C. Saraswathy Amma and Others vs Sreedharan Pillai Nair and Others

M.N. Krishnan, J.—This writ petition is preferred against the order in E.A.259/03 in E.P.106/02. The said application was filedthe obstructors viz., the petitioners to refer the matter to the land tribunal for an adjudication whether they are having tenancy right over the property. The learned Munsiff did not accede to that request and dismissed the application. It is against that decision the present writ petition is filed.

Learned Counsel for the writ petitioners has drawn my attention to the various documents produced along with the writ petition. The original suit was decreed and except item 1 of the property rest of the properties were delivered. It is item 1 of the decree schedule that is the subject matter of dispute now. One Chellamma''s husband was a party to the suit. Subsequently Chellamma claimed right over this item 1 of the property as a lessee under a document of 1956 and the present writ petitioners on the death of Chellamma claims tenancy right over the property as it is heritable and alienable and therefore they want the matter to be referred to the land tribunal for adjudication of the tenancy right. Ext. P2 is a judgment passed by this Court in O.P.4653/94. It was a case filed by the present decree holders to stay the proceedings before the land tribunal stating that suo motu proceedings initiated in favour of Chellamma is not maintainable. This Court did not stay the matter but directed the writ petitioners therein to move the land tribunal to challenge the question of maintainability of the proceedings therein. Against that decision a writ appeal was filed and as per Ext. P3 judgment a Division Bench of this Court directed the Subordinate Judge''s Court, Kottarakara to dispose of the obstruction petition filed in O.S.88/82, at any rate within four months from the date of receipt of the judgment. The said judgment was dated 27.8.2003. Chellamma died during the year 2002. In order to properly evaluate and appreciate the case there cannot be any dispute regarding one factor. The present writ petitioners are claiming right to the property only under Chellamma and Chellamma alone. If Chellamma is having tenancy right they will be also entitled to same right. Now for a reference u/s 125 of the Kerala Land Reforms Act there must arise a dispute with reference to tenancy. In this case, as learned Subordinate Judge has pointed out that as early as on 14.8.1993 the obstruction petition filed by Smt. Chellamma had been dismissed. Learned Counsel for the decree holder submits before me that the said order has become final and no appeal has been preferred and therefore the claim of Chellamma over the property has been negatived by a competent court by dismissing her obstruction application. If it is so a further question of any right to property by Chellamma will not arise and will not lie in the hands of the legal representatives of Chellamma. It is a settled principle that they cannot claim a better right than the original person who claim a tenancy right. When her right had been negatived and it had become conclusive by the non-preferring of an appeal or revision, as the case may be, then the legal representatives, after the death of the said person cannot come before the court and contend for the position otherwise. So, according to me it has to be stated that since it has become conclusive that Chellamma did not have any right over the property by the dismissal of the obstruction petition on 14.9.93 her legal representatives cannot put forth a claim under her claiming tenancy right over the property. Therefore, the question of any right to Chellamma does not arise for adjudication in the claim application. When it is so, question of the legal representatives claiming tenancy right as the legal heirs of Chellamma also does not arise. So, really a question of tenancy does not arise for consideration in the execution application and therefore, the court below was perfectly justified in dismissing the application for reference. Therefore the writ petition lacks merit and it is dismissed.

The executing court is directed to dispose of the matter on other points, after hearing both the parties. In any case, if the writ petitioners are able to establish that the order against Chellamma has not become final they are entitled to produce such documents before the court.