ADUVATHU POYIL THAMASIKKUM THAZHA NARUKKOTH RAGHAVAN Vs. KALLIANI PALLIKKARAMMAS CHILDREN KALLANGADI EDATHIL APPU

JUDGEMENT

(1.) The plaintiffs are the appellants here. The suit was filed to set aside a summary order passed in I. A. No. 2588 of 1967 in O. S. No. 70 of 1947 on the file of the Sub Court, Kozhikode, and also to declare the plaintiff's tenancy rights on the suit properties and for an injunction restraining the defendants from entering on the properties. The suit was decreed by the trail court declaring the plaintiff's tenancy rights and restraining the defendants from entering on the properties. In appeal by defendants 2, 4, 5 and 6 the appellate court confirmed the finding of tenancy, but dismissed the suit as not maintainable. The appellate court found that the order Ext. A 10 in I. A. No. 2588 of 1967 was an order passed under O.40 Pule I Sub R.2 and therefore the remedy of the aggrieved party is only by way of an appeal and a fresh suit to set aside the order is not maintainable. It is from this decision that the Second Appeal has been filed.

(2.) The matter came up before one of us and by order dated 4-4-1975 the case was referred to a Division Bench. The reference order reads:-

(3.) It might be noted that the question is now covered by an authority of a single bench decision as far as this court is concerned. The decision is Venkappa Bhatta v. Inthra Crasta (1973 KLT 1037). The appellants question the correctness of the decision and request that the decision may be reconsidered. According to the counsel for the appellants, this decision does not lay down the correct law. The scope of the enquiry under O.40 R.1 Sub-r.2 has not been correctly understood or appreciated, so goes the contention. The counsel would contend that no question of title could be properly adjudicated in proceedings under O.40 Rule I Sub R.2. The enquiry is purely of a summary nature. The remedies available to the 3rd party are not mutually exclusive. It is also contended that the applicability of S.43 of the Specific Relief Act has not been correctly appreciated. There is also a prayer that in case this court finds that the suit is not maintainable to set aside Ext. A10 order, the Second Appeal may be treated as an appeal against Ext. A10 order excluding the time of the pendency of the suit in the Trial Court as well as in the Appellate Court.