METTUKUNNUMMAL PANAYANTHATTA Vs. MUNDAVALAPPIL PARU

JUDGEMENT

(1.) Revision petitioner is the second respondent in O.A. No. 16827 of 1976 on the file of the Land Tribunal No.II, Payyannur. O.A. No. 16827 of 1976 and R.C. No. 4/89 in O.S. 170/80 were considered by the Land Tribunal together and passed an order on 25-07-1990 allowing the O.A. holding that the applicant therein is a tenant entitled to purchase jenmom right of the property described in the schedule thereto. Aggrieved by the said order, revision petitioner herein preferred A.A. No. 246 of 190. Appeal was dismissed against which this revision petition has been preferred.

(2.) Learned Counsel appearing for the revision pstitioner Sri. D. Krishna Prasad submitted that the Tribunal has committed a grave error in passing the order in O.A. 16827 of 1976 without answering the reference in R.C. No. 4/89 in OS. No. 170 of 1980. Counsel submitted that once reference has been made under Sub-section (3) of Section 125 of the Kerala Land Reforms Act, it is the duty of the Tribunal to decide the question referred to it and return the records together with its decision to the civil court. Counsel submitted that once the question is referred to it by the civil court it is beyond the powers of the Land Tribunal to entertain another application for purchase since the dispute has to be decided on the reference made by the civil court. Counsel submitted that the Tribunal has committed a grave error in not answering the reference and at the same time entertaining an O.A. and acted beyond its jurisdiction. Counsel placed considerable reliance on the decision of a learned single Judge of this court in John v. Kalliyani,1988 2 KerLT 921 and the decision in Narayana Kamath v. Govinda Prabhu,1982 1 KerLT 630. Reference was also made to the Division Bench decision in Parameswaran Thampi v. Podiyan Thomas, 1984 KerLT 397. Counsel also submitted that the appellate authority committed a grave error in not considering the various grounds raised in the appeal memorandum and passing a non speaking order. Counsel submitted that the appellate authority is duty bound to consider the matter on merits. Non application of mind is discernible from the order itself. Counsel also placed reliance on the decisions' of this court in Neelakanta Pillai v. Damodharan,1984 KerLT 44, Krishnan v. Kunhiraman,1984 KerLT 8 and Mohammed Shafi v. Pallath Mohammed Haji and Ors.,1987 KerLJ 142. Counsel also submitted that appeal was preferred under Section 102 of the Kerala Land Reforms Act. Sub-section (3) of Section 102 says that the appellate authority shall exercise all the powers which a court follows in deciding appeals against the decree of an original court order under the Code of Civil Procedure, 1908. Counsel therefore submitted that the order passed by the Tribunal as well as the appellate authority are illegal and are liable to be set aside. Counsel appearing for the respondent on the other hand supported the finding of the Tribunal as well as that of the appellate authority.

(3.) I am in full agreement with the principle laid down by this court in Narayana Kamath's case, wherein the learned judge of this court held that the Land Tribunal is not competent to enquire into the dispute of tenancy in a separate application filed by the tenant while the reference made by the civil court is pending consideration. The Kerala Land Reforms Act confers powers on the Land Tribunal to decide the question as to whether the person is entitled to tenancy right or the person is entitled to purchase the landlord's right etc. Such issues may arise before the civil court as well as before the Land Tribunal directly. When such issues arise for consideration before the Land Tribunal directly. When such issues arise for consideration before the civil court, court can direct the Tribunal to answer a reference under Section 125(3) of the Act. Parties may independently file an application before the Tribunal and establish their rights subject to further appeal before the appellate authority constituted under the Act. But once a reference is made by a civil court to the Land Tribunal under Section 125(3), the Tribunal has to answer the reference rather than deciding the issue in an application presented by the tenant directly. The Tribunal should notice that the parties are litigating in a civil court on the same question and hence the Tribunal should have the issue to the civil court rather than deciding the issue by itself than driving the parties to go for hierarchal remedy available. The finding rendered by the Tribunal would form part of the finding of the civil court under Section 125(6) of the Kerala Land Reforms Act. Person aggrieved by the finding of the Tribunal under reference will have to challenge the same in an appeal against the judgment of the civil court. The Tribunal is therefore obliged to answer the reference and send back its finding to the civil court as per Sub-section (4) of Section 125. So far as the present case is concerned, the Land Tribunal has committed an error in not answering the reference but deciding the O.A. leaving the parties to go in appeal if aggrieved.