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1977 DIGILAW 231 (KER)

KUNHIRAMAN v. CHANDRAN

1977-08-19

P.JANAKI AMMA

body1977
Judgment :- 1. The revision petitioners are the plaintiffs in O. S.76 of 1972 on the file of the Subordinate Judge, Kasaragod. The suit was filed by the plaintiffs for partition and separate possession of 28 items of property described in the plaint A schedule. The plaintiffs are the children of one Aacha, daughter of Vattichi. Items 1 and 2 are stated to have been obtained on Kanam right by deceased Vattichi and two other persons. Chiruta and Ambady Karnavan under a document of the year 1909. One-third right owned by Vattichi now vests in the plaintiffs Defendants 1 to 30 are the persons interested in the other 2/3rd share Plaintiffs claim that their mother Aacha obtained an oral Kuzhikanam in respect of item 1 in the year 1938 from Vattichi, Chirutha and Ambadi Karnavan and that in the death of Aacha, the said tenancy right devolved upon them. The plaintiffs are in exclusive possession of the item as tenants. The tenancy right is not admitted by defendants 1 to 28 and 31. 2. The plaint recites that items 4 to 8 belonged in kanam to Arabady Karnavan, Aacha and defendants 4, 6 and 31 in equal shares under a kanom deed of 1944 executed by Narayana Poduval and others. The plaintiffs are entitled to 1/5th share in the said items as heirs of Aacha. Defendants 1 to 28 and 31 do not admit the above claim. According to them, portions of items 4 to 8 were obtained by Ambady Karnavan and Raman, son of Vattichi on kuzhi-kanam as per a Vellolamarupattom from Narayana Poduval who was the karanavan and the manager of his tarwad. On the death of Raman, Ambady karnavan was in exclusive possession of the above portions. One P. V. V. Appu obtained an oral kuzhikanom of the said items and items 2 and 3. Appu assigned his right in favour of defendants 5,18 and 20 as per an assignment deed of the year 1968. Defendants 5,18 and 20 claim that they are entitled to fixity of tenure in respect of the above items The remaining portions of items 4 to 8 were obtained by one Manikkam on kuzhikanam from the said tarwad. On the death of Manikkam, her children are in possession of the property. 3. Items 13 to 27 belonged in Jenm to Peringamana Illom. On the death of Manikkam, her children are in possession of the property. 3. Items 13 to 27 belonged in Jenm to Peringamana Illom. Deceased Aacha, Ambady Karnavan and the second defendant got an oral lease of the property in the year 1943. The one-third right of Aacha has devolved on the plaintiffs Defendants 1 to 28 and 31 would contend that the above items were obtained by Ambady Karnavan under a registered marupat of 1931 and he was in exclusive possession of the items. The lease-hold devolved on defendants 18 to 24 on the death of Ambady Karnavan and it now belongs to defendants 18 to 28. The above defendants denied that Aacha, and Ambady Karnavan got oral lease of the items in 1943. 4. Issues 2 and 3 relate to the tenancy rights set up by the plaintiffs and defendants 5,18 and 20 respectively. Issue No. 11 is whether the suit is liable to be stayed under S.125 of Act 1 of 1964. The trial court considered issue No. 11 preliminarily and directed that the suit be stayed under S.125 (3) of Act 1 of 1964 pending decision by the Land Tribunal of issues 2 and 3. The revision petition is against the above order. 5. The contention put forward by the plaintiffs in this court is that the suit is not liable to be stayed inasmuch as the tenancy right claimed is not under any of the defendants but under strangers. Reference was made to the decision in CRP. 3647 of 1976 and CRP. 1387 of 1976 in both of which the tenancy right claimed was not under any of the parties to the suit but under strangers. This court held that there was no necessity for staying the suit when the alleged lessor was not a party to the suit. As mentioned by me in CRP. 1387 of 1976 what S.125 (3) contemplates is a dispute regarding the existence of landlord and tenant relationship between parties to the suit. This court held that there was no necessity for staying the suit when the alleged lessor was not a party to the suit. As mentioned by me in CRP. 1387 of 1976 what S.125 (3) contemplates is a dispute regarding the existence of landlord and tenant relationship between parties to the suit. In a case where A claims an item of property as his own and B claims that he holds a tenancy right in respect of the item under C, a stranger, there is no dispute as to the existence of landlord and tenant relationship between A and B and there is no necessity to refer the dispute between A and B to the decision of the Land Tribunal. 6. In the instant case, so far as items 4 to 8 are concerned, the plaintiffs and defendants set up different claims. The question to be decided is whether the item as held by the five persons mentioned in the plaint on kanom under Narayana Poduval and others as per document of 1944 or whether they were held on Kuzhikanam by Ambady karnavan, Raman and Manikkam under Narayana Poduval as per the engagements mentioned in the written statement of defendants 1 to 28 and 31 and whether the Kanom deed of 1944 was subject to that right It is one thing to say, that a person is a tenant of a property subject to a mortgage or kanom; it is quite different to say that he is a tenant under the mortgagee. In the former case, the tenancy being created by the mortgagor the landlord and tenant relationship is between him and the person to whom the lease is granted. The mortgagee is entitled to collect the rent of the property during the subsistence of the mortgage as an agent of the mortgagor and is liable to account the same to the mortgagor at the time of redemption. Whether the mortgagee would be entitled to recover possession of the property will depend on the terms of the mortgage. In the latter case, the mortgagee himself is the landlord and the lease subsists only during the pendency of the mortgage. The distinction between the two is maintained in the Kerala Land Reforms Act as is evident from S.3 of that Act. 7. In the latter case, the mortgagee himself is the landlord and the lease subsists only during the pendency of the mortgage. The distinction between the two is maintained in the Kerala Land Reforms Act as is evident from S.3 of that Act. 7. The dispute in respect of items 4 to 8 is whether a lease had been created by the jenmi prior to the execution of the kanom deed. An adjudication on the point can be completed or made final only with the jenmi on record., So far as the parties to the present suit are concerned, the question that arises is whether Aacha, Ambady karanavan and the 2nd defendant got actual possession of the property under the kanom document of 1944 and whether the plaintiffs were in joint possession of the items along with the defendants on the date of suit and as such entitled to get actual possession on partition. As no question of tenancy between the parties to the suit is involved, a reference to Land Tribunal is unnecessary so far as items 4 to 8 are concerned. 8. The above reasoning applies in the case of items 13 to 27. The dispute in respect of the items is whether they are held under the oral lease of 1943 in favour of Aacha, Ambady karanavan and the 2nd,defendant or under the registered marupat of 1931 in favour of Ambady karnavan. No dispute regarding the existence of landlord and tenant relationship arises between the parties to the suit and hence no reference to Land Tribunal under S.125 (3) is necessary. 9. But so far as item 1 is concerned, the plaintiffs claim that their mother, Aacha was a tenant under the original owners of the property viz., Vattichi, Chirutha and Ambadi karanavan. The plaintiffs are the heirs of Aacha and Vattichi while the defendants represent the rights of Chirutha and Ambadi karanavan. The alleged landlords and tenants are before court and an adjudication of the dispute as to the existence of the tenancy right is, therefore, possible Such an adjudication is necessary for the purpose of deciding whether the items available for partition include the whole of item 1 or whether the lease-hold right should be reserved in favour of the plaintiffs. The alleged landlords and tenants are before court and an adjudication of the dispute as to the existence of the tenancy right is, therefore, possible Such an adjudication is necessary for the purpose of deciding whether the items available for partition include the whole of item 1 or whether the lease-hold right should be reserved in favour of the plaintiffs. The issue No. 2 relating to the lease-hold right in respect of item 1 has, therefore, to be referred to the Land Tribunal as provided in S.125 (3) of the Land Reforms Act. It follows from the above discussion that the order of the learned Subordinate Judge in referring the dispute regarding items 4 to 8 and 13 to 27 to the Land Tribunal is not sustainable. It is set aside. The order relating to the tenancy right claimed in respect of item 1 alone is confirmed. The revision petition is allowed. The finding on issue 11 will stand modified as above. The parties will bear their costs.