ABDULRAHIMAN Vs. ABDULLA HAJI

JUDGEMENT

(1.) Revision Petitioner is the defendant in O.S. No.17 of 1988; a suit for possession. He claimed that he is en titled to the protection under S.106 of the Kerala Land Reforms Act (Act 1/64) (for short 'the Act') on the ground that the land in question was leased to him for commercial purpose and that he has constructed a building for such purpose before 20-5-1967. Issue No. 2 was framed by the court with respect to the said contention. The revision petitioner thereupon wanted the suit to be stayed and the said question referred to the Land Tribunal for adjudication as per S.125(3) of the Act. But the prayer was rejected as according to the lower court since he has applied under S.72-B of the Act for assignment of the land lord's right, he is not entitled to maintain that he is entitled to the protection under S.106 of the Act. According to the lower court he is barred by the doctrine of election from making such a claim. Reliance was placed on the decision in Kamalakshi Amma v. Vijayan ( 1988 (2) KLT 498 ).

(2.) When the matter came up for hearing before the Chief Justice, His Lordship doubted the correctness of the decision in Kamalakshi Amma's case (1988 (2) KLT 498) and adjourned the case for consideration by a Division Bench.

(3.) In the circumstances, advertence to the allegation in the plaint as to this aspect is necessary. In Para.7 of the plaint the plaintiff alleges that, the first defendant filed O.A. 3774/76 for purchase of Jenm right, that the Land Tribunal on enquiry found that the lease was for industrial and commercial purpose falling under the exception as per S.3(1)(iii) of the Act, and that the petitioner hence is not entitled to maintain the petition. An appeal and a revision by the revision petitioner from the said order were also dismissed.