E KESHAVA BHAT Vs. K S 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.

(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. Radha Varasyaramma (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.) In Lissy v. Kuttan (1976 KLT 571), a Full Bench of three Judges of this Court overruled the Division Bench ruling in Alavi v. Mohammedkutty Haji (1973 KLT 937), and ruled that even a suit for injunction is liable to be referred to the Land Tribunal under S.125(3) of the Land Reforms Act. The correctness of the view taken by this Full Bench has been challenged before us by counsel for the respondent.