VELAYUDHAN Vs. NEELAKANTA IYYAN

JUDGEMENT

(1.) This is a revision petition filed by the defendant against a decree for possession granted to the plaintiff under S.6 of the Specific Relief Act. With the defendant on the party array and after considering all his objections to the plaintiff's claim for recovery of certain sum of money charged on the property, a decree for money was given to the plaintiff in O. S.338 of 1963. The claim put forward by the defendant in that suit was that he is a varamdar entitled to protection and that the plaintiff's claim for recovery of money charged on the property can only be subject to his 'varam' right. In the preliminary judgment dated 9-12-1964 that claim was negatived. Before the final decree was passed on 10-3-1970,Act XXXV of 1969 had come into force and the defendant again pressed his claim for tenancy in the final decree proceedings. That was again negatived and final decree was granted to the plaintiff as stated above. The plaintiff brought the property for sale and purchased it. Ext. A-3 dated 9 2 1973 is the sale certificate. That shows that the rights of the defendants including the present defendant was proclaimed for sale and sold. Pursuant to the sale certificate the plaintiff took delivery of the property under Ext. A-4 dated 23-3-1973. The present suit for recovery was filed by the plaintiff alleging that the defendant trespassed into the plaint property on 1-5-1973. The defendant again contended that he is a tenant and that there was no actual recovery of possession of the property from him in execution of the earlier decree. This contention was repelled and the plaintiff was granted a decree for recovery of possession. The revision petition is filed in these circumstances.

(2.) The main point pressed by the petitioner's counsel is that the court below acted without jurisdiction in passing the decree for possession. According to him, since the defendant had put forward a claim for tenancy the civil court should have stayed the suit and referred the matter to the Land Tribunal under S.125(3) of Act I of 1964 and got a decision from that Tribunal before passing the decree. The failure to comply with this statutory requirement, according to the revision petitioner's counsel, vitiates the decree of the lower court.

(3.) S.125(3) provides that the Civil Court shall stay the suit or other proceeding if any question regarding the rights of a tenant or of a kudikidappukaran (including the question as to whether the person is a tenant or a kudikidappukaran) arises, and refer such question to the Land Tribunal for the decision of that question. The Land Tribunal shall decide that question and return the records together with its decision to the civil court. The civil court shall then proceed to decide the suit or other proceeding accepting the decision of the Land Tribunal on the question referred to it. For the purpose of appeal the decision of the Land Tribunal on the question shall be deemed to be finding of the civil court. The point to be considered here is whether in this suit under S.6 of the Specific Relief Act any question regarding the rights of a tenant or whether the defendant is a tenant arises for consideration. S.6 of the Specific Relief Act is in the following terms: -