GOPALA KURUP Vs. KRISHNAN NAMBIAR

JUDGEMENT

(1.) This revision petition is by defendants 2 to 6 and 11 in O. S. No. 48 of 1974, Sub Court, Badagara. That Court by its finding on issue 21 in the suit held that the suit is liable to be stayed under S.125(3) of Act I of 1964 as amended by Act 35 of 1969, but only at the final decree stage, and that the court at the stage of the preliminary decree had to determine the other questions and to pass a preliminary decree. It is this order that has been challenged in revision.

(2.) For the revision petitioner it has been contended that the view taken by the learned Judge is against the plain and clear mandate of S.125(3) of the Land Reforms Act. The said Section reads:

(3.) Our attention was drawn to an unreported judgement of our learned brother Eradi J. in C.R.P. 808 of 1973. The learned Judge there seems to have taken the view that there in a suit for partition there are a large number of parties and a large number of items of properties, and tenancy right is set up only in regard to just a few items, there will be no need to stay the entire proceedings in the partition suit, and that proceedings for passing a preliminary decree might well be allowed to go on leaving open the question of tenancy set up in respect of a few items by some parties to be determined and decided at the final decree stage. With respect, we are unable to accept this view, having regard to the statutory mandate in S.125(3) of the Act. If a question of tenancy arises and we have no doubt that it does arise in a suit for partition even at the stage of preliminary decree where tenancy rights are claimed by any of the parties, the suit is liable to be stayed under S.125(3) That position has recently been reaffirmed (not certainly with particular reference to a decree for partition) by a Full Bench of this Court in Lissy v. Kuttan ( 1976 KLT 571 ). In view of the said decision, the principle is clear enough, and the same only fortifies the view that we have taken.