IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 22528 of 2010(O) -------------------------- OS.52/1987 of SUB COURT, TIRUR .................... PETITIONER: --------------- ABDULLA, S/O.SAIDALI, CHOLAKKAL, THRIKKANAPURAM AMSOM KOORADA DESOM, PONNANI TALUK MALAPPURAM DISTRICT BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENT: --------------- UNNIMA @ UNNIMA ANTHARJANAM AGED 51 YEARS, THIRUMANGALATH PACHERIMANAKKAL KOORADA DESOM, THRIKKANAPURAM AMSOM VIA KULLIPPURAM,MALAPPURAM DISTRICT 679 573 ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1 SRI.JAMSHEED HAFIZ FOR R1 SRI.SAJU.S.A FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22528 of 2010 APPENDIX PETITIONERS EXHIBITS: EXHIBIT P1 : JUDGMENT OF THIS HONOURABLE COURT IN C.R.P.No.154/95 DTD. 01.11.1996 EXHIBIT P2 : ADDITIONAL WRITTEN STATEMENT DTD. 05.12.1994 BY DEFENDANTS 12 TO 15 IN O.S.52 OF 1987 BEFORE the SUB COURT, TIRUR EXHIBIT P3 : ORDER OF THE SUB COURT, TIRUR DTD. 19.06.2010 IN O.S.No.52/1987. RESPONDENTS EXHIBITS:NIL True Copy P.A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.22528 of 2010 --------------------------------------- Dated this 17th day of September, 2010 JUDGMENT Defendant No.14 in O.S.No.52 of 1987 of the court of learned Sub Judge, Tirur is the petitioner in this writ petition challenging Ext.P3 finding on issue No.3 whether question of tenancy raised by petitioner is to be referred to the Land Tribunal for a finding as provided under Section 125(3) of the Kerala Land Reforms Act (for short, “the Act”). Learned Sub Judge found in the light of various binding authorities referred to by the learned Sub Judge in the impugned finding that since petitioner is claiming right under a purchase certificate already issued by the Land Tribunal, no question of tenancy could genuinely “arise” for a decision as understood in Section 125(3) of the Act. Learned counsel for petitioner contends that in the nature of contentions raised in the original and additional written statements issue regarding tenancy very which arose for a decision and was required to be referred to the Land Tribunal for a finding. Learned Senior Advocate appearing for respondent/plaintiff would contend that the writ petition itself is not maintainable since other persons who also made similar plea are not made W.P.C.No.22528 of 2010 : 2 : parties to this writ petition. In the light of the plea raised by petitioner in paragraph 1 of the additional written statement no question of reference is involved and what is needed is only a proper identification of the suit property. 2. I have been taken through the relevant averments in the plaint and additional written statement: Respondent/plaintiff claimed that the suit property belonged to her husband who is not heard of since the last 30 years (and hence presumed dead) and that she has acquired the property by inheritance being the only legal heir of her husband. Plaint schedule property was being managed by one Sankaran Nair who died about 7 years back and since then she is directly dealing with the property. While so, she recently found certain new constructions in the suit property and on enquiry it was found that those constructions were made by petitioner and other defendants who made claims on the basis of bogus documents which are not binding on her. She pleaded that the suit property does not form part of the property in respect of which a lease was created by her predecessor-in-interest as per lease deed No.2574 of 1886. She prayed for recovery of possession of the property. Petitioner-defendant No.14 filed a joint written statement with W.P.C.No.22528 of 2010 : 3 : other contesting defendants claiming that he got the property from the late Sankaran Nair and that respondent has no title over the property. A plea of title by adverse possession and limitation was also raised. Later, petitioner wanted the written statement to be amended to incorporate other pleas, which of course learned Sub Judge allowed. Respondent challenged that order in C.R.P.No.154 of 1995 contending that the effect of allowing amendment was to take away certain admissions made by petitioner and others in the original written statement. This court while disposing of C.R.P.No.154 of 1995 permitted petitioner to file an additional written statement taking up his contentions so that statements in the original written statement would remain on record. Accordingly, petitioner filed additional written statement raising a plea of tenancy under respondent and accordingly issue No.3 was raised regarding reference of the said question to the Land Tribunal. Learned Sub Judge answered the issue against petitioner. 3. As the case of respondent/plaintiff goes the suit property does not form part of the property covered by registered lease deed No.2574 of 1886 executed between her predecessor- in-interest and the tenants referred to therein. In paragraph 1 of W.P.C.No.22528 of 2010 : 4 : the additional written statement petitioner is categoric in his stand that the said averment in the plaint is not correct and that suit property is part of property covered by registered lease deed No.2574 of 1886. It is also stated that the lessees under the said registered document effected partition of their lease-hold right among themselves and by subsequent assignment petitioner got title and possession of the suit property. Respondent has no case that if the suit property forms part of property covered by registered lease deed No.2574 of 1886, she is entitled to recover possession thereof. On the other hand she has sought recovery of possession on the strength of title over the suit property and on specific averment that the said property does not form part of lease deed No.2574 of 1886. Hence what is required to be decided by the learned Sub Judge is only whether the suit property forms part of property covered by lease deed No.2574 of 1886. If that issue is answered in favour of the petitioner, necessarily respondent is not entitled to recover possession of the said property. If on the other hand, suit property does not form part of registered lease deed No.2574 of 1886 petitioner cannot contend that he is a tenant of the said property. In that view of the matter, I am persuaded to think that issue regarding W.P.C.No.22528 of 2010 : 5 : question of tenancy does not arise for a decision and what is relevant is only to ascertain whether suit property forms part of property covered by lease deed No.2574 of 1886. Hence contention of petitioner that question of tenancy arose and it was required to be referred to the Land Tribunal cannot be accepted. Writ petition fails. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-