IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WP(C).No. 22883 of 2008(Y) -------------------------- OS.213/2007 of MUNSIFF COURT, HOSDRUG .................... PETITIONER: ------------ 1. ANJILLATH PATHUMMA, AGED 77 YEARS, 2. ANJILLATH KUNHAMEENA,AGED 50 YEARS. (BOTH RESIDING AT MOOLAKANDAM, AJANOOR VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT.) BY ADV. SRI.JAWAHAR JOSE RESPONDENTS: ------------- ANJILLATH ALI, S/O ANJILLATH PATHUMMA, BUSINESS -MAN, RESIDING, AT MOOLAKANDAM,ANADASHRAM P.O., AJANOOR VILLAGE, HOSDURG TALUK, KASARGOD DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No. 22883 of 2008 ------------------------------- Dated this the 5th August, 2008. J U D G M E N T Petitioners are the plaintiffs and respondent the defendant in O.S.No.213 of 2007, on the file of Munsiff Court, Hosdurg. This petition is filed under Article 227 of the Constitution of India challenging Ext.P5 order, whereunder learned Munsiff referred the claim for tenancy raised by the respondent to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. 2. The learned counsel appearing for the petitioners was heard. 3. The argument of the learned counsel is that respondent is claiming right under Ext.P4 Assignment deed obtained from Kunhami, who in turn claimed the right, under Ext.P3 usefructory mortgage deed and it is not a tenancy arrangement, and, therefore, claim for tenancy though raised by the respondent did not arise for consideration, and hence, the learned Munsiff should not have referred the suit to the Land Tribunal. Reliance was placed on the decisions of this Court in Sivakami v. Kumaraswamy and another (1998 (2) W.P.(C) No.22883/2008 2 KLJ 603), the decision of the Apex Court in Thomas Antony v. Varkey (2000 (1) KLT 12 (SC), and also the judgment of this Court in Abubaker v. Kadija Ummal (2007 (2) KLT 807). True, questions of tenancy, though raised in a suit may not arise for consideration. Under Section 125(3) of Kerala Land Reforms Act, a question of tenancy need be referred to the Land Tribunal, only if it arises for consideration. The question is not whether tenancy is raised, but whether the tenancy claimed arises for consideration. 4. The argument of the learned counsel is that question of tenancy does not arise for consideration in this case. The suit is for declaration of title. Therefore, the question of tenancy raised by the respondent will definitely arise for consideration. 5. The second limb of the argument of the learned counsel is that in the light of 1948 document, claim for tenancy will not stand and no purpose will be served by referring the question under Section 125 (3) of Kerala Land Reforms Act to the Land Tribunal, and, therefore, Ext.P5 order is to be set aside. The question whether 1948 document creates tenancy or not, especially in the light of the subsequent assignment deed executed in 1974, is a question to be W.P.(C) No.22883/2008 3 decided to settle the claim for tenancy raised by the respondent. In such circumstances, question of tenancy raised arises for consideration in the suit. Hence, suit is to be referred to the Land Tribunal under Section 125 (3) of Kerala Land Reforms Act. I cannot agree with the submission of the learned counsel that by going through Ext.P3 document of 1948 alone, the claim for tenancy is to be determined. I do not find any illegality or irregularity or any jurisdictional error in Ext.P5 order warranting interference in exercise of the extra ordinary powers of this Court under Article 227 of the Constitution of India. Petition is dismissed. The Land Tribunal to forward a finding expeditiously to the trial court. M.SASIDHARAN NAMBIAR, JUDGE nj.