MATHEVAN PADMANABHAN ALIAS PONNAN DEAD Vs. PARMESHWARAN THAMPI

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the division bench of the Kerala High court in AS No. 45 of 1975, dated 1/2/1984.

(2.) The respondents laid the suit before the Principal Subordinate Judge, Trivandrum for possession on the ground that the appellant had surrendered his tenancy rights and, thereafter, trespassed into the land, thereby he is in illegal possession. It is the case of the appellant that he never surrendered the land and he continued to be the tenant and that therefore, the respondents are not entitled to the possession of the land. Since there was a controversy as regards the tenancy, by operation of Section 125 of the Kerala Land Reforms Act, 1964 (1 of 1964 (for short, 'the Act') , the Civil court referred the matter to the Land tribunal. After the filing of the suit but, before the reference was made, the appellant filed an application under Section 72-B of the Act for permission to purchase the respondent's interest in the land as an occupancy tenant. The tribunal held that the appellant was a tenant and consequently permission was granted to him to purchase the land. Since the reference was made, the finding was returned to the Civil court that the appellant is the tenant. Acting upon that finding, by operation of Ss. (6 of Section 125 of the Act, the Civil court dismissed the suit. The respondents carried the matter in appeal. While disposing of the appeal, the division bench held that since the dispute as to whether the appellant is a tenant, is pending adjudication, the tribunal could not have granted permission to the appellant to purchase the land. It also held that since on reference, the Land tribunal had recorded the finding, on tenancy, it is not necessary for the Civil court to make further reference but, it itself can dispose of the suit by recording a finding on tenancy. Accordingly remitted the case as under:

(3.) In the light of that finding, a direction was given that "the trial court shall dispose of the suit without any reference to the Land tribunal and based on the evidence already on record and also any additional evidence which it may allow the parties to adduce, including the cross-examination of Public Witness 1". The appeal was accordingly allowed and matter was remitted to the trial court for determination of the question of tenancy raised by the appellant. Thus, this appeal by special leave.