IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST JUNE 2010 / 31ST JYAISTHA 1932 WP(C).No. 27612 of 2008(K) -------------------------- PETITIONER(S): ----------------------- 1. MAMPILAI KUDUMBA DHARMADAIVSTHANAM TRUST REG. NO. 4486/97, MANJAPRA.P.O, ALUVA. 2. MAMPILAI KUDUMBA DHARMADAIVSTHANAM TRUST REP. BY PRESIDENT M.N. RAMU, AGED 41, S/O. NARAYANAN NAIR, MAMPILAI HOUSE, MANJAPRA.P.O, MANJAPRA VILLAGE, ALUVA TALUK. 3. MAMPILAI KUDUMBA DHARMADAIVSTHANAM TRUST REP. BY SECRETARY M.R. RADHAKRISHNAN, MAMPILAI HOUSE, MANJAPRA.P.O, MANJAPRA VILLAGE, ALUVA TALUK. BY ADV. SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE RESPONDENT(S): ------------------------ 1. DEVASSY, AGED ABOUT 75, S/O. AUGUSTY, KALLARAKKAL, MANJAPRA KARA, MANJAPRA VILLAGE, ALUVA TALUK, (DIED) 2. AUGUSTY, AGED 45, S/O. ESTAPPAN, KALLARAKKAL, MANJAPRA KARA, MANJAPRA VILLAGE, ALUVA TALUK. 3. OUSEPH, AGED 50, S/O. ESTAPPAN, KALLARAKKAL, MANJAPRA KARA, MANJAPRA VILLAGE, ALUVA TALUK. WP(C).No. 27612 of 2008 4. JOSE, S/O.LATE DEVASSY, KALLARAKKAL, MANJAPRA KARA, MANJAPRA VILLAGE, ALUVA TALUK. 5. MARY, D/O. LATE DEVASSY, KALLARAKKAL, MANJAPRA KARA, MANJAPRA VILLAGE, ALUVA TALUK. 6. AANI, D/O. LATE DEVASSY, KALLARAKKAL, MANJAPRA KARA, MANJAPRA VILLAGE, ALUVA TALUK. 7. CHERICHIKUTTY, D/O. LATE DEVASSY, KALLARAKKAL, MANJAPRA KARA, MANJAPRA VILLAGE, ALUVA TALUK. 8. BHAVANI AMMA, AGED 68, D/O. MADHAVI AMMA, MAMPILAYIL HOUSE, NADUVATTOM KARA, MANJAPRA VILLAGE, ALUVA TALUK. 9. OMANA, AGED 54, D/O. BHAVANI AMMA, MAMPILAYIL HOUSE, NADUVATTOM KARA, MANJAPRA VILLAGE, ALUVA TALUK. ADV. SRI.PAUL K.VARGHESE FOR R2-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 27612 of 2008 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the judgment of Hon'ble High Court in the Writ Petition 6632/2005. Ext.P2 :- Copy of the judgment on additional issue dated 30.6.2008 referring the matter to the Land Tribunal, by the learned Munsiff, Aluva in O.S.329/2003. Respondent's Exhibits :- NIL //True Copy// P.A. To Judge THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ W.P.(C) No.27612 of 2008 ~~~~~~~~~~~~~~~~~~ Dated this the 21st day of June 2010 J U D G M E N T Petitioners are plaintiffs in O.S.No.329 of 2003 of the court of learned Munsiff, Aluva. Petitioner No.1 is described as a Trust. Suit was for recovery of possession of the property from respondents on the strength of their title. Respondents raised a plea of tenancy and requested learned Munsiff to refer the issue to Land Tribunal concerned for a finding. In the mean time, respondents had filed O.A.Nos.31 and 32 of 1976 claiming tenancy right, it is not disputed, concerning the suit of property. Though learned counsel for respondents have a contention that petitioners were not parties to the said proceedings the Land Tribunal accepting the report (of the authorized officer) held that property in question is exempted from tenancy under Sec.30 of Kerala Land Reforms Act (for short W.P.(C) No.27612 of 2008 : 2 : “the Act”). Accordingly, without conducting further enquiry into the matter those applications were dismissed. Learned Munsiff before whom a request for reference of the same issue to the Land Tribunal was made, held that the question does not “arise” for consideration and declined the request. That order was challenged in this Court in W.P.(C) No.6632 of 2005. It was argued before this Court that O.A.Nos.31 and 32 of 1976 were not decided on merit but, were dismissed for default and hence, decision in those applications will not operate as resjudicata and hence, learned Munsiff was not correct in declining to refer the question which really arose for consideration to the Land Tribunal. This Court held that the said contention cannot be accepted and that in view of the decision in O.A.Nos.31 and 32 of 1976, “the issue does not very seriously arise for decision”. But, this Court noted that the decision of Land Tribunal was without conducting enquiry into the matter and that the said fact cannot be lost sight of. Writ petition W.P.(C) No.27612 of 2008 : 3 : was disposed of refusing to interfere with the order declining to refer the matter to the Land Tribunal but, directing learned Munsiff to “formulate issue as to whether the petitioners are having tenancy right over the property. The above issue should be tried by the learned Munsiff as a preliminary issue and the petitioners should be directed to produce whatever evidence they have. Issue should be tried by the learned Munsiff along with the other issues and decision on that issue also be given. Since the suit is of the year 2003, the learned Munsiff will special list the suit for trial in the earliest available special list”. After the said order was passed by this Court on 21.6.2007 learned Munsiff formulated an issue regarding tenancy and enquired into the matter. Respondents adduced evidence in support of their claim of tenancy before the learned Munsiff. Learned Munsiff as per the impugned order stated that issue regarding tenancy genuinely arise for a decision and accordingly referred the matter to the Land W.P.(C) No.27612 of 2008 : 4 : Tribunal for a decision. That order is under challenge in this writ petition at the instance of plaintiffs. Learned counsel for petitioners contended that the decision in O.A.Nos.31 and 32 of 1976 would operate as resjudicata and hence, issue regarding tenancy cannot genuinely arise for a decision. Reliance is placed on a decision in Govindan Gopalan v. Raman Gopalan (1978 KLT 315). It is also the contention of learned counsel for petitioners that so far as order dated 21.6.2007 of this Court stood, learned Munsiff could not refer the matter to Land Tribunal for a decision since learned Munsiff was bound by the said decision. Learned counsel for respondents contended that no question of resjudicata arose from the decision in O.A.Nos.31 and 32 of 1976 in so far as those decisions are not on merit and, without conducting any enquiry whatsoever. It is also the contention of learned counsel that as per the scheme of Sec.125 of the Kerala Land Reforms Act, whenever any question required by that Act to be W.P.(C) No.27612 of 2008 : 5 : decided by the Land Tribunal arose, civil court ceases to have jurisdiction in the matter and the civil court is bound to refer the issue to Land Tribunal for a finding. According to the learned counsel, purport of the decision of this Court dated 21.6.2007 is that once learned Munsiff formulated an issue regarding tenancy and on enquiry it is found that issue regarding tenancy genuinely arose, learned Munsiff has to comply with the statutory provision (Sec.125(3) of the Act). It is pointed out by learned counsel that SM proceedings are pending in the Land Tribunal concerning the very same matter involving the petitioners also. 2. So far as the decision on O.A.Nos.31 and 32 of 1976 is concerned, this Court while disposing of W.P.(C) No.6632 of 2005 held that contention of respondents that the said orders are not based on any evidence cannot be accepted. This Court also stated that in view of the said orders, issue regarding tenancy does not “very seriously arise for decision”. The Land Tribunal, so far as the W.P.(C) No.27612 of 2008 : 6 : decision in O.A.Nos.31 and 32 of 1976 stood, is bound by the said orders and cannot ignore it or reach a different conclusion. As such, respondents cannot now contend that decision on O.A.Nos.31 and 32 of 1976 is inconsequential so far as their claim of tenancy is concerned. So far as the order of Land Tribunal in O.A.Nos.31 and 32 of 1976 stands, a reference to the Land Tribunal is also futile as the Land Tribunal could not go beyond its earlier orders [see Krishnamma v. Nageswari Amma (1984 KLT 810)]. So far as the order dated 21.6.2007 stands, parties are bound by the said order and hence, respondents cannot ignore the decision in O.A.Nos.31 and 32 of 1976 on the ground that it is disposed of without evidence. Which itself is not correct as the Land Tribunal has relied on the report of the authorized officer. 3. Then the question is whether learned Munsiff was correct in referring the matter to Land Tribunal after recording evidence. It is clear from the wordings of the W.P.(C) No.27612 of 2008 : 7 : order dated 21.6.2007 of this Court in W.P.(C) No.6632 of 2005 that issue regarding tenancy was also directed to be tried by the learned Munsiff. It is evident from the direction that learned Munsiff had to record evidence produced by the respondents as to the plea of tenancy and that learned Munsiff had to decide that issue also along with other issues. As such, learned Munsiff was bound by the said order, so far as it stood. In view of the said order, I am unable to accept the contention that learned Munsiff was justified in referring the matter to the Land Tribunal. It follows that learned Munsiff is bound by the decision of this Court dated 21.6.2007. I make it clear that so far as that order stand, learned Munsiff has to follow the direction contained therein. Resultantly, this writ petition is allowed. Order under challenge referring the issue regarding tenancy to the Land Tribunal is set aside. Learned Munsiff shall decide the issue in accordance with direction contained in the W.P.(C) No.27612 of 2008 : 8 : order of this Court dated 21.6.2007. Learned Munsiff shall decide the issue on the strength of evidence untrammelled by any observation contained in this order as to the acceptability of the contention of the respondents. THOMAS P. JOSEPH, JUDGE. Jvt