KALLYANI AMMA Vs. SANKARAN NAIR

JUDGEMENT

(1.) The revision petitioners and the respondents are parties to a partition suit which was pending on 1-1-1970. The respondents (defendants) contended in the final decree proceedings that the finding in the suit that they were not tenants was no longer valid in view of S.125(3) of the Kerala Land Reforms Act, 1963, as amended by Act 35 of 1969, which came into force on 1-1-1970 and that the question of tenancy had to be reagitated before a Tribunal by means of a reference under S.125(3). Accordingly at the instance of the defendants the question of tenancy was referred by the Trial Court to the Land Tribunal for its determination in terms of S.125(3). This was rightly done, or at least it then appeared to be so, in view of the decision in Anantha Narayana Iyer v. Paran, 1976 KLT 403 (FB.). Subsequently the Supreme Court laid down in Eapen Chacko v. Provident Investment Co. (P) Ltd., 1977 KLT 1 that in respect of a suit which was pending on 1-1-1970 the civil court had jurisdiction to determine questions of tenancy and that reference under S.125(3) of the Act would arise only in suits or proceedings instituted after 1-1-1970. On 30 7 1977 the Tribunal returned its finding that the defendants were not tenants. The defendants who were by that time armed with the decision of the Supreme Court in Eapen Chacko's case moved the court to ignore the finding of the Tribunal as a nullity for the reason that the Tribunal was not competent to examine the question of tenancy which arose in a pending suit. This submission was accepted by the Trial Court by its impugned order.

(2.) Sri T. L. Viswanatha Iyer appearing for the revision petitioners contends before me that the reference to the Tribunal was made at the instance of the defendants in the suit, and those who submitted to the jurisdiction of the Tribunal cannot be later on beard to say that the Tribunal had no jurisdiction and the decision rendered by it was a nullity. Counsel further submits that in any case what is enacted under S.125(3) of the Act is an ouster of the jurisdiction of the civil court and not a conferment of jurisdiction on the Tribunal. Prior to 1-1-1970 both the civil court and the Tribunal had jurisdiction to decide questions of tenancy. S.101(3) of the Act and the Rules framed thereunder show that even prior to 1-1-1970 the Tribunal had jurisdiction to decide the question of tenancy in various proceedings. With the amendment which came into force on 1-1-1970 the civil court lost its jurisdiction. Therefore a decision rendered by a competent Tribunal cannot be regarded as a nullity.

(3.) Counsel for the respondents (defendants) Sri Appa Nair submits that the jurisdiction conferred upon the Tribunal for the purpose of determining the question of tenancy arising in a suit was conferred only with the amendment of S.125(3) which came into force as on 1-1-1970. He therefore argues that submission to jurisdiction does not confer jurisdiction upon the Tribunal which it otherwise did not have.