MADAMBI Vs. KUNHUKUTTY AMMA
LAWS(KER)-1974-10-14
HIGH COURT OF KERALA
Decided on October 29,1974

MADAMBI Appellant
VERSUS
KUNHUKUTTY AMMA Respondents

JUDGEMENT

- (1.) The petitioner claims himself to be a tenant in respect of an item of property which belongs to respondents 1 and 2 in coownership. The petitioner had filed O.S. No. 16 of 1971 on the file of the Munsiff, Wadakkancheri, for setting aside a document purported to be a rent deed, and for a declaration that he is the tenant in respect of the property. During the pendency of the suit, as there was a dispute regarding the status of the plaintiff on the question of tenancy, the matter was referred by the Munsiff to the Land Tribunal which happened to be a Land Tribunal manned by a Munsiff. Subsequently a suit, O.S. No. 43 of 1971, under S.77 of the Kerala Land Reforms Act (Act 1 of 1964) was filed by respondents 1 and 2 for shifting the petitioner to an alternate site offered by them. After the coming into force of Act 25 of 1971 the suit, O.S. No. 43 of 1971, was transferred to the very same Tribunal to which the tenancy question in O.S. No. 16 of 1971 was referred. Ultimately an order was passed by the Land Tribunal finding that the petitioner is a kudikidappukaran. O.S. No. 43 of 1971 which was transferred to the Tribunal was renumbered as O.A. No. 468 of 1971 and the reference of tenancy question was numbered as O.A. No. 472 of 1971. The two petitions were heard together and disposed of by a common order, copy of which is marked Ext. P1.
(2.) Sri O. O. Mathew, counsel for the petitioner, challenges the validity of Ext. P1 order on various grounds. It is argued that the Tribunal ought not to have disposed of the two petitions by a combined order, as it has resulted in great prejudice to the petitioner. It is also argued that the Munsiff Land Tribunal had no jurisdiction to pass the impugned order as the jurisdiction to consider the question of shifting the kudikidappu under S.77 of Act 1 of 1964 is conferred exclusively on the Special Tahsildars, Land Assignment. In this connection the provisions of S.99 of Act 1 of 1964 as amended by Act 35 of 1969, and the various notifications issued by the Government in pursuance of the said section are relevant. S.99, as it originally stood, reads as follows: - "99. Constitution of Land Tribunal: The Government may, by notification in the gazette, constitute for any area or for any class of cases specified therein a Land Tribunal consisting of a sole member who shall be a judicial officer of the rank of a Munsiff, for the purpose of performing the functions of a Land Tribunal under this Act." Government notification SRO. 73/64 dated 25 3 1964 reads as follows: - "In exercise of the powers conferred by S.99 Of the Kerala Land Reforms Act, 1963 (Act 1 of 1964), the Government of Kerala hereby constitute the Land Tribunals specified in column (1) of the Schedule below, for the purpose of performing the functions of the Land Tribunal under the said Act for the areas specified against them in column (2) of the Schedule. The Land Tribunals shall hold their headquarters at the respective places specified against them in column (3) of the Schedule. This notification shall come into force with effect on and from the 1st April, 1964". It may be noted that all the Land Tribunals mentioned in the Schedule thereto were manned by Munsiffs. Later, Government issued a notification, S.R.O. No. 8/70 dated 1st January 1970 which reads as follows: - "In exercise of the powers conferred by S.99 of the Kerala Land Reforms Act, 1963 (1 of 1964), the Government of Kerala hereby make the following further amendment to notification No. 11841/N/64/Rev. dated 25th March. 1964, published as S. R. O. No. 73 of 1964 in the Kerala Gazette Extraordinary dated the 25th March 1964, namely: - Amendment. In the said notification, in the first paragraph, after the words 'functions of the Land Tribunal under the said Act', the brackets, words, figures and letters 'other than those under S.31, 72 to 72P (both inclusive) and 80A to 80G (both inclusive)' shall be inserted". By the above amendment a bifurcation of the functions was sought to be introduced by the Government. The jurisdiction of the Munsiff Land Tribunals was confined to matters other than those related to Ss.31, 72 to 72P (both inclusive) and 80A to 80G (both inclusive). It follows that the Munsiffs who had been exercising jurisdiction to deal with matters under S.77 of the Act retained that jurisdiction even after the amendment introduced by S.R.O. No. 8 of 1970, as the Munsiff's Court continued to have the jurisdiction to deal with S.77 matters till Act 25 of 1971 came into force and took away its jurisdiction and vested it in the Land Tribunals. Still later, S.R.O. No. 130 of 1970 dated 10th December 1970 was issued by the Government. The modification introduced by that notification is as follows:- "In exercise of the powers conferred by S.99 of the Kerala Land Reforms Act, 1963 (1 of 1964), and in supersession of Notification No. 3604/N2/70/LRD dated the 16th May, 1970, published as S.R.O. No. 200/70 in the Kerala Gazette Extraordinary, dated the 19th May 1970, as subsequently amended, the Government of Kerala hereby constitute a Land Tribunal for each of the areas specified in column (2) of the Schedule hereto annexed, consisting of the officer noted against each area in column (3) of that Schedule, with headquarters at the place mentioned in the corresponding entry in column (4) thereof, for the purpose of performing the functions of the land Tribunal under the said Act other than those under S.31, 66, 72 to 72P (both inclusive) and 80A to 80G (both inclusive)". Even under this notification the Munsiff's Courts continued to have jurisdiction to deal with S.77 applications. By a later notification, SRO. No. 353 of 1971, the following amendment was introduced: "In exercise of the powers conferred by S.99 of the Kerala Land Reforms Act, 1963 (1 of 1964) and in supersession of Notification No. 6861/70/LRD dated 13th February 1970 published as SRO. No. 67/70 in the Kerala Gazette Extraordinary No.61 of the same date as subsequently amended, the Government of Kerala hereby constitute a Land Tribunal or Land Tribunals, as the case may be, for each of the areas specified in column (2) of the Schedule hereto annexed, consisting of the Officer or Officers noted against each area in column (3) of that Schedule, with headquarters at the place or places mentioned in the corresponding entry in column (4) thereof, for the purpose of performing the functions of the Land Tribunal under S.31, 72 to 72P (both inclusive) and 80A to 80G (both inclusive) of the said Act, and sub-section (1) of S.108 of the Kerala Land Reforms (Amendment) Act, 1969 (35 of 1969)". It may be noted that in the Schedule to the above notification the designation of the officers concerned is shown as Special Tahsildar (Land Reforms), Special Tahsildar (Land Assignment) and Block Development Officer. The Land Tribunal having jurisdiction over Wadakkancherry Panchayat was to be manned by Special Tahsildar (Land Assignment), Wadakkancherry. This notification is dated 20th September, 1971, and it was published in the Kerala Gazette Extraordinary No. 420 dated 25-9-1971, as a result of the coming into force of Act 25 of 1971 which came into force on 11-8-1971.
(3.) The first contention of the counsel for the petitioner is that as the Munsiff's Court alone had jurisdiction to set aside a document, the reference to the Land Tribunal was unwarranted. This stand does not appear to be correct on the facts and in the circumstances of the case. Even in a suit for setting aside a document it would become relevant under S.125(3) of Act 1 of 1964 to refer the matter to the Land Tribunal if a dispute relating to tenancy, including kudikidappu right, is raised in the pleadings. Viewed in this light, it cannot be said that the Munsiff was wrong in referring this question to the Land Tribunal. The order of reference to the Land Tribunal was passed in the presence of the parties, and that was not challenged by them, at any stage earlier to this. Further the Land Tribunal did not exercise the jurisdiction to set aside the document impugned in that suit. All that the Tribunal has done is to declare that the petitioner was found to be a kudikidappukaran. There is also the observation that respondents 1 and 2 are found to be in possession of the property. These are matters within the competence of the Land Tribunal. I am therefore, of the opinion that the petitioner cannot seriously challenge the order of reference made by the Munsiff to the Land Tribunal or the exercise of jurisdiction by the Munsiff Land Tribunal to find out whether the petitioner was or was not a kudikidappukaran by virtue of the provisions of the Kerala Land Reforms Act. It may be that the finding of the Munsiff Land Tribunal is that the petitioner is a kudikidappukaran, whereas the relief sought by the petitioner before the Munsiff's Court is a declaration that he is a tenant in respect of the property. That is entirely a matter relating to the facts of the case, not related to matters concerning jurisdiction with which we are primarily concerned with in the first instance.;


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