HIGH COURT OF KERALA
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(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 Section 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 to 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 Section 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.
(3.) 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 Section 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 Section 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 Board or 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 thereof 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-section (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-section (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 1 7 the land Tribunal, and any such injunction granted or appointment made fee-fore 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 Section 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. Section 125 of the Act contains such a provision. Sub-section (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-section (3)provides that when any question arises before a civil court whether a person is a tenant or kudikidap-pukaran, 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-section (4)requires the Land Tribunal to decide the question referred to it and return the records together with its decision to the Civil Court. Subsection (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-section (6) makes the above position further clear. When a per-son 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 Section 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 Section 125 of the act from exercising.;
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