GOPALAN Vs. GOPALAN CHETTIAR

JUDGEMENT

(1.) The defendant in O. S. No. 42 of 1982 of the Sub Court, Palghat, a suit for recovery of possession on the strength of the plaintiff's title, is the petitioner in the civil revision. The challenge in the civil revision is against the finding of the learned Sub Judge on issue No. 3, namely, whether the defendant has got tenancy over any portion of the plaint schedule property, without referring the question of tenancy raised to the Land Tribunal. The learned counsel for the petitioner contended that the petitioner is a cultivating tenant of the plaint schedule property and Ext. B1 is the J form filed before the Land Tribunal, Chittur under S.72MM of Kerala Act 1 of 1964. The learned counsel pointed out that the above proceedings before the Land Tribunal are still pending. The learned counsel further contended that the question of tenancy is one which only a Land Tribunal can decide and when it is raised in an original suit, the civil court has no other go but to refer the question to the Land Tribunal. According to the learned counsel, the Sub Judge had no jurisdiction whatsoever to give a finding on issue No. 3, because the question involved is one of tenancy and it is a question which can be decided only by the Land Tribunal. It was further contended that the decision of the Taluk Land Board in the ceiling case of the 1st respondent cannot debar the petitioner from raising the question of tenancy in the suit as the tenancy question is yet to be decided and disposed of by the Land Tribunal. The learned counsel also raised a contention that in view of the J form submitted before the Land Tribunal, the respondents are estopped from contending that the petitioner is not a tenant. The learned counsel referred to Kunjanujan Thampuran v. Taluk Land Board ( 1976 KLT 716 ) and Mathew v. Taluk Land Board ( 1979 KLT 601 ) and contended that the above decisions will not stand in the way of the petitioner raising the contention of tenancy in the original suit in question and it cannot be said by any stretch of imagination that the question of tenancy will not arise in the suit. Hence, according to the learned counsel, the learned Sub Judge had no jurisdiction to try the issue preliminarily and give a finding that a reference to the Land Tribunal is not necessary in the suit.

(2.) There is not much force in the contentions of the learned counsel for the petitioner. S.85(1) of Kerala Act 1 of 1964 reads:

(3.) In the result, the civil revision is dismissed. No costs.