IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 290 of 2010()
1. C.RADHAKRISHNAN NAIR,
... Petitioner
Vs
1. P.MADHAVAN NAIR, MAEENAKSHI MANDIRAM,
... Respondent
For Petitioner :SRI.G.SUDHEER
For Respondent :SRI.M.BALAGOVINDAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/10/2010
O R D E R
THOMAS P JOSEPH, J.
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C.R.P.No.290 of 2010
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Dated this 13th day of October, 2010
ORDER
This revision is in challenge of order passed by the
Appellate Authority (Land Reforms), Alappuzha in A.A.No.122 of
2003 confirming dismissal of O.A.No.165 of 2001 of the Land
Tribunal, Thiruvananthapuram. Petitioner sought to purchase
kudikidappu in respect of the disputed land under Sec.80B of the
Kerala Land Reforms Act (for short, “the Act”). That application
was resisted by respondent on the ground that an earlier
application in respect of the same plot filed by petitioner’s fathers
(O.A.No.488 of 1978) was dismissed vide order dated 19-06-1979
holding that he is not entitled to any kudikidappu and hence
present application is barred by the principles of res judicata.
The authorised officer submitted Ext.C1, report stating that
petitioner is in possession of 2 cents in survey No.544/A2 and is
staying in the hut there. Respondent filed objection to Ext.C1,
report. The Land Tribunal recorded oral evidence of parties and
observing that on a perusal of the records (obviously of
O.A.No.488 of 1978) it is found that petitioner’s father had
claimed kudikidappu in respect of the same property and lost it.
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According to the petitioner, O.A.No.488 of 1978 was not in
respect of the property regarding which present application is
filed by him and hence principles of res judicata does not apply.
It is also contended by learned counsel that none of the records
said to be perused by the Land Tribunal (referring to O.A.No.488
of 1978) were marked in evidence and he did not get an
opportunity to meet those records. Learned counsel for
respondent contends that a reading of the order under challenge
would show that entire records were perused by the Land
Tribunal.
2. A mere perusal of records of O.A.No.488 of 1978 by
the Land Tribunal is not sufficient to enter a finding that the
present application is barred by res judicata as if the earlier
application made by predecessor-in-interest of petitioner was in
relation to the same property. It is required to be seen whether
properties in respect of which O.A.No.488 of 1978 and the
present application are preferred are one and the same. When a
plea of res judicata is raised by the respondent, it is his
responsibility to produce the relevant documents and prove the
same in the manner known to law giving an opportunity to the
opposite party to show how the rule of res judicata cannot be
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: 3 :
applied. That has not been done in this case. In the circumstance,
the statement of the Land Tribunal that it perused the records is
not by itself sufficient. Those records are not part of the
evidence.
3. Under Section 103 of the Act, High Court need
interfere in revision only when the lower authorities under the
Act have not either considered a question of law or, wrongly
decided such question of law. Here, the question of law involved
is whether the Land Tribunal is justified in entering a finding
regarding res judicata when the relevant documents were not
introduced in evidence as provided under law. I answer the point
in this way – the Land Tribunal could not have decided so.
4. In the light of the above, order of the Land Tribunal as
confirmed by the Appellate Authority cannot stand and both are
liable to be set aside.
Resultantly this petition is allowed in the following lines:
Order on O.A.No.165 of 2001 of the Land Tribunal,
Thiruvananthapuram as confirmed by the Appellate Authority
(LR), Alappuzha in A.A.No.122 of 2003 is set aside and
O.A.No.165 of 2001 is remitted to the Land Tribunal for fresh
decision after giving both sides opportunity to adduce evidence. I
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make it celar that it will be open to the respondent to get
certified copies of relevant records in O.A.No.488 of 1978 and
prove the same in the present application as provided under law
in support of his contention that the present application is barred
by principles of res judicata. Land Tribunal is directed to dispose
of the matter as early as possible at any rate within six months
from receipt of a copy of this judgment after giving parties
opportunity to adduce evidence. Parties shall appear before the
Land Tribunal on 15-11-2010.
(THOMAS P JOSEPH, JUDGE)
Sbna/-