. In
a Suit filed in 1958 for redemption, a preliminary decree was passed by the
F Trial Court for redemption of Otti mortgage, on payment of mortgage amount
and value of improvements made by the Plaintiffs. The appeals against the \
same was dismissed and the preliminary decree became final in 1969. In the
meanwhile, the Kerala Land Reforms Act, 1963 which had come into force
with effect from 1.4.1964 got amended by Amending Act 35of1969 giving
the Appellant a statutory right to purchase the suit mortgage property as he
G got covered under the term "tenant". On an application under Section 42B
of the Amending Act of 1969 by the tenant, the Land Tribunal passed a final
order directing issuance of a certificate of purchase in his favour and the
certificate was issued under Section 72K. Subsequently, in 1980 an
application for final decree was filed by a co-owner with an application for
H condonation of delay. The Appellants contended that the application was
444
SANKARAN ARA YANAN POTT! v. K. SREEDEVI 445
barred by time, that the Otti is a tenancy protected by Land Reforms Act and A
that since the Land Tribunal has found him entitled to fixity of tenure and
assignment of landlord's rights, the suit itself ought to be dismissed. The
Trial Court dismissed the final decree application on the ground of limitation.
The appeal before District Judge was allowed and the matter was remanded
to Trial Court for fresh consideration of objections. A Miscellaneous Appeal B
before the High Court was dismissed and the order of remand became final.

The appellant then field an application I.A 1307/1994 raising the
question whether the Plaintiffs were entitled for a final decree as a
preliminary issue. The application was dismissed by the Trial Court and the
revision petition against the same was also dismissed.
c
On appeal, it was contended by the Appellants that after the preliminary
decree got confirmed by the High Court the Act of 1963 got amended and
a new statutory right got conferred on the appellant to become a deemed
purchaser of the Suit land which has earlier held by him as Otti mortgagee;
that as this was a new statutory right he was entitled to get it enforced D
through the Tribunal; that he had obtained a certificate which has become
final and therefore on the principle of res judicata the final decree
proceedings were required to be dismissed as against him; that the decision
in the case of Mathevan Padmanabhan was required to be reconsidered as
it had erroneously held that proceedings under Section 728 of the Amending E
Act could not be entertained by the Tribunal till the Civil Court resolved the
controversy whether the claimant was a tenant or not, that the Amending Act
was a complete code in itself laying down its own machinery for adjudication
ofrights of parties and as the decision was rendered by a competent tribunal
which had become final it could not be said that Section 728 proceedings
could not be finalised by the Tribunal till the question of tenancy was finally F
..,. decided by the Civil Court in the hierarchy of appeals, that once the Land
Tribunal issues certificate of purchase under Section 72k of the Amending
Act it becomes final and conclusive and cannot be gone behind by the Civil
Court; that the earlier decision of two Judge Bench of this Court in Chettiam
Veetil Ammad and Ors. etc. etc. v. Taluk Land Board & Ors. etc. etc., was not
noticed in the decision in Methevan Padmanabham, and that therefore the G
application I.A. No. 1307/94 was wrongly rejected by the Courts below, and
that in the alternative the final decree proceedings would not survive as they
were barred by limitation; that in any case as the redemption money was not
deposited within statutory. period of six month~ by the plaintiffs or anyone,
the final decree proceedings could not be continued any further and the H
446 SUPREME COURT REPORTS [1998] 2 S.C.R.

A application for passing the final decree was required to be dismissed and
lastly that if the Court was inclined to remand the application for a fresh
decision by the Civil Court on the issue of tenancy of the Appellants then 'r
the question of limitation may be kept open for the trial court.

The Respondents contended that there is no conflict between the two
B judgements of this Court; that even assuming that the Amending Act could
be pressed into service it would have required the Appellants to move the
Civil Court for appropriate direction and under these circumstance as per
the proviso to Section 125 (l) it was for the Civil Court to decide the question
and consequently the Land Tribunal would have no jurisdiction to go into this
C question; that as a result whatev~r decision the Land Tribunal might have
rendered in favour of the appellants and the consequential purchase certificate
would all be an exercise in futility and would be without jurisdiction; that
once the application for passing final decree was held to be within limitation
by the Appellate Court which remanded'the proceedings for decision on
merits and as that decision was confirmed by the High Court this is not the
D stage for raising the contention of limitation; that if at all such a contention
may be open to the appellants for being canvassed it can be raised only when
the final decree proceedings culminate against them and if an occasion
arises for the Appellants to ultimately come to this Court in further SLP
against such final decree if passed against them.

E Allowing the appeal, the Court
HELD : I. On a conjoint reading of proviso to Section 125(1) of the
Kera la Land Reforms Act, 1963 and Section 108(3) of the Amending Act of
1969, the question of status of the Defendant No. 2 under the Amending Act
of 1969 could have been decided only by the Civil Court in the pending Suit
F and not by the Land Tribunal. Consequently, the direct approach made by the
him to the Land Tribunal under the Amending Act is premature and
incompetent and that consequently the orders obtained by him from the Land
Tribunal were rendered .by a tribunal which had no jurisdiction to pass sucl1
orders and they were nullities. Hence, no question of res judicata would
G arise in connection with such orders of an incompetent authority.
[459-C-E)
2. Before deciding to pass final decree in the redemption suit the Civil
Court would be required to adjudicate on merits of the contention after
hearing the contesting parties. It will be for the Civil Court to find out
whether Defendant No. 2 was entitled to be treated as tenant under the
H Amendment Act 1969 and whether he could validly invoke provisions of
SANKARAN ARA YANAN POTT! v. K. SREEDEVI 447

Section 728 to be a cultivating tenant within the sweep of Amending Act of A
1969 and whether accordingly he was entitled to get further benefit of
~ fixation of purchase prise and issuance of purchase certificate under the
Amending Act. Consequently, the wholesale rejection of I.A. No. 1307/94 by
the Trial Court as confirmed by High Court is uncalled for and unsustainable.
1460-E-G]
B
3. If the Appellants ultimately succeed in convincing the Civil Court
... J... and also the higher authorities in the hierarchy of proceedings that Defendant
No. 2 was a cultivating tenant entitled to the protection of the Amending Act
of 1969, it would be open to the competent authority to exercise suo motu
powers for passing appropriate orders in the light of the final decision of the
Civil Court. The question whether the appellants are in fact entitled to such c
a benefit is kept open for decision in the remanded proceeding by the Civil
Court on relevant evidence to be led by the parties. All earlier proceedings
are treated as null and void, the Civil Court will have to decide the entire
question de 110vo afresh on its own merits. [462-B-D]

4. There is no conflict between the ratio of decision of two Judge D
Benches of this Court in the case of Mathevan Padmanabham and in the
case of Chettiam Veetil. [462-E]

Chettiam Veetil ammand & anr. etc. etc. v. Taluk Land Board & Ors.
etc. etc., AIR (1979) SCI 573 and Mathevan Padmanabham alias Ponnan
(Dead) thro L.Rs. v. Parameshwaram Thapmi and Ors., [1995] Supp. I SCC E
479, explained.
5. The question whether final decree proceedings have got barred by
limitation on the ground that application for the same was initiated after
three years of the preliminary decree or whether they have become barred
on account of non-payment of redemption money in time are too premature F
.... 1-
to be raised at this stage. It is equally not open to the Appellant to raise this
contention before the Civil Court in the Proceedings to be remanded to it
pursuant to the present Order. It is not necessary to decide this contention
at this stage and it is kept open to be decided in appropriate future proceedings
before this Court if at all such need arises for the Appellants.
[468-B; 469-B-CI
G

Satyadhyam Ghosal & Ors., v. Smt. Deprajin Debi and Anr., AIR (1960)
SC 941 and Mohd Abdul Khader Mohd Kastim and Anr. v. Pareethij Kzmju
Sayed Ahmmed and Ors., [1996] 11 SCC 83, referred to.

6. The order passed by the Trial Court and the High Court are not well H
448 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A sustained and are required to be set aside entirely on different grounds. I.A.
No.1307/94 is restored to file with a direction to decide the application
afresh on the question of Defendant No. 2's claim to be entitled to the
protection of the Kerala Land Reforms Amendment Act of 1969 as a cultivating
tenant. In the light of the decision rendered on this I.A. by the Civil Court
B 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. !469-E-Fl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1784 of
1998.

c From the Judgment and Order dated 18. I 0.95 of the Kerala High Court
in C.R.P. No. 1271 of I 995.

T.R.G. Warriayar, A.S. Nambiar, P.K. Manohar and Mrs. Shanta Vasudevan
for the Appellants.
D T.L.V. Iyer, Mrs. Prashanti Prasad and N. Sudhakaran forthe Respondents.

The Judgment of the Court was delivered by

S.B. MAJMUDAR, .J. Leave granted.

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

A Bench of two Judges of this Court has referred the Special Leave
F Petition from which this appeal arises for decision of a larger Bench of three
Jud.ges 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 Judge Benches of this Court in the
G case of Mathevan Padmanabhan alias Ponnan (Dead) through L.Rs. v.
Parmeshwaran Thampi and others, [1995] Supp. l SCC 479 and in the case
of Chettiam Veettil Ammad and another etc. v. Taluk Land Board and others
etc. etc., AIR (1979) SC 1573.

In order to highlight the controversy arising in the present appeal it will
H be necessary to note a few relevant background facts.
SANKARANARAYANAN POTT! v. K. SREEDEVI (S.B. MAJMUDAR, J.] 449

Background Facts A
:=-- 1 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. I. 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 B
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
0 I st December 1944 was executed by the Tarwad of the plaintiffs in favour
of 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 c
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 D
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 E
at the stage passing final decree. In the meantime Kerala Land Reforms Ad,
1963 (hereinafter referred to as 'the Land Reforms Act'] which had come into
force with effect form Olst 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
F
" the wider definition of 'tenant' as envisaged by the said Amending Act. On
that ground defendant no. 2 filed an application under Section 728 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 G
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 H
,,._
I

450 SUPREME COURT REPORTS [1998] 2 S.C.R.

A decree in the light of the preliminary decree which had become final between
the parties. She also filed I.A. No. 630 of 1980 on 15th February 1980 before r ~

the Trial Court for condoning the delay in filing the application for final
decree. Defendant no. 2 on the other hand filed objection on I.A. No. 5092
of 1979 contending that the application for final decree was barred by limitation
and the otti sought to be redeemed is a tenancy coming within the purview
B of the provisions of the Kerala Land Reforms (Amendment) Act and that the
J.- ..
order of the Land Tribunal, finding him to be entitled to fixity of tenure and
assignment of the landlords' rights, required the suit against him to be
dismissed. The Trial Court by its order dated 07th April 1982 dismissed I.A.
No. 5092 of 1979 filed by the 11th defendant, for passing the final decree, on
c the ground that the application for final decree was barred by limitation.
Application for condonation of delay was also dismissed. Thereafter I Ith
defendant filed A.S. No.198 of 1982 against the dismissal of her I.A. No. 5092
of 1979 for passing final decree. The learned District Judge allowed the appeal
of defendant no. 11 on 10th January 1983. It was held by the learned District
Judge that the final decree application was not barred by limitation. The
D learned District Judge also directed that the Trial Court should consider other .,
objections raised by defendant no. 2 to the final decree proceedings. It was
also held that the 11th defendant was entitled to file application for passing
of final decree. Defendant no. 2 thereafter carried the matter to the Kerala High
Court in Civil Miscellaneous Appeal No. 114of1984 challenging the judgment
E of the District Court in A.S. No. 198 of 1982 by which proceedings were
remanded to the Trial Court for proceeding further in connection with the
passing of final decree. The said miscellaneous appeal was dismissed by the
High Court on 19th August 1989. It is not in dispute between "the parties that
no further proceedings were initiated by defendant no. 2 against the decision
of the High Court in C.M.A. No. 114 of 1984. It is thereafter that on 30th
F August 1994 defendant no. 2 filed I.A. No. 1307of1994 in O.S. 75of1958
praying that the question whether the plaintiffs were entitled to get final
~
-
decree may be decided as a preliminary· issue. Same contentions were re-
agitated by him by submitting that as 'he was armed with a certificate of
purchase issued by the Land Tribunal the title of landlord was extinguished
and it was also contended that since more than 30 years, after the time
G statutoriiy fixed for deposit of redemption money, had expired redemption
price coulcj not longer be deposited, nor could the property be redeemed. This
I.A was dismissed by the Trial Court on 31st May 1995. Thereafter defendant
"
no.2 carried the matter in revision before the High Court by way of CRP No.
1271 of 1995 which came to be dismissed by the impugned judgment dated
H 18th October 1995. It is this judgment of the High Court which is challenged
SANKARANARA YANAN POTT! v. K. SREEDEVI [S.B. MAJMUDAR, J.] 451
in the present appeal on grant of special leave to appeal. A
-=-' i
Rival Contentions

Learned senior counsel Shri T.R.G. Warriyar, appearing for the appellants,
submitted that after the preliminary decree got confirmed by the High Court
the Kerala Land Refonns Act got amended and under the amending provisions B
a new statutory right got conferred on defendant no. 2 to become a deemed
...... ,,,___
purchaser of the suit land which was earlier held by him as otti mortgagee
and as this was a new statutory right he was entitled to get it enforced
through the Tribunal and that is what he had done and had obtained purchase
certificate from the competent tribunal, which had become final between the
c
parties and, therefore, on the principle of res judicata the said certificate which
had become conclusive under the Amending Act had to be given effect to
by the Trial Court and the final decree proceedings were required to be
dismissed qua defendant no. 2. It was also submitted that the decision of this
Court in the case of Mathevan Padmanabhan (supra) was required to be re-
considered as it had erroneously held that proceedings under Section 72B of D
'r
the Amending Act could not be entertained by the Tribunal till the Civil Court
resolved the controversy whether the claimant was a tenant or not. That the
Amending Act was a complete code in itself laying down its own machinery
for adjudication of rights of parties and as the decision was rendered by the
competent tribunal which had become final inter parties it could not be held
as laid down in the aforesaid decision of this Court that Section 72B E
proceedings could not be finalised by the Tribunal till the question of tenancy
was finally decided ·by the Civil Court in the hierarchy of appeals. In this
connection strong reliance was placed on the earlier decision of two Judge
Bench of this Court in the case of Chettiam Veettil (supra) for submitting that
1 once the Land Tribunal issues certificate of purchase under Section 72K of F
the Amending Act it becomes final and conclusive and cannot be gone
behind by the Civil Court in Chettiam Veetti/ (supra) was not noticed in the
latter decision rendered by two Judge Bench of this Court in Mathevan
Padmanabhan, (supra). Learned senior counsel for the appellants, therefore,
contended that I.A No. 1307 of 1994 was wrongly rejected by the Trial Court
as well as by the High Court and should have been granted. In the alternative G
it was contended that in any case final decree proceedings would not survive
as they were barred by limitation and that the earlier decision of the Appellate
Court holding that the final decree proceedings were not barred by limitation
and hence remanding the proceedings for decision on merits was a remand
order which was confirmed by the High Court in Miscellaneous Appeal but H
452 SUPREME COURT REPORTS [1998] 2 S.C.R.

A against the said decision the appellant could not have filed a special leave
petition as it was at an interlocutory stage but now before this Court he can
r 'C
legitimately contend that the final decree proceedings were barred by limitation
and even on that additional ground his application I.A. No.1307 of 1994 ought
to have been granted. In support of this contention it was submitted that the
preliminary decree was dated 22nd January 1963 while the final decree
B application was moved by defendant no.! I as late as on 17th November 1979.
It was, therefore, filed beyond the permissible period of three year under the
residuary Article in the scheme of Limitation Act for filing such applications.
In any case, placing reliance on a decision of this Court in the case of Mohd.
>-
--
Abdul Khader Mohd. Kastim and another v. Pareethij Kunju Sayed Ahammed
c and others, [1996] 1ISCC83, it was submitted that as the redemption money
was not deposited within statutory period of six months by the plaintiff or
by any of the other supporting defendants the final decree proceedings could
not b e continued any further and the application for passing the final decree
was required to be dismissed even on that ground. He, however, lastly
submitted that in case this Court is inclined to remand the application of the
D appellant, I.A. No.1307of1994, for a fresh decision by the Civil Court on the
..,;
issue of tenancy of defendant no.2 then the question of limitation may also
be kept open for consideration of the Trial Court.

Learned senior counsel Shri T.L.V. Iyer, appearing for the respondents
on the other hand submitted that there is no conflict between the aforesaid
E
two decisions of the two Division Benches of this Court. That in the case of
Mathevan Padmanabhan, (supra) K. Ramaswamy, J. speaking for the Bench
had to consider the question whether in a suit filed after the amendment of
the Kerala Land Reforms Act in 1969 when the issue of tenancy arose for
consideration and was not finally decided, an application under Section 72B
F by such a claimant could have been granted. The said decision on the facts
of that case was rightly rendered by holding that 72B application should have
.,. ..
been kept pending by the Land Tribunal till the question of tenancy of the
claimant was .finally decided in the hierarchy of proceedings. It was also
submitted that the said view propounded by the Division Bench of two
learned Judges of this Court is not in conflict with the earlier decision of the
G other tow Judge Bench in Chettiam Vettil (supra) as in that case an entirely
different question was considered namely, when a claimant had got his tenancy
right adjudicated upon by the Tribunal and got a certificate of purchase under
Section 72K which was final and conclusive ·whether in a separate and
independent proceedings under the very Act before the Land Revenue Board
H for deciding the question of surplus holding of such tenant the said certificate
SANKARANARAYANAN POTTI v. K. SREEDEVI [S.B. MAJMUDAR . .I.] 453

could be gone behind by the Land Revenue Board. Thus the controversy A
posed for consideration of the earlier Bench of this Court in Chettiam Veettil
(supra) was entirely different and consequently it cannot be said that there
was any conflict of the decisions rendered by the two Benches of this Court.
!t was next contended that even assuming that the Amending Act could be
pressed in service by defendant no. 2, as he was seeking to invoke the B
provisions of this Act pending the civil litigation between the parties Section
108 sub-section (3) of the very same Amending Act on which he placed
reliance would stare in the face and would have required him to move the Civil
Court for appropriate direction under the Amending Act read with the parent
Act and under these circumstances proviso to sub-section (I) of Section 125
of the parent Act would get attracted to such a controversy and as it was C
a pending suit wherein such a question was raised it was for the Civil Court
to decide this question and consequently the Land Tribunal would naturally
have no jurisdiction to go into this question. As a result whatever decision
the Land Tribunal might have rendered in favour of defendant no. 2 and the
consequential purchase certificate issued to him would all be an exercise in
futility and would be without jurisdiction. Hence the Trial Court rightly rejected D
defendant no. 2's application I.A. No.1307 of 1994 and consequently the
impugned decision of the High Court in revision application confirming that
order of the Trial Court cannot be found fault with. He, however, fairly stated
that even in earlier proceedings the Appellate Court had clearly observed
while remanding the final decree proceedings for decision of the Trial Court E
that all other contentions which could be put forward by defendant no.2
would be open for scrutiny of the Court and consequently whether he can
get benefit of the protection of the Kerala Land Reforms (Amendment) Act
could even now be considered by the Civil Court afresh without in any way
being influenced by the incompetent and infructuous proceedings earlier

- initiated by defendant no. 2 before the Land Tribunal and the certificate of
purchase obtained by him consequent thereto. On the question of limitation
it was submitted that once the application for passing final decree was held
F

to be within limitation by the Appellate Court which remanded the proceedings
for decision on merits and as that decision was confirmed by the High Court
in Miscellaneous Appeal, this is not the stage in the special leave petition G
arising out of the decision on interim application No. 1307of1994 for raising
such a contention and if at all such a contention may be open to the
appellants for being canvassed on any legally permissible grounds centering
round the question of limitation it can be raised only when the final decree
proceedings culminate against them in the hierarchy of proceedings and if an
occasion arises for the appellants to ultimately come to this Court in further H
454 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A S.L.P. against such final decree if passed against them. But even in those
future proceedings at least up to the stage of the High Court such a contention
would not be open forbeing canvassed again. In this connection our attention·
was invited to a decision of a Bench of three learned Judges of this Court
in the case of SutyaJhyan Ghosal and others v. Smt. Deorajin Debi and
B another, AIR ( 1960) SC 941.

Points for determination

In view of the aforesaid rival contentions the following points arise for
our consideration :

C I. Whether the decision rendered on 18th July 1994 by the Kerala
Land Tribunal holding defendant no. 2 to be a tenant entitled to
purchase the landlord's rights and the final order dated 28th
October 1974. directing issuance of certificate of purchase, passed
by the Tribunal and the certificate of purchase no. 53 dated 25th
July 1975 issued to him under Section 72K of the Kerala Land
D
Reforms Act as amended by Act 35 of 1969 can be treated to
be final and conclusive and binding on the parties and on
account of which the final decree proceedings against defendant
no. 2 should be held to be incompetent and are required to be
closed.
E 2. If the answer to the aforesaid point is in the negative whether
the Trial Court in the final decree proceedings which are pending
between the parties can consider the contention that defendant
no. 2 had got the benefit of the provisions of the Amending Act
35 of 1969 as a cultivating tenant to purchase the suit land.
F 3. If the appellants are held entitled to agitate the said contention
and if ultimately the said contention is held in their favour in the
hierarchy of proceedings can the appellants thereafter request
-
the Land Tribunal to issue appropriate certificate of purchase
under Section 72K of the Kerala Land Reforms Act in the light
of the final decision of the Civil Court rendered in their favour
G
on this aspect.
4. Whether there is any conflict between the decisions of this
Court in the case of Chettiam Veettil (supra) and in the case of
Mathevan Padmanabhan (supra).
; H 5. Whether the final decree proceedings are barred by limitation.
SANKARANARA YANAN POTT! v. K. SREEDEVI [S.ll. MAJMUDAR, J.] 455

6. What final order ? A
We will deal with these points seriatim.

Point No. I

So far as this point is concerned we must keep in view the salient facts B
of the case which have stood well established on the record. It is not in
dispute between the parties that original defendant no. 2 was an otti mortgagee
pursuant to the mo11gage dated 0 I st December 1944 binding between the
parties. It is also not in dispute that the Sale Deed said to have been executed.
by original defendant no. I in favour of defendant no. 2 on 27th July 1955 is
finally held to be not legal and operative and consequently defendant no.2 C
could be treated to be only an otti mortgage. It is also not in dispute between
the parties that preliminary decree for redemption which had been passed by
the Civil Court has stood confirmed up to the High Court in Second Appeal
No. 334 of 1966 which was dismissed by the High Court on 19th February
1969 and thus the preliminary decree has become final. It was thereafter that D
defendant no. 2 .during the pendency of final decree proceedings before the
Civil Court tried to agitate his contention before the Kerala Land Tribunal that
he was a protected tenant as per the provisions of the Kerala Land Reforms
(Amendment) Act 35 of 1969 and on the basis of that contention he ultimately
got order in his favour from the Tribunal. The question is whether, pending
the civil suit against him for redemption, such an exercise could have been E
legally undertaken by him before the Tribunal and whether the Land Tribunal
acting under the provisions of the Amending Act 3~ of 1969 had jurisdiction
to grant him any such relief. For deciding this question relevant provisions
of the Kerala Land Reforms Act. 1963 as amended by the Amending Act 35
of 1969 will have to be seen. Learned senior counsel for the appellants fairly F
stated that the parent Act being Kerala Land Reforms Act, 1963 which came
on the Statute Book with effect from 0 I st April 1964 did not give defendant
no. 2 any right of tenancy and the further right to become a deemed purchaser
of the land. However, according to him, after the Amending Act 35 of 1969
became operative from 0 I st January 1970 the situation changed and a fresh
statutory right came to inhere in defendant no. 2. In order to appreciate this G
contention it is necessary to note a few relevant provisions of the said Act.

With effect from Olst January 1970 pursuant to the Amending Act 35
of 1969 the definition of 'Kanam ' as found in Section 2(22) was amended by
the legislature and it is this amended definition which is pressed in service
by the learned senior counsel for the appellants for submitting that defendant H
456 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A no. 2 became a kanam-holder. The very same Act defines a 'tenant' as per
Section 2(57), amongst others, to include a kanamdar. Putting store on these
provisions defendant no. 2 straightaway approached the Land Tribunal under
T .._
Section 728 of the Act alleging that as he was a cultivating tenant of the land
he had a right to get the land assigned to him under the said provision and
B it was that application which was allowed by the Tribunal which fixed the
purchase price as per Section 720 of the Kerala Land Reforms Act as amended
by the Amending Act and then certificate of purchase was issued in favour
of defendant no. 2 under Section 72K. The moot question is whether pending
the civil suit between the parties it was open to defendant no. 2 to directly
approach the Tribunal for getting the aforesaid orders which according to
C learned senior counsel for the appellants have become binding as res judicata
between the parties. It is now well settled that even if a decision if right or
wrong if it is rendered by a competent court inter parties it would bind as res
judicata. Therefore, the short question is whether the Land Tribunal under the
amending provisions had jurisdiction to grant the said relief to defendant no.
2. So far as this question is concerned the very same Amending Act 35 of
D 1969 contemplated a class of claimants of tenancy rights who had already
suffered decrees for possession from competent civil courts passed prior to
the coming into force of the Amending Act or against whom civil suits for
such reliefs were pending on the date on which the amending provisions
came into force, .that is, OJ st January 1970. These two provisions which were
E styled as transitory provisions in the Amending Act are required to be noted.
Section 108 sub-sections (2) and (3) read as under :

'' 108(2)- Any decree passed before the commencement of this section
for the dispossession of a person from the land in his possession,
pursuant to which dispossession has not been effected, may, on the
application of such person to the court which passed the decree be
F
reopened and the matter may be disposed of in accordance with the
provisions of the principal Act as amended by this Act

(3) - If in any suit, application, appe<!l, revision, review, proceedings
in execution of a decree or other proceedings pending at the
commencement of this section before any court, tribunal, officer or
G
other authority, any person claims any benefit, right or remedy
conferred by any of the provisions of the principal Act or the principal
Act as amended by this Act, such suit, application, appeal, revision,
review, proceedings, in execution or other proceedings shall be
disposed of in accordance with the provisions of the principal Act as
H amended by this Act."
SANKARANARA YANAN POTT! v. K. SREEDEVI (S.B. MAJMUDAR. J.] 457
It is not in dispute that these transitory provisions still hold the field. A mere A
look at Section 108(2) as found in the Amending Act shows that it would
apply in cases where decrees for possession are already finally passed against
persons who seek benefit of the Amending Act. In the present case as the
civil suit for partition and redemption was pending at the stage of passing
final decree it could not be said that there was a final decree for redemption
and possession passed against defendant no. 2. Hence Section 108(2) is out B
of picture. However, Section 108 sub-section (3) would directly apply to the
facts of the present case. In the present pending suit O.S. No. 75of1958 after
the stage of preliminary decree and before final decree is passed which even
till date is not finally disposed of by the Trial Court and the final decree is
still not passed, defendant no. 2' s claim to be a tenant protected by the C
provisions of the Amending Act with effect from Olst January 1970 as he
claimed such a benefit or right or remedy conferred by the provisions of the
principal Act as amended by the Amending Act, has to be disposed of by
the Trial Court in accordance with the provisions of the principal Act as
amended by the Amending Act. This is the mandate of Section 108(3) of the
Amending Act. Keeping in view this legislative mandate we have to find out D
as to what should have been done in such a situation by defendant no. 2 as
well as by the Civil Court where the suit is pending. In such a pending suit
when a contention is raised by defendant no. 2 about his claim of protected
tenancy under the Amending Act the Civil Court obviously has to follow the
procedure laid down in Section 125 of the principal Act. Section 125 with its E
sub-sections reads as under :

"125. Bar of jurisdiction' of civil courts.-(!) No court shall have
jurisdiction to settle, decide or deal with any question or to determine
any matter which is by or under this Act required to be settled,
decided or dealt with or to be determined by the Land Tribunal or the F
appellate authority or the Land Board or the Taluk Land Board or the
Government or an officer of the Government :

Provided that nothing contained in this sub-section shall apply to
proceedings pending in any court at the commencement of the Kerala G
Land Reforms (Amendment) Act, 1969.

(2) No order of the Land Tribunal or the appellate authority or the
Land Board or the Taluk Land Board or the Government or an officer
of the Government made under this Act shall be questioned in any
civil court, except as provided in this Act. H
458 SUPREME COURT REPORTS (1998] 2 S.C.R.

A (3) If in any suit or other proceeding any question regarding rights
of a tenant or of a kudikidappukaran including a question as to
whether a person is a tenant or a kudikidappukaran arise, the civil
court shall stay the suit or other proceeding and refer such question .
to the Land Tribunal having jurisdiction over the area in which the
land or part thereof is situate together with the relevant records for
B the decision of that question only.

(4) The Land Tribunal shall decide the question refen-ed to it under
sub-section (3) and return the records together with its decision to the
civil court.

c (5) The civil court shall then proceed to decide the suit or other
proceedings accepting the decision of Land Tribunal on the question
refen-ed to it.

(6) The decision of the Land Tribunal on the question referred to it
shall, for the purposes of appeal be deemed to be part of the finding
D of the civil court.

(7) No civil court shall have power to grant injunction in any suit or
other proceeding referred to in sub-section (3) restraining any person
from entering into or occupying or cultivating any land or kudikidappu
or to appoint a receiver and property in respect of which a question
E referred to in that sub-section has arisen, till such question is decided
by the Land Tribunal and any such injunction granted or appointment
made before the commencement of the Kerala Land Reforms
(Amendment) Act, 1969, or before such question has arisen shall
stand cancelled.
F (8) In this section, "civil court" shall include a .Rent Control Court as
defined in the Kerala Buildings (Lease and Rent Control) Act, 1965."

Consequently, in the present pending suit the Civil Court's jurisdiction would
have remained barred to decide or deal with any of the questions raised by
G defendant no. 2 about his tenancy but for the proviso to sub-section (I) of
Section 125 which clearly states that nothing contained in that sub-section
shall apply to proceedings pending in any court at the commencement of the
Kerala Land Reforms (Amendment) Act, 1969. Because of this proviso the net
result is that in the present pending suit there will be no bar of jurisdiction
of the Civil Court in deciding the question whether defendant no. 2 was a
H protected tenant under the amended provisions of the Kerala Land Reforms

•.
SANKARANARAYANAN POTT! i·. K. SREEDEVI [S.B. MAJMUDAR. J.] 459
(Amendment) Act with effect from 0 Ist January 1970 or not. This claim of A
defendant no. 2 could be decided only by the Civil Court in the present
... ~

pending 5uit and consequently there would remain no occasion for the Civil
Court to follow the procedure of sub-section (3) of section 125 which o,bviously
would apply to only such suits and other proceedings which are filed after
the Amending Act came into force and wherein such contentions are raised
about the status of a party to the suit to be a tenant under the Amending B
Act. It is obvious that in all types of civil disputes civil courts have inherent
4 ""'
jurisdiction as per Section 9 of the Code of Civil Procedure unless a part of
that jurisdiction is carved out from such jurisdiction, expressly or by necessary
implication, by any statutory provision and conferred on any other tribunal
or authority. On a conjoint reading of proviso to Section 125( I) of the principal c
Act and Section I 08(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 D
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
nullities. 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 E
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. The would be a condition precedent to be
~ established by the claimant before he could get such purchase certificate. The F
fulfilment of such a condition precedent would require decision on the basis
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 involving the jurisdiction of the
G
Land Tribunal and if the Tribunal after hearing the parties had granted such
6.. a purchase certificate it would have remained conclusive and binding between
the parties, but such is not the fa~t situation in the present case. In the
present case, as seen above, the suit was already pending between he 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. H
460 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A 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
B 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. I, therefore, must be answered in the negative >- "'
against the appellants and in favour of the contesting respondents.

Point No. 2
c
In the light of the decision on the first poini it is obvious that when
in a pending suit the defendant raises the contention about his tenancy rights
under the amended provisions of the Kerala Land Reforms (Amendment) Act,
such a contention would validly attract the provisions of Section 108(3) of
D the amended Act. As seen earlier, once that happens and once it is held that
Civil Court had jurisdiction to entertain such a contention and such jurisdiction
is not barred, Application No. 1307 of 1994 moved by defendant no. 2 can
legitimately be treated as one moved under Section 108 sub-section (3) of the
Amending Act read with proviso to Section 125(1) of the parent Act.
E Consequently, before deciding to pass final decree in the redemption suit the
Civil Court would be required to adjudicate on merits of this contention after
hearing the contesting parties. It will be for the Civil Court to find out whether
defendant no. 2 was entitled to be treated as tenant under the Kerala Land
Refonns (Amendment) Act and whether he could validly invoke provisions
of Section 728 to be a cultivating tenant within the sweep of Kerala Land
F Reforms Act as amended by Act 35 of 1969 and whether accordingly he was
entitled to get further benefit of fixation of purchase price and issuance of -
purchaser certificate under the said provisions of the Amending Act. All
these consequential statutory benefits claimed by defendant no. 2 wou Id
depend upon the moot and the basic question whether he was a cultivating
G tenant within the sweep of the Amending Act or not. Consequently, the
wholesale rejection of defendant no. 2's application I.A. No. 1307of1994 by
the Trial Court and as confirmed by the High Court in the impugned judgment
in C.R.P. No. 1271 of 1995. must be held to be uncalled for and unsustainable
on this ground alone. Point No. 2 is, therefore, answered in the affirmative in
H favour of the appellants and against the contesting respondents.
SANKARANARAYANAN POTT! v. K. SREEDEVl [S.ll. MAJMUDAR. J.] 461

Point No. 3 A
So far as this point is concerned it is obvious that if ultimately the Civil
Court in the proceedings to be remanded pursuant to our present offer
decides I.A. No. 1307of1994 in favour of the appellants and it is held, after
hearing the contesting parties and after permitting them to lead whatever
evidence they want to lead on this point that defendant no.2 was a cultivating B
tenant entitled to the benefit of the provisions of the Amending Act 35 of
1969 and if it is finally held in the hierarchy of these proceedings that the
appellants, as his heirs, are entitled to purchase the land in question being
armed with such a final order of the Court which would bind inter parties as
res judicata to submit before the Land Tribunal for fixation of appropriate
price of the land as required by the procedural provisions of Section 720 and C
other succeeding relevant provisions of the Act in connection with the
fixation of the purchase price and after that gamut is gone through by the
competent tribunal ultimately a situation would be reached where a certificate
of purchase under Section 72K can be issued to the appellants. But all these
stages from 72B to 72K would only arise after a final decision is rendered by
the Civil Court in the remanded proceedings in LA. No. 1307 of 1994 that D
original defendant no. 2 was a cultivating tenant entitled to the protection of
the Kerala Land Reforms (Amendment) Act, 1969 and not before. Learned
senior counsel for the appellants was right when he contended that the Civil
Court cannot issue any purchase certificate. He was also right when he
contended that the time for applying for purchase certificate under the Kerala
Land Reforms Act has already expired. But this difficulty voiced by learned E
senior counsel for the appellants on the peculiar facts of this case can
. obviously not come in his way for the simple reason that defendant no. 2 had
already earlier applied to the competent authority under the Amending Act
35of1969 as early as on 24th December 1973 under Section 72B being O.A.
599 of 1973. Even though we have found that the said proceedings as filed
w~re premature and were filed before incompetent authority at that stage with F
the result that the consequential orders are found to l?e without jurisdiction
still it cannot be gainsaid that defendant no. 2 had tried to invoke within time
the provisions of Section 72B of the Kerala Land Reforms (Amendment) Act.
Thus the said application, on the peculiar facts of this case, can be deemed
to be pending before the competent authority awaiting the final decision of G
the Civil Court in the hierarchy of the proceedings pursuant to our present
order. Even otherwise on the facts of the pre~ent case it would be equally
open to the competent authority in the light of the final decision if at all
rendered by the Civil Court in hie1a1chy of proceedings in favour of original
defendant no. 2 to the effect that he was entitled to the protection of the
Amending Act as a cultivating tenant, to exercise suo motu powers for H
462 SUPREME COURT REPORTS [1998] 2 S.C.R.

A passing appropriate orders in the light of the final decision of the Civil Court
in the hierarchy of proceedings by resorting to the machinery provisions of
Section 72B onwards culminating into the issuance of appropriate purchase 'r ...
certificate under Section 72K. Point No. 3, therefore, is answered in the
affirmative on the supposition and assumption that the appellants ultimately
succeed in convincing the Civil Court and also the higher authorities in the
B hierarchy of proceedings that defendant no. 2 was a cultivating tenant entitled
to the protection of the Amending Act 35 of 1969. We should not be treated
;..... 4
to have decided one way or the other whether the appellants are in fact
entitled to such a benefit of the Amending Act. That question is kept open
for decision in the remanded proceedings by the Civil Court on relevant
c evidence to be led by the parties. The said decision shall be rendered by the
Civil Court while deciding the remanded I.A. No. 1307 of 1994 without in any
way being influenced by the abortive exercise earlier undertaken by defendant
no. 2 before the Land Tribunal and the orders passed therein including the
purchase certificate issued in his favour by the said authority on 25th July
1975. In short as all these earlier proceedings are treated to be null and void,
D the Civil Court will have to decide the entire question de nova afresh on its
own merits.

Point No. 4

So far as this point is concerned as we will presently point out in fact
E there is no conflict between the decisions of two Judge Benches of this Court
in the case of Mathevan Padmanabhan, (supra) and in the case of Chettiam
Veettil (supra). In the case of Mathevan Padmanabhan (supra) a Bench of
two learned Judges presided over by K. Ramaswamy, J., had to consider the
question whether in a suit filed after the coming into operation of the Kerala
F Land Refonns Act as amended by Act 35 of 1969, if question of tenancy of
the claimant. was not finally decided in the hierarchy of proceedings an
application under Section 72B of the Amending Act could have been finally
~
-
decided by the competent authority under the Act. Answering this question
in the negative the following observations were made in paragraph 5 of the
G Report:
"The first question is whether the High Court was justified in holding
that the Land Tribunal would have kept the application filed under J... ..._
Section 72-B pending till the dispute of the tenancy is finally
detennined. On a conspeetus of the relevant provisions, the scheme
H of the Act and on the facts and circumstances of the case, we
SANKARANARAYANAN POTT! v. K. SREEDEVI [S.B. MAJMUDAR, J.) 463
consider that the High Court is right in its approach. The very dispute A
whether the appellant is a tenant and is entitled to purchase the
't property by virtue of that capacity, hinges upon the determination of
the question whether he is a tenant. When that dispute is pending
adjudication, the Tribunal was not right in directing the appellant to
purchase the property. Ultimately, if the High Court on appeal, finds
that the appellant is not a tenant, his entitlement to purchase the
B
property also is lost. Under those circumstances, the appropriate
- -(
course for the Tribunal would have been to keep the application filed
under Section 72-B pending till the dispute is resolved in the Court.
Therefore, the High Court is right in recording a finding in this behalf."

In our view on the facts of the case before that Bench no other conclusion
c
was legally possible. Before an application under Section 72B of the Amending
Act could be granted the condition precedent whether the claimant was a
cultivating tenant or not had to be decided. It is after the decision on the said
question that further question about the fixation of price etc. would arise. On
the facts of the case before the Bench the question of alleged tenancy of the D
claimant was not finally decided in the hierarchy of proceedings. Obviously,
¥
therefore, application under Section 72B could not have been finally decided
and was required to be kept pending. Learned senior counsel for the appellants
submitted that the Tribunal is a ..:ompetent authority under the Act to deal
with such questions and merely because a civil suit is pending the statutory
obligation of the authority could not be bypassed. As a general proposition
E
the said contention cannot be gainsaid. However, that would pre-suppose a
situation where the Land Tribunal is approached on a clean slate meaning
thereby no other proceedings are pending in any other court and the Tribunal
has to decide the jurisdictional question whether the claimant is a cultivating
F
-
tenant entitled to the benefit of Section 72B or not. In such a situation it is
~ the Tribunal which has to decide both the condition precedent for applicability
of Section 72B and the consequential orders which are to be passed therein.
But when in a pending suit issue of tenancy is referred to the Tribunal under
Section 125(3) and once the finding of tenancy is returned to the Civil Court
and when such a finding becomes that of the Civil Court as per Section 125(6),
then it if is pending for further scrutiny by the Appellate Court it has to be G
held that the status of cultivating tenant has not become final and so long
,., A as that has not become final there is no occasion for the Land Tribunal to
pass final orders under Section 72B. We have also to keep in view that in the
case before the Bench presided over by K. Ramaswamy, J., the proviso to
Section 125(1) was out of picture as the suit in which the controversy arose H
464 SUPREME COURT REPORTS [ 1998) 2 S.C.R.

A was filed subsequent to the coming into force of the Amending Act 35 of
1969. Therefore, when Section 125(3) read with Section 125(6) of the Kerala
Land Reforms Act applied, a reference had to be made to the Land Reforms 'r
authorities for deciding the status of such a tenant and once such finding was
returned to the Civil Court it became a finding of the Civil Court itself which
could be challenged and was challenged higher up in the hierarchy and that
B finding had not become final. Therefore, as rightly held in that case, there
remained no occasion for the Land Reforms authorities to proceed under ,._ 4

Section 72B onwards and to pass final orders till that finding became final
inter parties. Therefore, on the peculiar facts of the case before the Bench in
the above case, the conclusion to which that Bench reached as found in
c paragraph 5 of the Report cannot be said to be in any way uncalled for or
erroneous as tried to be submitted by learned senior counsel for the appellants.
So far as the facts of the present case are concerned, as we have seen earlier,
the suit for redemption was already pending and is still pending and in the
meantime the Amending Act 35 of 1969 came into force from 01 st January
1970. Consequently, strictly speaking, the decision of this Court in Mathevan
D Padmanabhan (supra) does not get attracted for resolving the controversy
posed before us.

So far as the judgment of the earlier Division Bench of the two learned
Judge of this Court in the case of Chettiam Veettil (supra) is concerned it
proceeds on an entirely different set of facts. In that case the Land Tribunal
E
had already decided the question about the right of the cultivatin~ tenant to
be the deemed purchaser of the Land and had fixed the purchase price and
also issued certificate of purchase. When that was done no civil suit was
pending inter parties filed either prior to the coming into force of the Amending
Act or even subsequently. Hence proceedings under Section 72B were fully
F competent and had resulted into a valid purchase certificate which had remained
final, conclusive and binding. The question was when the cultivating tenant
was a deemed purchaser armed with such certificate, while deciding his
~
-
surplus holding of land the Taluk Land Board functioning under that very Act
could go behind such a certificate. On the scheme of the Act the conclusion
to which this Court reached, speaking through Shinghal J., was obvious that
G the said certificate issued under section 72K did raise irrebutable presumption
as per sup-section (2) thereto and even after considering the conclusive
A.
eventuality following thereto the Taluk Land Board had ample jurisdiction A(

under Section 85(5) to pass appropriate order regarding the surplus holding
of the occupant. We fail to appreciate how the ratio of the aforesaid decision
H rendered on the peculiar facts of that case and deciding entirely a different
SANKARANARAY ANAN POTT! v. K. SREEDEVI [S.B. MAJMUDAR, J.] 465
controversy could ever be pressed in service in the present case or even for A
demonstrating any supposed conclusive between the said decision of this
~ ~
Court and the decision rendered in Mathevan Padmanabhan (supra) in the
light of a different set of facts and circumstances, as seen earlier.

Before parting with the discussion on this point we may take stock of
the resultant situation - B
I. In civil suits between the disputing parties pending on or before
~ . ..(
0 I st 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 c
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 in view of the proviso
to sub-section (I) of Section 125 of the principal Act read with
Section I 08(3) of the Amending Act and such a question can be D
decided by the Civil Court itself by applying the relevant
.. y 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 E
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 F
• .;,. to the benefits of the Amending Act and no 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
G
the Amending Act then appropriate further relief could be
obtained by such person from the authorities under the Act and
...._
,.. it 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. H
~'
466 SUPREME COURT REPORTS [1998] 2 S.C.R.

A 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 ',..- 4

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) read
B 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
c 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
D and such a certificate would be treated as binding and conclusive
between the parties. -..( •
4. After the coming into operation of the Amending Act 35of1969
and in the absence of any suit by then filed wherein the contesting
party claims tenancy rights, if such a person already gets
E appropriate orders from the competent authorities under the
Amending Act and his status as a tenant entitled t0 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,
F 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
G 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
A_
..
authority under the Amending Act between the parties the Civil
Court can dispose of such subsequently filed suit.
H
SANKARANARAYANAN POTT! v. K. SREEDEVI [S.B. MAJMUDAR, J.] 467
Aforesaid are the four categories of situations which would emerge on A
account of the interaction of the Amending Act 35 of 1969 on the one hand
.. i- 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 Padmanabhan (supra) was B
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 (supra)
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 C
judgments of this Court.

Point No. 5

So far as this alternative contention is concerned it has to be kept in
view that the Trial Court by its order dated 07th April 1982 dismissed the D
application of defendant no. 11 on the ground that the application for final
decree was barred by limitation. Defendant no. I I then filed A.S. 198 of 1982
against that decision. The Appellate Court by its judgment dated 10th July
1983 allowed the appeal holding that the final decree application was not
barred by limitation. Consequently the final decree application was remanded E
to the Trial Court for passing final decree after considering other objections
raised by the second defendant. The 2nd defendant challenged the order of
remand by filing C.M.A. No. 114of1984 before the High Court and the High
Court by its order dated 19th August 1989 held that the Appellate Court was
right in holding that the final decree application was competent and was not
barred by limitation. It is of course, true that at that stage defendant no. 2 F
had no occasion to file an S.L.P. against the said remand order of the Appellate
Court as confirmed by the High Court. But that does not mean that during
the remanded proceedings when his application I.A. 1307of1994 got dismissed,
and said dismissal got confirmed by the High Court by the impugned order,
in this S.L.P. against the impugned order of the High Court pertaining only
to I.A. 1307 of 1994, the appellants could raise the contention of limitation and G
challenge the remand order in A.S. No.198 of 1982 as confirmed by the High
Court on 19th August 1989. The reason is obvious. As laid down by this
Court in Satyadhyan Ghosal (supra) 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 can be challenged in an appeal from the final H
t>--
468 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A decree or order. A special provision is made in Section I 05(2) Civil Procedure
Code as regards orders of remand. But even under Section I 05(2) the
correctness of an order of remand can h e challenged in appeal from the final ~
decision provided the order of remand is not appealable. The question whether
•
final decree proceedings have become barred by limitation or not would arise
for consideration of this Court only if ultimately final decree gets passed
B against the appellants pursuant to the earlier finding reached by lower appellate
court and High Court at interlocutory stage that these proceedings were not
barred by limitation. It is only then that the appellants can bring in challenge ~-
the earlier remand order which results into the final decision against them and
can urge that the said interlocutory order of remand as confirmed earlier by
c the High Court was itself not correct. The stage is still not reached for the
appellants. Hence we keep this question open at this stage. It is, of course,
true that at the earlier stage when the Appellate Court remanded the
proceedings the question of limitation canvassed for consideration was on
one aspect, namely, whether an application for final decree could be filed after
three years of the passing of the preliminary decree. In the present proceedings
D the appellants also sought to raise an additional contention whether the final
decree could ever be passed when the redemption money is not deposited y
within six months and for which reliance is placed on a decision of this Court
in the case of Mohd. Abdul Khader Mohd. Kastim (supra). However, even
this contention is also an additional facet of the plea of limitation regarding
E passing of final decree. The question whether final decree proceedings have
got barred by limitation on the ground that application for the same was
initiated after three years of the preliminary decree or whether they have
become barred on account of non-payment of redemption money in time,
would all the same pertain to the issue of limitation for passing the final
decree. All these contentions, therefore, for whatever they are worth cannot
F now be agitated at this stage by the appellants in support of the application
No. 1307 of 1994 which we are ordering to be remanded for a fresh decision Jo.

pursuant to the present order. In these remanded proceedings the only question
to be examined by the Civil Court will be to the effect whether the appellants
can claim any legal rights flowing for defendant no. 2 from the Amending Act
35 of 1969 as a cultivating tenant. It is obvious that if this contention
G succeeds ultimately and gets confirmed in the hierarchy of proceedings
throughout then there would be no occasion for the court ultimately to pass
any final decree for redemption against the appellants as they would succeed A..

on merits. Then there would remain no occasion for them to urge the question
of limitation. If on the other hand the appellants fail all throughout on the
H contention about the benefit of Amending Act 35 of 1969 and suffer a final

JflE
SANKARANARAYANAN POTT! v. K. SREEDEVI [S.B. MAJMUDAR, J.] 469
decree for redemption then at that stage in any future S.L. P. before this Court A
only they can raise the contention of limitation and try to demonstrate
." ~
whether the remand order 'of the Appellate Court and as confirmed by the
High Court on 19th August 1989 was legal and valid and while raising such
a contention the appellant at that stage would .be able to raise a further
ground touching upon the very question of limitation for passing the final
decree, namely, whether the final decree for redemption could be passed on B
account of non-payment of redemption money within the requisite period .
.. _.(_
We, therefore, hold that this contention is too premature to be raised at this
stage. We keep it open and do not express any opinion one way or the other
on this contention. In our view, therefore, it is equally not open to the
appellant to raise this contention before the Civil Court in the proceedings c
to be remanded to it pursuant to the present order. 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.
D
j '¥ Point No. 6

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 of 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
E
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. No. 1307 of 1994 filed by original
defendant no. 2 is restored to the file of the I st Additional Sub-Judge,
Trivandrum with a direction to decide the said application, as indicated F
~
hereinabove, afresh on the question of defendant no. 2's claim to be entitled
to the protection of the Kerala Land Reforms (Am'endment) 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. G

Appeal is allowed accordingly. In the facts and circumstances of the
case there will be no order as to costs.

V.M. Appeal allowed.