THOMAS ANTONY Vs. VARKEY VARKEY

JUDGEMENT

(1.) I am in full agreement with the conclusions as well as the reasoning adopted by my learned brother Mohapatra, J. I wish to add a few more lines in support of the above conclusions.

(2.) Section 125(3) of the Kerala Land Reforms Act (for short 'the Act') requires that the Civil Court shall refer the question regarding the right of a tenant or a Kudikidappukaran (including the question whether a person is a tenant or a Kudikidappukaran) to the Land Tribunal having jurisdiction over the area concerned. The section makes it clear that a reference to the Land Tribunal need to be made only if such question "arises" in the suit or other proceedings concerned. It has been consistently held by the High Court of Kerala that unless such question legally arises there is no need to make the reference to the Land Tribunal under Section 125(3) of the Act, (vide the larger Full Bench decision in the Keshava Bhat v. Subraya Bhat, 1979 Ker LT 766 : (AIR 1980 Kerala 40); and another Full Bench decision in Muhammad Haji v. Kunhunni Nair, (1993) 1 Ker LT 227 : (AIR 1993 Kerala 104). Subsequently the High Court of Kerala has held that unless the question genuinely arises the Civil Court is not obliged to make the reference (Sundaram v. Mohammed Koya, (1995) 2 Ker LT 115.

(3.) The Civil Court can consider whether the plea raised by the party that he is a tenant or a Kudikidappukaran is a bona fide contention. If there is not even a remote possibility of the said plea being upheld by the Land Tribunal the Civil Court can conclude that the question does not reasonably arise in the case. Such an unreasonable plea would be raised with the idea to procrastinate or prolong the litigation. Civil Court cannot afford to aid such sinister tactics.