Abdul Razack v. Aboobacker — 1994 DIGILAW 6 (KER)

Judgment :- Petitioner is the plaintiff in O.S.No.46 of 1990 of the Court of the Subordinate Judge, Hosdurg. He instituted the suit for a declaration that the Kuzhikanom assignment deed No. 64/80 is a fraudulent and invalid document and for consequential reliefs. Defendant filed a written statement as well as an additional written statement. On the basis of the contentions raised by the defendant issue No.10 was raised which reads: "Whether the defendant is a tenant entitled to get benefit under the K.L.R. Act". 2. Learned Sub Judge referred the said question for adjudication to the Land Tribunal as per S.125(3) of the Kerala Land Reforms Act, 1963 (Act 1/64) as amended (for short'the act). The said order of the learned Sub Judge is under challenge in this C.R.P. 3. Learned counsel for the petitioner contended that with due regard to the nature of the reliefs claimed by the petitioner issue No.10 need not have been referred to the Land Tribunal for adjudication. Learned counsel relied on the decision in Chacko Kochu v. Abraham (1977 KLT 868) in support of the said contention. According to him, since the Land Tribunal is incompetent to give a relief as the one claimed in the plaint, the Land Tribunal was not competent to enter a finding as regards the question in issue No. 10. Sri N. Viswanatha Iyer, Advocate who was appointed as Amicus Curiae, on the other hand contended that, so long as the relief sought by the plaintiff-petitioner could be granted only on adjudicating the said question also, the trial court will have no jurisdiction to adjudicate the said question and the trial court was right in referring the said question to the Land Tribunal for adjudication. 4. The plaint schedule property belonged to Padinhare Tarwad. As per partition deed No. 754/1959 the said property was allotted to one Muhammad Kunhi. He gifted the same to his three nephews and one niece as per document No. 1112/1968. Later the three nephews released their right in favour of their sister as per document No.1231 of 1970. She transferred the property in favour of the plaintiff who is her husband as per an exchange deed dated 26-12-1984. He gifted the same to his three nephews and one niece as per document No. 1112/1968. Later the three nephews released their right in favour of their sister as per document No.1231 of 1970. She transferred the property in favour of the plaintiff who is her husband as per an exchange deed dated 26-12-1984. Plaintiff alleged that he came to know that an assignment of kuzhikanom was got executed in favour of the defendant by document No.64 of 1980 reciting that the assignor had an oral lease in his favour from Muhammad Kunhi. Plaintiff 's case is that the said assignment is vitiated by fraud. He maintained that there was no oral lease as recited in the said assignment and denied the possession of the defendant as well as of his predecessor. Plaintiff claimed that he and his predecessor were in continuous possession of the property. On the other hand the defendant in his written statement contended that there was an oral lease of 1960 in favour of his assignor and that the same was assigned in his favour by assignment deed No.64/1980. Thus one of the issues raised by the lower court is as to the claim of tenancy by the defendant. 5. As per S.125(3) of the Act when a question regarding the right 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 should stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area, sub-section (4) of S.125 of the Act enjoins 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. Sub-section (5) of S.125 of the Act requires the civil court to decide the suit accepting the decision of the Land Tribunal on the question referred to it. And sub-section (6) of S.125 states that the decision of the Land Tribunal on the said question will be deemed to be part of the finding of the civil court for the purpose of appeal. One important aspect to be noted is that the reference can be made only when the question as to tenancy or kudikidappu 'arises' in the suit. 6. Therefore the first question to be considered is whether the said question'arises'. One important aspect to be noted is that the reference can be made only when the question as to tenancy or kudikidappu 'arises' in the suit. 6. Therefore the first question to be considered is whether the said question'arises'. As per the pleadings the question whether the respondent is a tenant 'arises'. That is why issue No. 10 was raised by the trial court. But the contention of the learned counsel for the petitioner is, that question cannot be deemed to have arisen with due regard to the scope of the suit. According to him, the character of the relief prayed for in the suit is such that the question of tenancy cannot 'arise' within the meaning of S.125(3) of the Act. In Chacko Kochu 's case (1977 KLT 868) the defendant in a suit for declaration denied the title of the plaintiff and alternatively contended that he was a tenant and that in any case he was a kudikidappukaran. The learned Munsiff referred the question of kudikidappu to the Land Tribunal. This court held that only on finding that the plaintiff has title to the land, will the question of reference under S.125(3) could arise. This decision is distinguishable. In this case, there is no denial of title, neither is there a prayer for declaration of the title of the plaintiff. Here the declaration sought is, the assignment of the lease is vitiated by fraud; and the reason alleged is, there was no oral lease as is recited in the assignment deed. Clearly the decision in Chacko Kochu's case (1977 KLT 868) cannot have any application to such a suit. In the decision in Kesava Bhat v. Subraya Bhat (1919 KLT 766-FB) as to when a question can arise within the meaning of 8.125(3) of the Act was considered and it was held that the plea in the written statement should have relation to the claim made in the plaint. In the decision in Kesava Bhat v. Subraya Bhat (1919 KLT 766-FB) as to when a question can arise within the meaning of 8.125(3) of the Act was considered and it was held that the plea in the written statement should have relation to the claim made in the plaint. The majority held: "We do not think it can be the intention of the Legislature to make the reference to the Land Tribunal dependent upon a plea in the written statement which has got no relation to the claim made in the plaint, and which would not having regard to the frame of the plaint, or to other legal obstacles in raising the defence, call for any adjudication at all." So the test to be applied is whether the plea in the written statement as regards tenancy has no relation at all with the relief claimed in the plaint and also whether the said contention is barred under any other provisions of law such as resjudicata. 7. The relief of declaration that the assignment is vitiated by fraud is based on the allegation that the recital of oral lease in the assignment deed is false as according to the plaintiff there was no oral lease with respect to the property. At the stage of considering whether a reference has to be made under 8.125(3) of the Act, it is not necessary to go into the genuineness of the claim. All that is necessary is to see whether the said claim has relation to the relief claimed in the plaint and whether the same is barred under any other provision of law. Whether the plaintiff is entitled to the declaration prayed for rests on the finding on the question of tenancy. Evidently therefore, the claim by the defendant has intimate relationship with the relief claimed in the plaint. The contention by the learned counsel for the petitioner, since the relief cannot be granted by the Land Tribunal, the Land Tribunal is incompetent to adjudicate the claim made by the defendant is devoid of merit because for a reference under 5.125(3) of the Act, it is not necessary that the Land Tribunal should have jurisdiction to give the relief claimed in the plaint. Sub-sections (5) and (6) of S.125 of the Act would answer the said contention. Sub-sections (5) and (6) of S.125 of the Act would answer the said contention. The said sub-sections would show that on the receipt of (he finding by the Land Tribunal the civil court should accept the finding and decide the suit. So the decision in the suit certainly should be by the court and not by the Land Tribunal. But the trial court has to accept the finding and decide the suit. And sub-section (6) of S.125 of the Act enjoins that the said finding of the Land Tribunal on the question referred to it shall be deemed for the purpose of appeal to be part of the finding of the civil court. Thus the provisions in the Act would show that the decision in the suit has to be rendered by the civil court accepting the finding of the Land Tribunal, and the said finding will be deemed to be part of the finding by the civil court for the purpose of appeal; that means, the said finding can be challenged in the appeal from the decree and judgment. To conclude the question as to the claim of tenancy by the respondent 'arises' within the meaning of S.125(3) of the Act and therefore, the lower court was correct in referring the said question for adjudication to the Land Tribunal. The revision is without merit and is liable to be dismissed. Before parting I record my gratitude for the able assistance given by Sri N. Viswanatha Iyer, Advocate. The Civil Revision Petition is dismissed.