SANKARAN Vs. RAJAMMAL

JUDGEMENT

(1.) THIS case has been placed before a Division Bench on account of the difference of opinion among some of the learned judges of this court regarding the scope and applicability of Sub-section (3) of S. 125 of the kerala Land Reforms Act, 1963 (hereinafter referred to as the Act.)

(2.) THE petitioner is the fifth defendant in a suit, O. S. No. 117 of 1970, which the fifth respondent filed in the Subordinate Judge's court, Palghat for recovery of possession of a few items of immovable property on the basis of title. Defendants 2 t6 5 pleaded that they were tenants of items 2 to 5 and 13, and that they were not, therefore, liable for ejectment. They produced a few documents in support of their plea. The fifth defendant filed an application in the trial court under S. 125 (3) of the Act praying that the suit may be stayed and the question regarding the rights of the tenants may be referred together with the relevant records to the Land Tribunal having jurisdiction over the area in which the property is situate for the decision of that question. The trial court held that a case can be referred to the Land tribunal under the above provision only if the applicant established a prima facie case that he was a tenant; and it dismissed the fifth defendant's application, after finding that the tenants failed to establish such a case. This petition has been filed to revise the said order.

(3.) THE second decision of this Court is that of krishnamoorthy Iyer, J. in Kunhayammu v. Shanmughan (C. R. P. No. 298 of 1973, judgment dated 6-4-1973 ). That case "arose out of a suit for recovery of possession of a land on the basis of title, in which the defendant contended that he was a tenant, and that, the action should, thereforebe stayed and the question whether he was a tenant or not should be referred to the Land Tribunal concerned by virtue of S. 125 (3) of the Act. The question was whether, in such a case, the defendant should establish a prima facie case in order to invoke the above section. Holding that it was necessary, the learned judge stated. The deprivation of jurisdiction of the civil court is only in respect of those matters specifically dealt with under S. 125 (1) of Act i of 1964 and this is more significant when one will scrutinise the proviso to s. 125 (1) of the Act. The proviso has saved the jurisdiction of the civil court to deal with proceedings in respect of 'm 'attets covered by the Act pending in any court at the commencement of Act 1 of 1964. S. 125 (3), according to me, will have to be interpreted in the light of S. 125 (1) ana if so interpreted, the civil court's jurisdiction is taken away only in respect of any question arising in any suit or other proceedings regarding the rights of a tenant or of a kudikidappukaran including a question as to whether a person is a tenant or a kudikidappukaran. The enquiry regarding the status of a person as a kudikidappukaran or as a tenant is only for the purpose of deciding the rights of a tenant or a kudikidappukaran. If incidentally the relationship between the parties has to be resolved for giving relief to the plaintiff in respect of matters not covered -by Act I of 1964, I do not think that by the wording of s. 125 (3) of Act I of 1964 there is an ouster of jurisdiction. For example, if in a suit for injunction whereby the plaintiff wants to restrain the defendant from interfering with the plaintiff's possession of the property the defendant raises a plea that he "is in possession of the property as a tenant, a very literal interpretation of S. 125 (1), (2) and (3) will compel the court to refer the issue to the land Tribunal. If the reference is made and the civil court is obliged to decide the suit on the basis of the finding of the Land tribunal there is an abdication of the function of the civil court. The question in such cases is only who is in possession of the property on the date of suit. The defendant's claim of possession based on the tenancy is immaterial for the reason that if it is found that the defendant is in possession of the property, whether it be as a lessee or otherwise, no relief of injunction can by granted to the plaintiff. In such cases, counsel appearing in the case, agreed that no reference under S. 125 (3) is called for. If that is so, I do not appreciate how in a suit for ejectment when the defendant raises a plea of tenancy a reference under S. 125 (3) of Act I of 1964 is rendered obligatory. In order to grant relief to the plaintiff on the basis of his claim of trespass it may be necessary for the civil court incidentally to examine the character of the defendant's possession. In such a suit, no rights between the landlord and tenants are involved. The plaintiff does not want any relief in his capacity as landlord against the defendant as a tenant. There is thus no cope for the application of S. 125 (3) of Act I of 1964" With great respect we are unable to agree fully with the learned judge's reasoning and much less with his conclusion. There is no warranty to construe S. 125 (3) in the light of S. 125 (1 ). Both the provisions deal with different matters. Even if S. 125 (3) is interpreted in the light of S. 125 (1), it makes no difference on the scope and applicability of S. 125 (3 ). This provision, as we have already stated, requires a civil court to stay the suit or proceeding pending before it, if any question arises therein regarding the rights of a tenant or a kudikidappukaran, including, the question whether he is a tenant or kudikidappukaran, and to send the records thereof to the Land tribunal concerned for its decision, which is binding on the court. It may" be that in the illustration dealt with by the learned judge, namely in a suit for injunction against threatened trespass wherein the defendant claims that he is in possession of the land as a tenant, no question regarding the rights of tenant may arise within the meaning of S. 125 (3) of the Act, since the controversy in such a suit is only who is in possession of the land, and the title that the plaintiff or the defendant has put forward in support, of their respective claim for possession may arise for decision only incidentally. We refraifn from expressing any opinion on this question. We would-only say that the illustration does not render any assistance, to the proposition that a party to an action in a civil court is not "entitled to invoke S. 125 (3) of the Act, unless he prima facie establishes that he is a tenant or kudikidappukaran, for the simple reason that the section does not require that to be done. All that is necessary is that a question regarding the rights of a tenant or a kudikidappukaran arises for decision in the suit or proceeding pending in the civil court. Then the court shall send that question for decision of the. Land Tribunal, and accept its decision. It would be an usurpation of jurisdiction on the part of the civil court to proceed to consider whether the claim set up by the defendant is prima facie true or not, before the question is referred for the decision of the Tribunal. If the civil court wrongly decides that there is no prima facie case, the Land Tribunal is deprived of its jurisdiction to decide that question. On the other hand if the court wrongly decides that there is a prima facie case, it is still open for the Tribunal to hold that the claim set up by the defendant is untrue, and that decision is binding on the civil court. The Legislature did not clearly create such a situation. It did not want the jurisdiction of the Land Tribunal to depend on a right or wrong decision of the civil court on any question regarding the rights of a tenant or kudikidappukaran. S. 125 (3) has, in our view, barred in clear terms the jurisdiction of civil courts in considering such a question, and committed it to the Land Tribunal concerned for decision.