MOHAMMED Vs. MUSTHAFFA

JUDGEMENT

(1.) THE 1st respondent in O. P. No. 4334 of 1974 has filed this appeal against the judgment of a learned single judge of this court allowing that writ petition and setting aside the finding recorded by the munsiff-Land Tribunal, Alleppey as per Ext. P4 dated 6th July, 1974 in a reference made to the Tribunal by the Munsiff's Court, Shertallay in O. S. No. 987 of 1970 on the file of that court. The appellant before us (1st respondent in the O. P.) is the plaintiff in O. S. No. 987 of 1970. That is a suit filed by him for recovery of the plaint schedule property from the possession of the defendant after removing a structure shown as item 2 in the plaint and also for a permanent injunction restraining the defendants from committing waste etc. In the written statement filed by the defendants they raised a plea that they had kudikidappu rights in respect of the building shown as item 2 in the plaint and also certain customary rights. Issues Nos. 3 and 5 framed in the suit were: " (3) Are the defendant s kudikidappukars of the plaint property? (S) Are the customary rights alleged by the defendants true?" These issues were referred by the Munsiff to the Land tribunal, Alleppey for a finding under S. 125 (3) of the Kerala Land Reforms act, 1963 (Act 1 of 1964 ). The Land Tribunal went into the matter after notice to both sides and by its order evidenced by Ext. P4 returned a finding that none of the defendants has any kudikidappu right in respect of the plaint schedule buildin g and that as regards the customary right set up by the defendants no convincing evidence has been adduced in proof of the said claim, except to the extent of admission made by the plaintiff that the defendants had been getting 10 coconuts "for each crop". Against the said finding recorded by the Land Tribunal and returned to the Munsiff's court the 1st defendant came up to this court by filing O. P. No. 4334 of 1974. The learned single judge has allowed the writ petition and directed the Land tribunal to dispose of the matter afresh in the light of the observations contained in his judgment.

(2.) IT is contended by the appellant that in as much as the Land Tribunal has not passed any final order in the matter but merely recorded a finding and transmitted to the Munsiff's Court and more particularly since the Act itself provides that the correctness of the finding returned by the Land Tribunal can be canvassed by the aggrieved party in an appeal that he may file against the decree of the trial court the approach made by the 1st defendant to this court seeking relief under Art. 226 of the Constitution against a mere finding recorded by the Land Tribunal was misconceived and the writ petition ought to have been dismissed by the learned single judge on that ground. We find there is force in this contention. The question whether a writ petition will lie against a finding recorded by the Land Tribunal in a reference made to it under S. 125 (3) came up for consideration before our learned brother Chandrasekhara Menon, J. in O P. No. 4558 of 1974 and answering it in the negative the learned judge observed as follows: "this original petition has to be dismissed on the short ground that no writ petition in the matter would lie at this stage in view of the fact that the decision of the Land Tribunal will form part of the findings of the Munsiff's Court in its judgment in the original suit. Being a finding, therefore, in a civil suit, parties to the suit will be entitled to take the matter in appeal to the higher court. It will not be proper for this court to exercise its jurisdiction under Art. 226 or 227 of the Constitution to examine the correctness of this finding at this stage. " With respect, we entirely agree with the above statement of the legal position. It must then follow that the interference by the learned single judge with the finding recorded by the Land Tribunal was not justified.