KUNHI MOIDI v. CHATHU — 1976 DIGILAW 40 (KER)

Judgment :- 1. These second appeals arise out of suits by landlords for damages against cultivating tenants for timber trees cut by them. A question that arises for consideration in these appeals is whether in view of S.52 of the Kerala Land Reforms Act 1963, for short the Act, the civil court has the jurisdiction to entertain a suit for damages by a landlord against the cultivating tenant for timber trees cut. Another question that arises for consideration is whether, when there is a dispute as to whom the timber tree cut belongs, before the dispute is decided by the Land Tribunal under S.52 (6) of the Act, will the civil court get jurisdiction in a suit for damages for the timber tree cut. 2. The plaintiff in O.S. No. 140 of 1967 on the file of the Munsiff-Magistrate, Perambra is the appellant in second appeal No. 562 of 1973. The trial Court held that the tree cut belonged to the plaintiff-landlord and decreed the suit as prayed for against the 1st defendant cultivating tenant. Against the above judgment and decree of the trial court the 1st defendant went in appeal before the Subordinate Judge, Badagara. Learned Subordinate Judge found that the plaintiff has not established that the jack tree cut belonged to the intermediary, allowed the appeal, set aside the decree and judgment of the trial court and dismissed the suit. 3. The 4th defendant in O.S. No. 557 of 1968 on the file of the Munsiff, Kozhikode is the appellant in this second appeal. The trial court found that the old jack tree cut by the 4th defendant belonged to the plaintiff and decreed the suit for damages accepting the valuation made by the commissioner appointed by the Court. Against the judgment and decree of the trial court the 4th defendant went in appeal before the Subordinate Judge, Kozhikode. Learned Subordinate Judge found that there was a jack tree belonging to the jenmi in the suit property. Learned Subordinate Judge also held that the 4th defendant-cultivating tenant is not entitled to the benefit of S.52 of the Act since the tree was cut without notice to the plaintiff-landlord The decree and judgment of the trial court were confirmed and the appeal was dismissed with costs by the learned Subordinate Judge. 4. Learned Subordinate Judge also held that the 4th defendant-cultivating tenant is not entitled to the benefit of S.52 of the Act since the tree was cut without notice to the plaintiff-landlord The decree and judgment of the trial court were confirmed and the appeal was dismissed with costs by the learned Subordinate Judge. 4. Shri M. C. Sen, learned counsel for the appellant in second appeal No. 575 of 1973, contends that a suit by the jenmi against his sub-tenant for damages for cutting a tree is not maintainable and the courts below have omitted to consider this aspect of the matter. Learned counsel points out that no relief is claimed in the suit against the 1st defendant who is the immediate tenant. According to the learned counsel, on facts the plaint cannot be sustained. Learned counsel then refers to Chathu v. Kunkichi (1970 KLT.199) and contends that the rights conferred by S.56(3) of the Malabar Tenancy Act have been restricted by S.52 of the Kerala Act 1963. According to the learned counsel, the law that existed has been changed and a new right has been created by S.52 of the Act. The rights a landlord had over the timber trees prior to the Act has been, as a matter of fact, taken away by the Act. Learned counsel refers to S.52 of the Act which reads: "52. (1) Notwithstanding any law, custom or contract to the contrary, all timber trees planted by the cultivating tenant or his predecessor-in-interest or spontaneously sprouting and growing in the holding after the commencement of the tenancy in favour of the cultivating tenant or his predecessor-in-interest, shall belong to the cultivating tenant. (2) Subject to the provisions of sub-sections (3), (4) and (5), in the case of timber trees standing in the holding of a cultivating tenant at the commencement of his tenancy, the cultivating tenant and, if he does not require, the landowner or the intermediary, as the case may be, shall have the right to cut and remove such trees, provided that the right conferred by this sub-section shall be exercisable by the intermediary only in case such timber trees were either planted by him or had spontaneously sprouted and grown during the period in which he was in possession of the holding. (3) Where the cultivating tenant exercises bis right under sub-section (2), he shall be liable to pay to the landowner or the intermediary, as the case may be, one-half of the market value of the timber trees so cut and removed. (4) Where the landowner or the intermediary exercises his right under sub-section (2), he shall be liable to pay to the cultivating tenant one-half of the market value of the timber trees so cut and removed. (5) The right conferred by sub-section (2) shall not be exercisable unless reasonable notice thereof in writing is given to the party to be affected by the exercise of the said right. (6) If any dispute arises as to the rights of the landowner, intermediary and cultivating tenant over timber trees, the Land Tribunal shall, on the application of the landowner, intermediary or cultivating tenant, by order, decide the question after hearing all the persons interested." According to the learned counsel, as per S.56(2) of the Act, if any dispute arises, it is the Land Tribunal which is to be approached as the power is vested with the Land Tribunal. Learned counsel also refers to the Preamble to the Act which reads: "Preamble. Whereas it is expedient to enact a comprehensive legislation relating to land reforms in the State of Kerala" Reference is also made to S.125 of the Act. S.125(1) of the Act reads: "125. (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 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." Learned counsel then points out that under S.102 of the Act an appeal is provided from the orders of the Land Tribunal under S.52(6) of the Act. Learned counsel further contends that as the Act provides for a complete code of machinery, the only indication can be that the civil court's jurisdiction is taken away. Learned counsel further contends that as the Act provides for a complete code of machinery, the only indication can be that the civil court's jurisdiction is taken away. When the jurisdiction of the civil court is thus excluded by the Act, it goes without saying that under S.52 of the Act a landlord cannot approach the civil court for damages for cutting a timber tree by the cultivating tenant. Learned counsel then refers to Secretary of State v. Mask & Co. (AIR. 1940 P. C. 105) and contends that the dictum laid down by the Privy Council in the above case cannot have any application to the facts of this case. In the above case dealing with the question of exclusion of jurisdiction the Privy Council has said: "The determination of this question must rest on the terms of the particular statute which is under consideration, and decisions on other statutory provisions are not of material assistance except in so far as general principles of construction are laid down." Learned counsel points out that in a case where the entire rights are controlled by the provisions of the statute it cannot be inferred that the civil court has any jurisdiction. Reference is then made to Port Trust, Madras v. Bombay Company (AIR. 1967 Mad. 308), a case which arose under the Workmen's Compensation Act, 1923. Under S.12(2) of the Workmen's Compensation Act, 1923, all questions regarding compensation have to be settled by Commissioner. Under S.13, no procedure is prescribed by the Act and hence in the above decision Natesan J. of the Madras High Court said that there is no exclusion of the court's jurisdiction under S.13. Learned counsel then refers to Raja Ram Verma v. State of U. P. and others (AIR. 1968 All. Under S.13, no procedure is prescribed by the Act and hence in the above decision Natesan J. of the Madras High Court said that there is no exclusion of the court's jurisdiction under S.13. Learned counsel then refers to Raja Ram Verma v. State of U. P. and others (AIR. 1968 All. 389) wherein it is said: "If a statute creates a new right or a new obligation and also specifies the particular mode in which the same is to be enforced, the jurisdiction of ordinary courts is by implication excluded and the enforcement of the right or the obligation has to be done only by recourse to the procedure laid down by that statute But where a statute is not of that kind and a right or obligation does not owe its existence to the, statute, and all that the statute does is that it provides a special procedural machinery for its enforcement there is no justification for inferring a necessarily implied exclusion of the ordinary, usual, and well recognised remedies." In Balakrishna v. Madras Corporation (AIR. 1962 Mad. 7) it is said: "An ouster of the jurisdiction of the civil court cannot be lightly inferred. Unless the legislature gives a clear expression of its intention to do so, the general presumption that established courts of law have jurisdiction will prevail. But there exists a class of cases where an inference of this kind can and must be made. Where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it, the remedy provided by the statute must be followed, and it is not competent to the party to pursue his remedy at common law." Learned counsel also refers to Narayana Pillai v. Easwara Pillai (1960 K. L. T. 1288), a case which arose under the Travancore Cochin Co-operative Societies Act, 1951. In the above decision, Madhavan Nair J. has said: "Sections 60 and 61 are apparently imperative. They enact an implied bar to the cognizance of suits by civil courts within the meaning of S.9 of C. P. C. Since the plaintiff is a past member of the society the suit is barred by S.60 of the Co-operative Societies Act. 1951." Reference is then made to two decisions of this Court. They enact an implied bar to the cognizance of suits by civil courts within the meaning of S.9 of C. P. C. Since the plaintiff is a past member of the society the suit is barred by S.60 of the Co-operative Societies Act. 1951." Reference is then made to two decisions of this Court. In The Workmen of the Cochin Lighterage Corporation represented by General Secretary v. M/s. Paul Abrao (1973 KLJ. 872) it is said: "A matter which is specially within the jurisdiction of an industrial tribunal cannot be decided by Civil Court at all, notwithstanding the comprehensive conferment of jurisdiction on the Civil Court by S.9 of the Code of Civil Procedure. It has all along been an accepted principle that by conferment of special jurisdiction on special Tribunals by special statutes, the jurisdiction of the Civil Courts can be barred. An issue raised by the body of workmen before the Tribunal in exercise of their rights to challenge the action of the employer against the workmen is an issue which can never be tried by the Civil Court; it has no jurisdiction; any decision by that court on that issue will be of no effect. So if it be contended that the issue before the Industrial Tribunal has been decided by the Civil Court, the simple answer to the question is it is a decision without jurisdiction and that therefore it can never operate as res judicata because it is a void decision. In Kunhiraman Nair v. Moideen (C. R. P. No. 694 of 1971) Sadasivan J. has said: "The civil court's jurisdiction as is evident from the above provision is ousted only when dispute arises as to the right of the tree. In the present case, on the other hand, as is evident from the written statement itself, the fact that it is a jenmi tree and the jenmi is entitled to cut it is conceded. In para 3 of the written statement the defendant would point out that in calculating pattom, jackfruits also have to be taken into consideration. This shows that at the time of the lease, the jack-tree was in existence. That the jack-tree in question was a jenmi tree has to be taken for granted. In para 3 of the written statement the defendant would point out that in calculating pattom, jackfruits also have to be taken into consideration. This shows that at the time of the lease, the jack-tree was in existence. That the jack-tree in question was a jenmi tree has to be taken for granted. When there is no dispute between the parties as to the ownership of the tree the jurisdiction of the civil court is not ousted as seen from S.52 (6) of the Act." Learned counsel also has a contention that the tree cut was not the tree mentioned in Ext. A-1 demise. But in view of the concurrent findings of both the courts below on this question of fact I don't think that this contention deserves serious consideration. 5. Shri P. K. Appa Nair, learned counsel for the appellant in S. A. No. 562 of 1973 contends that there is no ouster of jurisdiction of Civil Courts by S.52 (6). According to the learned counsel, Land Tribunal is also given power regarding disputes of cutting timber trees. Learned counsel further contends that as long as the tenant is liable for damages the landlord can file a suit for damages. Learned counsel then refers to Raja Ram v. State of U. P. (A. I. R 1968 All. 369) and contends that implied exclusion of Civil Courts' jurisdiction cannot be inferred. Learned counsel then contends that S.52 of the Act cannot be subject to S.72 of the Act. According to the learned counsel, if the tenant cuts and removes he will have to pay and under the common law the landlord will be entitled to the damages if the tree cut belongs to the landlord. This right is not taken away by S.72 of the Act. Learned counsel also points out that the Land Tribunal has no jurisdiction to pass a decree for damages and in that view of the matter also the jurisdiction of the civil court cannot be ousted. According to the learned counsel, the Land Tribunal cannot decide as to who is liable for the damages and what is the quantum. Learned counsel also contends that in view of Ext. Al the court below ought to have found that the tree cut belonged to the plaintiff. 6. According to the learned counsel, the Land Tribunal cannot decide as to who is liable for the damages and what is the quantum. Learned counsel also contends that in view of Ext. Al the court below ought to have found that the tree cut belonged to the plaintiff. 6. Shri T.L.Viswanatha Iyer, learned counsel for the respondents in both the appeals, contends that S.52 of the Act is only a declaratory provision and it does not oust the jurisdiction of the Civil Courts. According to the learned counsel, S.52 of the Act is only as enabling provision and it is not an exclusive remedy. Learned counsel points out that unless there is a complete and effective remedy provided by the statute the jurisdiction of the Civil Courts will be there. Not only that the Land Tribunal cannot give a decree for damages and a decree for money can be only by a Civil Court. According to the learned counsel, what has been done by S.52 of the Act is to confer upon the tenant to cut and remove timber trees subject to certain restrictions over and above recognising the existing right of the landlord to cut and remove trees belonging to him under the Malabar Tenancy Act, 1930. Learned counsel further contends that the right under S.52 of the Act is not a new right and what we find in the section is a recognition of a common law right of the landlord which was also continued under the Malabar Tenancy Act, 1930. Learned counsel then contends that exclusion of jurisdiction of Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. In support of his contention learned counsel refers to Gopalakrishnan Nair v. Padmavathi Amma (1970 KLT. 888). Learned counsel relies on the following passage in the judgment of Willes J. in Wolverhampton New Water-works Co. v. Hawkesford ((1859) 6 C. B. (N. S.) 336) extracted in the above judgment of the Division Bench: . "There are three classes of cases in which a liability may be established founded upon a statute. 888). Learned counsel relies on the following passage in the judgment of Willes J. in Wolverhampton New Water-works Co. v. Hawkesford ((1859) 6 C. B. (N. S.) 336) extracted in the above judgment of the Division Bench: . "There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at Common Law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at Common Law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy there the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if any liability at all exists The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class." According to the learned counsel though S.52 confers a new right to the tenant as far as the landlord is concerned it is only an affirmation of an existing right with a part of that right also taken away. Referring to S.52(6) of the Act learned counsel contends that it can only be for determining as to whom the tree belongs if the ownership of the tree is disputed. So, according to the learned counsel, there is not a complete exclusion of the Civil Courts' jurisdiction. Moreover, the dispute can be a pre-cutting dispute also since the tenant can exercise his rights only after issuing a notice. Learned counsel also has a contention that S.52(6) is an enabling provision and the landlord can approach either the Land Tribunal or the Civil Court. In this view of the matter also as the Land Tribunal is not competent to grant a decree for damages, the Civil Courts' jurisdiction is not taken away. Learned counsel also has a contention that S.52(6) is an enabling provision and the landlord can approach either the Land Tribunal or the Civil Court. In this view of the matter also as the Land Tribunal is not competent to grant a decree for damages, the Civil Courts' jurisdiction is not taken away. Learned counsel further contends that in a case where all reliefs cannot be had from the Tribunal provided by the statute the jurisdiction of the Civil Courts is not taken away and in support of his contention learned counsel relies on Nabi Bakshi v. Puttu Lal (AIR. 1954 All. 607) wherein Malick C. J. speaking for the Full Bench has said: "A suit, where the plaintiff seeks not only redemption of the mortgage but also damages for destruction and permanent injury to the mortgaged property, cannot be said to be barred by the provisions of S.25, Agriculturists' Relief Act. As the Act confers a special jurisdiction it must be limited to the enquiry provided for under S.16. It is, therefore, not within the jurisdiction of the Collector to enter into the question of a claim for waste, nor has he any jurisdiction to give a decree in favour of the mortgagor for recovery of any amount from the mortgagee. An order under S.16 is not analogous to a decree for redemption under 0.34, Civil P. C. It is not possible for the plaintiff to split up the reliefs claimed by him into two separate and distinct reliefs one for redemption and another for damages one of which could be claimed by an application under S.12, Agriculturists' Relief Act, and the other by a suit under S.60 read with S.76, T. P. Act. In the circumstances, it cannot be said that any relief claimed by the plaintiff could have been obtained by an application under S.12, Agriculturists' Relief Act." Learned counsel also relies on Gir Har Saroop v. Bhagwun Din (AIR. In the circumstances, it cannot be said that any relief claimed by the plaintiff could have been obtained by an application under S.12, Agriculturists' Relief Act." Learned counsel also relies on Gir Har Saroop v. Bhagwun Din (AIR. 1935 Oudh 96) wherein it is said at page 106: "The general rule of law is clear, and it is this that where a legal right exists and its infringement is alleged, a cause of action is disclosed and unless there is a bar to the entertainment of such a suit, the ordinary civil courts are bound to entertain it The general rule of law is that statutes affecting the jurisdiction of civil courts are to be construed as far as possible in such a way as to avoid the effect of transferring the determination of rights and liabilities from the ordinary civil courts to executive officers Further it is to be noted that the jurisdiction of a civil court is not excluded unless the cognizance of the entire suit as brought is barred." Learned counsel then refers to Baleswar Ram v. Governor, Bengal Province (AIR 1949 Cal. 321) wherein a Bench of the Calcutta High Court has said: "A Civil Court has jurisdiction to try all suits of a civil nature. S.23 (5), Bengal Rent Act, 1859 confers a special jurisdiction on the Revenue Court only with respect to suits for ejectment of a tenant and not with respect to suits of a composite character. Therefore, in the case of a lease governed by the Bengal Rent Act, 1859, a suit for eviction of a tenant in which there is also a claim for mense profits can be tried by a civil court. The jurisdiction of the civil court to try such a suit is not barred by S.23 (5) of that Act," Learned counsel also points out that the bar of jurisdiction of civil courts contained in S.125 of the Act substituted by Act 35 of 1969 will not affect this case since the law that is to be applied in this case is the law as it stood prior to the amendment of the Kerala Land Reforms Act, 1963 by Act 35 of 1969. S.125 as it stood prior to the amendment by Act 35 of 1969 reads: "125. S.125 as it stood prior to the amendment by Act 35 of 1969 reads: "125. No order of the Land Tribunal or the Land Board under this Act shall be called in question in any court except as provided in this Act." Learned counsel points out that there was no exclusion of jurisdiction of civil courts by S.125 as it stood prior to the amendment by Act 35 of 1969. If as a matter of fact there was an implied or express bar of jurisdiction of civil courts then there was no necessity for the enactment of S.125 substituted by Act 35 of 1969. According to the learned counsel, the indication in the proviso to sub-section (1) of S.125 is also the same. 7. Shri Viswanatha Iyer then points out that in S.A. No. 575 of 19 3 the concurrent findings of the courts below are that the tree cut belonged to the 1st respondent landlord and admittedly the appellant tenant has not issued any notice under S.52 (5) of the Act. Hence according to the learned counsel, the courts below were not in the wrong in awarding the damages awarded. In S.A. No. 562 of 1973 the contention of Shri Viswanatha Iyer is that there is no reason to interfere with the rinding of the learned Sub Judge that the tree cut did not belong to the plaintiff. 8. There is considerable force in the contentions of Shri T. L. Viswanatha Iyer. The right of a land owner to timber trees is a common law right. No doubt, this right has been restricted by S.52of the Kerala Land Reforms Act, 1963. But even then, what has been conferred upon a land owner by S.52 is not a new right. What we find in the section is an affirmation of the common law right of a land owner, of course with some restrictions. But S.52 does not provide for any particular form of remedy when the tenant cuts a timber tree belonging to the land owner. So the common law remedy of approaching the civil court must be there. S.52(6) which empowers the Land Tribunal to decide disputes which arise as to the rights of the land owner, intermediary and cultivating tenant over timber trees cannot take away the jurisdiction of a civil court to try a civil suit. So the common law remedy of approaching the civil court must be there. S.52(6) which empowers the Land Tribunal to decide disputes which arise as to the rights of the land owner, intermediary and cultivating tenant over timber trees cannot take away the jurisdiction of a civil court to try a civil suit. As long as there is no express bar of jurisdiction the civil court will have jurisdiction. S 125 of the Act as it stood prior to the amendment by Act 35 of 1969 only said that no order of the Land Tribunal or the Land Board shall be called in question in any court except as provided by the Act. In these cases, the Land Tribunal was not even approached. Of course, S.125 as it stands after the amendment by Act 35 of 1969 contains a bar of jurisdiction of civil courts. But the law that governs these appeals is the law that existed prior to the amendment by Act 35 of 1969. Not only that, all the remedies of the land owner cannot he had from the Land Tribunal since it is very much doubtful whether the Land Tribunal can award the damages claimed in these cases. In such a case, even if a part of the remedy can be had from the Land Tribunal under S.52 (6) of the Act, it cannot be said that the civil courts have no jurisdiction to entertain the suits in question. In S. A. No. 562 of 1973 there is no reason to interfere with conclusions of the learned Sub Judge that the plaintiff did not discharge the burden of proving that the jack tree cut belonged to him. In S. A. No. 575 of 1973 the findings regarding the ownership of the tree cut are concurrent and there is no scope for interfering with the same in second appeal. 9. In the result, these second appeals are dismissed. No costs.