SHAHUL HAMEED Vs. HASSAN

JUDGEMENT

(1.) While the disputed property was in the possession of the respondents in CM. A. No. 32 of 1977 under Ext. A2 lease deed dated 9-2-1116 M.E., the lessor executed Ext. A1 Otti deed dated 3-6-1123 in favour of the lessee in respect of the same property Alleging that Ext. A1 evidences a possessory mortgage, the mortgagor's son sought to redeem the said mortgage by invoking S.11(5) of the Kerala Agriculturists' Debt Relief Act, 1970 (Act 11 of 1970). The counter petitioners therein raised two contentions in the alternative, namely, that Ext. A2 lease subsists despite Ext. A1 otti transaction; and at any rate, Ext A1 Otti transaction evidences a tenancy arrangement. The Trial Court upheld both the contentions mentioned above and consequently dismissed the application filed under S.11(5) of the aforesaid Act. The applicant before the Trial Court preferred an appeal before the lower appellate court. That appeal too was dismissed. The lower appellate court held that though Ext. A1 does not evidence a tenancy arrangement, Ext. A2 lease subsists despite Ext. A1 transaction. On that basis the lower appellate court held that the respondent before the Trial Court as also before the appellate court is holding the property as a tenant.

(2.) The defeated applicant before the Trial Court has preferred CRP. No. 470 of 1977 and CMA. No. 32 of 1977 against the order dismissing his application under S.11(5) of the Act by both the lower courts. The 1st respondent in those proceedings has preferred CRP. No. 618 of 1977 questioning the finding entered by the lower appellate court that Ext. A1 evidences a usufructuary mortgage and not a tenancy arrangement.

(3.) The main contention advanced on behalf of the applicant under S.11(5) of the Act, that is to say the revision petitioner in CRP. No. 470 of 1977 who is the appellant in CMA. No. 32 of 1977 and the respondent in CRP. No. 618 of 1977 is that the application under S.11(5) of the Act was filed on 16 3 1972 and that therefore the question of tenancy raised by the opposite party should have been referred to the concerned Land Tribunal under S.125(3) of the Kerala Land Reforms Act, 1963. It is contended that no such reference was made by the Trial Court and that therefore the decision ' of the Trial Court as confirmed by the appellate court is null and void. The learned counsel for the revision petitioner in CRP. No. 470 of 1977 seeks to support the submission as aforesaid relying on the Full Bench decision of this Court in Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 ) (FB).