SANKARAN Vs. KOCHUKUITY
LAWS(KER)-1974-6-11
HIGH COURT OF KERALA
Decided on June 19,1974

SANKARAN Appellant
VERSUS
KOCHUKUITY Respondents

JUDGEMENT

- (1.) IN this original petition the petitioner, who is the ist respondent in O. A 1337/ 71 before the Land Tribunal, Beypore, questions the legality and validity of a preliminary order passed by the Land Tribunal under R. 81 of the Kerala Land Reforms (Tenancy) Rules (shortly stated the rules), which is marked as Ex-P1 in these proceedings. The petitioner was the 1st respondent in the proceedings before the Land Tribunal filed by the 1st respondent herein for alleged kudikidappu rights in the property owned by the present petitioner under S. 80b of the Kerala Land Reforms Act (shortly stated the Act ). IN that proceedings the petitioner opposed the application for purchase of kudikidappu on the ground that the 1st respondent is not a kudikidappukars within the meaning of the Act. According to him the disputed property was subject matter of a partition suit O. S. 29/59 in the court of the sub Judge, Calicut, in which the petitioner is the plaintiff and in the final decree for partition the property with the house had been set apart to the petitioner. This house had been valued by the commissioner who effected the partition at Rs. 5000/ -. It is also contended that the Ist respondent has 28 cents of land which she purchased in 1973. The Land Tribunal considered the question whether the Ist respondent is a kudikidappukaran and has passed the preliminary order impugned in these proceedings.
(2.) IT appears from Ex-P1 that in the Panchayat concerned the house has been registered in the name of Arumugham who is the 2nd respondent herein. On the basis of this registry the Land Tribunal states that this being prepared by a competent authority under the powers vested in him by a statute would be sufficient proof of the respondents' contention that the house is their homestead. The oral evidence adduced before the Land Tribunal, namely that of an elder brother of the present petitioner has also been relied on by the Land Tribunal to find that the Ist respondent is a kudikidappukaran. The Land Tribunal has stated: "he has deposed that the house in question constructed by his father (also the respondent's father) and for the purpose of constructing this house the first petitioner's husband had given him (witness father) Rs. 1002-50. He has knowledge of this from the diary maintained by his father. " IT is stated in the order that the first respondent therein namely the present petitioner had filed a certified copy of a statement filed by the petitioner in the O. A. in E. P. 114/69 and E. A. 366/69 as well as some other documents which were marked in the proceedings as Ex. D1. However this evidence has not at all been considered by the Land Tribunal except merely stating that the documentary evidence tendered by the respondent is not "proof to show the ownership of the house". Then the Tribunal goes on to state "ext. P1, P2 and the oral evidence of pw. 1 are conclusive proof to show that the petitioners are the owners of the petition schedule house, especially in view of the fact that the respondent has not adduced any counter evidence. " The oral evidence adduced in the case will not be of any help to come to the conclusion that the Ist respondent is a kudikidappukaran. The Panchayat records produced also would not indicate that the Ist respondent is a kudikidappukaran. It is strongly contended on behalf of the respondents that Ext. P1 order is an order under S. 80b though it may be preliminary in nature and as such an appeal will lie. Therefore, this court should not interfere under its extraordinary jurisdiction. Ex. P1 has been passed under r. 81 of the Rules, by which the question whether a person is a kudikidappukaran or not should be preliminarily decided. Such a preliminary order would be a decision of a jurisdictional fact. It is well settled that a wrong decision on a jurisdictional factor will not confer jurisdiction on any Tribunal, and on the materials placed before me I am of the view that there has been such a wrong decision. The existence of an alternative remedy need not necessarily be a bar to this court going into the question at this stage. Moreover under S. 102 of the Act an order made under S. 80b is made appealable, but the impugned order cannot be said to be an order under S. 80b as such. Under S. 80b the order contemplated is the one under sub-s. (3) and it is stated in sub-s. (4) that an order under sub-s. (3) allowing an application shall specify certain conditions given therein. Therefore, a decision on the jurisdictional factor whether a person is a kudikidappukaran or not will not come under S. 80b. Learned counsel for the respondents brought to my notice two decisions of the Supreme Court in Central Bank of India v. Gokal chand (AIR. 1967 SC. 799) and Shankarlal Aggarwal v. Shankarlal Poddar (AIR. 1965 SC. 507 ). In the first decision S. 38 (1) of the Delhi Rent Control Act which provides for appeal from every order of the Controller made under the Act came up for consideration. There it was stated that "in the context of s. 38 (1) the words 'every order of the controller made under this Act, 'though very wide, do not include interlocutory orders which are merely procedural and do not affect the rights or liabilities of the parties. " From this it is argued that any order which affects the rights of the parties can be subject matter of an appeal. Similarly in the second cited case AIR. 1965 SC. 507 it was stated by the Supreme Court that the expression "from any order or decision in S. 202 of the Indian Companies Act, would exclude merely procedural orders or those which did not affect the rights or liabilities of parties. "
(3.) WHAT is argued that is that Ex. P1 being an order affecting the rights of parties it is appealable. The right of appeal under s. 102 is only from an order under S. 80b and not from an order on a jurisdictional fact. Passing of such an order as Ex. P1 is not the one contemplated under S. 80b. That does not mean that when a question comes before the Land Tribunal whether a person is a kudikidappukaran or not the Land tribunal cannot decide that question. Apart from the fact that every Tribunal has got inherent jurisdiction to decide a jurisdictional fact unless specifically excluded by statute, R. 81 of the rules specifically gives power to the Land Tribunal. But that cannot be equated to be an order under S. 80b. It was urged on behalf of the respondents that this court should not interfere in a matter where a decision was taken on appreciation of facts as such. However when the Tribunal ignores material evidence or comes to a decision with no evidence at all the High Court can certainly intervene. In this case the Tribunal has relied on the oral evidence of the respondents for coming to the conclusion that the Ist respondent is a kudikidappukaran. It is rather difficult for any court to come to such & conclusion on the basis of the oral evidence.;


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