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1999 DIGILAW 131 (KER)

S. K. Nathan v. Guruvayoor Devaswom

1999-03-05

K.NARAYANA KURUP

body1999
ORDER K. Narayana Kurup, J. 1. Defendant in O.S.No.423/91 of the Addl. Munsiff of Rent Control, Ernakulam is the revision petitioner. The revision is directed against the order of the Trial Court in I.A.No.1312/96 in the aforesaid suit dismissing the petition filed by the revision petitioner defendant under S.125(3) of the Kerala Land Reforms Act (for short 'the Act') praying that the question of fixity of tenure claimed by him under the provisions of the Act including the status of the petitioner as a cultivating tenant may be referred to a competent Land Tribunal. 2. O.S.No.423/91 was filed by the respondent/Devaswom against the revision petitioner seeking eviction from the plaint schedule property which is a house situated in Cochin Corporation bearing Door No.35/2926, Church Landing Road, let out to the revision petitioner. The revision petitioner/ defendant has filed a written statement contending inter alia that he is a 'tenant' coming under the definition of the term "tenant" under the Act. He later filed I.A.No.1312/96 in the aforesaid suit under the provisions of S.125(3) of the Act praying that the issue of fixity of tenure claimed by him under the Act including the status of the revision petitioner as a cultivating tenant be referred to a competent Tribunal. The respondent herein filed a counter affidavit denying the contention of the revision petitioner. Learned Munsiff, after hearing the parties, has passed an order which is impugned in this C.R.P., dismissing the application for reference filed by the revision petitioner. The revision is directed against the aforesaid order declining reference as already noted. 3. Having heard learned Senior Counsel Shri P. Balagangadhara Menon for the revision petitioner and Shri K. Radhakrishnan for the respondent Devaswom, I am not satisfied that the order impugned in this C.R.P. calls for any interference in exercise of the revisional jurisdiction of this court under S.115 C.P.C. In a case where the tenant claims fixity of tenure, the burden of proof is upon him to establish the tenancy. That burden has not been discharged by the revision petitioner. The Trial Court has found that the revision petitioner who claims fixity of tenure over the land and the building has not produced even a scrap of paper before it to show that he was a tenant of land with building and not of the building alone as claimed by the respondent. The Trial Court has found that the revision petitioner who claims fixity of tenure over the land and the building has not produced even a scrap of paper before it to show that he was a tenant of land with building and not of the building alone as claimed by the respondent. On the other hand, the respondent has produced Exts.A1 to A7 before the Trial Court to show that the revision petitioner was the tenant of the building alone and not of the land as claimed by him. Ext.A1 is the deed by which the Devaswom obtained the plaint schedule property. The recital therein shows that the revision petitioner was only a tenant of the building in that property viz. the plaint schedule property. Similarly, in Ext.A2 to A6 which are the covering letters sent by the revision petitioner himself to the respondent Devaswom as per which while sending the rent of the building to the Devaswom it is admitted by him that he is sending only the rent of the building. In Ext.A7 reply notice sent by the counsel for the revision petitioner to the Devaswom it is stated that the revision petitioner had taken the building alone for rent from the predecessor in interest of the plaintiff Devaswom. Therefore, Exts.A1 to A7 precludes the revision petitioner from turning round and contending that he is tenant of the land with the building and not of the building alone. Further it has to be noted that the revision petitioner has no case that the building taken on him is a 'hut' as defined under the Act. Under the facts and circumstances of thus disclosed, I am of the view that the application filed by the revision petitioner for reference under S.125(3) of the Act on the ground that he is entitled to fixity of tenure is absolutely frivolous and devoid of bona fides. In fact, the question of tenancy does not arise at all for consideration in this case. The Trial Court was therefore right in dismissing the application for reference. 4. No doubt, learned Senior Counsel appearing for the revision petitioner relied on the decision of this court reported in Kesava Bhat v. Subaraya Bhat 1979 KLT 766 (FB) in support of his contention. The Trial Court was therefore right in dismissing the application for reference. 4. No doubt, learned Senior Counsel appearing for the revision petitioner relied on the decision of this court reported in Kesava Bhat v. Subaraya Bhat 1979 KLT 766 (FB) in support of his contention. However, on a perusal of the said decision, I am afraid that it can be of no assistance to the petitioner to advance his case. The point decided in the Full Bench decision is that unless the question of tenancy arises, the matter need not be referred to the Land Tribunal. The position here is that on the admitted facts which are glaring, there is no question of any tenancy arising in respect of the property in question. Yet another decision cited is the one reported in Sundaran v. Mohammed Koya 1995 (2) KLT 115 . In the above decision also, all that has been held is that under S.125(3) of the Act, if in any suit or other proceedings any question regarding the rights of the tenant, including a question as to whether a person is a tenant "arises" then the civil court does not have jurisdiction to determine that question. The court went on to observe that unless the question legally arises, there is no obligation for the civil court to make a reference of it. The aforesaid observation goes against the interest of the revision petitioner rather than in his favour. Both the decisions are of no assistance to the revision petitioner to sustain an application for referring the question of alleged tenancy to the Land Tribunal under S.125(3) of the Act. There is no illegality or irregularity in the order under challenge calling for interference in exercise of the revisional jurisdiction of this court under S.115 C.P.C. The C.R.P. fails and the same is accordingly dismissed.