SANKARAN Vs. RAJAMMAL
LAWS(KER)-1974-5-3
HIGH COURT OF KERALA
Decided on May 29,1974

SANKARAN Appellant
VERSUS
RAJAMMAL Respondents

JUDGEMENT

- (1.) THIS case has been placed before a Division Bench on account of the difference of opinion among some of the learned judges of this court regarding the scope and applicability of Sub-section (3) of S. 125 of the kerala Land Reforms Act, 1963 (hereinafter referred to as the Act.)
(2.) THE petitioner is the fifth defendant in a suit, O. S. No. 117 of 1970, which the fifth respondent filed in the Subordinate Judge's court, Palghat for recovery of possession of a few items of immovable property on the basis of title. Defendants 2 t6 5 pleaded that they were tenants of items 2 to 5 and 13, and that they were not, therefore, liable for ejectment. They produced a few documents in support of their plea. The fifth defendant filed an application in the trial court under S. 125 (3) of the Act praying that the suit may be stayed and the question regarding the rights of the tenants may be referred together with the relevant records to the Land Tribunal having jurisdiction over the area in which the property is situate for the decision of that question. The trial court held that a case can be referred to the Land tribunal under the above provision only if the applicant established a prima facie case that he was a tenant; and it dismissed the fifth defendant's application, after finding that the tenants failed to establish such a case. This petition has been filed to revise the said order. The main contention of the petitioner before us is that whenever a question whether a person is a tenant or kudikidappukaran arises in any suit or other proceeding before a civil court, it is bound under s. 125 (3) of the Act to stay the suit or proceeding and refer that question for decision to the Land Tribunal having jurisdiction over the area in which the land is situate, and that there is no question for the civil court to examine whether the person claiming the tenancy or kudikidappu right has a prima facie case, in order to take action under the above provision. On the other hand, it is contended on behalf of the fifth respondent that a court is not an automatic machine to start working without knowing what it is doing, and that it should not stay a suit or other proceeding validly instituted before it on the mere allegation of an opposite party that he is a tenant or a kudikidappukaran or send the records to a Land Tribunal for adjudication of that question, without being satisfied that the allegation is prima facie true. This controversy must be resolved on a true construction of the relevant statutory provision. It is proper that the whole of S. 125 of the Act is read; and it is as follows : "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 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 Boarder 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 hereof 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-s. (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-s. (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". The jurisdiction of courts of civil judicature to try suits of a civil nature is the creature of S. 9 of the Code of, Civil Procedure. That section reads, "9. Courts to try all civil suits unless barred. The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation. A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. " ' It is clear from the above section that the jurisdiction of civil courts is not absolute, but on the other hand it is subject to any statutory exception made in that respect. S. 125 of the Act contains such a provision. Sub-s. (1) of that section bars the jurisdiction of civil courts to decide or deal with any question or determine any matters which is by the Act required to be decided or dealt with by the Land Tribunal, or the other authorities mentioned therein. Sub-s. (3) provides that when any question arises before a civil court whether a person is a tenant or kudikidappukaran, the court shall stay the suit or proceeding in which that question arises, and refer the same to the Land Tribunal concerned along with the records for decision. Sub-s. (4) requires the Land Tribunal to decide the question referred to it and return the records together with its decision to the civil court. Sub-s. (5) makes the Tribunal's decision binding on the civil court; and directs the civil court to dispose of the suit or proceeding on the basis of the decision. Sub-s. (6) makes the above position further clear. When a person sues another person for recovery of possession of land on the basis of title, and the defendant contends that he is a tenant who is not liable for eviction, the only question that arises in such a case for decision is whether the defendant's claim as tenant is true or not. This is all that is required for invoking S. 125 (3) of the Act. To say that this is not enough, but the defendant must further establish before the civil court that his plea is prima facie true is to read into the above provision something which it does not contain or which the Legislature has not enacted. It would also amount to exercise of a jurisdiction by the civil court, which it has been expressly debarred by S. 125 of the Act from exercising. We shall now refer to the conflicting views taken by learned judges of this Court on the above question. The first decision in point of time is that of Subramanian Poti, J. in Velu v. China and others (CRP. No. 791 of 1972, judgment dated 2112 1972 ). The learned judge held that the division Bench decision of this Court in Choyi v. Kunhiraman and others (1971 klt. 563), which dealt with the question of construction of S. 3 (1) of the kerala Cultivators and Tenants (Temporary Protection) Act, 1970, applied by analogy to the construction of S. 125 (3) of the Kerala Land Reforms Act, and that, therefore, a person who claimed to be a tenant or kudikidappukaran, had to establish a prima facie case for invoking S. 125 (3) of the Act. There is no discussion or independent consideration of the question. However, out of respect to our learned brother, we shall examine whether the decision in Choyi v. Kunhiraman & Others can be applied to the construction of S. 125 (3) of the Act. For this purpose we shall first quote S. 3 of the Kerala Cultivators and Tenants (Temporary Protection Act, 1970. It reads: "3. slay of suits and other proceedings for determination of rights in respect of land occupied by certain classes of persons. (1) Notwithstanding anything to the contrary contained in any other law, or in any judgment, decree or order of any court, where in any suit or proceedings in respect of any application or appeal or revision or review or proceedings in execution of any decree or order (including proceedings incidental or ancillary thereto) or other proceedings, in respect of any land, pending before any court or Land Tribunal or appellate authority or other authority or officer at the commencement of this Act, or instituted or filed or initiated after such Commencement, any party thereto has filed or files a statement in writing that he was in occupation of such land at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, and--, (a) that such land is situate in Malabar and that he or his predecessor-in-interest was continuously in occupation of such land honestly believing himself to be a tenant for not less than two years within a period of twelve years immediately preceding the 11th day of April, 1967; or (b) that such occupation was on the basis of a registered deed purporting to be a lease deed and that he or his predecessor-in-interest was in occupation of such land on the 11th day of April, 1957, on the basis of that deed, the court or Land Tribunal or appellate authority or other authority or officer, as the case may be, shall not proceed With that suit, appeal, revision, review or other proceedings, as the case may be. (2) Nothing contained in sub-s. (1) shall apply in any ease where the party who has filed or files the statement referred to in that sub-section is admitted to be a tenant of the land to which that statement relates". The above case arose out of a suit for injunction to restrain the defendant from trespassing on a land which was alleged to be in the plaintiff's possession as owner thereof. The defendant filed a statement in the suit stating that he was in occupation of the land at the commencement of the Kerala Land Reforms (Amendment) Act, 1969, and that he also satisfied the other conditions of the above section; and he wanted the Court not to proceed with the suit by virtue of the said provision. The question arose for decision whether the court was bound to stay the suit, if the defendant merely filed such a statement, or only if the defendant further established a prima facie case that what he stated was true. After examining the object of the legislation, the court held that it was enacted only to give a temporary protection to persons who satisfied the conditions mentioned in the above section, and a person who did not prima facie establish that he satisfied them was not entitled to the said protection. The purport and scope of S. 125 of the kerala Land Reforms Act are entirely different from that of S. 3 of the Kerala cultivators and Tenants (Temporary Protection) Act. As indicated above, S. 125 of the Kerala Land Reforms Act takes away the jurisdiction of civil courts to entertain and decide certain questions, which are committed for adjudication entirely to the jurisdiction of the Land Tribunal and other authorities mentioned therein; and if such a question arises, civil courts have no jurisdiction to deal with it. Therefore the above decision has no assistance to the interpretation of S. 125 of the Kerala Land Reforms Act.
(3.) THE second decision of this Court is that of krishnamoorthy Iyer, J. in Kunhayammu v. Shanmughan (C. R. P. No. 298 of 1973, judgment dated 6-4-1973 ). That case "arose out of a suit for recovery of possession of a land on the basis of title, in which the defendant contended that he was a tenant, and that, the action should, thereforebe stayed and the question whether he was a tenant or not should be referred to the Land Tribunal concerned by virtue of S. 125 (3) of the Act. The question was whether, in such a case, the defendant should establish a prima facie case in order to invoke the above section. Holding that it was necessary, the learned judge stated. The deprivation of jurisdiction of the civil court is only in respect of those matters specifically dealt with under S. 125 (1) of Act i of 1964 and this is more significant when one will scrutinise the proviso to s. 125 (1) of the Act. The proviso has saved the jurisdiction of the civil court to deal with proceedings in respect of 'm 'attets covered by the Act pending in any court at the commencement of Act 1 of 1964. S. 125 (3), according to me, will have to be interpreted in the light of S. 125 (1) ana if so interpreted, the civil court's jurisdiction is taken away only in respect of any question arising in any suit or other proceedings regarding the rights of a tenant or of a kudikidappukaran including a question as to whether a person is a tenant or a kudikidappukaran. The enquiry regarding the status of a person as a kudikidappukaran or as a tenant is only for the purpose of deciding the rights of a tenant or a kudikidappukaran. If incidentally the relationship between the parties has to be resolved for giving relief to the plaintiff in respect of matters not covered -by Act I of 1964, I do not think that by the wording of s. 125 (3) of Act I of 1964 there is an ouster of jurisdiction. For example, if in a suit for injunction whereby the plaintiff wants to restrain the defendant from interfering with the plaintiff's possession of the property the defendant raises a plea that he "is in possession of the property as a tenant, a very literal interpretation of S. 125 (1), (2) and (3) will compel the court to refer the issue to the land Tribunal. If the reference is made and the civil court is obliged to decide the suit on the basis of the finding of the Land tribunal there is an abdication of the function of the civil court. The question in such cases is only who is in possession of the property on the date of suit. The defendant's claim of possession based on the tenancy is immaterial for the reason that if it is found that the defendant is in possession of the property, whether it be as a lessee or otherwise, no relief of injunction can by granted to the plaintiff. In such cases, counsel appearing in the case, agreed that no reference under S. 125 (3) is called for. If that is so, I do not appreciate how in a suit for ejectment when the defendant raises a plea of tenancy a reference under S. 125 (3) of Act I of 1964 is rendered obligatory. In order to grant relief to the plaintiff on the basis of his claim of trespass it may be necessary for the civil court incidentally to examine the character of the defendant's possession. In such a suit, no rights between the landlord and tenants are involved. The plaintiff does not want any relief in his capacity as landlord against the defendant as a tenant. There is thus no cope for the application of S. 125 (3) of Act I of 1964" With great respect we are unable to agree fully with the learned judge's reasoning and much less with his conclusion. There is no warranty to construe S. 125 (3) in the light of S. 125 (1 ). Both the provisions deal with different matters. Even if S. 125 (3) is interpreted in the light of S. 125 (1), it makes no difference on the scope and applicability of S. 125 (3 ). This provision, as we have already stated, requires a civil court to stay the suit or proceeding pending before it, if any question arises therein regarding the rights of a tenant or a kudikidappukaran, including, the question whether he is a tenant or kudikidappukaran, and to send the records thereof to the Land tribunal concerned for its decision, which is binding on the court. It may" be that in the illustration dealt with by the learned judge, namely in a suit for injunction against threatened trespass wherein the defendant claims that he is in possession of the land as a tenant, no question regarding the rights of tenant may arise within the meaning of S. 125 (3) of the Act, since the controversy in such a suit is only who is in possession of the land, and the title that the plaintiff or the defendant has put forward in support, of their respective claim for possession may arise for decision only incidentally. We refraifn from expressing any opinion on this question. We would-only say that the illustration does not render any assistance, to the proposition that a party to an action in a civil court is not "entitled to invoke S. 125 (3) of the Act, unless he prima facie establishes that he is a tenant or kudikidappukaran, for the simple reason that the section does not require that to be done. All that is necessary is that a question regarding the rights of a tenant or a kudikidappukaran arises for decision in the suit or proceeding pending in the civil court. Then the court shall send that question for decision of the. Land Tribunal, and accept its decision. It would be an usurpation of jurisdiction on the part of the civil court to proceed to consider whether the claim set up by the defendant is prima facie true or not, before the question is referred for the decision of the Tribunal. If the civil court wrongly decides that there is no prima facie case, the Land Tribunal is deprived of its jurisdiction to decide that question. On the other hand if the court wrongly decides that there is a prima facie case, it is still open for the Tribunal to hold that the claim set up by the defendant is untrue, and that decision is binding on the civil court. The Legislature did not clearly create such a situation. It did not want the jurisdiction of the Land Tribunal to depend on a right or wrong decision of the civil court on any question regarding the rights of a tenant or kudikidappukaran. S. 125 (3) has, in our view, barred in clear terms the jurisdiction of civil courts in considering such a question, and committed it to the Land Tribunal concerned for decision. The third decision of this Court is also that of krishnamoorthy Iyer, J. in Krishnaswamy v. Kanthaswami Udayar (C. R. P. No. 1278 of 1972, judgment dated 6-4-1973 ). In this case the learned judge has only followed his previous decision; and it does not, therefore, deserve any additional consideration.;


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