RAGHAVAKURUP Vs. PADMAVATHI AMMA

JUDGEMENT

(1.) Heard counsel for the petitioner. The Revision challenges an order by which the court below referred certain disputed documents to an expert on an application made by the plaintiff under O.26 R.10A of the Code of Civil Procedure. The defendant had relied on those documents in support of a claim by him that he is a tenant entitled to fixity of tenure under the Kerala Land Reforms Act.

(2.) In support of his challenge to the order under Revision the learned counsel for the revision petitioner submitted that he has raised a claim of tenancy in the suit which is one for a declaration of title and for permanent injunction, that the said question has to be referred to a Land Tribunal in terms of S.125(3) of the Kerala Land Reforms Act and that the Civil Court had no jurisdiction even to issue a commission for determining the genuineness or otherwise of certain disputed documents without referring that issue to the Land Tribunal and leaving that Tribunal to do so if it thinks necessary. The learned counsel relies on the decision of my learned brother Mr. Justice Manoharan in T.M.C. Abdul Razak v. Aboobacker ( 1994 (1) KLJ 744 ), in support of his contention that once a claim of tenancy is raised it is 'hands off for the civil court. With due respect to learned counsel, I do not find any support for such a proposition in that decision. In the larger bench decision of this court reported in Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 ) their Lordships have specifically pointed out that the civil court has jurisdiction to see whether a question coming within the purview of S.125 of the Kerala Land Reforms Act 'arises' in a case. This has been noticed in Abdul Razak's case as well. In considering the question whether a question within the purview of S.125(3) of the Kerala Land Reforms Act arises, the civil court can certainly refer certain disputed documents to an expert before taking a decision on that question. In a case where the title set up is also in question, the civil court can decide that question first before referring the issue of tenancy to the Land Tribunal. (See Chacko Kochu v. Abraham, 1977 KLT 868 ). Moreover, in the case on hand it is not as if the civil court, namely, the Trial Court, has touched the question of tenancy or has considered the issue regarding tenancy. All that it has done is to allow an application by the plaintiff to refer certain disputed documents to a handwriting expert for his opinion. I am not in a position to agree with the submission of the learned counsel for the petitioner that even that jurisdiction of the civil court has been ousted by the provisions contained in S.125 of the Kerala Land Reforms Act. The question whether the issue of tenancy arises and it has to be referred to the Land Tribunal has not yet been decided by the civil court at this stage. The petitioner cannot therefore now complain that the civil court has entered into a determination of the question of tenancy without referring the issue to the concerned Land Tribunal. Moreover, the civil court is entertaining a suit which it has jurisdiction to entertain. Only the jurisdiction to decide the issue of tenancy has been taken away and conferred on the Land Tribunal. This is clear from the scheme of S.123 of the Kerala Land Reforms Act as noticed by the Full Bench decisions of this court. It is in a suit, that the civil court has jurisdiction to entertain that an application under O.26 R.10 or R.10A of the Code of Civil Procedure had been filed and ordered by the Court. It is not at that stage necessary to consider the probable impact of that application or the result thereof on the question of tenancy that can arise for decision. It is enough that the said issue is left for the decision of the Land Tribunal in terms of S.125(3) of the Kerala Land Reforms Act. An ouster of jurisdiction of the civil court cannot be given wider scope than that is contemplated by the relevant provisions. A provision excluding jurisdiction of the court has to be construed strictly. (See Bhagwat Singh v. State of Rajasthan, AIR 1964 SC 444 at 446 and Raichand v. Union of India, AIR 1964 SC 1268 at 1270). It is not possible to accept the argument that the jurisdiction of the civil court even to issue a commission which may have an impact on a plea of tenancy that may have to be decided by the Land Tribunal, has been ousted.

(3.) I thus find no error of jurisdiction in the order under challenge. It is necessary in the nature of the contentions raised by the parties to find out whether the disputed documents were in fact issued by the person who is said to have issued them. This will necessarily have a material bearing on the questions to be decided in the suit. In that view also, there is no justification for interfering with the order under challenge in proceedings under S.115 of the Code of Civil Procedure.