Research › Browse › Judgment

Kerala High Court · body

1985 DIGILAW 8 (KER)

CHATHU NAIR v. CHIRUTHEYI AMMA

1985-01-11

K.BASKARAN, M.P.MENON

body1985
Judgment :- 1. Defendants 2 to 4 are the appellants. The suit was one for partition. The Trial Court decreed the suit for partition ignoring the contention of the appellants (defendants 2 to 4) that they were entitled to reservation with respect to the plaint schedule property by virtue of Exts. B7 and B29 lease deeds. 2. Shri T. L. Viswanatha Iyer, the counsel for the appellants, submitted that the Court below overlooked the fact that there had been Patta Exts. B28 and B53 issued in favour of the appellants by the Land Tribunal. He pointed out that the Court below simply accepted the finding of the Land Tribunal and decreed the suit as prayed for. 3. We do not think, in the Scheme of the Land Reforms Act, the Court below could be blamed for passing the judgment and decree appealed against, accepting the decision of the Tribunal on the question of disputed tenancy, inspite of the fact that the appellants (defendants 2 to 4) had produced before that Court Exhibits B28 and B53 purchase certificates obtained from the very same Land Tribunal in respect of the very same properties. There remains, however, a larger question to be decided in this appeal, whether the Land Tribunal's decision was correct and acceptable, which is a question which could be gone into by the appellate court. It was emphasised by Sri. Viswanatha Iyer that the Tribunal proceeded on the assumption that every lease by a Karanavan in favour of an Ananthiravan was invalid, which was not the correct position in accordance with the provisions contained in S.33 of the Madras Marumakkathayam Act. 4. Sri. T.R.G. Warriar, the Counsel for the respondents, on the other hand, submitted that the lease was with respect to the sole property belonging to the Tarwad and it was not for any necessity of the Tarwad. He also pointed out the property leased is permanently lost to the Tarwad, that lease amounted to an improvident act of the Karanavan; and, therefore, it could not be upheld. He also submitted that the case of the respondents was that these two documents Exts. B7 and B29 had never been acted upon as is evident from the fact that though the documents were of the year 1947, till 1953 the Karanavan himself continued to pay the revenue. He also submitted that the case of the respondents was that these two documents Exts. B7 and B29 had never been acted upon as is evident from the fact that though the documents were of the year 1947, till 1953 the Karanavan himself continued to pay the revenue. It is also submitted that the pattom fixed for an extent of 2.67 acres of land with the house therein was only Rs.5/- and that was to be used for maintaining a Mandapom in the property. The only other liability of the lessee was to pay the tax which the lessee admittedly did not carry out till 1953. 5. Though Sri. Warrier made the above submissions, we are afraid that the pleadings are not very clear. Presumably, the plaintiffs proceeded on the assumption that the lease granted by the Karanavan to the defendants was ab-initio invalid and no damage would cause to them on that account. For a proper and complete adjudication of the matter we think that the parties should be asked to set out their pleadings clearly and to adduce evidence in support of those pleadings. With this view in mind we would set aside the judgment and decree under appeal and would remand the matter to the Court below for fresh disposal according to law and in accordance with the directions contained in this judgment. Parties will be at liberty to amend their pleadings if they choose to do so, within a time that might be stipulated by the Court below. After the pleadings are so amended within the time stipulated, and issues are re-settled by the Court below, the question of disputed tenancy may be referred to the concerned Land Tribunal, under S.125(3) of the Kerala Land Reforms Act, and on receipt of the decision of the Tribunal on the question referred to it, the Court below could dispose of the suit as expeditiously as possible. 6. Shri T.R.G. Warriar, the counsel for the respondents, submitted that in view of the decision of the Division Bench of this Court in 'Parameswaran Thampi v. Thomas 1984 KLT 397 (ILR 1984 (2) Kerala 55) it might not be competent for the court below to refer the matter again to the Land Tribunal. 6. Shri T.R.G. Warriar, the counsel for the respondents, submitted that in view of the decision of the Division Bench of this Court in 'Parameswaran Thampi v. Thomas 1984 KLT 397 (ILR 1984 (2) Kerala 55) it might not be competent for the court below to refer the matter again to the Land Tribunal. We do not understand the observations of the Division Bench in the decision cited as one laying down a proposition that it shall not be open to the trial court to refer the disputed question of tenancy again under S.125(3) of the Kerala Land Reforms Act, once, on a reference under that sub-section, that Tribunal had given a decision on that question, but on appeal, the appellate court has set aside the judgment based on the decision of the Land Tribunal, directing a fresh disposal according to law. (Allowing the parties to amend the pleadings and to adduce fresh evidence in support of the respective contentions including the one relating to the disputed tenancy in this case). Assuming that it might not be necessary to refer the question of tenancy to the Tribunal again, after the remand, there could be no bar against such reference being made after the remand in accordance with the true spirit of the provisions of S.125 of the Act. We would, therefore, set aside the judgment and decree appealed against remanding the matter to the Court below with a direction to dispose of the suit after affording reasonable opportunity to the parties to amend the pleadings and to adduce further evidence in support of their respective contentions, if they so desire. For the purpose of deciding the issue relating to the disputed question of tenancy, the court below will refer the matter to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act. The Land Tribunal would dispose of the matter as expeditiously as possible', to the extent possible, within three months from the date of receipt of the order of reference, together with the relevant records, from the trial court. As soon as the finding by the Tribunal is received, the court below will complete the trial of the suit and finally dispose it of with a sense of urgency, in any event, within three months from the date of receipt of finding from the Tribunal. The appeal is disposed of in the above terms. As soon as the finding by the Tribunal is received, the court below will complete the trial of the suit and finally dispose it of with a sense of urgency, in any event, within three months from the date of receipt of finding from the Tribunal. The appeal is disposed of in the above terms. There will be no order as to costs. The parties will appear in the court below on 4-3-1985. Send down the records forthwith. Issue carbon copy of this judgment to the parties on usual terms.