MADHAVAN Vs. BHAVANI

JUDGEMENT

(1.) We see no merit at all in this civil revision petition. The petitioners before us are the judgment debtors - defendants in O. S. No. 305 of 1969 on the file of the Munsiff's Court, Kayamkulam. That was a suit for declaration of the plaintiffs' title to the plaint schedule property and for recovery of the property from the possession of the defendants on the allegation that the defendants were only trespassers. The suit was decreed in the plaintiffs' favour by the Trial Court as per the judgment dated 13-7-1972. An appeal taken by the defendants to the Subordinate Judge's Court, Mavelikara - A. S. No 66 of 1976- was dismissed by the Subordinate Judge's Court confirming the findings entered by the Trial Court. While the appeal was pending before the Subordinate Judge's Court the defendants filed a petition before the Land Tribunal, Muthukulam under S.80B of the Kerala Land Reforms Act contending that they are kudikidappukars in respect of the plaint schedule property and praying for the purchase of the land owner's right over the kudikidappu. Even though the suit was instituted only in 1969 long after the coming into force of Kerala Act 1 of 1964 and it was disposed of by the Trial Court only long subsequent to the coming into force of the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) significantly no plea whatever had been taken by the defendants claiming any kudikidappu right in respect of the plaint schedule property.

(2.) When the decree for recovery of possession was sought to be put into execution the judgment debtors contended before the executing court that they are not liable to be evicted from the property since the Land Tribunal has passed orders in O. A. No. 61 of 1977 recognising their status as a kudikidappukars. The executing court rejected the said contention holding that the plea put forward by the judgment debtors of their kudikidappu was barred by constructive res judicata and that it was also devoid of any bona fides. The court below further held that the order Ext. B1 passed by the Land Tribunal was effected by lis pendens and that nothing contained therein could, therefore, operate to the prejudice of the decree holders in the matter of enforcing the right obtained by him under the decree passed in the suit Overruling the contentions put forward by the judgment debtors the executing court directed the property to be delivered to the decree holders as per its order dated 1st July, 1978. This revision petition is directed against the said order passed by the executing court.

(3.) We find no error of jurisdiction whatever in the order that is sought to be revised. In our opinion, the executing court was perfectly right in its view that the judgment debtors are precluded by the principle of res judicata from putting forward before the executing court their plea of kudikidappu . Since the said suit is one instituted prior to 1-1-1970 the civil court had, ample jurisdiction to entertain and adjudicate upon the plea relating to the alleged kudikidappu right of the defendants; but no such plea was put forward by the defendants either before the Trial Court or even before the appellate court. In the circumstances the judgment debtors are not entitled to raise. for the first time at the execution stage the plea that they have any kudikidappu right in respect of the decree schedule property. The order Ext. B1 passed by the Land Tribunal is manifestly illegal in as much as it has been passed ignoring the principle of res judicata which clearly debarred the judgment debtors (defendants) from putting forward before the Land Tribunal the plea that they were kudikidappukars in view of the categorical finding recorded by the civil court that they were in possession of the property only as rank trespassers. There is also the fact that the said order has not become final since an appeal filed by the respondents against the said order is pending before the Appellate Authority (Land Reforms), Alleppey.