KOTI POOJARY Vs. POOVAPPA POOJARY

JUDGEMENT

(1.) The revision petitioner is the 1st defendant in O. S. No. 33 of 1973 of the Sub Court, Kasaragod, which is a suit for partition instituted by the 1st respondent. The plaintiff moved the Trial Court by I. A. No. 921 of 1976 for a reference of the question of tenancy to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act, 1963, (Act 1 of 1964) That application was allowed. Hence the present petition.

(2.) The plaintiff and defendants 1 to 3 are brothers. The other defendants are nephews and nieces. The plaintiff's case is that the father of the plaintiff and defendants 1 to 3 died possessed of leasehold rights in the property which is the subject matter of the suit for partition. It is contended by the plaintiff that he and the defendants are sharers of the leasehold rights, and consequently a partition has to be effected in respect of the rights held by the father and devolved upon his heirs. The plaintiff therefore moved the Trial Court for a reference under S.125(3) of the Land Reforms Act on the ground that the question of tenancy having been raised in his pleading the matter could be considered only by the Land Tribunal.

(3.) Counsel for the revision petitioner, Shri K. P. V. B. Ejman, contends that S.125(3) does not apply to the facts of this case as disclosed by the pleadings of the plaintiff. Shri. V. R. Venkitakrishnan on the other hand, submits that whenever a question of tenancy is raised in the pleadings that question can be examined only by the Land Tribunal as provided under S.25 (3). He relies upon the observations of this Court in Lissy v. Kuttan, 1976 KLT 571 (FB) at 574 (para. 3).