Poovol
Laparamb Chathu & Ors Vs. V.P.Sudheer & Ors [1998] INSC 515 (6 November 1998)
S.B.Majmudar,
M.Jagannadha Rao
ACT:
HEAD NOTE:
ORDER
Leave
granted.
This
appeal is moved by the original defendants. In the suit of respondents an issue
about defendants' tenancy is not referred to the Lands Tribunal for
consideration under Section 125 of the Kerala Land Reforms Act, 1964 by the
High Court. The relevant issue No.6 reads as under :
"Issue
No. 6 :Whether the defendants Nos.1, 3 and 4 are entitled to fixity of tenure?
Relevant provisions of Section 125 of the Kerala Land Reforms Act are extracted
as under :
"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 :
(3)If
in any suit or other proceeding any question regarding tenant of Kudikidappuparn
(including a question as to whether the person is a tenant or a Kudikidappukara)
arises, the civil court shall stay the suit or other proceedings 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 decisionof
that question only." We have heard learned counsel for the parties. Mr. P.S.Poti,
learned senior counsel for the respondents invited our attention to a decision
of a Full Bench of five learned Judges of the Kerala High Court in the case of Kesava
Bhat V. Subraya Bhat 1979 KLT 766 wherein the Full Bench of five learned Judges
overruled the earlier view of a Full Bench of five learned Judges overruled the
earlier view of a Full Bench of three learned Judges and held that as in a suit
for injunction only question of possession was relevant. An issue of tenancy
put forward by the defendant in his written statement cannot be said to have
been covered expressly by Section 125(1) and (3) of the Kerala Land Reforms
Act, 1964.
Learned
counsel for the appellants on the other hand submitted that the facts of the
present case are squarely covered by a judgment of this Court in the case of Mathevan
Pacmanadhan alias Ponnan (Dead) through L.Rs. V. Parmeshwaran Thampi & Ors.
[(1995) Supp. 1. SCC 479].
Learned
senior counsel for the respondents has placed before us the relevant pleadings.
The plaintiffs in para 6 of the plaint have averred as under :
"Though
the aforesaid Kelan had executed a registered Kanankuzhikanam document in favour
of Kuzhikandiyil Cheeru and her children Chathu and Mathu on 27-1-1923 in respect of the property meansuring E.W.40 S.N.30 Koles
including property described in para 2 above which is the property described in
the schedule hereunder. Kelan had not handed over the lease deed to them and
possession of the property was not given to Cheeru and 2 others. Cheeru and 2
others had not registered any marupat and given to Kelan following the lease
deed. The aforesaid Kuzhikanam document was only a sham document and not acted
upon. The property described in the schedule hereunder never taken possession
of by the above mentioned Cheeru, Chatu and Mathun or their legal representatives
or the defendants and there was no occasion for that. The plaintiffs are in
joint possession and enjoyment of the property mentioned in the schedule
hereunder as co-owners in exclusive possession. On and after 27.01.1923 the
date of the Kuzhikanam document the property mentioned in the schedule
hereunder was in the exclusive possession and enjoyment of Kelan till his
death, thereafter Krishnan till his death, in the possession enjoyment of the
legal heirs of Krishnan till the above mentioned partition decree, subsequently
in the possession and enjoyment of Lakshmanan the father of the plaintiffs till
the date of execution of the settlement deed and from the date of the
settlement deed the plaintiffs as their own property with the knowledge of all
without any objection continuously for more than 12 years. If the above
mentioned Cheeru, Chathu and Mathu or their heirs or the defendants have any
right over the property mentioned in the schedule hereunder, it is lost by
adverse possession and limitation.
For
the aforesaid reasons it is prayed that there may be declaration that the
plaintiffs are in exclusive possession and enjoyment of the property as
co-owners." Learned senior counsel for the defendant-appellant on the
other hand invited our attention to paras 6 and 7 of the written statement
which read as under :
"6.The
suit is for declaration of right and title over the plaint schedule property to
the plaintiffs. These defendants claim tenancy under the
predecessor-in-interest and now under plaintiffs. These defendants are entitled
to get fixity of tenure. The plaintiffs have no right to dispute the tenancy.
Since the question of title and tenancy is involved, the Civil Court out jurisdiction under Section
125(1) of KLR Act and so the suit is liable to be stayed under Section 125(3)
of KLR Act and refer the matter to the concerned Land Tribunal for a finding on
the tenancy claimed by these defendants.
7.The
allegation that the lease deed dated 27.1.1923 is a share/documents and there
is no valid lease etc., are all absolutely false and all such allegations are
hereby denied. The allegation that there is no "marupat" and due to
that the lease is invalid lease. The allegation that Krishnan was in possession
etc., are all totally false and all such allegations are hereby denied.
Krishnan or his son Ladshmanan were never in possession of the plaint marginal
property. The revenue receipts produced along with the suit does not pertain to
the plaint schedule property and 1986 assignment in favour of Mathu is created
by plaintiffs and others in order to defeat these defendants." In our
view, on these pleadings an issue would squarely arise whether the original
lease dated 27th January 1923 was ever acted upon or not and whether pursuant
to the said lease the defendants are in possession and continued as such in
possession as tenants. This question is squarely covered by Section 125 of the Kerala
Land Reforms Act. We may mention that the Full Bench judgment of five learned
Judges in the case of Kesava Bhat (supra) was dealing with a case where the
plaintiff had averred that the defendant is an agent and only the plaintiff's
possession was being tried to be disturbed by such an agent while the
defendant's plea was that he was a tenant. On the peculiar pleadings of that
case it was found that an issue of tenancy did not arise.
It is
obvious that in such a case without getting decided the status of tenancy,
injection suit could be decided on the question of possession on the date of
the suit.
Such
being not the pleadings and issues arising in the present case they, in our
view, are squarely covered by the decision of this Court in the case of Mathevan
Padmanabhan (supra). It has been observed therein that the respondents in that
case had laid the suit before the Principal subordinate Judge, Trivandrum for
possession on the ground that the appellant had surrendered his tenancy rights
and thereafter trespassed into the land thereby he was in illegal possession.
It was
the case of the appellant-defendant that he never surrendered the land and he
continued to be the tenant and that, therefore, the respondents were not
entitled to the possession of the land. This Court took the view that in such a
case the issue of tenancy would arise under Section 125 of the Kerala Land
Reforms Act and the Civil
Court will have no
jurisdiction to decide the said dispute of tenancy by itself.
Under
these circumstances, it is not necessary for us to examine whether the question
about reference of tenancy issue was rightly decided by the Full Bench of five
learned Judges of the Kerala High Court or not on the facts of that case or
whether this Full Bench judgment is impliedly over-ruled by the decision of
this Court in the case of Mathevan Padmanabhan (supra). We leave this question
open.
In the
result, this appeal is allowed. The impugned order of the High Court is set
aside and the order of the Munsif dated 6th Feb. 1997 is restored. We direct the learned Munsif
to refer the requisite issue pursuant to his order which is being confirmed by
us to the concerned Land Tribunal.
We
direct the said tribunal, on the receipt of the reference, to decide the same
after hearing the parties and permitting them to land relevant evidence on
which they rely, as expeditiously as possible and preferably within a period of
six months from the date of receipt of the said reference.
No
costs.
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