Narayana Kamath v. Govinda Prabhu — 1992 DIGILAW 1 (KER)

Judgment :- Tenancy right over an area of 50 cents together with the building thereon is the subject-matter of dispute in this appeal and civil revision petition. The suit from which the appeal arises is for recovery of possession of the plaint A schedule property in the suit O.S.36/1980 before Sub Court. Irinjalakuda excluding the building thereon which is described in the B schedule. Recovery of possession of the C schedule properties is also claimed after demolition of a shop building alleged to have been constructed by the defendants. The revision is against the order of appellate Authority (LR). Trichur in A.A. 96/1982. the appeal preferred against the common order of the Land Tribunal. Kodungallur in O.A Nos. 151 of 1976 and 87 of 1980. 2. Plaint A schedule property in O.S.36/1980 belonged to the 2nd plaintiff and his brothers. First plaintiff obtained an assignment of the rights of 2nd plaintiff and thereafter got a release of the rights of the others. Defendants are alleged to be in possession of the house in the plaint A schedule which is described in the B schedule on the strength of an entrustment by 2nd plaintiff in favour of the 1st defendant on 1-12-1970. Defendants 2 and 4 are the brothers of 1st defendant and 3rd defendant. their mother. Fifth defendant is the wife of 1st defendant. Defendants are alleged to have put up a shop building in a portion of the property by trespassing upon the same. That portion is described as plaint C schedule. 3. Second plaintiff had instituted a suit as O.S.136/1973 against defendants 1 to 3 for a prohibitory injunction seeking to restrain them from entering the plaint A schedule property as well as from putting up any building thereon. Plaint A schedule therein is the entire property including the residential building. of which the building excluding a lean-to is alleged to have been entrusted to the 1st defendant on 1-12-1970 on a monthly rent of Rs. 25/-. The B schedule therein is 'the area where the shop building was constructed. That suit was resisted and separate written statements were filed by the 3rd defendant and defendants land 2. It appears that a petition was filed by 3rd defendant herein as O.A. 45/1976 for purchase of landlord's rights claiming herself to be a tenant of the property. That petition was dismissed for default on 16-2-1976. That suit was resisted and separate written statements were filed by the 3rd defendant and defendants land 2. It appears that a petition was filed by 3rd defendant herein as O.A. 45/1976 for purchase of landlord's rights claiming herself to be a tenant of the property. That petition was dismissed for default on 16-2-1976. The suit was subsequently with drawn with permission to file a fresh suit. It was thereafter that O.S.36/ 1980 was filed for recovery of possession. In the meantime the 3rd defendant had filed O.A.151/1976 for purchase of the landlord's rights. That petition was allowed on 19-8-1976 and a copy of the order was produced in O.A.136/1973. It was thereafter that permission to withdraw the suit was requested for. An appeal was filed against the order in O.S.151/1976 before the appellate authority as A.A.2400/1976. The appeal was allowed and the petition was remanded for fresh disposal. An original petition is also seen filed before this Court as O.P.3402/1979 by 2nd plaintiff and others to quash all the proceedings in O.A.151/1976 and to prohibit the respondent therein from proceeding with that case and in the alternative to direct the appellate authority to take back AA.2400/1976 and dispose of O.A.151/1976 on its merits. That petition was dismissed. 4. In the suit filed by the 2nd plaintiff defendants raised a plea of tenancy and the dispute was referred to the Land Tribunal where it was registered as O.A.87/1980. The original application filed by the 3rd defendant as O.A.151/1976 had also reached the Tribunal by that time on remand. As agreed to by the parties both these petitions were tried jointly and by a common order passed by the Tribunal on 31-12-1981 the petitioner therein was found not entitled to tenancy rights. The O.A filed by the3rd defendant was dismissed and the finding rendered by the Tribunal was submitted to Sub Court. Irinjalakuda along with the records. The court below proceeded to consider the other issues involved in the suit after adducing oral evidence. Accepting the finding of the Land Tribunal on the question of tenancy referred to it and after rendering findings on the other issues the court below decreed the suit and directed recovery of possession of the A and C schedule properties from the possession of defendants as well as the 'Chaippu' portion of the B schedule building. Accepting the finding of the Land Tribunal on the question of tenancy referred to it and after rendering findings on the other issues the court below decreed the suit and directed recovery of possession of the A and C schedule properties from the possession of defendants as well as the 'Chaippu' portion of the B schedule building. The shop building constructed in the plaint C schedule was directed to be demolished within two months from the date of the decree. First plaintiff was also found entitled to get profits at the rate of Rs. 1000/- per year apart from the costs of suit. Aggrieved by that decision defendants have come up in appeal. 5. Against the order of the Land Tribunal in O.A.151/1976 the petitioner therein preferred an appeal before the appellate Authority (LR) as A.A.96/1982. After hearing both sides the appellate authority reversed the finding of the Tribunal and held the appellant therein to be a tenant entitled to fixity of tenure. That order is challenged in the revision filed by respondents 1 and 2 therein who are the plaintiffs in the original suit. Respondents 3 to 6 therein are defendants 1.2.4 and 5 in the suit. Since the dispute in the appeal and the revision is the same and since the common order of the Land Tribunal in O.A.87/1980 and O.A151/1976 is under challenge in these two proceedings. the appeal and the revision were heard jointly and are being disposed of by this common judgment. Reference to the parties will hereafter be made in accordance with their description in O.S.36/1980. 6. The main aspect to be considered is whether defendants are tenants entitled to get fixity of tenure. (Paras. 7 to 23 omitted being appreciation of evidence) 24. Sri.Sivasankara Panicker. learned counsel for the defendants. has raised a plea that the final order is that of the appellate authority and that it covers the matter. According to him that order operates as ouster of the jurisdiction of the civil court. Ordinarily it maybe so subject to the power of this court under S.103 of the Land Reforms Act. But here is a case where the two proceedings. one on a reference from the civil court under S.125(3) of the Act and the other on a separate application for purchase by the tenant under S.72 of the Act. were heard jointly and disposed of by a common order. But here is a case where the two proceedings. one on a reference from the civil court under S.125(3) of the Act and the other on a separate application for purchase by the tenant under S.72 of the Act. were heard jointly and disposed of by a common order. The defendants preferred an appeal against the decision of the civil court which accepted the finding of the Land Tribunal. S.125(6) of the Act enables them to question the finding of the Land Tribunal as if it is a finding of the civil court. Defendants have chosen to challenge that finding in the appeal filed by them. Plaintiffs question the legality of the appellate authority's order in the revision filed by them. Under such circumstances the question arises as to whether the appellate authority's order would operate as an ouster of jurisdiction of the civil court. 25. When once a reference has been made under S.125(3) of the Act it is the duty of the Land Tribunal under sub-sec. (4) of that section to decide the question referred to it and to return the records together with its decision to the civil court. On a finding being recorded on the question referred to it by the civil court it is beyond the powers of the Land Tribunal to entertain another application for purchase since the dispute has already been decided on the reference made by the civil court. A reference under S.125(3) is necessitated only in cases where a question regarding the rights of a tenant or of a kudikidappukaran arises. Such a reference has to be made only if the Land Tribunal has not rendered a decision on such question earlier. S.101(3) of the Act empowers the Land Tribunal to decide the question as to whether a person is or is not a tenant. There is a bar of jurisdiction of civil courts under S.125(1) in respect of 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. The question whether a person is or is not a tenant is a matter to be decided by the Land Tribunal and the jurisdiction of the civil court is taken away. In short. the authority to render a decision on such a dispute is the Land Tribunal. decided or dealt with or to be determined by the Land Tribunal. The question whether a person is or is not a tenant is a matter to be decided by the Land Tribunal and the jurisdiction of the civil court is taken away. In short. the authority to render a decision on such a dispute is the Land Tribunal. be it on a reference under S.125(3) of the Act in a suit or other proceeding initiated after the commencement of the Land Reforms Act as amended by Act 35/1969 or on an application for purchase filed by the tenant. When the Land Tribunal considers that dispute on a reference made by the civil court. it is not open to the Tribunal to entertain an application for purchase or to render decision thereon. the reason being that it is obligatory on the part of the Tribunal to decide the question referred to it by the civil court and the decision of the Land Tribunal on such question becomes a finding of the civil court by virtue of the deeming provision contained in S.125(6) of the Act. It is to avoid conflicting decisions by civil courts and the Land Tribunals on the question of tenancy or kudikidappu rights that the Legislature introduced S.125(3) necessitating a reference to the Land Tribunal and directing the Land Tribunal to decide the question referred to it. If decisions are rendered by the Tribunal on the reference made to it by a civil court and on a separate application presented by the tenant. that may lead to conflicting decisions since the finding of the Land Tribunal on the reference is liable to challenge before the appellate court and that rendered on the petition for purchase before the appellate authority (L.R.). Provision. for reference was made to avoid such conflict. 26. In the present case the Land Tribunal heard the reference and the petition for purchase filed by the tenant jointly and they were disposed of by a common order. Maybe the Tribunal adopted that' procedure as agreed to by the parties. But the agreement of the parties will not confer a jurisdiction on the Land Tribunal which it otherwise lacks. The decision on the question of tenancy has no doubt to be rendered by the Land Tribunal. But the civil court having made a reference under S.125(3) of the Act. But the agreement of the parties will not confer a jurisdiction on the Land Tribunal which it otherwise lacks. The decision on the question of tenancy has no doubt to be rendered by the Land Tribunal. But the civil court having made a reference under S.125(3) of the Act. a finding has to be rendered on the question referred to by the court and the same has to be submitted to the civil court. When once the Land Tribunal proceeded to enquire into that dispute in the reference made by the civil court. the Tribunal should not have either entertained an application for purchase and if it had already entertained the same should not have proceeded to enquire the dispute in that petition. his not open to the Tribunal to decide the dispute in the petition presented by the tenant and return the reference without answering the same in view of the mandatory provision contained in sub-sec. (4) of S.125. The position that emerges is that the Land Tribunal is not competent to enquire into the dispute of tenancy in a separate application filed by the tenant in case the Land Tribunal has received a reference from the civil court. The only course open to the Land Tribunal is to decide the dispute referred to it by the civil court and return the records together with its decision to that court. So long as the decision on the question of tenancy has become final. the Land Tribunal is not competent to permit the tenancy to purchase the rights of the landlord. The petition for purchase filed by the tenant in such circumstances is not maintainable and has only to be dismissed. That will not put an end to the rights of the tenant to invoke the aid of S.72 and obtain a purchase certificate. But that will depend upon the final result of the suit wherein the tenancy is disputed. If ultimately the tenant succeeds. it will be open to him to move the Tribunal for getting the rights of the landlords assigned to him and for the issue of a purchase certificate. The Land Tribunal was therefore not right in clubbing the reference and the petition filed by the defendants together and in passing a common order. That will only result in conflict of decisions. The Land Tribunal was therefore not right in clubbing the reference and the petition filed by the defendants together and in passing a common order. That will only result in conflict of decisions. to avoid which the Legislature in all its wisdom has introduced the special provision in S.125(3) of the Land Reforms Act. 27. Different remedies are available to the parties in the case of a reference to the Tribunal and on an order of the Tribunal allowing purchase under S.72 of the Act. The decision of the Tribunal becomes a finding of the civil court against which the aggrieved party can file an appeal. A second appeal can also be preferred in case a substantial question of law is involved. A revision against the decision of the Tribunal rendered on the reference is not sustainable. On the other hand the order for purchase on the application presented by the tenant can be challenged before the appellate authority. Any person aggrieved by any final order passed by the appellate authority can prefer a revision before the High Court under S.103 of the Act on the ground that the Tribunal has either decided erroneously or failed to decide any question of law. The powers of this court in appeal on the decision rendered by the civil court accepting the finding of the Tribunal are wide whereas the powers under S.103 are limited. Parties should not be allowed to challenge the decision of the Tribunal in parallel proceedings. be it an appeal or a revision. Had a decision not been rendered on the reference made by the civil court. the finding of the appellate authority would have operated as res judicata. But that plea also is not available in the present case in view of the revision filed against the appellate authority's order. Since the appellate court has all the powers of the trial court in the matter of deciding the appeal. the entire matter is at large in the appeal preferred by the defendants. That being so. the question whether the enquiry under S.103 of the Act has to be limited only to any question of law which has been decided erroneously or whether the appellate authority has failed to decide any question of law does not arise. the entire matter is at large in the appeal preferred by the defendants. That being so. the question whether the enquiry under S.103 of the Act has to be limited only to any question of law which has been decided erroneously or whether the appellate authority has failed to decide any question of law does not arise. The order of the appellate authority will not therefore operate as an ouster of the jurisdiction of the civil court in this case. The question whether defendants are tenants or not has therefore to be decided in the appeal preferred by them. On the materials available it has already been found that they are not tenants. The result is that the appellants fail and the revision petitioners succeed. For the reasons stated above the revision petition is allowed and the order in AA96/1982 of appellate Authority (L.R.). Trichur is set aside. The finding of the Land Tribunal that defendants are not tenants is sustained. AS. 198/1987 is dismissed. In view of the peculiar circumstances of the case I direct both parties to suffer their costs in the appeal and in the civil revision petition.