SANKARAN Vs. RAMAN

JUDGEMENT

(1.) The plaintiffs are the appellants. The suit is for injunction restraining the defendants from interfering with the plaintiff's possession of the suit properties. There are four items mentioned in the plaint. The defendants do not dispute the plaintiffs' title and possession of items 1 and 2. The dispute in the suit relates only to the plaintiffs' possession of items 3 and 4. According to the defendants the property was outstanding in the possession of tenants even on the date of Ext A3 under which the 1st plaintiff obtained title to the disputed items 3 and 4. The tenancy rights were later purchased by the defendants and they deny the plaintiffs' possession of items 3 and 4. The Trial Court dismissed the suit on 30-11-1973 on the finding that the plaintiffs have not proved possession of the disputed items 3 and 4. The Trial Court also found that there was no need for issue of an injunction in respect of items 1 and 2 for the reason that the defendants do not dispute the plaintiffs' title or possession of the same. In Appeal, A. S. No. 252 of 1974, the lower appellate court remanded the case by order dated 13-10-1976 directing the Trial Court to refer the question of tenancy raised by the defendants to the concerned Land Tribunal under S.125(3) of the Kerala Land Reforms Act. The order of remand is based on a Full Bench decision of this Court in 1976 KLT 571 .

(2.) The suit is one instituted in the year 1968 before the Kerala Act 35 of 1969 came into force. It was a suit only for injunction and there was no other relief claimed in the suit. The Supreme Court in its decision in Eapen Chacko v. Provident Investment Co. (P) Ltd. ( 1977 KLT 1 ) had laid down the law that in respect of suits instituted prior to the commencement of Act 35/1969, the civil court itself has jurisdiction to decide the question of disputed tenancy. A later decision of this Court, by a Full Bench of Five Judges reported in Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 ) has held that there is no need to refer the question of tenancy raised by the defendants in a suit for injunction to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act for the reason that in a suit for injunction the only question that requires consideration is as to whether the plaintiff has established his possession of the property on the date of the suit. The appellate court was therefore wrong in having remanded the case to the Trial Court to enable it to make a reference to the Land Tribunal for a decision on the question of tenancy. The Full Bench decision of this Court in 1976 KLT 571 had held that even injunction suits and suits instituted prior to the commencement of Act 35/69 are required to be referred to the Land Tribunal for decision on the question of tenancy. This view is clearly erroneous in the judgment of the Supreme Court and the Full Bench of Five Judges of this Court, referred to above. The Civil court itself has jurisdiction to decide all questions arising in the suit instituted prior to the commencement of Act 35/69. The order of remand by the lower appellate court was therefore clearly erroneous in respect of a matter of procedure for disposal of the case before the civil court. That court itself has a duty to review its order. It is a procedural mistake that the appellate court had committed in remanding the suit and directing a reference of the question of tenancy to the Land Tribunal. Realising the procedural error, the lower appellate court by its order dated 14-3-1977 reviewed the order of remand and decided the appeal on its merits. The appellate court has also found that the plaintiff had no possession of the disputed items 3 and 4 on the date of the suit and it has confirmed the decision of the Trial Court.

(3.) It would appear that after remand the Trial Court had referred the question of tenancy to the Land Tribunal but the Tribunal returned the records without entering a finding on the question of tenancy raised in the suit for the reason that the civil court itself is the appropriate forum to decide such questions arising in a suit instituted prior to the commencement of Act 35/69. It is at that stage that the Trial Court sent up the records of the case to the lower appellate court pointing out the return of the reference without answering the question referred and the appellate court realising its own mistake in directing a reference to the Land Tribunal suo motu reviewed its order of remand and heard and decided the appeal on merits.