MANAGING DIRECTOR DURGA TALKIES Vs. SHASHIKUMAR

JUDGEMENT

(1.) A common question of law is canvassed in the revision and also the writ petition both of which arise from different proceedings pending in two subordinate courts. Question posed for consideration is the competency of the civil court to determine a claim raised under Section 106 of the Land Reforms Act without reference to the Land Tribunal. Revision is filed by some of the defendants in O.S.No.23 of 2008 on the file of the Munsiff Court, Hosdurg against the order rendered by the learned Munsiff negativing their plea for a reference to the Land Tribunal for determination of the claim under Section 106 under the Land Reforms Act raised in their written statement. Writ Petition is filed by two of the defendants in O.S.No.120 of 2007 on the file of the Munsiff Court, Parappanangadi challenging the orders passed declining the request for reference to Land Tribunal to determine their claim as commercial lessees under Section 106 of the Land Reforms Act, which had been raised by the defendants, all of them, in their joint written statement filed in the suit. Both the courts, it is seen, had turned down the request for the reference canvassed relying on the decision rendered by this court in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43) wherein it has been held that the civil court is competent to determine the right claimed under Section 106 of the Land Reforms Act in a pending suit and no reference to the Land Tribunal is warranted. In fact, the correctness of that decision rendered by the Division Bench is sought to be assailed in the revision and also writ petition, which at the time of hearing is mooted with a plea that some of the previous decisions rendered by this Court on the question involved had struck a different note, and so much so, reconsideration of the decision in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43) by reference of that question to a larger bench is called for.

(2.) The learned counsel for the revision petitioners Adv.Sri.N.N.Sugunapalan (Senior counsel) relied on Ramadas v. Krishnan Nair (1984 KLT 371), Narayanan v. Kunchi Amma Parukutty Amma (1986 KLT 1340) and Abdulrahiman v. Abdulla Haji (1991 (1) KLT 702) to contend that a question involving a claim under Section 106 of the Land Reforms Act has to be referred to the Land Tribunal and it cannot be determined by the civil court. Placing reliance on State of Bihar v. Kalika Kuer @ Kalika Singh and others (AIR 2003 SC 2443), it is urged that since the earlier decisions on the question is differed by a bench of co-ordinate jurisdiction in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43), the question involved as to the competency of the civil court to examine a claim raised under Section 106 of the Land Reforms Act deserve to be considered by a larger bench as it is not possible to hold that the earlier decisions of this Court were rendered per incuriam. Precedential value has to be attached to the earlier decisions and they have to be treated as binding irrespective of the later decision in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43), striking a different note, according to the counsel. The learned counsel Adv.Sri.T.Krishnanunni (Senior Counsel) appearing for the petitioners in the writ petition endorsed the proposition canvassed as above. On the other hand, the learned counsel appearing for the respondent in the revision, Adv.Sri.K.Jayesh Mohan Kumar, submitted that the decisions referred to above, which had been rendered earlier by this Court were considered in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43), and after meticulous and careful examination of the jurisdiction of the civil court viz-a-viz that of the Land Tribunal in determining a claim raised under Section 106 of the Land Reforms Act in a suit, it has been held that there is no exclusion of the jurisdiction of the civil court in considering and deciding the claim of as a commercial lessee. That being so, the argument canvassed that the question deserved to be considered by a larger bench on a reference in view of the earlier decisions rendered by this court, it is submitted, is of no merit.

(3.) Even assuming that there is a conflict of views with respect to the question involved as to the jurisdiction of the civil court to examine and decide the claim of a commercial lessee under Section 106 of the Land Reforms Act when it was canvassed in a pending suit, by benches of equal strength of this Court precedential value has to be attached only to the latter decision by the bench of the co-ordinate jurisdiction. In Deputy Commissioner v. Anandan (1987 (1) KLT 192), it has been held that the latter decision will prevail when conflicting decisions are rendered by benches of coequal strength. Further more, it is seen that in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43), all the previous decisions on the question involved except Abdulrahiman v. Abdulla Haji (1991 (1) KLT 702) had been considered by this Court in arriving at the conclusion that there is no exclusion of the jurisdiction of the civil court either express or by implication in considering and deciding the question arising out of a claim by the person that he is a lessee entitled to the protection of Section 106 of the Land Reforms Act. In the above case, this Court has held that a claim by a lessee under Section 106 of the Land Reforms Act does not postulate that he is a tenant or kudikidappukaran as covered by the Land Reforms Act, and that only a claim of tenancy within the purview of Section 13 of the Act need be referred to the Land Tribunal in terms of Section 125 (3) of the Act. It is seen that the decision rendered in Abdulrahiman v. Abdulla Haji (1991 (1) KLT 702), which has been canvassed as not having been considered in Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43) was based on the judicial pronouncement in Lissy v. Kuttan (1976 KLT 571 (FB)), wherein, it has been held that prima facie satisfaction of the civil court is not necessary for a reference to Section 125 (3) of the Land Reforms Act, and whenever a question of right of tenancy is canvassed from the pleadings or materials on record the suit has to be stayed and reference has to be made. View taken in Lissy v. Kuttan (1976 KLT 571 (FB)) that the question has to be examined on the pleadings and nothing else, needless to point out, has been overruled in Kesava Bhat v. Subraya Bhat (1979 KLT 766), and so much so, the line of argument canvassed that nonconsideration of the decision Abdulrahiman v. Abdulla Haji (1991 (1) KLT 702) by the Division bench, which rendered the latter decision Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43), lacks merit. The claim of tenant or kudikidappukaran, if raised, in a pending proceeding or suit before the civil suit alone need be referred to the Land Tribunal under Section 125 (3) of the Land Reforms Act and a lessee claiming the benefit under Section 106 of the Land Reforms Act does not have the status of a tenant under the Act as spelt out in the decision Govinda Panicker v. Sreedhara Warrier (2000 (2) KLT 43) is not open to doubt, and the challenge thereto by reference to the previous decisions canvassed is devoid of any merit. Judicial discipline demands implicit acceptance of the above decision by this Court. There is no merit in the revision and writ petition, and both of them are dismissed.