THOMAS Vs. THOMMAN

JUDGEMENT

(1.) The question concerned in this revision petition is as to the applicability of S.32 of the Land Reforms Act. The section as amended stands to this effect:-

(2.) In the case before me the respondent who is the defendant in O.S.20/69 claims F tenancy right in respect of the property covered by the suit. According to him he is varamdar of the property. O.A. 263/68 was filed by him before the Land Tribunal, Quilon for fixation of fair rent. Thereupon the landlord caused the suit to be filed by his Mukthiar holder against the respondent for injunction. That was resisted by the respondent and the court after hearing both sides rejected the prayer for interim q injunction. It was after that that the present suit O.S.20/69 was filed by the landlord for recovery of the plaint schedule property on the strength of title. The respondent, therefore, prayed for stay of the suit under S.32 of the Act. The landlord's contention is that S.32 is not applicable, firstly for the reason that this is a suit for recovery of property from a trespasser; and secondly that it was instituted prior to the amendment of S.32 by Act 35/69. The contention is not correct. A Full Bench of this Court has held in Narayanan Nair v. State of Kerala ( 1970 KLT 659 FB) that S.32 is designed to prevent the institution of suit by land-owners as a counter blast to application by tenants for the determination of fair rent. Such a suit implies that the applicant for determination of fair rent is in possession of the land, and that being so, there is no objection to a suit for eviction being stayed pending disposal of the fair rent application. In the present case, as already stated, the land owner's suit was instituted after the tenant had filed his application for fixation of fair rent. In the first suit, which was one instituted by the land owner's Mukthiar holder at his instance, was withdrawn as he could not succeed in getting a temporary injunction. The civil court found in that case that the tenant was in possession and as such it was improper to issue an injunction against him. After that the present suit was filed. The position is in no way better for the land owner now also. Learned counsel would contend that as the suit was filed before the amendment, the section (S.32) can have no application in the present case. I am unable to accept this contention also. S.32 is saved by S.108(3) of the amending Act (Act 35/69). The section reads: -

(3.) Learned counsel argues that this section is inapplicable to the present case since here the subject matter of the suit is not one arising under and provided for by the principal Act. In other words, the argument is that the present suit is one for recovery of possession evicting a trespasser and such a suit is not one in respect of any matter arising under and provided for by the principal Act. I do not think S.108 can so glibly be got over in the present instance. The suit is not one for eviction of a trespasser. Even though the suit is so framed, it is in fact a suit to evict the varamdar whose application for fixation of fair rent is pending before the Land Tribunal. In the eye of the land owner it might appear that he is only a trespasser; but in the eye of law, as it now exists, the matter is one between the land owner and his tenant.