MARAVAKULATH ALAVI Vs. PALARAKKAT KALLINGAL MOHAMMEDKUTTY HAJI

JUDGEMENT

(1.) The plaintiff revision petitioner filed OS 7 of 1972, Munsiff's Court, Tirur for an injunction against the respondent herein alleging that he was a tenant under the third respondent. An ex parte ad interim injunction was passed on 7-1-1972. The Munsiff thereafter held that the suit was liable to be stayed under S.125(3) of the Kerala Land Reforms Act (Act I of 1964) as a question of tenancy was involved in the suit. He stayed proceedings by order dated 31-10-1972 and referred the question of tenancy for determination to the Land Tribunal. Consequent on this order, by a further order dated 14-11-1972 the Munsiff cancelled the order of interim injunction under S.125(7). Against this order vacating the interim injunction, the plaintiff-revision petitioner filed an appeal to the Sub Court which was dismissed. It is against this order that this revision has been filed.

(2.) Counsel for the revision petitioner relied upon our recent judgment in C. R. P. Nos. 1510 and 1511 of 1972 and 27 of 1973 in which we considered the scope of S.125(3) of the Kerala Land Reforms Act. We have ruled in those revision petitions that S.125(3) is not attracted to suits for injunctions simpliciter, even where the plaintiff claims possession on the ground that he is a tenant. That is because, suits for injunction are merely concerned with the fact of possession, and not with the nature or the character of the possession or the capacity of the possessor. If the plaintiff is found to be in possession, no matter whether in his capacity as a tenant or not, he is entitled to the injunction. If he is not in possession, he is not entitled to the injunction, and it is unnecessary to consider whether the defendant is in possession whether as a tenant or not. In the light of this principle, counsel for the revision petitioner contended that the order dated 31-10-1972 staying the proceedings, and referring the question of tenancy for determination by the Land Tribunal should be vacated suo moto under our powers under S.115 of the CPC. Counsel for the respondents contended that the principle of the Division Bench ruling in C. R. P. Nos. 1510 and 1511 of 1972 and 27 of 1973 would not be attracted to a case such as this, where, a person wrongly in possession is seeking to obtain an injunction against the true owner. In support of the proposition be cited to us the decisions of the Supreme Court in Nair Service Society Ltd. v. K. C. Alexander ( AIR 1968 SC 1165 ), in Somanath Berman v. Dr. S. P. Rani ( AIR 1970 SC 846 ) and in Kallappa Setty v. Lekshmy Narayana Rao ( AIR 1972 SC 2299 ). We find nothing in these decisions to support the broad principle contended for by the counsel for the respondents that a person in possession, even if it be wrongful, is not entitled to an injunction against the true owner till his possession is lawfully terminated by due process of law. Indeed, the authority of a decision of this Court (Raman Nayar J.) in Vasudeva Kurup v. Ammini Amma ( 1964 KLT 468 ) is to the effect that a person in possession is entitled to remain in possession even as against the true owner, unless he is thrown out by due process of law. We have referred to this decision in C. R. P. 1510 of 1972 and 27 of 1973.

(3.) Counsel for the respondent relied on the ruling of a learned Judge of the Madras High Court in Alagi Alamelu Achi v. Ponnaiah Mudaliar ( AIR 1962 Mad. 149 ). We see that the learned Judge has broadly stated that a person in wrongful possession of the property is not entitled to be protected against the lawful owner by order of injunction; and that a court should not lend its assistance for protecting the wrongful possession of such a person. No authorities are referred to in support of this broad proposition; and we regret we are unable to accept the same as correct.