Bhaskakan Nambiar, J.
1. Defen-dants 3 to 5, the legal representatives of the first defendant are the appellants.
2. When the plaintiff was a minor, his grandmother and mother acting as guardian entrusted the plaint property, about 54 cents of land, to one Chockalingam Pillai for the construction of a Cinema Theatre on 19-11-1947 (Ext. B1). The eights of Chocka-lingam Pillai became vested in the 1st defendant and now have devolved on defendants 3 to 5 after his death. The plaintiff contends that the transaction is not a lease, but only a licence. He therefore filed the suit for a direction that he be permitted to deposit Rs. 51,309/-, the value of the theatre payable to the 1st defendant and then allow him to be in exclusive possession of the property and for other reliefs.
3. The first defendant resisted the claim coniending that the transaction was a lease of land for a commercial purpose, the lessee constructed a Cinema Theatre, for such commercial purpose and therefore is entitled to the protection under Section 106 of Act 1 of 1964. There was also a further contention that the land was registered as Sree Pandaravaka land in the revenue records and the plaintiff's rights, if any, have been lost by orders passed under the Sree Pandaravaka Lands (Vesting & Enfranchisement) Act, 1971, Act 20 of 1971.
4. The Court below found that the first defendant was in possession only as a licensee and not as a lessee, he was not en-titled to the benefit of Section 106 of Act 1 of 1964 and that as he was thus not a landholder, Act 20 of 71 could not divest the plaintiff's right and vest it in the first defendant.
5. Even though the appellants have assailed all the findings of the lower Court, their learned counsel, Sri C. K. Sivasankara Panicker placed on the forefront of his submission a question of jurisdiction relying on the Full Bench ruling of five Judges in Kesava Bhat v. Subraya Bhat, 1979 Ker LT 766 : (AIR 1980 Ker 40). He contended that the Court below had no jurisdiction to decide the dispute regarding tenancy and the matter should have been referred to the Land Tribunal under Section 125 (3) of Act 1 of 1964; the lower Court's finding that there was only a licence and not a lease was thus without jurisdiction. We are considering only this contention in this appeal.
6. The plaintiffs counsel. Sri Vyasan Poti met this contention by stating that there need not be any reference to the Land Tribunal when the contention is based on Section 106 of the Act. He elaborates by explaining that the Land Tribunal has jurisdiction to decide only those disputes which are expressly required by the Act to be decided by the Tribunal as contemplated in Section 125 (1) and no provision of the Act enjoins the Land Tribunal to decide whether a person is a tenant under Section 106 of the Act or not. If, therefore, the Land Tribunal has no such jurisdiction, there can be no reference under Section 125 (3). Moreover, Section 125 (3) only prescribes the procedure while Section 125 (1) affects jurisdiction and a procedural taw cannot confer jurisdiction. In any case he contended that this Court, in appeal can decide the question of tenancy.
7. Let us read Sections 106 and 125 of Act 1 of 1964.
'106. Special provisions relating to leases for commercial or industrial purposes.--(1) Notwithstanding anything contained in this Act, or in any other law, or in any contract, or in any order or decree of Court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.
Explanation :-- For the purposes of this section,--
(a) 'lessee' includes a legal representative or aft assignee of the lessee; and
(b) 'building' means a permanent or a temporary building and includes a shed.
(1-A) The lessor, or the lessee may apply to such authority as may be prescribed for varying the rent referred to in Sub-section(1), and thereupon such authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee an opportunity of being heard, pass such orders on the application as it deems fit.
(2) If, between the 18th Dec., 1957 and the date of commencement of this Act, any decree or order of Court has been executed and any person dispossessed by delivery, such person shall, on application before the Land Tribunal, be entitled to restoration of possession :
Provided that, before restoration, such person shall be liable to pay --
(i) the compensation paid by the landlord for any improvements in the land and subsisting at the time of restoration;
(ii) the compensation for any improvements effected subsequent to the delivery :
Provided further that he shall not be entitled to restoration if the property has passed on to the possession of a bona fide transferee for value.
(3) Nothing contained in Sub-section (1), Sub-section (1-A) and Sub-section (2) shall apply to lands owned or held by the Government of Kerala or a local authority.
Explanation.-- For the purposes of this sub-section, 'local authority', includes the Cochin Port Trust and any University established by an Act of the Kerala State Legislature.
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 accept-ing 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 kudi-kidappu 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 tbf commencement of the Kerala Land Reforms (Amendment) Act, 1969; or before such question has arisen, shall, stand cancelled.
(8) In this section, 'Civil Court' shallinclude a Rent Control Court as defined inthe Kerala Buildings (Lease and Rent Control) Act, 1965.'
8. While Section 125 (1) declared an absolute finality to the orders of the, authorities under the Act and ousts the jurisdiction of the Civil Courts in respect of matters specifically entrusted to them, Section 125 (3) fastens only a limited finality to the order of the Land Tribunal and provides only a partial exclusion of the jurisdiction of the Civil Courts. Section 125 (3), also thus affects jurisdiction in that the trial Court cannot decide the question of tenancy but has necessarily to refer the matter to the Land Tribunal and it is then bound by that finding. This finding is open to challenge at the appellate stage, when by a statutory fiction, the finding of the Land Tribunal is deemed a finding of the Civil Court Section 125 (3) cannot be read in isolation, but shall be construed as part of a provision defining, limiting and even excluding the jurisdiction of the Civil Court.
9. Section 125 (3) itself confers jurisdiction on the Land. Tribunal. There is no necessity to search for power in the Land Tribunal in any other section of the Act, Moreover, Section 106 (1-A) and (2), gives authority to the Land Tribunal to vary the rent and also to restore possession in certain cases. This power necessarily implies that the Tribunal has jurisdiction to decide whether there is a lease protected under Section 106 or not, for, it is an incidental and ancillary power, accessary for the proper exercise of the jurisdiction. The contention therefore that the Land Tribunal has not been invested with jurisdiction to decide a dispute arising under Section 106 of the Act cannot be accepted.
10. The other contention that Section 125 (3) only relates to procedure and does not affect the jurisdiction has only to be reject-ed in view of the Full Bench decision of this Court in Kesava Bhat v. Subraya Bhat, 1979 Ker LT 766 : (AIR 1980 Ker 40), where it is held thus :
'If a question tenancy arose, the Civil Court decree without reference to, the Tribunal would be without jurisdiction, and therefore null and void.'
11. The Court below was therefore bound in this case to refer the question of tenancy to the Land Tribunal, for issue 2 reads thus:
'Whether the document dated 19-11-1947 is a lease or licence?'
A decision without reference is thereforeWithout jurisdiction and the decree hasbeen given only on the basis of the findingthat the transaction is a licence. Thus theentire degree has to be set aside and thematter sent back to the trial Court. Thetrial Court will refer the matter to theLand Tribunal under Section 125 (3) for its finding whether the 1st defendant, and on hisdeath his legal representatives defendants 3to 5, are entitled to the rights of tenancyunder Section 106 of Act 1 of 1964.
12. A request of the first respondentthat this Court itself may decide the question cannot also be accepted. The findingof the Court below has to be completelyignored as it Was made without jurisdiction.Even though the appellate Court may havejurisdiction to decide the question oftenancy, it is not proper to do so in thecircumstances of the case.
13. The appeal is therefore allowed, thejudgment of the lower Court is set asideand the matter is sent back to the lowerCourt for a fresh decision after referringthe question, regarding the rights of thisfirst defendant, and on his death, his legalrepresentatives 3 to 5, as tenants underAct 1 of 1964, to the Land Tribunal, whichhas jurisdiction over the area where theproperty is situate. When the matter isreferred, the Land Tribunal can allow theparties to adduce fresh evidence, considerthe pleadings and evidence already on re-cord and enter a finding untrammelled bywhat has been said by the trial Court inthe judgment now set aside.
14. The parties will bear their own costs in this appeal and the appellants will be entitled to refund of the court-fee paid.
15. Parties will appear in the lower Court on 27th March, 1984.