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Parameswaran Thampi Vs. Padiyan Thomas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 45 of 1978
Judge
Reported inAIR1984Ker135
ActsKerala Land Reforms Act, 1964 - Sections 72, 72B 125(3) and 125(6); Transfer of Property Act, 1882 - Sections 52; Code of Civil Procedure (CPC) , 1908 - Sections 9, 99, 100 and 101
AppellantParameswaran Thampi
RespondentPadiyan Thomas and ors.
Appellant Advocate N. Viswanatha Iyer,; P.K. Varghese and; G. Sivarajan
Respondent Advocate P. Sukumaran Nayar,; A.K. Chinnan,; Pirappan Code an
Excerpt:
.....to decide reference under section 125 (3) - trial court ought to have taken independent evidences to pronounce decree - held, matter remanded for disposal on merits. - - the trial court subsequently is bound by the remand order and when the remand order directs a fresh finding, that finding has to be given by the trial court and not by the land tribunal a second reference to the land tribunal under the circumstances is thus not contemplated under section 125 of the act 13. as we are not satisfied in this case with the reasoning or conclusion of the lower court regarding the lease set up by the third defendant, we allow the appeal and set aside the judgment and decree of the lower court so far as the third defendant is concerned......the kerala land reforms act, 1963, act i of 1964.4. the trial court referred the matter to the land tribunal under section 125 (3) of the act and as the land tribunal answered the reference in favour of the third defendant, judgment and decree followed in his favour. the claims of defendants 1 and 2 who also set up leases are not now before the court. the decree against them has therefore become final.5. the suit was filed on 29-3-1972. subsequently on 13-7-1972, the third defendanl filed an application before the land tribunal. trivandrum (o. a. no. 980 of 1972), under section 72-b of act i of 1964 for assignment of the landlord's rights, contending that he is a cultivating tenant. when the trial court was apprised of this fact, it passed an order on 9-8-1973 staying the suit and.....
Judgment:

Bhaskaran Nambiar, J.

1. The plaintiff in a suit for recovery of possession is 'the appellant and the dispute that now survives for determination relates to the leasehold right over 6 acres and 8 cents claimed by the third defendant. The trial Court has upheld the lease. In view of the fact that we are remanding the case to the trial Court for a fresh consideration on this aspect, we shall briefly advert to the facts and also consider the legal aspects raised.

2. The suit is for declaration of title, recovery of possession and for other consequential reliefs. The title of the plaintiff is admitted while his possession is disputed. According to the plaintiff, the plaintiff had leased the disputed land to the third defendant in 1st Chingam 1120 M. E. (1945), he surrendered the leasehold right on 30-4-1954, and thereafter it was leased to two others in 1962, who remained in possession till 1969 and surrendered the property to the plaintiff. The plaiutiff has been in possession since then and has paid revenue and has been assessed to Agricultural Income-tax, As the plaintiff was prevented from taking the usufructs this suit was filed.

3. The third defendant contended that he was in possession as a lessee, that there was no surrender of his leasehold right as alleged in the plaint and that he was entitled to fixity of tenure and to the protection afforded under the Kerala Land Reforms Act, 1963, Act I of 1964.

4. The trial Court referred the matter to the Land Tribunal under Section 125 (3) of the Act and as the Land Tribunal answered the reference in favour of the third defendant, judgment and decree followed in his favour. The claims of defendants 1 and 2 who also set up leases are not now before the Court. The decree against them has therefore become final.

5. The suit was filed on 29-3-1972. Subsequently on 13-7-1972, the third defendanl filed an application before the Land Tribunal. Trivandrum (O. A. No. 980 of 1972), under Section 72-B of Act I of 1964 for assignment of the landlord's rights, contending that he is a cultivating tenant. When the trial Court was apprised of this fact, it passed an order on 9-8-1973 staying the suit and directing 'The Tahsildar Tribunal Trivandrum will be addressed to prepare the record of rights in respect of this property and to file the same before the Court on or before 31-8-1973'. At that stage, the Court proceeded on the assumption that the record of rights prepared by the Tribunal would bind the Court and nothing further had to be done. However, the Court rightly deleted this direction by another order dated 18-8-1973 thus:-- 'The Tahsildar, Trivandrum need not be addressed to prepare the record of rights in respect of the property and to file the same before me. Instead, the tenancy question raised by the defendants will be referred to the Munsiff, Land Tribunal, Quilon' -- indeed a proper, order to be made under. Section 125 (3) of the Act. This reference was numbered as O. A. No. 313/73 by the Land Tribunal, Quilon.

6. Thus there were two independent proceedings in which the identical question of tenancy arose for consideration before the two Tribunals under the same Act, one at Trivandrum and another at Quilon. When this was brought to the notice of this Court in revision (C. R. P. No. 457 of 1974), this Court by order dated 10-6-1975 transferred the proceedings before the Land Tribunal, Quilon (O. A. No. 313/73) to the Land Tribunal, Trivandrum. Eventually both the proceedings reached the. Land Tribunal, Neyyattinkara, when the reference applica-tion under Section 125 (3) was numbered as S. M. 1779/76 and the Section 72-B application as S. M. 1754/76. It is said that evidence was adduced before the Tribunal. The reference was answered in favour of the third defendant on 30-11-1976 thus :--

'This case was registered on a reference made by the Sub Court, Trivandrum in O. S. 40/1972 for entering a finding under Section 125 (3) of the KLR Act.

Notices were issued to the patties. Both parties were heard. On perusal, of the records and on hearing it is revealed that the party No. 3 in this S. M. case (defendant No. 3 in the suit) is a tenant having fixity of tenure based on the lease transaction in respect of 6 acres and 8 cents of land comprised in S. No. 259 of Attipra Village and S. Nos. 2153, 2154 and 2248 of Cheruvakkal village as found in S. M. No. 1754/76 on the file of this Court. In the circumstances the records will be returned to the Civil Court with the above finding'.

On the same date the Section 72-B application. S. M. No. 1754 of 1976 was also disposed of by an order which reads thus :--

'This is an application filed before the Land Tribunal Trivandrum under Section 72 of the K. L. R. Act for the assignment of landlord's right in respect of 13 acres 20 cents of land in Survey Nos. 2153, 2154, 2246/1-2 of Cheruvakkal and Survey No. 259 of Attipra village on the basis of verumpattom and subsequently transferred to this Tribunal.

Notices were issued to the parties. Enquiries have been conducted through the Revenue Inspector. On perusal of the records and on hearing it is revealed that the applicant is in possession of the property on the basis of the lease arrangement from 1120 and is entitled to fixity of tenure. The respondent denies the lease arrangement with the applicant. His main contention is that the property has been leased out in favour of several other persons in 1962 and that they were in possession. It is a fact that the applicant has been, given the property on lease in 1120 as per the lease deed dated 1-1-1120 and that he is in possession of 6 acres and 8 cents against 11 acres 81 cents covered by the lease deed of 1120 and the release deed of 1954. The respondent could not establish beyond doubt, that the applicant has been dispossessed of the property. In the circumstances the application is allowed and purchase certificate will be issued to the applicant for one acre 20 cents of land in survey number 259 of Attipra village and 4 acres 88 cents in survey Numbers 2133, 2154 and 2243 of Cheruvakkal village. The applicant will remit purchase price of Rs. 300/- in lump being the 75% of Rs. 400/-. A statement in Form No. I is appended.'

7. It is said that this order is challenged in appeal before the appellate authority constituted under the Act in A. A. 174/1974. The appeal was dismissed for default and an application to set aside the dismissal is pending before that authority.

8. The finding of the Land Tribunal incorporated in the judgment of the lower Court disclosed that there has been no consideration of the evidence, tendered and the Land tribunal proceeded on the assumption that it is bound by another order passed by itself on the same date in Section 72-B application. Probably some principle of res judicata is imported by the Tribunal to disqualify itself from giving a reasoned order. And when we peruse the order on the Sec-tion 72-B application (which we have extracted earlier from copies furnished to us by the counsel for the parties), it is seen there is no discussion of the evidence in that either. The Revenue Inspector's report seems to conclude the issue so far as the Tribunal is concerned. The result is that the appellate Court gets no benefit of a helpful speaking order, as is expected from any order or judgment which is appealable. The Land Tribunal did not consider the evidence tendered. It did not consider whether there was any surrender of lease by the third defendant as alleged by the plaintiff, whether the documents produced were genuine and executed by the parties especially in the face of the assertion by the third defendant that he continued to remain in possession and the effect of the assessment orders on the factum of possession. It went wrong in relying on some principle of res judicata to deprive itself of its undoubted jurisdiction to enter a finding on a question of fact. The accident that the Tribunal thought of writing an order first in the Section 72-B application cannot be fatal to the reference under Section 125 (3) which also it disposed of on the same date. The finding of lease by the Lund Tribunal incorporated in the judgments of the lower Court cannot thus be accepted and has to be set aside.

9. The counsel for the third defendant however contends that the finding of the Land Tribunal in the Section 72-B application, S. M. 1754 of 1976, is binding on the Civil Court as the jurisdiction to decide the status of a tenant is exclusively conferred on the Land Tribunals under the Act; and thus, in this appeal, before the Court, this Court cannot grant any relief to the plaintiff. Alternatively, he contended, that even if a fresh finding is called for, the matter will have to be referred to the Land Tribunal again and the trial Court cannot be allowed to usurp a jurisdiction expressly excluded from its purview under the Act. We shall therefore advert to Section 125 of the Act to decide these aspects. 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 Taluk 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 Taluk 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 Laud 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.

XXXXX'.

10. The Land Tribunal is a creature of the statute controlled by its provisions. While it cannot traverse outside its jurisdiction, it can function only subject to certain inherent limitations. It is as much bound by the principle of lis pendens just as it cannot flinch from the path of natural justice. When the order made on a reference under Section 125 (3) by the Land Tribunal is deemed to be a finding of a Civil Court 'for the purpose of the appeal', there is a statutory clearance for the supremacy of the decision of the Civil Court. In such cases, therefore, the final decision of the Civil Court on the question of tenancy has to prevail.

11. When the question of tenancy is in issue in a Civil Court, a party to that proceeding cannot by-pass the Court, and seek to obtain redress from a Tribunal by filing a petition under Section 72 of the Act. An attempt thus made to invite a decision on the question of tenancy by the Tribunal during the pendency of the suit cannot be encouraged or supported. The Tribunal shall either wait till the Civil Court renders its decision, or if the Tribunal proceeds to enter any finding, on the tenancy, it will only be a tentative decision subject to the final decision of the Civil Court. Section 72 postulates a decision on the status of the applicant as a cultivating tenant and a consequent order for transfer of the landlord's rights. The first aspect is subject to the decision of a Civil Court which is already seized of the matter in the pending suit, The second aspect which is consequential and directing transfer of the landlord's rights is the prerogative of the Land Tribunal. The application of the doctrine of lis pendens in such a case therefore is not inconsistent with any provision of the Act. Thus, in the case, the third defendant can secure a transfer of the plaintiff's rights only when the question of his tenancy is finally determined in the suit. The decision now rendered by the Land Tribunal in S. M. 1754/56 or the appellate authority in A. A. 174 of 1974 cannot be operative to enable assignment of the landlord's rights. The right to purchase the plaintiff's rights will arise only after the final decision in the suit and depending on its result.

12. The trial Court is bound by the finding of the Land Tribunal on the question of lease, for, that is the mandate contained in Section 125 (5). Section 125 (6) proceeds further and imports a deeming provision under which the finding of the Tribunal becomes a finding of the Civil Court for the purpose of the appeal. When, by a statutory fiction, the finding of the Land Tribunal becomes a finding of a Civil Court, it is amenable to examination and correction by the appellate Court, as that power inheres in every appellate jurisdiction. This Court sitting in appeal has thus the jurisdiction and the duty to examine whether the finding regarding the lease is justified on facts and is supportable in law. In thus ex-amining the correctness of this finding, the appellate Court can (1) set aside the finding and enter its own finding on the basis of the evidence tendered; (2) admit additional evidence and then decide the issue afresh or (3) call for a finding from the trial Court, and (4) remand the matter to the trial Court for fresh determination. If these powers available to the appellate Court have not been statutorily curtailed, (and we have not been shown any provision under which this power is taken away or restricted) we have no doubt that this Court has got the power to set aside the finding of the trial Court on the question of lease and send the matter back to that Court for a fresh finding and there is no necessity thereafter for the trial Court to make another reference to the Land Tribunal. The trial Court was initially bound by the finding of the Land Tribunal and that is a statutory trust. The trial Court subsequently is bound by the remand order and when the remand order directs a fresh finding, that finding has to be given by the trial Court and not by the Land Tribunal A second reference to the Land Tribunal under the circumstances is thus not contemplated under Section 125 of the Act

13. As we are not satisfied in this case with the reasoning or conclusion of the lower Court regarding the lease set up by the third defendant, we allow the appeal and set aside the judgment and decree of the lower Court so far as the third defendant is concerned. The case is remanded back to the trial Court for a fresh determination of the question of tenancy raised by the third defendant. The trial Court shall dispose of the suit without any reference to the Land Tribunal and based on the evidence already on record and also any additional evidence which it may allow the parties to adduce including the cross-examination of P. W. 1. The appeal is allowed to the above extent. The parties shall appear before the lower Court on 15-3-1984. In the circumstances of the case, the parties shall bear the costs in the appeal. The court-fee paid on the memorandum of ap-peal will be refunded to the appellant's counsel.


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