KARTHYAYINI Vs. JANAKI

JUDGEMENT

(1.) A question of some importance regarding the bar of jurisdiction of the Civil Court under S.125 of the Kerala Land Reforms Act, 1963, for short the Act, arises for consideration in this Civil Revision Petition. The question is whether the Civil Court should stay the suit and make a reference to the Land Tribunal under S.125(3) of the Act in a case where the Land Tribunal cannot take a decision on the tenancy question in view of the fact that the landlord concerned is not a party to the proceedings The plaintiffs in O. S. No. 31 of 1970 on the file of the Subordinate Judge, Kasaragod, a suit for partition, are the petitioners in this Civil Revision Petition. The case of the plaintiffs is that their deceased father Karupunni obtained the suit properties on lease from one Parvathy Amma and on the death of Karupuui the properties devolved upon the plaintiffs and defendants as his heirs. The 1st defendant died pending suit. His case was that it was he who obtained the suit properties on an oral lease in 1937 from the said Parvathy Amma, and the plaintiffs or other parties to the suit bad no right over the properties. The 1st defendant filed I. A. No. 1562 of 1972 under S.125 of the Act before the Trial Court for a reference of the question of tenancy to the Land Tribunal for decision. Pending the application, the 1st defendant left this world and the respondents in this Civil Revision Petition were impleaded as supplemental defendants 25 to 31. The Trial Court by its order dated 2-1-1976 allowed the above interim application for reference of the question of tenancy to the Land Tribunal and stayed the suit. Aggrieved by the above order of the Trial Court the plaintiffs have approached this Court with this Civil Revision Petition.

(2.) The main contention raised by Shri K. P. V. B. Ejman, learned counsel for the petitioners, is that the Trial Court went wrong in allowing the application for reference in view of the fact that the landlord is not a party to the proceedings. According to the learned counsel, under S.125(3) of the Act, reference must be for a decision by the" Land Tribunal on the question of tenancy and as long as the landlord is not a party to the proceedings, it goes without saying that the Land Tribunal cannot decide the question. In this connection reference is made to page 198, Mitra's Legal and Commercial Dictionary (Second Editing) wherein relying on Ramesh Chandra v. N. Padhy (AIR 1959 Orissa 196) it is stated:

(3.) Under S.125(3) of the Act, the Civil Court has a duty to stay the suit and refer the question of tenancy to the Land Tribunal for decision whom a question regarding the rights of a tenant arises in a suit. But it cannot be forgotten that the reference of the Land Tribunal is for the decision of the question of tenancy. So, in a case where a decision on the question of tenancy cannot be taken because of the fact that the concerned landlord is not a party, the further question is whether the Civil Court is bound to make a reference to the Land Tribunal. Not only that, even through a question regarding the rights of a tenant is raised, as long as the landlord is not a party to the suit, can it be said that the question really arises for decision in the suit. In this case, both parties claim tenancy rights. At the same time, as long as the landlord is of a party a decision as to who is the tenant cannot be taken in the suit. So, it cannot be said that in a case like this a question of tenancy really arises for consideration. Without the landlord as a party, at the most only a decision as to who is in actual possession can be taken by the court. That is not a matter which should be referred to the Land Tribunal. The Civil Court is not bound to make a reference to the Land Tribunal in a case where tenancy rights are simply claimed by the parties and no question regarding tenancy rights validly arises. So, the Trial Court erred in the exercise of its jurisdiction in staying the suit and referring the question of tenancy to the land Tribunal.