KESAVA BHAT Vs. SUBRAYA BHAT

JUDGEMENT

(1.) THESE two cases were heard together as they raised certain questions in regard to the scope of S. 125 (3) of the Kerala Land Reforms Act. The questions raised which have occasioned the reference will be dealt with in the course of our discussion. A. S. A. No. 1 of 1977 The appeal is by the defendant in O. S. No. 16 of 1972, munsiff's Court, Kasaragod, a suit for a permanent injunction to restrain the appellant from trespassing on the plaintiff-respondent's property and from interfering with the plaintiff's possession. The plaint proceeded on the basis that the appellant was the plaintiff's agent and had no independent possession. Ext. Al in the suit evidenced the contract claimed to be one of agency. The appellant's defence was that he was a tenant The suit was filed on 19-1-1972, i. e. after the amendment of the Kerala Land Reforms Act I of 1964 by Act 35 of 1969. The appellant applied for purchase of the landlord's rights under S. 72-B of the Act on the ground that he was a tenant. 1ssues 1 and 4 in the suit were as follows: "1. Whether the plaintiff was in possession of the suit properties on the date of the plaint? 4. Whether the court has got jurisdiction to try the suit? I. A. No. 463 of 1972 was filed by the appellant for reference of the question of tenancy for determination by the Land Tribunal under S. 125 (3) of the Land Reforms Act which requires that whenever in any suit or proceeding any question regarding the rights of a tenant arises, such question shall be referred to the Land Tribunal. The application was rejected on the ground that the suit was one for injunction and that the question whether the appellant was a tenant or not did not "arise" for consideration. Thereafter the suit was tried on the merits. On issue 1, the plaintiff's possession was found; the appellant was found only to be an agent and the suit was decreed with costs. On issue No. 4, it was held in paragraph 25 that in view of the order on I. A. No. 463 of 1972, the issue did not "arise" for consideration. On appeal, although the appellant pointedly raised the ground in the memorandum of appeal that the question of tenancy should have been referred for determination to the Land Tribunal, the same does not seem to have been urged before the lower appellate court, and is not seen dealt with in the judgment. The appeal was dismissed affirming the finding that the appellant is not a tenant. In second appeal to this Court, the contention was strongly urged by the appellant that as the question of tenancy raised by him was not referred for determination to the Land Tribunal under s. 125 (3) of the Act, the decree passed by the trial court was wholly without jurisdiction. The learned judge held that as the plea in this form had not been specifically raised or pursued in the lower appellate court, it cannot be permitted to be raised in second appeal. Proceeding to deal with the matter on the merits, the learned judge affirmed the decree of the lower appellate court and dismissed the second appeal, holding that the plaintiff was in possession on the date of filing the suit and that the appellant was only an agent.

(2.) THE point urged by counsel for the appellant is that quite irrespective of whether the suit was for an injunction or not, once the plea of tenancy had been raised by the defendant, the Court was bound to refer the question for determination to the Land Tribunal under S. 125 (3 ). Trial of the suit without such reference, and the decree passed therein, were said to be without jurisdiction and a nullity. A three Judge Full Bench of this Court in alavi v. Radhavaraysaramma (1976 KLT. 691) had taken the view that a decree passed in violation of S. 125 (3) of the Act and without reference of the question of tenancy to the Land Tribunal as required by the said Section, was not without jurisdiction, but was only a case of procedural irregularity. Counsel for the respondent canvassed the correctness of this proposition. THE correctness of this view was doubted recently by another three Judge Full Bench in George v. Vareed (1978 KLT. 691 ). In view of this, it was felt that the decision in Alavi v. Radha Varasyaramma (1976 KLT. 691) required reconsideration. THE matter was accordingly placed before this larger Bench. This is the main question that arises for consideration. But in dealing with it, various side' issues and incidental questions also crop up, which bristle with conflict and controversy. One of these is whether in a plain and simple suit for injunction as in this case, a question of tenancy, or any rights of a tenant can be said to "arise" for determination.

(3.) S. 125 of the Act may be noticed: "125. Bar of jurisdiction of civil courts. (1) No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government: Provided that nothing contained in this sub-section shall apply to proceedings pending in any court at the commencement of the Kerala land Reforms (Amendment) Act, 1969. (2) No order of the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government made under this Act shall be questioned in any civil court, except as provided in this Act. (3) If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only. (4) The Land Tribunal shall decide the question referred to it under sub-section (3) and return the records together with its decision to the civil court. (5) The civil court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. (6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Civil Court. (7) No civil court shall have power to grant injunction in any suit or other proceeding referred to in sub-section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal, and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or before such question has arisen, shall stand cancelled. (8) In this section, "civil court" shall include a Rent Control Court as defined in the Kerala Buildings (Lease and Rent control) Act, 1965. " There can be little doubt that the first clause completely bars the jurisdiction of the civil court from deciding or dealing with questions which have to be decided or dealt with by the Land Tribunal or the Land Board or the Government or an Officer of Government. Clause (3) of s. 125 provides for a reference of any question regarding the rights of a tenant to the Land Tribunal and the staying of the suit till decision by the Tribunal if such a question arises in the suit. S. 101 (3) of the Act makes the jurisdiction of the Tribunal an exclusive one. The Civil Court is to incorporate the finding of the Tribunal on the question referred, in the decision to be rendered by it. The finding thus incorporated is liable to be challenged in appeal by the appellate court, and, of course, on further appeal by the second appellate court.