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PETITIONER: SANKARANARAYANAN POTTI (DEAD) BY L.RS.

       Vs.

RESPONDENT: K. SREEDEVI & ORS.

DATE OF JUDGMENT:       26/03/1998

BENCH: S.B. MAJMUDAR, K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B. Majmudar, J.      Leave granted.      I.A. No.4, Application for substitution of the heirs of deceased original  petitioner, is  granted.  We  have  heard learned senior  counsel for  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  Petition from  which this  appeal arises  for decision of  a larger  Bench of  three Judges 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  case of  Mathevan Padmanabhan   alias   Ponnan   (Deed)   through   L.Rs.   v. Parmeshwaran Thampi  and others [1995 Supp. (1) SCC 479] and in the  case of Chettiam Veettil Ammad and another etc. 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  be  necessary  to  note  a  few  relevant background facts. Background Facts      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.1. 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 original mortgagors in favour of  defendant no.2-mortgagee.  Wee 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 01st 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  redemption  of  the  otti mortgage of defendant no.2 on payment of mortgage amount and

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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  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 at the stage  passing final decree. In the meantime Kerala Land Reforms Act,  1963 [hereinafter  referred to  as  ‘the  Land Reforms Act’]  which has  come into  force with  effect form 01st 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 the wider definition of ‘tenant’ as envisaged by the  said Amending  Act. On  that ground  defendant  no.2 filed an  application under  Section 72B 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 certificate  of   purchases  in  favour  of  the  applicant- defendant no.2.  Accordingly certificate  of  purchases  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  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 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 of the provisions of the Kerala Land  Reforms (Amendment)  Ant and  that the 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 the  ground that  the application  for final  decree  was barred by  limitation. Application  for condonation of delay was also  dismissed. Thereafter  11th 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 learned District Judge  also directed  that t  he 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. 114 of  1984 challenging  the judgment 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

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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  August 1994  defendant no.2  filed I.A. No.  1307 of  1994 in  O.S. 75 of 1958 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 t he time statutorily  fixed for deposit of redemption money, had expired redemption  price could 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 S.R.O. No. 1271 of 1995 which came to be dismissed by the impugned judgment  dated  18th  October  1995.  It  is  this judgment of  the High  Court  which  is  challenged  in  the present appeal on grant of special leave to appeal. Rival Contentions      Leave 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 Reforms Act  got amended and under the amending provisions 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  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  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  proceedings could  not be  entertained  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 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 in Chettiam Veettil (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 it  was contended that in any case final decree proceedings would  not survive as they were barred by

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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 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 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  application  was  moved  by defendant no.11  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 and others [(1996) 11 SCC 83], 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 appellant, I.A. No.1307 of 1994, 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  he aforesaid  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 issued  of tenancy  arose for  consideration and was not finally decided,  an application under Section 72B 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  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  for deciding  the question of surplus holding of such  tenant the said certificate could be gone behind by the Land  Revenue Board.  Thus  the  controversy  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.  It  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   provisions  of  this  Act  pending  the  civil litigation between  the parties  Section 108 sub-section (3)

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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 (1) of Section 125 of the parent Act would get  attracted to  such a  controversy and as it was 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 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 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 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 arising out of the decision  on interim  application No.  1307 of  1994 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 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  for  being 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  Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another [AIR 1960 SC 941]. Points for determination      In  view   of  the   aforesaid  rival  contentions  the following points arise for our consideration ; 1.   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  Reforms Act  as amended  by Act 35 of 1969      can be  treated to be final and conclusive an d 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.

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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  he 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. 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 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). 5.   Whether the  final decree  proceedings  are  barred  by      limitation. 6.   What final order ?      We will deal with these points seriatim. Point No. 1      So far  as this point is concerned we must keep in view the  salient  facts  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  mortgage dated 01st December 1944 binding between the  parties. It is also not in dispute that the Ste Deed said  to have  been executed by original defendant no.1 in favour  of defendant  no.2 on  27th July  1955 is finally held  to   be  not  legal  and  operative  and  consequently defendant no.2 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 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 legally undertaken by him before the  Tribunal and  whether the  Land Tribunal  acting under the  provisions of  the Amending  Act 35  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 stated that  the parent  Act being  Kerala Land Reforms Act, 1963 which  came on  the Statute  Book with effect from 01st 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  01st  January  1970  the situation changed and a fresh statutory right came to inhere in defendant no.2. In order to appreciate this contention it is necessary  to note  a few relevant provisions of the said Act.      With effect  from 01st  January 1070  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

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amended definition  which  is  pressed  in  service  by  the learned senior  counsel for  the appellants  for  submitting that defendant 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 Section  72B 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 it was that application  which was  allowed by  the Tribunal  which fixed the  purchase price  as per  Section 72D 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 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 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,  01st January 1970. These two provisions which were styled as  transitory provisions  in the  Amending  Act  are required to  be noted.  Section 108  sub-section (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      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,      appeal,      revision,      review,      proceedings  in   execution  of   a      decree or other proceedings pending      at the commencement of this section      before any court, tribunal, officer      or  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  amended  by      this Act." It is  not in dispute that these transitory provisions still

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hold the  field. A  mere 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 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. 75 of 1958 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 provisions of the Amending Act with effect from 01st 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 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 sub-sections reads as under :      "125. Bor  of jurisdiction of civil      courts.-(1)  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 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 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.      (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

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    the area  in which the land or part      thereof is  situate  together  with      the  relevant   records   for   the      decision of that question only.      (4)  The     Land   Tribunal  shall      decided the question referred to it      under sub-section  (3)  and  return      the  records   together  with   its      decision to the civil court.      (5)  The  civil  court  shall  then      proceed to decide the suit or other      proceedings accepting  the decision      of Land  Tribunal on  the  question      referred 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 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  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.      (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 defendant no.2 about his tenancy but  for the  proviso to  sub-section (1) of Section 125 which  clearly states  t hat  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 protected  tenant  under  the amended provisions  of the  Kerala Land  Reforms (Amendment) Act with effect from 01st January 1970 or not. This claim of defendant no.2  could be  decided only by the Civil Court in the present pending suit and consequently there would remain no occasion  for the  Civil Court to follow the procedure of sub-section (3)  of section  125 which obviously 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 Act. It is obvious that in  all types  of  civil  disputes  civil  courts  have inherent jurisdiction  as per Section 9 of the Code of Civil Procedure unless  a  part of that jurisdiction is carved out

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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(1)  of the principal Act and Section 108(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 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 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 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 Land Tribunal  and if the Tribunal after hearing the parties had granted  such  a  purchase  certificate  it  would  have remained conclusive  and binding  between the  parties,  but such is  not the  fact 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. 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 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.1, therefore, must  be answered  in the  negative  against  the appellants and in favour of the contesting respondents. Point No. 2      In the  light of  the decision on the first point 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  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.

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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 Reforms  (Amendment) Act  and whether he could validly invoke provisions of Section 72B to be a  cultivating tenant  within the  sweep of  Kerala  Land 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  would depend  upon the  moot and  the  basis question whether  he was  a cultivating  tenant  within  the sweep  of   the  Amending  Act  or  not.  Consequently,  the wholesale rejection of defendant no.2’s application I.A. No. 1307 of 1994 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  favour of  the appellants  and  against  the contesting respondents. Point No. 3      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. 1307 of 1994 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 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  72D and  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  s rendered by the Civil Court in  the remanded  proceedings in I.A. No. 1307 of 1994 that  original  defendant  no.2  was  a  cultivating  tenant entitled  to   the  protection   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 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 35 of 1969 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 were  premature and  were filed before incompetent authority at that stage with the result that the consequential orders  are found   to be without jurisdiction still it  cannot b  e gainsaid that defendant no.2 had tried to invoke  within time  the provisions of Section 72B of the

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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  the Civil  Court in the hierarchy of the  proceedings   pursuant  to   our  present  order.  Even otherwise on  the facts  of the  present 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 hierarchy 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 passing  appropriate orders in the light of the final  decision of  the Civil  Court in the hierarchy of proceedings by  resorting to  t he  machinery provisions  of Section  72B   onwards  culminating  into  the  issuance  of appropriate purchase  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 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 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 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, the Civil Court will have  to decide  the entire  question de novo afresh on its own merits. Point Ni. 4      So far as this point is concerned as we will  presently point out in fact 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  Land Reforms  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 Report ;      "The first  question is whether the      High Court was justified in holding      that the  Land Tribunal  would have      kept the  application  filed  under      Section  72-B   pending   til   the      dispute of  the tenancy  is finally      determined. On  a comspectus of the      relevant provisions,  the scheme of      the  Act   and  on  the  facts  and      circumstance  of   the   case,   we      consider that  the  High  Court  is      right in  its  approach.  The  very      dispute whether  the appellant is a

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    tenant and  is entitled to purchase      the  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,  it  the      High Court  on appeal,  finds  that      the appellant  is not a tenant, his      entitlement   to    purchase    the      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 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 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 competent 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  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 tenant entitled to the benefit of Section 72B or not. In  such a  situation it  is the Tribunal which h as 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 held that the status of cultivating tenant  has not become final and so long as that has not  become final  there is  no  occasion  of  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  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 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

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challenged and was challenged higher up in the hierarchy and that finding  had not  become final.  Therefore, as  rightly held in  that case,  there remained no occasion for the Land Reforms authorities to proceed under 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 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  01st January 1070.  Consequently, strictly speaking, the decision of this  Court in  Mathevan 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 had already  decided   the  question  about  the  right  of  the cultivating 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 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  the said  certificate issued under   section 72K did raise irrebutable presumption as per sub-section (2)  thereto  and  even  after  considering  the conclusive eventuality  following  thereto  the  Taluk  Land Board had  ample jurisdiction  under Section  35(5) to  pass appropriate order  regarding  the  surplus  holding  of  the occupant. We  fail  to  appreciate  how  the  ratio  of  the aforesaid decision  rendered on  the peculiar  facts of that case and  deciding entirely  a different  controversy  could ever be  pressed in  service in the present case or even for 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 - 1.   In civil  suits between he disputing parties pending on or before  01st 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 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 (1)  of Section 125 of the principal Act read  with Section 108(3) of the Amending Act and such a question can  be  decided  by  the  Civil  Court  itself  by applying the  relevant provisions  of the  Amending Act read with the  principal Act so far as the question of the status

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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 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  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 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 he   contesting   parties   in   proceedings   before   such authorities. 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  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  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 final in  the hierarchy  of proceedings before the appellate authorities entitled to re-consider t he 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  and such  a certificate  would be  treated  as binding and conclusive between the parties. 4.   After the  coming into operation of the Amending Act 35 of 1969 and in the absence of any suit by then filed wherein the contesting parry claims tenancy rights. It such a person already  gets   appropriate  orders   from  t  he  competent authorities in  the hierarchy  of proceedings  under the Act and certificate of purchase is obtained under Section 72K of the Amending  Act, and thereafter it 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 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 authority under  the Amending Act between  the parties the Civil Court can dispose of such subsequently filed suit.      Aforesaid are  the four  categories of situations which would emerge  on account  of the interaction of the Amending Act 35  of  1969  on  the  one  hand  and  the  Civil  Court proceedings on  the other  between the  very same contesting

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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  Decision Bench  of this Court in the case  of Mathevan Padmanabhan (supra) was 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 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  application  of defendant no.  11 on  the ground  that the  application  for final decree  was barred by limitation. Defendant no.11 then filed A.S. 1982 of 1962 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 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. 114 of 1984 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 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 man that during the remanded proceedings when  his application  I.A.  1307  of  1994  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  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  decree or order. A special provision is made  in Section  105(2) Civil  Procedure Code as regards orders  of   remand.  But  even  under  Section  105(2)  the correctness of  an order  of remand  can b  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 world arise for  consideration of  this Court  only if  ultimately final decree  gets passed 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 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

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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  the appellants  also sought  to raise an  additional contention  whether  the  final  decree could ever   be  passed when  the redemption  money  is  not deposited 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 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 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  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 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 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 contention  about the benefit of Amending Act 35 of 1969 and suffer a final decree for redemption then at that  stage in  any future  S.L.P. before this Court 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 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 b e passed on 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 in 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  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. 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 required  to be  not  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 1st Additional Sub-Judge, Trivandrum with a direction to

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decide  the  said  application,  as  indicated  hereinabove, afresh on  the question  of defendant  no.2’s  claim  to  be entitled to  the  protection  of  the  Kerala  Land  Reforms (Amendment) 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.      Appeal  is   allowed  accordingly.  In  the  facts  and circumstances of  the case  there will  be no  order  as  to costs.