KALI KARTHIYAYANI Vs. PAPPU

JUDGEMENT

(1.) The facts of this case have been stated in the order of reference made by the Division Bench that heard the appeal in these terms.

(2.) S.4A(1)(a) of the Kerala Land Reforms Act of 1964 as amended by Act 35 of 1969 (for short the Act) the relevant provision of law which has to be construed for deciding one of the contentions raised in this second appeal, is in these terms:

(3.) The second question that arises for consideration is whether in view of the provisions in S.125(3) of the Act this Court is obliged to send the matter for decision to the Land Tribunal since the question whether the appellant is a tenant or not arises in the case. The contention that the case ought to be referred to the Land Tribunal was not taken before the first court nor even before the first appellate court. It was urged for the first time in second appeal before this Court. We shall deal with this aspect first. The matter has been fully considered in a recent Full Bench decision of this Court in Alavi v. Radha Varasyaramma, 1976 KLT 691 and this Court has held that non compliance by the Trial Court with S.125(3) of the Kerala Land Reforms Act would not make the decree passed by that court after entering necessary findings on all the issues including the one relating to the rights of a tenant and whether a person claiming to be a tenant was a tenant or not, a nullity. If the point was taken at least before the appellate court, the appellate court may, in given circumstances, set aside the decree of the Trial Court and remit the case to the Trial Court for compliance with S.125(3). However, it is not obligatory on the part of the appellate court to do so. It has full powers to decide the question itself. This is clear from sub-s.(6) of S.125 of the Kerala Land Reforms Act. If no point had been taken before the appellate court that S.125(3) had not been complied with by the Trial Court, the point ought not to be permitted to be taken in the second appeal for the first time. In cases where the point had been taken before the appellate court, but had not been accepted by the appellate court, the question might arise before the second appellate court whether the decision of the first appellate court not to remit the case to the Trial Court to enable the Trial Court to make a reference to the Land Tribunal was a just and proper decision in the circumstances of the case. No. such question arises in this case. The point had not been taken before the Trial Court and was not taken even before the appellate court. No question of setting aside the decision of the lower courts therefore arises in this appeal. All that we have to do is to consider the first question raised in this appeal relating to the interpretation of S.4A(1)(a) to which we have already adverted to. We shall therefore now turn to that point.