Research › Browse › Judgment

Kerala High Court · body

1986 DIGILAW 7 (KER)

K. Krishnan Elayath v. A. Suresh

1986-01-03

M.M.PAREED PILLAY

body1986
ORDER M.M. Pareed Pillay, J. 1. Revision petitioner is the plaintiff in O.S.2/81 of the Munsiff Court Thodupuzha. The suit has been filed for eviction of the respondent (defendant) from the plaint schedule property after removing the temporary shed and also for realisation of mesne profits at the rate of Rs. 15/- per mensem. Respondent filed I. A. 700/82 for referring issue No. 1 to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act (hereinafter referred to as the Act). Revision petitioner resisted the petition on the ground that there is no necessity for any reference under S.125(3) of the Act. The learned Munsiff by order dated 23-10-1982 allowed the petition. The said order is challenged by the revision petitioner. 2. Plaintiff contends that reference under S.125(3) of the Land Reforms Act does not arise in the suit as the defendant has denied the title of the plaintiff in the property. It is further contended that the defendant has not pleaded landlord - tenant relationship and on that sole ground the learned Munsiff ought to have dismissed the petition. Learned counsel for the defendant submitted that as an issue has been raised with regard to the tenancy rights claimed by the defendant the court below was justified in passing the impugned order. 3. Whether reference to the Land Tribunal is necessary on the basis of a wrong issue is the moot point to be considered. Issue No. 1 is as follows: "Whether the defendant is entitled to any protection under S.106 of the Kerala Land Reforms Act." Contention of the defendant is that in as much as an issue has been raised the civil court is bound to refer the case to the Land Tribunal under S.125(3) of the Act. Counsel for the plaintiff submitted that in the written statement defendant has no case that he is holding the property under the plaintiff and as the defendant has denied plaintiff's title and as he has specifically set up tenancy under another person the question whether he is entitled to the benefits of S.106 of the Act. does not arise in the suit and as such there is no necessity at all to refer the case to the Land Tribunal under S.125(3) of the Act. 4. O.14 R.1 CPC. does not arise in the suit and as such there is no necessity at all to refer the case to the Land Tribunal under S.125(3) of the Act. 4. O.14 R.1 CPC. makes it abundantly clear that issues have to be framed when a material proposition of fact or law is affirmed by one party and denied by the other. O.14 R.1(2) states that material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Sub-r.(3) states that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. O.14 R.3 states that the court may frame issues on the basis of the allegations made on oath by the parties or by any persons present on their behalf, or made by the pleaders of such parties on the allegations made in the pleadings or in answers to interrogatories delivered in the suit and the contents of documents produced by either party. O.14 R.5 enables the court to amend and strike out issues. It is open to the court to amend the issues or frame additional issues on such terms as it deems fit at any time before passing a decree. The court can also strike out any issue that appears to be wrongly framed or introduced. As it is open to the court to strike out any issue that has been wrongly framed it is difficult to hold that merely because a wrong issue has been framed without really adverting to the pleadings in the case the court has no option but to refer the case to the Land Tribunal under S.125(3) of the Act. The provisions in O.14 makes it sufficiently clear that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. The object of framing issue plays a very important and distinctive role in a suit. The entire object is to direct the attention of the parties to the cardinal questions on which they are at variance. As issues are required to be framed on the points of dispute between the parties it is the duty of the court to frame proper issues on the basis of materials as envisaged in O.14 R.3 CPC. The entire object is to direct the attention of the parties to the cardinal questions on which they are at variance. As issues are required to be framed on the points of dispute between the parties it is the duty of the court to frame proper issues on the basis of materials as envisaged in O.14 R.3 CPC. While framing issues it is the duty of the court to bear in mind the fundamental necessity that decision in a case should be founded upon the pleadings in the suit. As the court is empowered to delete an issue if found to be irrelevant it cannot be said that as issue No. 1 is already there the court has no option but to refer the case to the Land Tribunal under S.125(3) of the Act 5. The civil court is bound to refer the, case to the Land Tribunal only if there is pleading to the effect that the, defendant is a tenant under the plaintiff. In other words, a reference to the Land Tribunal arises when landlord - tenant relationship is pleaded. In para 2 of the written statement defendant has denied plaintiff's tide to the property. He has denied the rent deed set up, by the plaintiff in the plaint. In para.3 of the written statement it is, specifically stated that the defendant obtained the property from the plaintiff's father and that there after be effected improvements in it. Though it is plated that the defendant is entitled to the benefits of S.106 of the Land Reforms Act there is no pleading in the written statement that he has attorned to the plaintiff. In I. A. 700/82 also defendant has no case that he has attorned to the plaintiff and that there exists landlord - tenant relationship between them. As the defendant has denied plaintiff's title and as he has specifically stated that there is no landlord tenant relationship between them and as there is no averment at all at that any point of time he had attorned to the plaintiff by paying rent to him it has to be necessarily held that reference under S.125(3) of the Act does not arise at all. 6. 6. Learned counsel for the defendant relied on the decision of this court in Chacko Kochu v. Abraham ( 1977 KLT 868 ) and contended that in a case where the defendant questions the title of the plaintiff, and in the alternative raises contentions regarding tenancy or kudikidappu, it is necessary that, the question of title is first determined and thereafter the plea of tenancy. The above ruling has no application to the facts of the case in hand as the defendant has not claimed tenancy rights under the plaintiff even alternatively as already pointed out, defendant has no case that he has attorned to the plaintiff. There is also no averment that there is landlord tenant relationship between them. In view of the above position it D has to be held that reference under S.125(3) of the Act does not arise in the case. 7. It has been held in Kesava Bhat v. Subraya Bhat ( 1979 KLT 766 at 775) as follows: "The mere incorporation of an unnecessary or irrelevant plea of tenancy into the written statement which has no relation what ever to the material averments and the reliefs sought in plaint, cannot attract the bar of S.125(1) or the provisions of S.125(3)." Merely because a wrong issue has been raised it does not follow that the civil court on the basis of it should make a reference under S.125(3) of the Act. So long as the pleadings in the case do not call for a reference under S.125(3) it is not incumbent upon the civil court to make a reference to the Land Tribunal. Raising of a wrong issue cannot in any way alter the position. As the defendant has claimed tenancy under plaintiff's father and as he has no case that plaintiff's father is no more and that he has attorned to plaintiff and as he has not set up landlord - tenant relationship under the plaintiff it is difficult to hold that there arises any question to be decided by the Land Tribunal under S.125(3) of the Act. 8. The learned Munsiff has gone wrong in allowing the petition. The order of the Munsiff in I. A. 700/82 is hereby set aside and the petition is dismissed. 9. C.R.P. stands allowed with no order as to costs.