IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WP(C).No. 29395 of 2008(Y) -------------------------- {I.A.NO.1963/2001 IN O.S.NO.148/1990 OF THE PRINCIPAL SUB COURT, THRISSUR} PETITIONER(S): --------------- 1. KUSUMALATHA W/O. KAREEPPADATH LATE RAMAKRISHNAN ENGANDIYUR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. PRAKASAN S/O. KAREEPPADATH LATE RAMAKRISHNAN ENGANDIYUR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. MANIMALLIKA D/O. KAREEPPADATH LATE RAMAKRISHNAN ENGANDIYUR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL RESPONDENT(S): --------------- 1. THRITHALLUR DEVASOM REPRESENTED BY THE DEVASWOM TRUST COMMITTEE CHAIRMAN & MANAGING TRUSTEE,VADANAPPALLY, THRISSUR DISTRICT. 2. THRITHALLUR SIVAKSHETHRA SAMRAKSHANA SAMITHY, REG.NO.101/1984 REPRESENTED BY ITS PRESIDENT VADANAPPALLY ,CHAVAKKAD, THRISSUR DISTRICT. R1 & R2 BY ADV. SRI.K.MOHANAKANNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD WITH WP(C).No. 29396 of 2008 ON 23/02/2010, THE COURT ON 08/03/2010 DELIVERED THE FOLLOWING: WP(C).No. 29395 of 2008 :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: PHOTO COPY OF THE LEASE DEED NO.37/1935 DTD. 6.7.1935 ISSUED BY 1ST RESPONDENT. EXT.P2: PHOTO COPY OF THE JUDGMENT IN C.R.P.NO.1601/2001 DATED 25.5.07 OF THIS HON'BLE COURT. EXT.P3: PHOTO COPY OF THE AMENDED AFFIDAVIT FILED IN I.A.1963/01 IN O.S.No.148/90 OF THE SUB COURT, THRISSUR BY THE PETITIONERS ON 21.6.2007. EXT.P4: PHOTO COPY OF THE OBJECTION FILED BY RESPONDENTS IN AMENDED AFFIDAVIT IN O.S.No.148/90 OF THE SUB COURT, THRISSUR ON 12.3.08. EXT.P6: PHOTO COPY OF THE COMMON ORDER IN I.A.1963/01 & I.A.1964/01 IN O.S.No.148/90OF THE PRL. SUB COURT, THRISSUR. DTD. 16.8.08. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S. SATHEESACHANDRAN, J. = = = = = = = = = = = = = = = = = = = = W.P.(C)No.29395 & 29396 of 2008 = = = = = = = = = = = = = = = = = = = = Dated this the 8th day of March, 2010. JUDGMENT These two writ petitions have been filed by some of the defendants in O.S.No.148/90 on the file of the Principal Sub Court, Thrissur against the common order passed by the learned Sub Judge in their applications declining the request made for reference to Land Tribunal for determination of the tenancy canvassed by them over the suit property. 2. Short facts involved in the case can be summed up thus: The above suit was filed by the 1st respondent Devaswom for recovery of possession of the suit property with mesne profits and for injunction. Defendants 10, 11 and 13 are the petitioners in W.P.(C) No.29395/08 and the 4th defendant is the petitioner in W.P. (C)No.29396/08. Resisting the suit claim, they contended that they are tenants under Sections 7 and 7B of the Kerala Land Reforms Act, 1963 {for short "the Act"} and W.P.(C)No.29395 & 29396 of 2008 :: 2 :: thus entitled to fixity of tenure over the respective lands under their occupation and enjoyment. They moved separate petitions seeking determination of their tenancy right over the respective properties in their occupation by reference to Land Tribunal under Section 125(3) of the Act. Those applications were resisted by the 1st respondent/plaintiff contending that the question canvassed related not to tenancy right, but one of title and that being so, it has to be determined by the civil court and not by the Land Tribunal. It was further contended by the plaintiff that the contentions advanced by the above defendants to sustain their claim of tenancy, at best, would only show their entitlement as commercial lessees for protection under Section 106 of the Act in the suit property, and so much so, no reference to Land Tribunal emerge for consideration in the case. The plaintiff also contended that in the written statement these defendants have not made out a specific case that their occupation was under the W.P.(C)No.29395 & 29396 of 2008 :: 3 :: honest belief that they are the tenants, and in the absence of such a belief, their claim of tenancy over the land under their occupation would not arise for consideration under Sections 7 and 7B of the Act. Stating that the above defendants are not cultivating tenants, but only persons holding the land for commercial purposes plaintiff contended that the case in hand fall within the exemption covered under Clause (iii) of subsection (1) of Section 3 of the Act. 3. Previously, when the court below had turned down the request of the above defendants for referring their claim of tenancy to the Land Tribunal, two revisions as C.R.P.Nos.1601 and 1611 of 2007 had been filed before this court. Those revisions were disposed of by a common order dated 25.5.2007remitting the question canvassed for consideration afresh after extending an opportunity to the revision petitioners, the defendants, to amend their objections for incorporating necessary particulars W.P.(C)No.29395 & 29396 of 2008 :: 4 :: substantiating their claim of tenancy over the property, and with liberty to the plaintiff to file a counter statement raising whatever defences available to it to challenge the claim of tenancy and reference sought for. The remission of the case after setting aside the orders of the court below was passed by this court, taking note of the objections raised by the plaintiff that specific particulars have not been incorporated in the written statement and also in the petitions by the defendants for reference of their claim of tenancy to the Land Tribunal. The lease under which these defendants claimed tenancy over the property in their occupation was imputed as void by the plaintiff contending that it was hit by Section 29 of the Hindu Religious and Charitable Endowments Act, 1951 since no sanction from the Commissioner had been obtained for such lease. 4. Pursuant to such remission, the defendants have amended their applications furnishing more W.P.(C)No.29395 & 29396 of 2008 :: 5 :: particulars on the tenancy raised by them under Sections 7 and 7B of the Act. To the amended petition, the plaintiff filed Ext.P5 objections reiterating their contentions that the tenancy canvassed is meritless and no reference to the Land Tribunal emerge for consideration in the case. 5. The learned Sub Judge after hearing both sides passed the impugned common order holding that there is no merit in the claim of tenancy canvassed by the defendants and dismissed their petitions for reference of that claim to the Land Tribunal. Propriety and correctness of the order passed by the learned Sub Judge is challenged in the writ petitions invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 6. I heard the counsel on both sides. The learned counsel for the defendants, writ petitioners, assailing the order of the court below contended that the conclusion formed by the learned Sub Judge that the W.P.(C)No.29395 & 29396 of 2008 :: 6 :: defendants are only commercial tenants/lessees and not tenants is patently erroneous. Inviting my attention to the copy of the registered lease deed, which had been executed pursuant to the occupation of the land under an oral lease earlier, it is submitted by the counsel, that the purpose of the lease had been stated as for cultivating the land on payment of rent. Subsequently, the leased land has been utilised for other purposes, according to the counsel, does not change the character of the lease and at any rate even assuming that the commercial activities are carried in the land at present it is submitted, it would not affect the claim of tenancy and, further, such questions relating to the tenancy claimed can be gone into only by the Land Tribunal and not the civil court. Per contra, the learned counsel for plaintiff reiterated the objections raised before the court below which had been upheld under the impugned order. 7. I have considered the rival submissions made by the counsel on both sides with reference to the W.P.(C)No.29395 & 29396 of 2008 :: 7 :: impugned order and other exhibits tendered in the respective writ petitions. Regrettably, it is seen, a suit filed as early in 1990 continues its lethargic and tardy pace without any effective steps taken for its trial and disposal, as being tied down and ensnared over the question whether a reference on the tenancy claim made by the contesting defendants to the Land Tribunal is called for in the suit. The defendants have raised claim of tenancy filing applications supported by affidavits seeking a reference for determination of that claim by the Land Tribunal. At the outset, it has to be pointed out that the claim of tenancy has to be raised by the defendant in his written statement filed in answer to the plaint claim which alone can be considered as part of the pleadings of the case. Without doing so, on the basis of an interlocutory application filed the question of tenancy canvassed by the defendants is being considered by the court. It is interesting to note, the court below has raised an issue with respect to the dispute W.P.(C)No.29395 & 29396 of 2008 :: 8 :: arising on the basis of the interlocutory application moved by the defendants in the following lines: "Whether any question regarding the right of a tenant or whether a person is a tenant is involved in the suit?" The impugned order passed by the court also disclose that the court below has considered the claim of tenancy canvassed by the defendants in their application with reference to the case of the plaintiff as alleged in the plaint and also the documents produced. It is seen from the impugned order that the court on such analysis has formed a conclusion that the challenge raised by the plaintiff that the lease made in favour of the predecessor of the defendants is hit by the provisions of the Hindu Religious and Charitable Endowments Act and, at any rate, the claim canvassed by the defendants could only fall under Section 106 of the Act under which the determination of the right of a commercial lessee over the building in their occupation W.P.(C)No.29395 & 29396 of 2008 :: 9 :: alone emerge for consideration and that can be adjudicated upon by the civil court without reference to the Land Tribunal. 8. The court below had embarked upon an enquiry over the tenancy claim, and entered findings, as indicated above, overlooking the interdiction placed under Section 125(3) of the Act. Section 125(3) prohibits and, in fact, it is an absolute bar on a civil court from considering any question regarding the right of tenant or whether a person is a tenant in a suit or proceeding. If any question regarding the right of a tenant or a Kudikidappukaran (including a question as to whether a person is Kudikidappukaran) arises in a suit or other proceedings, the mandate under Section 125(3) of the Act command the civil court to stay the suit or other proceedings and refer such question to the Land Tribunal with the relevant records for the decision of that question only. Sub section (1) of Section 125 of the Act explicitly makes it clear that the civil W.P.(C)No.29395 & 29396 of 2008 :: 10 :: court shall have no jurisdiction to decide or settle or deal with any question or to determine any matter which requires to be settled or decided or dealt with by any of the authorities under the Act or by the Government. Overlooking these mandatory provisions, it is noticed, the court below has proceeded to determine the question “whether any question regarding the right of a tenant or whether a person (defendant) is a tenant is involved in the suit”. No doubt, the court can examine the bona fides of a claim of tenancy or Kudikidappu canvassed by the defendant in a suit to consider whether a reference to the Land Tribunal for determination of such a claim is warranted. The relief canvassed in the suit may also have bearing on the claim of tenancy or Kudikidappu canvassed in considering whether the reference is called for. Where on the pleadings and materials produced, if the court finds that an issue regarding the right of a tenant or Kudikidappukaran arises for determination, then a W.P.(C)No.29395 & 29396 of 2008 :: 11 :: reference has to be made to the Land Tribunal for determining that question as mandated by Section 125(3) of the Act. 9. The impugned order passed by the court below shows that the court below has blindly accepted some of the arguments canvassed by the learned counsel for the plaintiff that the question of title over the suit property is involved and no reference for determination of the claim of tenancy canvassed by the defendant under Sections 7 and 7B of the Act arises for consideration. Persuaded by such argument, it is seen, learned Munsiff has jumped to the conclusion that since the defendants are carrying out commercial activities in the property at present, at best, their claim will come only as 'commercial lessees' covered by Section 106 of the Act. Adverting to the definition of 'tenant' in the Act which defines a tenant, the court below has also formed a conclusion that the defendants do not satisfy the essential requirement for W.P.(C)No.29395 & 29396 of 2008 :: 12 :: treating them as tenants. Sections 7 and 7B of the Act deal with deemed tenancy, subject to the satisfaction of the essential conditions prescribed thereunder with respect to the occupation of the land by the person claiming such tenancy. Both these sections open with a non-obstante clause emphatically making it clear that irrespective of any other law or any contract or judgment or decree or order of a court, a claim thereof can be established, subject to the continuous occupation of the land under the honest belief that the occupation continued as a tenant from the period specified. On the basis of the allegations raised in the plaint and argument canvassed by the plaintiff, the learned Munsiff has erroneously formed the conclusion that the defendants have come into occupation under some collusive transactions; that too on the documents created by incompetent persons. The conclusion so drawn by the court overlooking the opening non-obstante clause under Sections 7 and 7 B of the Act is patently erroneous. W.P.(C)No.29395 & 29396 of 2008 :: 13 :: 10. In the given facts of the case, I find advertance to the case of the plaintiff for recovery of possession of the property from the defendants or that of the defendants in their applications setting forth a plea of tenancy seeking reference need not be discussed for disposal of the present writ petitions. However, it is necessary to point out that Ext.P2 is a registered lease deed executed in the year 1949 recognising the occupation of the land with the lessee under a previous oral lease and also making specifically clear that the lease had been made for cultivation, subject to payment of rent. The defendants have claimed that they continue in occupation from the oral lease which had later given rise to Ext.P2 registered lease deed. Whether the oral lease and Ext.P2 registered lease deed are executed by incompetent persons or how far the claim of tenancy canvassed by the defendants is jeopardised by the commercial activities carried on in the leased land under their occupation are all questions falling W.P.(C)No.29395 & 29396 of 2008 :: 14 :: outside the scope of an enquiry by the civil court in considering the claim whether the question of tenancy arises for consideration in the suit. It has to confine its enquiry within the limited scope whether any question regarding the right of a tenant or a Kudikidappukaran (including a question whether a person is a tenant or a Kudikidappukaran) arises in the suit and, no doubt if it arises, it has to refer the matter for determination by the Land Tribunal. In considering the question whether such a dispute arises it can only examine whether the claim set up is bona fide but it cannot determine such a claim with reference to the pleadings and materials. 11. The common order passed by the court below challenged in the two writ petitions dismissing the applications of the defendants is set aside. The defendants have to file their written statement, if not already filed, within one month from the date of this judgment. The court below, on the basis of the contentions W.P.(C)No.29395 & 29396 of 2008 :: 15 :: raised in the written statement with reference to the allegations in the plaint and the relief claimed shall frame necessary issues in the suit and if any issue is raised on such pleadings over the claim of tenancy canvassed by the defendants, needless to say, staying the suit, that issue has to be referred for determination by the Land Tribunal with the relevant records of the case. Writ petitions are disposed of as above. Sd/- (S.S. SATHEESACHANDRAN) JUDGE SK/- //true copy//