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1979 DIGILAW 207 (KER)

MADHAVI v. NANU

1979-09-20

K.K.NARENDRAN, V.BALAKRISHNA ERADI

body1979
Judgment :- 1. The defendants in a suit for damages challenge the preliminary finding of the trial court on the issue 'whether' the suit is to be referred to the Land Tribunal for its finding in this Civil Revision Petition. The defendants are cultivating tenants entitled to fixity of tenure under the Kerala Land Reforms Act,1 of 1964. They cut 3 mango trees in the property. According to the respondent-landlord, they were trees in existence at the commencement of the tenancy. So, the landlord issued a lawyer notice and filed the suit claiming Rs. 1000/- as damages for the trees cut. The defendants in their written statement contended that the trees cut were not trees in existence at the commencement of the tenancy and hence they are not liable to the plaintiff-landlord for cutting the trees. The further contention was that only the Land Tribunal has the jurisdiction to decide the dispute. It was thereupon that the above issue was raised by the trial court. By the order impugned the trial court decided the issue against the defendants holding that the matter need not be referred to the Land Tribunal for its findings The trial court relied on a decision of one of us (Narendran J) in Kunhi Moidi v. Chathu (1976 KLT 538) in coming to the above conclusion. It was S.125 of Act 1 of 1964 as it stood prior to the amendment by Act 35 of 1969 that came up for consideration in the above case. 2. S.125 of the Kerala Land Reforms Act 1 of 1964, for short the Act, 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." S. 125 of the Act as amended by Act 35 of 1969 reads: "125. Bar of jurisdiction of civil courts. 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." S. 125 of the Act as amended by Act 35 of 1969 reads: "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 g 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 the appeal, be deemed to be part of the finding of the civil court. (7) ~~~ ~~~ ~~~ ~~~ (8) ~~~ ~~~ ~~~ ~~~ (sub-sections (7) and (8). are not extracted here as they are not necessary) S. 52 of the Act reads: "52. Rights as to timber trees. (7) ~~~ ~~~ ~~~ ~~~ (8) ~~~ ~~~ ~~~ ~~~ (sub-sections (7) and (8). are not extracted here as they are not necessary) S. 52 of the Act reads: "52. Rights as to timber trees. (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) 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 shall have the right to cut and remove such trees, and the landlord or the intermediary shall not have the right to cut and remove such trees. (3) Where the cultivating tenant exercises his 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. x x x x x x x x (5) The right conferred by sub-section (2) shall not be exercisable un-less 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." As per S.125 of the Act as amended by Act 35 of 1969 there is an express bar of jurisdiction of Civil Courts. But the bar is to settle, decide or deal with any question or to determine any matter which is by or under the 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 any officer of the Government. The suit in question was filed by the landowner against the petitioners -tenants for damages for cutting 3 mango trees. The suit in question was filed by the landowner against the petitioners -tenants for damages for cutting 3 mango trees. Under S.52 of the Act, which deals with right as to timber trees, the cultivating tenant has also the right to cut and remove timber trees which were there in the holding at the commencement of the tenancy. But this right is subject to the conditions laid down in sub-sections (3) and (5) of the section. The conditions are that the cutting should be with notice to the party affected thereby and that the tenant will be liable for one half the market value of the timber trees so cut. S.52(6) says that disputes regarding rights over timber trees are to be decided by the Land Tribunal. Disputes will be of two kinds, (i) whether the tree cut was a tree which was there in the holding at the commencement of the tenancy and (ii) if the tree cut was in existence at the commencement of the tenancy and, if it was cut as per the conditions insisted by the section, what is the one half of the market value that the landowner or the intermediary is entitled to But when the tenant cuts a tree without notice to the landowner or the intermediary, it cannot be one half of the market value that he will be liable to the landowner or the intermediary as the case may be. What the landowner or the intermediary will be entitled to is the damages he has suffered because of the cutting. This is not a matter which the Act has left to the decision of the Land Tribunal. So, in a case like this, where the cutting was not with notice to the landowner or the intermediary the only question that can be decided by the Land Tribunal is whether the tree was in existence at the commencement of the tenancy. That too only when there is dispute oh this aspect of the matter as is the case here. So, the suit for damages is not hit by the bar of jurisdiction contained in S.125(1) of the Act. That too only when there is dispute oh this aspect of the matter as is the case here. So, the suit for damages is not hit by the bar of jurisdiction contained in S.125(1) of the Act. At the same time, the question whether the trees cut were there at the commencement of the tenancy is a question which has to be referred to the Land Tribunal as only the Land Tribunal has the jurisdiction to decide the question under S.52(6) of the Act. 3. In coming to the above conclusions we are fortified by the pronouncement of the Supreme Court in Abdul v. Bhawani (AIR 1966 SC 1718). In the above case, the question that came up for consideration was whether a suit for possession of land based on title by a Khatedar against a person in possession is expressly or by necessary implication barred by the provisions of the Bhopal State Land Revenue Act, 1932. S.200(1) of the Bhopal Act contains a provision similar to that contained in S.125(1) of the Kerala Act. Under S.71 of the Bhopal Act, to evict a Shikmi (a person who holds the land from a Khatedar) who fails to vacate land on the termination of his lawful possession the Khatedar (a person who holds land direct from Government) has to approach the Tahsildar. In the above case, the respondents before the Supreme Court claiming to be Khatedars of some land filed a suit for eviction on the strength of title against the appellant on the ground that he was in illegal possession of the land. The appellant contested that he was in possession of the land as Khatedar. He also pleaded that his title to the land was already declared by the Tahsildar in an application for ejectment filed by him against the respondents under S.71 of the Bhopal Act and that decision would be a bar to the maintainability of the respondents' suit. It has to be noted that in the appellant's application under S.71 the Tahsildar had already held that the appellant was the Khatedar and the respondents were his Shikmi tenants. The trial court held that the suit by the respondents before a civil Court was maintainable. The decision was confirmed by the High Court of Madhya Pradesh. The appellant challenged the decision of the High Court before the Supreme Court by special leave. The trial court held that the suit by the respondents before a civil Court was maintainable. The decision was confirmed by the High Court of Madhya Pradesh. The appellant challenged the decision of the High Court before the Supreme Court by special leave. The Supreme Court held: "S 71, therefore, presupposes the existence of a legal relationship of landlord and tenant and enables the occupant to evict his shikmi if he does not comply with one or other of the conditions mentioned therein; it does not comprehend a decision on a question of title. The question of title is a matter foreign to the scope of S.71. If so, a suit in a civil Court for a declaration of title and possession by a khatedar against a trespasser falls outside the scope of S.200(1) of the Act." 4. So, the suit for damages for trees cut by the tenant will lie before the civil court. The question whether the trees cut were trees standing in the holding at the time of the commencement of the tenancy has to be referred to the Land Tribunal for its findings. Hence the order impugned is set aside and the trial court is directed to refer issue No. 4 to the Land Tribunal concerned for its findings. As to what the trial court should do on getting the findings of the Land Tribunal we need not indicate in this judgment. 5. The Civil Revision Petition is allowed as above. No costs.