IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 24756 of 2001(V)
1. KHURSHIDA BEEGAM
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.V.V.ASOKAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :06/09/2010
O R D E R
ANTONY DOMINIC, J.
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O.P. No.24756 of 2001 (V)
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Dated, this the 6th day of September, 2010
J U D G M E N T
Petitioner is the land lord of the building, bearing door No.V-
115 of Mangalpadi Panchayat in Kasaragod District. According to
her, the building was originally leased out to the predecessor in
interest of the 3rd respondent’s mother by rent deed dated
07/02/1971. After the expiry of the tenant, 3rd respondent’s
mother continued in possession and continued to pay rent @
Rs.25/- till 1985. 3rd respondent’s mother expired in 1995.
Thereafter the 3rd respondent continued in possession. Default was
committed in paying the rent and thereupon notice calling upon the
3rd respondent to vacate the premises was issued. In the reply, the
3rd respondent contended that she is a cultivating tenant.
2. Meantime, at the instance of the 3rd respondent, suo
motu proceedings under Section 72 C of the Kerala Land Reforms
Act was initiated as S.M.No.49/1998. During the pendency of the
proceedings before the Land Tribunal, Kasaragod, the petitioner
O.P.No.24756/2001
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filed RCP No.12/1999 before the Rent Control Court, Kasaragod
seeking eviction of the 3rd respondent. In the Rent Control Court
also, the 3rd respondent raised the contention that he is a cultivating
tenant. Thereupon the question was referred for adjudication to the
Land Tribunal, Kasaragod under Section 125(3) of the Kerala Land
Reforms Act. The reference was registered as R.C.No.1/2000. On
receipt of the reference, S.M.No.49/98 filed under Section 72C was
dropped for want of jurisdiction, in view of the judgment of this
Court in Narayana Kamath v. Govinda Prabhu (1992(1) KLT 630).
3. In R.C.No.1/2000, an order was passed requiring the
authorized officer to submit his report under Section 105 of the
Kerala Land Reforms Act. The authorized officer in turn submitted
Ext.P2 report stating that his predecessor in Office had already
inspected the land and submitted Ext.P1 report in S.M.No.49/98 and
that according to his predecessor’s report (Ext.P1), the 3rd
respondent and his predecessors were in possession of the property
prior to 01/04/1964. On that basis, the authorized officer reported
that the 3rd respondent may be treated as a cultivating tenant of the
land and further action taken on the basis of that report. The
petitioner objected to the acceptance of Ext.P2. According to the
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petitioner, the 2nd respondent was statutorily bound to inspect the
land, come to independent conclusions and submit his report under
Section 105 of the Kerala Land Reforms Act. On this basis, she filed
I.A.No.11/2001, requiring the Land Tribunal to remit the matter
back to the Authorised Officer for a fresh report. That plea of the
petitioner was rejected by Ext.P3 order of the Land Tribunal. It is
this order which is under challenge in the original petition.
4. Contention raised by the learned senior counsel for the
petitioner is that when the authorized officer is required to submit
his report, the authorized officer is bound to inspect the land and to
submit a report of his own. It is stated that this duty is cast on the
authorized officer under Section 105 of the Land Reforms Act.
Learned senior counsel further contended that S.M.No.49/98
initiated under Section 72 C of the Kerala Land Reforms Act was
dropped for want of jurisdiction on registration of R.C.No.1/2000.
It is stated that once the proceedings are dropped for want of
jurisdiction anything done in the said proceedings also will be cease
to have any effect. Therefore, it is argued that legally there was no
report in existence to be relied on or accepted by the Land Tribunal.
In support of this contention, learned senior counsel placed
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considerable reliance on the judgment of the Apex Court in
K.Sivaramaiah v. Rukmani Ammal (AIR 2004 (SC) 508).
5. On the other hand, learned counsel for the 3rd
respondent contended that it was perfectly open to the authorized
officer to submit Ext.P2 report. He contended that even inspite of
Ext.P2 report, it was open to the Land Lord to prove his case by
adducing evidence, and therefore, no prejudice of any nature has
been caused to her. He therefore, contended that Ext.P3 order
passed by the Land Tribunal rejecting the I.A. filed by the petitioner
does not call for any interference.
6. I have considered the submissions made by both sides.
7. Admittedly, the subject matter of the proceedings in
both S.M.No.49/1998 and R.C.No.1/2000 is the same. The parties
are also common. The question that is to be reported by the
authorized officer in both the proceedings is also same. It is in this
background that one has to look at the correctness of the view
taken by the Land Tribunal in Ext.P3 order. In my view, although, it
is a statutory necessary requirement of the proceedings before the
Land Tribunal, both under Sections 72 C and 125 to have the report
of the authorized officer, there is nothing preventing the Land
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Tribunal from relying on or acting upon the report submitted by an
authorized officer in another proceedings. This is all the more so
for the reason that even in spite of such a report, a land lord or a
tenant whoever, is always at liberty to prove his case by adducing
independent evidence. Therefore, the technical objection raised by
the petitioner, in my view, has no force.
8. As far as the judgment of the Apex Court relied on by
the learned senior counsel for the petitioner is concerned, the
question considered by the Apex Court was whether anything done
in a previous suit which allowed to be withdrawn with liberty to file a
fresh suit, will constitute res judicata. Answering this plea, in
paragraph 5 of the judgment, the Apex Court held as follows:
concerned,Sothe findings recorded in the judgment
“5. far as Original Suit No.7359 of 1989 istherein could have constituted res judicata but the fact
remains the appellate court permitted the
permitted toofbe withdrawn all the proceedings taken
withdrawalthat the suit and once the suit has beentherein including the judgment passed by the trial court
have been wiped out. A judgment given in a suit which
has been permitted to be withdrawn with the liberty of
filing a fresh suit on the same cause of action cannot
constitute res judicata in a subsequent suit filed
pursuant to such permission of the court.”
First of all, the issue decided by the Apex Court in the
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judgment relied on by the learned senior counsel for the petitioner
is a totally different one. That apart, the question was whether the
findings in a suit, which was withdrawn, constitute res judicata in a
subsequent suit. Bearing in mind the principle that a judgment is
an authority for what it actually decides and not what logically
follows therefrom, in my view, the principles laid down in paragraph
5 of the judgment relied on by the learned senior counsel for the
petitioner can at best be applied in a situation where the question is
as to whether the findings in a previous suit, which was withdrawn,
constitute res judicata. The reasoning adopted by the Apex Court in
the judgment referred to above can have no application to the facts
of the case of the petitioner. Therefore, I do not find any merit in
the original petition.
The original petition is only to be dismissed and I do so.
(ANTONY DOMINIC, JUDGE)
jg