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2012 DIGILAW 396 (KER)

Paravur Puttingal Devaswom v. K. K. Madhavan

2012-04-10

A.V.RAMAKRISHNA PILLAI

body2012
Judgment : 1. Under challenge in this petition is the order passed by the trial court referring a preliminary issue to the Land Tribunal concerned for consideration. 2. The facts may be briefly noted: The petitioners representing the Paravur Puttungal Devaswom approached the Munsiff's Court, Paravur for a decree of mandatory injunction to remove plaint 'B' schedule shed put up in Plaint A schedule property by the respondents who, according to the petitioners, have been attempting to proclaim their rights over A schedule property. According to the petitioners, A schedule property which was in the custody of the receiver appointed by the District Court, Kollam in O.S.No.129/1956 was handed over to the Devaswom by the receiver and they are in absolute possession and enjoyment of the same. The Devaswom is being administered as per a scheme framed in the aforesaid case. There is an Althara (Retaining wall surrounding a Banyan tree) in plaint-A schedule property where evening lamps are lit. Knowing the petitioners preparation for reconstructing the Althara and compound wall as per Vasthu Requests, the respondents trespassed upon A schedule property and put up B schedule shed. As the renovation could not be carried out without the removal of B-schedule shed, the petitioners sought for a mandatory injunction for the removal of Plaint B-schedule shed. Apprehending further trespass and obstruction to the peaceful possession by the petitioners of Plaint-A schedule property, prohibitory injunction also was sought for, it is alleged. 3. Respondents who resisted the suit contended that their ancestors were in possession and enjoyment of Plaint schedule properties. According to them, the Paravur Puttungal Devaswom had given the property to their ancestors for the services rendered by them as Oozhiyam and they claimed that they are deemed tenants entitled to fixity of tenure and prayed for sending the case to the Land Tribunal, Kollam for adjudication of fixity of tenure. 4. On the basis of the pleadings, proper issues were raised. One of the issues raised was whether the respondents have tenancy right, rather fixity of tenure over the Plaint A-schedule property. Considering the said issue preliminarily by the impugned order the trial court held that the issue relating to deemed tenancy and fixity of tenure has to be referred to the Land Tribunal under Sec. 125(3) of the Land Reforms Act. 5. Considering the said issue preliminarily by the impugned order the trial court held that the issue relating to deemed tenancy and fixity of tenure has to be referred to the Land Tribunal under Sec. 125(3) of the Land Reforms Act. 5. I have heard the learned counsel for the petitioners and the learned counsel for the respondents. I have also perused the impugned order. 6. The learned counsel for the petitioners contended that merely because the respondents have raised a contention of deemed tenancy and fixity of tenure, the court ought not have referred the matter to the Land Tribunal. According to the learned counsel for the petitioners, the trial court ought to have ascertained as to whether the respondents had made such a claim on the basis of any legal foundation or only with the intention to gain time by protracting the litigation. The learned counsel for the respondents per contra relying on Sec. 125(3) of the Kerala Land Reforms Act, 1963 (hereinafter referred to as the 'Act' for short) would argue that in the light of the defence set up by the respondents, the jurisdiction of the trial court is ousted and the matter has to be adjudicated upon by the Land Tribunal concerned. Thus, he justified the reference order. 7. In this context, it is useful to refer to Sec. 125 (3) of the Act, which reads as follows: "If in any suit or other proceedings 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". 8. The claim of the respondents in the written statement is that they are in possession of Plaint-A schedule property on the basis of Oozhiyam services rendered by them. A reference under Sec. 125(3) shall be justified only if the enjoyment as claimed by the respondents have the features of tenancy. Hence the material question that has to be decided is whether an arrangement for Oozhiyam services to be rendered can be deemed as a lease by its nature. A reference under Sec. 125(3) shall be justified only if the enjoyment as claimed by the respondents have the features of tenancy. Hence the material question that has to be decided is whether an arrangement for Oozhiyam services to be rendered can be deemed as a lease by its nature. If Plaint-A schedule property was enjoyed by the respondents on the basis of Oozhiyam services, as contended, the property has to be treated as a Service Inam Land. 9. The Madras High Court had occasion to consider the nature of Service Inam Lands in Neti Anjaneyalu Vs. Sri.Venugopal Rice Mills Limited, Tenali, AIR 1922 Mad. 197. In that case, an inam was granted by a Zamindar to the ancestor of the petitioner on terms that he should do Swastivachanam services in a temple and he and his family should enjoy the inam so long as they did the service. In 1860, the Inam Commissioner confirmed the grant "to be continued so long as the service was performed." The total area of the land was about 10 acres, the produce from which was not more than sufficient to provide a living for the inamdar at that time. 10. It was held that the right to enjoy the property is as long as the Inamdar renders services. If the Inamdar sold the property, it is obvious that he would in all probability no longer perform the services and further, it is quite opposed to the nature of his interest and his duty, namely that he should enjoy the produce of the land as salary for the services he has to render. It was further held that if the property were sold, the purchaser would get no title of any value for at any moment the property might revert to the zamindar or the Government, as the case may be, when the inamdar ceases to render such services. The reason for arriving at such a conclusion is that a service inam is an interest in property restricted in its enjoyment to the inamdar personally which is inalienable under Sec. 6(d) of the Transfer of Property Act. 11. In Rajagopala Goundar and others Vs. Maruthamuthu Asari, AIR 1933 Mad. The reason for arriving at such a conclusion is that a service inam is an interest in property restricted in its enjoyment to the inamdar personally which is inalienable under Sec. 6(d) of the Transfer of Property Act. 11. In Rajagopala Goundar and others Vs. Maruthamuthu Asari, AIR 1933 Mad. 668 dismissing a second appeal arising out of a suit brought by the plaintiffs as trustees of the plaint mentioned temple for the recovery of possession of a plot of land styled as Blacksmith's service manyam land granted to the predecessor of the defendant for doing Blacksmith's service to the temple, the Madras High Court held that if a land is held as a service tenure to be enjoyed as remuneration for services, the fact that no services have been performed for any length of time cannot of itself make the holding adverse. In order to make the possession adverse to the owner, there must be a refusal to perform services or a claim to hold the land free of service. Therefore, mere cessation in the performance of service would not change the character of possession into adverse possession; so held the Madras High Court. 12. Reference to the aforesaid two decisions was made to make it clear that the position of a service inamdar is not so strong as it was made to appear by the learned counsel for the respondents. The legal status of a service inamdar more or less resembles to a licensee as in both cases the juridical possession is always with the grantor. However in the case of a license, the licenser gets a benefit in the nature of fee for use and occupation while in the case of service inam, the inamdar gets the remuneration for service from the usufructs of the property. As juridical possession rests with the grantor, the status of a licensee whose license is terminated is that of a trespasser. Similarly, if the inamdar refuses to perform the services, the property will automatically revert back to the grantor. The learned counsel for the respondents would argue that at present they are not performing any services in the plaint A-schedule property. Similarly, if the inamdar refuses to perform the services, the property will automatically revert back to the grantor. The learned counsel for the respondents would argue that at present they are not performing any services in the plaint A-schedule property. Even assuming that the respondents are in possession of the property as a service holder, it can only be a permissive possession and it cannot be adverse to the true owner unless there is a refusal to perform service or a claim to hold the land free of service. To decide the question whether the respondents are in possession of the Plaint schedule property as alleged, evidence has to be assimilated at the trial and it is too early to make any pronouncement on that. 13. However, in the light of the contention taken by the respondents that they are in possession of the property on the basis of Oozhiyam services which is a service inam, the question of fixity of tenure or deemed tenancy does not arise. If it is an Oozhiyam service tenure, there is no transferable right in respect of the property and the Inamdar has no right over the land except the right to enjoy the same till services are continued. 14. The tendency to refer disputes under Sec. 125 (3) of the Act on untenable contentions has been viewed with disfavour by this Court on earlier occasions. 15. A Full Bench of this Court in E. Keshava Bhat v. Subraya Bhat, AIR 1980 Ker. 40 (FB) observed that unless the question of tenancy actually arises for consideration, there is no obligation under Sec. 125(3) to make a reference to the Land Tribunal. The mere incorporation of an unnecessary irrelevant plea of tenancy into the written statement which has no relation whatsoever to the material averments and reliefs sought in the plaint cannot attract the bar of Sec. 125(1) or the provisions of Sec. 125 (3); so held in the aforesaid case. It was further held that a plain and simple suit for injunction is not liable to be referred to the Land Tribunal under Sec. 125(3) as in suits for injunction, the court is concerned only with the question of possession, the nature and character of possession being immaterial. I do notice that the present suit is instituted by the petitioner for injunction. 16. A Division Bench of this Court in Sundaran Vs. I do notice that the present suit is instituted by the petitioner for injunction. 16. A Division Bench of this Court in Sundaran Vs. Mohammed Koya, 1995(2) KLT 115 observed that the amplitude of the expression "arises" must be constricted to what genuinely arises in a case in view of the very unsatisfactory function of the present Land Tribunal system in Kerala. The Courts have to give a useful and practical interpretation to lessen the abuse of the legal requirement envisaged in Sec. 125(3) of the Kerala Land Reforms Act, it was held. Here, I would like to extract an observation made by Romer L.J. in Lee v. Showman's Guild of Great Britain, (1952) 2 Q.B. 329 at p.354) feeling reluctance to disturb the established state of the law or to deny to the subject access to the seat of justice. It reads: "The proper tribunals for the determination of legal disputes in this country are the courts and they are the only tribunals which, by training and experience and assisted by properly qualified advocates, are fitted for the task." I do not think that the present situation in Kerala is different from what is stated above. 17. As a tenancy right which is the very basis or foundation of a reference under Sec. 125(3) is absent in the Oozhiyam Service Inam pertaining to the plaint items as claimed by the respondents, a reference under Sec. 125(3) is incompetent and it is an exercise in futility. The impugned order, therefore, calls for a reversal. In the result, I allow the petition. The impugned award is set aside. The learned Munsiff shall proceed with the trial and shall give an early verdict deciding all the issues raised on the basis of evidence that may be adduced by both sides. No costs.