Judgment :- 1. The first appeal arises out of a partition decree passed in O S No 2 of 1977 of the Sub Court, Palghat The Civil Miscellaneous Appeal challenges the order of the court below appointing receiver for all the partible properties The revision petition is against the order sanctioning suction of certain items of properties between the parties in the final decree proceedings It is unnecessary to traverse all the allegations and pleadings since the counsel appearing on all sides agree that disputes in this court are limited to two sets of properties, namely, items 8 to 16 and 17 to 20 of the plaint schedule Admittedly items 1 to 7 and certain other items belonged to first defendant's father Narayanan Nair He died in 1939, leaving behind his widow Cheethamma and children After the death of Narayanan Nair, his properties devolved on his wife and children as puthravakasom properties His wife Cheethamma died in 1970 In 1969 there was an oral partition between the widow and the children, whereby items 1 to 7 were allotted to the share of tavazhi of first defendant There is no dispute in these items. 2. Items 8 to 16 originally belonged to Kannambra Nair veedu tarwad There was an oral lease of these of items by the tarwad, the dispute being whether oral lease was in favour of the second defendant in his individual capacity or to the tavazhi tarwad of plaintiffs and defendants 1 to 14 Similar is the dispute regarding leasehold right over items 17 to 20 belonging to jenmi Padmanabhan Nair The lower court held that leases were for and on behalf of the tavazhi tarwad represented by the second defendant Undoubtedly at the relevant time he was the eldest male member in the tavazhi tarwad. 3. All the parties raised contentions on merits before us regarding these items However we do not want to decide the same since we are inclined to accept the contention of the learned counsel for the respondents that the civil court ought to have made a reference to the Land Tribunal in regard to these disputes under S.125(3) of the Kerala Land Reforms Act, 1963. 4. 4. Learned counsel for the appellant would contend that there is a dispute regarding tenancy right of items 8 to 16 and 17 to 20 between second defendant and his tavazhi tarwad The lessee is either the second defendant personally or the tavazhi tarwad Legal identity of the rival lessees is totally different Learned counsel for the contesting respondents would contend that S.125 (3) would apply only when there is a dispute between landlord and tenant and not when the dispute is between rival claimants regarding tenancy, and no reference can be made in the absence of the landlord in the party array The question is whether S.125 (3) of the Kerala Land Reforms Act applies in regard to these disputes regarding tenancy rights and if so since the lower court failed to make such a reference, the judgment under appeal in regard to the disputed items can stand. 5. Sub S (1) of S.125 states that 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 Sub-S (3) reads thus: "If in any suit or other proceeding any question regarding rights of 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." 6. In order that the provisions of the sub-S (3) apply, it is necessary that there must be a suit or other proceeding in a civil court and any question regarding rights of a tenant or kudikidappukaran should arise in that suit or proceeding By way of abundant caution, the expression 'question regarding rights' has been elaborated by the legislature by explaining that such question would include a question as to whether a person is a tenant or a kudikidappukaran The words used in the provision are of widest possible amplitude The expression 'arises' has received an authoritative interpretation by a Full Bench of five judges of this court in Kesava Bhat v Subraya Bhat (1979 KLT 766) In order that such a question should be considered to arise in a suit or other proceeding that question must be necessary for the final determination of the suit or other proceeding There is no dispute that such a question does arise in this suit, the question being whether leasehold right in these items of properties belongs to the second defendant personally or to his tavazhi tarwad But the point in dispute is whether the question arising in this suit would include a question whether a person is a tenant On a plain reading of the provision there could only be one answer to this question and that is in the affirmative There is a question which arises for consideration in this case and that question is who is the tenant of items 8 to 16 and 17 to 20, whether tenant is second defendant personally or his tavazhi tarwad Therefore we have no doubt, in our opinion, that the dispute in regard to these two items is a matter which attracts application of S.125 (3) of the Act Therefore it was the duty of the court below to have made a reference to the Land Tribunal. 7. Learned counsel for the contesting respondents placed before us three decisions of single judges, namely, Karthiyani v Janaki (1977 KLT 413), Kunhiraman v Chandran (1977 KLT 931) and Kott Poojary v Poovappa Poojary (1978 KLT 15) Our attention is also invited to the decisions of Division Benches of this court in Kochulakshmi v Velayudhan (1981 KLT 639) and Paul v State of Kerala & another (1981 KLT 721). 8. 8. In Karthiyani's case (1977 KLT 413) a learned single judge of this court held that as long as the landlord is not a party a decision as to who is the tenant cannot be taken in the suit and therefore even though a dispute regarding tenancy arises in the suit where landlord is not a party, reference under sub-S (3) of S.125 cannot be made With great respect, we find ourselves unable to agree with this view When there is a dispute regarding tenancy in a suit or other proceeding and if a decision is called for, the court has always jurisdiction to decide the dispute as long as there is no fatal error in the constitution of the suit When two parties to the suit put forward rival claims either to tenancy or mortgage right or for any other right of a limited nature, the court has always the jurisdiction to decide that controversy even in the absence on party array of the person in whom reversionary right vests It may be that the reversionary or remainder man may not be bound by the decision of the court But that does not take away the jurisdiction of the court to render a decision on entitlement of the parties to call upon the court to take a decision binding the parties therein It may be the landlord is proper party when the tenancy right is sought to be partitioned Even in the absence of a proper party dispute regarding tenancy right can be decided in a suit We do not think, in a suit for partition of tenancy right or mortgage right in which landlord or reversionary man or remainder man is a necessary party or that in his absence suit can be dismissed. 9. 9. A learned Single Judge of this court in Kunhiraman's case (1977 KLT 931) followed the decision in Karthiyani's case We have already indicated that the decision in Karthiyani's case does not lay down good law Further the illustration given in Kunhiraman's case, in our opinion, illustrates a totally different type of case The illustration reads, thus: "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 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." With great respect, we agree with the learned judge in so far as the principle behind this illustration is concerned That is a case where there is no dispute regarding tenancy right either The dispute mainly is regarding ownership right Ownership right is set up in two different persons In the case of claims of tenancy right under rival claimants to title the question of tenancy right is in effect the question of title The question of title can be decided in the suit itself and no reference is called for. 10. In Koti Poojari's case (1978 KLT 15) so far as we could gather the facts, the title of the original tenant was not in dispute and the dispute was only among co-heirs The learned single judge who decided the case took the view that there was a dispute among the co-heirs as to the right of tenancy and no reference was called for This view, again, with great respect, does not flow from a plain reading of S.125 (3). 11. There are certain observations in the two decisions of the Division Bench In Kochulakshmi's case, (1981 KLT 639), which would apparently help the respondents, in Para.9 of reported judgment it was thus observed: "Disputes inter se among cultivating tenants is not a matter for determination of the Land Tribunal in an enquiry regarding the vesting rights of the landlord and the Intermediaries in the cultivating tenant by the issue of a purchase to him." The same Division Bench in Paul's case (1981 KLT 721), referring to the above observations put them in a correct setting, explaining the same in the following manner. "It is wrong to refer to that passage out of its context and then rely on it in support of the revision petitioner's argument In that case on the death of a tenant his eldest son was in possession of the leasehold Besides him the deceased had other heirs Without making them parties this eldest son applied for the issue of a purchase certificate and obtained the same Subsequently that property was acquired under the Land Acquisition Act The eldest son claimed exclusive right to the compensation amount and relied on S.72K(2) of the Act. It was in considering that contention the nature of the enquiry contemplated under S.72B and the related provisions were considered and the observation quoted above was also made: If the tenancy devolves on more than one person and one of the co-heirs applied for the issue of a purchase certificate without disclosing the existence of the rights of the co-heirs it is not necessary to determine the quantum of his share in the tenancy because even if he purchased all the rights of the landlord it will ensure to the benefit of the other co-tenants under the principles of quasi trust That was why it was stated that for the issue of the purchase certificate the inter se rights of the co-tenants need not be gone into to divest the rights of the landlord and the intermediaries How far the benefit of such purchase will devolve on the other co-heirs is not a matter to be gone into by the Land Tribunal It was in that context the above observation was made It was not our view at all that in a proceeding where there are rival claims for the issue of a purchase certificate that question cannot be determined by the Land Tribunal The Land Tribunal can issue a purchase certificate only to a cultivating tenant If there are rival claims to that this question will have necessarily to be gone into by the Land Tribunal." With great respect, we agree with the above observations. 12. 12. We are of the view that the court below could have made a reference to the Land Tribunal We are not aware whether this specific question was put before the lower court However we find that contention raised in the memorandum of appeal and it has been urged before us The illegality committed has to be rectified by us at this stage It is brought to our notice that regarding both these sets of properties second defendant had moved the Land Tribunal earlier In regard to one set of property he obtained a purchase certificate and in regard to the other plaintiff got an order in his favour and the matter has been remanded to the Land Tribunal We are not satisfied that these orders have any conclusive effect since notices were not issued to all the necessary parties. 13. We are however of the opinion that even though the landlord is not a necessary party to the suit in regard to the tenancy right, he is a proper party We suggested to the learned counsel, Mr P N K Achan, that it should be for the advantage of all concerned to implead the landlord Learned counsel said that plaintiff will take steps to implead the landlord We make it clear that there is no other controversy surviving in this suit The matter has to go back to enable a reference to be made. 14. The court below appointed a receiver for all the items of properties We make it clear that the lower court could not have done so in regard to items 8 to 16 and 17 to 20 in view of sub-section (7) of S.125 of the Act In the final decree proceedings the lower court directed sale of items 15 and 22 Item 15 is one of the disputed items in regard to which we propose to direct a reference to be made Therefore till the controversy is finally settled that item cannot be sold. 15. The finding in the preliminary judgment that tenancy right in respect of items 8 to 16 and 17 to 20 belonged to the tavazhi tarwad of the appellant is set aside The lower court will make a reference under S.125(3)to the competent Land Tribunal to obtain a decision in regard to the disputes relating to these items and thereafter pass a fresh preliminary decree in accordance with law. 16. 16. The appointment of receiver in regard to items 8 to 16 & 17 to 20 is set aside If the parties have aright to move the Tribunal after reference for appointment of receiver, nothing in this judgment will stand in the way of such an application being made, subject of course to maintainability and jurisdiction. 17. The order passed by the court below for sale of item 15 is set aside The appeals and the revision petition are allowed to the extent indicated above Parties will bear their costs in the proceedings in this court The office will send the lower court records immediately.