VICTORIA versus K.V. NAIK AND ORS.

Citation: [1997] SUPP. 1 S.C.R. 344 · Decided: 09-05-1997 · Supreme Court of India · Bench: K. RAMASWAMY, D.P. WADHWA · Disposal: Dismissed

Judgment (excerpt)

A 
VICTORIA 
v. 
K.V. NAIK AND ORS. 
MAY 9, 1997 
B 
[K. RAMASWAMY AND D.P. WADHWA, JJ.] 
Kera/a Land Refonns Act, 1963 : 
Ss. 2(25) Explanation IV, 4(A)(l)(b), 13 and 125(3)-Mortgage of 
C land-Suit for redemption-Mortgagee claiming fixation of tenure and in 
alternative claiming deemed Kudikidappu rights-Trial Court negatived the 
plea-Final decree passed-Trial Court, however, observed that claim regard-
ing Kudikidappu rights could only be raised at the time of execution-High 
Court held the plea as barred by res judicata-Held, since in the suit the plea 
had been raised and negatived, it was not open to mortgagee to raise the plea 
D after passing of the final decree that he was entitled to three cents of land as 
Kudikidappu-£ven otherwise, a mortgagee remains as mortgagee unless 
limitation snaps off the link. 
Narayanan v. Kunchiyamma Parnkkutty Amma, (1986) K.L.T. 1340 
E and Balakrishnan v. Bhaskaran, (1987) 2 K.L.T. 733, referred to. 
F 
CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) 
No. 10014 of of 1997. 
From the Judgment and Order dated 17.3.97 of the Kerala High 
Court in C.R.P. No. 2587 of 1996. 
M.P. Vinod for the Petitioner. 
The following Order of the Court was delivered : 
G 
This special leave petition arises from the Order of the High Court 
of Kerala, made on 17.3.1997 in CRP No. 2587/96. 
The respondents-mortgagors had filed O.S. No. 285/79 for redemp-
tion of the mortgage. The petitioner-mortgagee claimed fixity of the tenure 
in respect of the entire extent of the land under Section 4A(l)(b) and 
H Section 13 of the Kerala Land Reforms Act; in the alternative, she claimed 
374 
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• 
VICTORIA v. KV. NAIK 
375 
to be entitled to deemed Kudikidappu rights over 3 cents of the total extent A 
of 8 cents, by operation of Explanation IV to Section 2(25) of the Act. 'The 
trial Court negatived the 'ontention by decree dated July 31, 1980. Final 
decree was passed on September 30, 1992. The Court found that in a suit 
for redemption of mortgage, claim of Kudikidappu advanced by the 
petitioner arises for consideration only at the time of the execution; thus, B 
in this case, prima facie, they are not entitled to reference under Section 
125(3) of the Act. When the petitioner had carried the matter to the High 
Court, the High Court held that it operates as constructive res judicata . 
Since that question was raised at the time when the final decree had been 
passed, the petitioner raised this point in the execution. Thus, this petition 
, 
by special leave. 
C 
The High Court has considered various decisions of that Court in 
reaching the conclusion; particularly, it relied upon a judgment of the 
Division Bench in Narayanan v. Kunchiyamma Parnkkutty Amma, (1986) 
K.L.T. 1340. The High Court recorded the findings thus : 
• 
"In the light of this position now settled, it is clear that the judgment 
debtors are precluded from claiming that they are Kudikidap-
pukars entitled to the protection of Explanation IV to Section 2(25) 
of the Act in view of their prior approach to the Land Tribunal 
D 
on a claim that they are cultivating tenants entitled to an assign-
E 
ment of the right, title and interest of the land owner over the land 
in question. The present plea of Kudikidappu is, therefore, barred 
by res judicata. 
It is well settled in this Court that when a claim of tenancy of 
Kudikidappu is barred by res judicata, such a question does not F 
arise for decision within the meaning of Section 125(3) of the Act. 
(see the decision of the Full Bench in Kesava Bhat v. Subraya Bhat, 
(1979) KLT 766). It is therefore, to be held in the present case 
that the claim of Kudikidappu sought to be put forward by the 
judgment debtors does not arise and consequently no reference is G 
called for under Section 125(3) of the Act. 
Learned counsel for the judgment debtors contended that in the 
decree for redemption that has been passed, the claim of the 
judgment debtors for protection under Explanation IV to Section 
2(25) of the Act has been left open to be decided in execution and H 
A 
B 
c 
D 
E 
F 
G 
376 
SUPREME COURT REPORTS [1997] SUPP. 1 S.C.R. 
under such circumstances the question did arise and the same 
ought to be referred to the Land Tribunal under Section 125(3) 
of the Act. All that was done by the judgment in the case was to 
take note of the plea of the judgment debtors that they were 
entitled to protection as Kudikidappukars and without deciding 
that question at the stag

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