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2000 DIGILAW 237 (KER)

Ganesh Prabhu v. Narayana Prabhu

2000-04-07

G.SASIDHARAN

body2000
JUDGMENT G. Sasidharan, J. 1. S.A.No.858 of 1999 is filed by the defendant in O.S.No. 126 of 1997 on the file of the Munsiff, Kasaragod. Plaintiff in the above suit filed O.S.No. 127 of 1997 in the above court. Both the suits were jointly tried and disposed of by a common judgment. S.A.No.859 of 1999 arises out of O.S.No.127 of 1997. In O.S.126 of 1997 the brother of the plaintiff is the defendant and in the other suit Damodara Mallayya, the uncle of the plaintiff is the defendant. Both the above suits were filed alleging that the defendants in the suits were in possession of different portions of the building in the plaint schedule property on the strength of permission granted by the respondent and they are liable to surrender possession of the portions of the building to the respondent. The trial court decreed both the suits directing the appellants to surrender vacant possession of the portions of the building to the respondent. 2. The defendant in O.S.No. 126 of 1997 filed A.S.No.53 of 1998 and the defendant in the other suit filed A.S.No.54 of 1998 in the court of the Subordinate Judge, Kasaragod. Both the appeals were disposed of by the first appellate court by a common judgment. The appeals were dismissed on confirming the judgment and decree of the trial court. 3. According to the plaintiff in the above two suits, who is the respondent in both the appeals, 9 cents of property comprised in R.S.No.74/3 of Hosbettu village in which a residential house is situate belonged to Ramachandra Shanbhogue. One Upendra Mallya was in possession of the house and the land appurtenant thereto since the building was let out to him by Ramachandra Shanbhogue. The respondent alleges that he got possession of the building and the land appurtenant thereto under Ext. A3 assignment deed dated 11-12-1978 executed by Upendra Mallya in his favour. Thereafter, on 18-12-1978, Ramachandra Shanbhogue executed Ext.A4 sale deed in favour of the respondent. The allegation is that respondent gave permission to the appellant in S.A.No.858 of 1999 who is his brother to reside in the portion of the building. The appellant in S.A.No.858 of 1999 is the uncle of the respondent and he is stated to have obtained possession of a portion of the building on the strength of the permission given by the respondent. 4. The appellant in S.A.No.858 of 1999 is the uncle of the respondent and he is stated to have obtained possession of a portion of the building on the strength of the permission given by the respondent. 4. The contentions raised by the appellants in both the appeals are more or less the same. According to them, an extent of 10 cents in R.S.No.74/3 of Hosabettu Village originally belonged to Kogga @ Venkatesha Mallya on chalageni lease of 1918 from the landlord Narasayya Shanbhogue, the father of Ramachandra Shanbhogue. They would contend that on the death of Venkatesh Mallya his right devolved on his legal heirs including the appellant in the second appeal 859 of 1999. The case of the appellants is that the respondent was residing in Karnataka State and he was employed in Syndicate Bank and when he was transferred to Bangalore, he requested the appellant in S.A. 859 of 1999 to give him accommodation in the building situate in the plaint schedule property and permission was given to him for residing in a portion of the house. The appellant in S.A.No. 858 of 1999 would contend that he is in possession of a portion of the building on the basis of the permission granted to him by the appellant in S.A.No. 859 of 1999 who is his uncle. 5. In the trial court, at the fag end of the trial applications were filed by the appellants for amendment of the written statement for incorporating a plea that they were entitled to tenancy right and hence the question of tenancy had to be referred to the Land Tribunal. Those applications were dismissed by the trial court. The question that the trial court should have referred the matter to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act was raised in the appellate court. That court on finding that the question of tenancy did not arise for consideration in the case found that the trial court was justified in not making any reference as requested by the appellants. 6. The same substantial questions of law were framed in both the second appeals and those are the following: "1. That court on finding that the question of tenancy did not arise for consideration in the case found that the trial court was justified in not making any reference as requested by the appellants. 6. The same substantial questions of law were framed in both the second appeals and those are the following: "1. Having regard to the fact that the plaintiff and the defendants belong to the same family and when the defendants have pleaded and supported by documents the question of tenancy by which the parties inherited the property, whether the rejection by the courts below without referring the matter to the Land Tribunal under S.125(3) of the K.L.R. Act is correct nor not. 2. Whether the courts below can reject the case without referring to the Land Tribunal; especially when there is a clear plea of lease as evidenced by the pleadings in the written statement filed by the defendant. 3. Is not the jurisdiction to decide those questions being entirely on the Land Tribunal and ignoring this fact is it proper and correct for the civil court to decide the question of lease in view of the decision reported in AIR 1999 SC 327 and the decision reported in 1999 (2) KLT 290 . 4. Whether the appellate court is correct in overlooking the above decisions and went on to decide the merit of the question of tenancy on the ground that the amendment application of the written statement seeking to refer the matter to the Land Tribunal was filed before the trial court at later stage. 5. Whether the courts below was correct in accepting the documents in evidence in order to decide the case in favour of the plaintiff, especially when the plaintiff was not been examined at all in court with reference to such documents." 7. The first appellate court found that if as a matter of fact the question of tenancy arose for being considered in the suit, the trial court ought to have referred that question to the Land Tribunal. In the written statements filed by the appellants in the trial court in the suits the statement was that Venkitesha Mallya was having chalageni lease in respect of the plaint schedule property. In the written statements filed by the appellants in the trial court in the suits the statement was that Venkitesha Mallya was having chalageni lease in respect of the plaint schedule property. ' In the judgment of the appellate court, it is stated that even though on a reading of the judgment of the trial court one may get the impression that the trial court proceeded to decide the question of tenancy, in fact what the trial court intended was to say that the question of tenancy did not arise for consideration in the case. The approach made by the first appellate court to the question was in the manner stated above and the finding of the trial court regarding the contention raised by the appellants that there was chalageni lease in respect of the plaint schedule property was understood by the appellate court as one by which the trial court said that the question of tenancy did not arise for consideration at all. Thereafter, the appellate court proceeded to consider the question whether the question of tenancy in fact arose for consideration. The finding by the first appellate court was that the tenancy right Venkitesha Mallya was having was surrendered and a new lease was created by Ext.A8. On the basis of such a finding the first appellate court held that whether the lease was by Upendra Mallya in his individual capacity or on behalf of all the members of the family the tenancy which existed had come to an end. The first appellate court was of the view that a reading of Ext.A8 itself would indicate that it was a monthly tenancy pure and simple and that earlier lease dated 23-6-1951 was cancelled and another lease arrangement was brought into existence. 8. In Poovollaparambil Chathu v. V.P. Sudheer ( AIR 1999 SC 327 ), the question whether a reference to the Land Tribunal is necessary where there is pleading in a proceeding was considered. In the above case which came up for consideration before the Supreme Court the allegation was that after surrendering tenancy right, the defendants trespassed into the land and hence he was in illegal possession of the property. In the above case which came up for consideration before the Supreme Court the allegation was that after surrendering tenancy right, the defendants trespassed into the land and hence he was in illegal possession of the property. The contention raised by the defendant in the above case was that he never surrendered possession of the land and he continued to be the tenant and therefore the plaintiffs were not entitled to recover possession of the land. Since the possession of the property was sought for on the allegation that after surrendering possession of the tenancy right, the defendants trespassed into the property, it was held by the Supreme Court that that was a case in which the question of tenancy actually arose and a reference under S.125 of the Kerala Land Reforms Act was necessary. 9. In the above decision of the Supreme Court, reference was made to the decision in Kesava Bhat v. Subraya Bhat (AIR 1980 Ker.40). That was a case which came up before this court for consideration and a Full Bench consisting of five Judges found that in the nature of the relief sought for in that suit and the pleading the question of tenancy did not actually arise. That was a case in which the plaintiff alleged that the defendant was an agent and the possession of the plaintiff was being tried to be disturbed by such an agent and the contention raised by the defendant was that he was a tenant. The relief sought for in that suit was injunction and for granting that relief it was not necessary that a decision had to be taken on the question of tenancy. The suit being one for injunction that could be decided on the question of possession and hence this court said in the above decision that the question of tenancy did not arise for consideration. The suit being one for injunction that could be decided on the question of possession and hence this court said in the above decision that the question of tenancy did not arise for consideration. After referring to the Kerala decision, the Supreme Court said in Chathu's case ( AIR 1999 SC 327 ) that the case before the Supreme Court was different from the case which came up for consideration in the Kerala High Court for the reason that in the case before the Supreme Court recovery of possession of the property was sought alleging that there was trespass and when in such a suit the person from whom recovery is sought for contends that he is entitled to tenancy right, that is a question which has to be considered before granting the relief sought for in the suit. In that respect of the matter, it was found that the question of tenancy arose for consideration in that suit. What has to be understood from the above decision is that a decision on the point whether question of tenancy arises in a proceedings can be made on looking into the relief sought for in the suit. If it is found that for the purpose of granting the relief a decision on the question of tenancy is necessary, then it has to be said that the question of tenancy arises for consideration. 10. In Sundaran v. Muhammed Koya ( 1995 (2) KLT 115 ), a Division Bench of this court held that unless the question of tenancy legally arises, there is no obligation for the civil court to make a reference to the Land Tribunal. In the above decision, it was observed that merely for the reason that a person raises a claim, the court is not bound to make a reference to the Land Tribunal for deciding the question of tenancy and that when the claim is without any bona fides, it cannot be said that the question of tenancy would arise for consideration. The further observation made by this court in the above decision is that the amplitude of the expression "arises" must be constricted to what genuinely arises in a case and reference to the Land Tribunal becomes necessary only when the question legally arises in the case. 11. The further observation made by this court in the above decision is that the amplitude of the expression "arises" must be constricted to what genuinely arises in a case and reference to the Land Tribunal becomes necessary only when the question legally arises in the case. 11. In Kerala State H.W. Cooperative Society Ltd. v. Vadakke Madom Brahmaswom ( 1996 (1) KLT 282 ), a two Judge Bench of this court again held that the civil court can consider whether the plea raised by the defendant or the respondent is bona fide or genuine and that only if there is reasonable prospect of the plea being upheld by a Land Tribunal, the civil court can refer the matter to the Land Tribunal. The observation in the judgment is that if there is no reasonable prospect of the plea being upheld by a Land Tribunal, the civil court can justifiably take the view that the question does not arise in the case. 12. In Thomas Antony v. Varkey (2000 (1) KLT 12 (SC), the Supreme Court held that S.125(3) of the Kerala Land Reforms Act makes it clear that a reference to the Land Tribunal need be made only if such a question "arises" in the suit or other proceedings concerned and that it had been consistently held by this court that unless such a question legally arises, there is no need to make a reference to the Land Tribunal under S.125(3) of the Act. It was further held in the above decision that if there is not even a remote possibility of the said plea being upheld by the Land Tribunal the civil court can conclude that the question does not reasonably arise in the case and that a - civil court is not obliged to make a reference to the Land Tribunal merely because a party has raised a contention that he is a tenant or a kudikidappukaran. 13. Section 125 of the Kerala Land Reforms Act says 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 that Act required to be settled, decided or dealt with or to be determined by the Land Tribunal. 13. Section 125 of the Kerala Land Reforms Act says 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 that Act required to be settled, decided or dealt with or to be determined by the Land Tribunal. The jurisdiction of the civil court to decide a particular question will be taken away as per the above provision only when there is a question to be decided by the Land Tribunal. When the court finds that in a suit there arises a question which the Land Tribunal has the jurisdiction of civil court in deciding that question and then reference has to be made to the Land Tribunal. The view taken by this court as well as the Supreme Court is that a reference to the Land Tribunal would become necessary only if a question of tenancy arises for consideration. There may be cases in which contention will be raised that one of the parties is having tenancy right. But for the purpose of deciding the question whether the relief sought for in that suit has to be granted or not, it may not be necessary that a decision has to be rendered on the question of tenancy. In such a case it cannot be said that the question of tenancy arises for consideration. There may be cases in which the competent authority had already taken a decision on the question of tenancy and in such cases the question of tenancy may not arise for consideration for the reason that question had already been considered by a competent authority and a decision had already been rendered. Then there may be cases in which the question of tenancy is raised only for the purpose of prolonging the proceedings by making a reference to the Land Tribunal. That is why it is said that merely for the reason that a contention is raised that a party is a tenant or a kudikidappukaran, the civil court is not bound to make a reference to the Land Tribunal. That is why it is said that merely for the reason that a contention is raised that a party is a tenant or a kudikidappukaran, the civil court is not bound to make a reference to the Land Tribunal. Only if it is found that for making a decision in the suit determination regarding the question of tenancy is necessary and also that there is no reason for saying that there is not even a remote possibility of the plea being upheld by the Land Tribunal, a reference need be made by the civil court to the Land Tribunal. 14. The trial court has only to consider whether the question of tenancy arises for consideration in the suit. If the question of tenancy arises the civil court has to make a reference to the Land Tribunal. The finding of the Land Tribunal if there is a reference will form part of the judgment of the trial court for purposes of appeal. Then the appellate court has the power to go into the correctness or otherwise of the decision of the Land Tribunal on the question of tenancy by reappraising the evidence on the basis of which the Land Tribunal entered a finding. So there is no exclusion of jurisdiction of the appellate court for deciding the question of tenancy. 15. In Kunjan v. Janaki ( 1980 KLT 796 ), it was held by this court that the provisions of S.125 of the Kerala Land Reforms Act does not take away the right of the appellate court to consider the question of tenancy. S.125 of the Land Reforms Act requires the appellate court to treat the finding of the Land Tribunal as finding of the civil court for the purpose of appeal. In Ponnammal v. Gomez ( 1991 (1) KLT 901 ) also, this court held that the ouster of jurisdiction under S.125 of the Act is only that of the trial court and it does not affect the jurisdiction of the appellate court or a revisional court to decide the question when the matter comes up in appeal or in revision. The first appellate court considered the question in detail and came to the conclusion that the question of tenancy did not arise for consideration. The first appellate court considered the question in detail and came to the conclusion that the question of tenancy did not arise for consideration. That finding is that of a court which has the jurisdiction to consider whether the question of tenancy arises for decision and also to take a decision if that question actually arises for consideration. For the reasons stated above, I find that these appeals are liable to be dismissed. In the result, the second appeals are dismissed. In the circumstances of the case, parties are directed to suffer their respective costs.