IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 25411 of 2009(O) --------------------------------------- I.A.2332/2008 IN O.S.273/2004 OF PRL. MUNSIFF COURT-II, KOZHIKODE. .................... PETITIONERS/PLAINTIFFS: -------------------------------------- 1. C.SIVADASAN NAMBOODIRI, S/O. RAMAN NAMBOODIRI, RESIDING AT CHERUPLERI ILLATH, OLAVANNA AMSOM & DESOM, KOZHIKODE. 2. E.M. DEVAKI ANTHARAJANAM, D/O. RAMAN NAMBOODIRI, RESIDING AT EDAKUTTYPPURATHE ILLATH, AZHINJILAM AMSOM & DESOM KOZHIKODE. BY ADV. MR.THOMAS ANTONY RESPONDENTS/DEFANDANTS ------------------------------------------- 1. MAMIYIL CHINNAN, S/O. VELAYUDHAN, CHATHOTHARA HOUSE, OLAVANNA AMSOM & DESOM, KOZHIKODE. 2. MAMIYIL KRISHNANKUTTY, S/O. VELAYUDHAN, CHATHOTHARA HOUSE, OLAVANNA AMSOM & DESOM, KOZHIKODE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.25411 OF 2009 -------------------------- Dated this the 8th day of September 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following relief. Call for the records leading to Ext.P4 Order passed in I.A No.2332/2008 in O.S No.273/2004 dated 03/07/2009 on the file of Munsiff II, Kozhikode and set aside the same. 2. Petitioners are the plaintiffs in O.S No.273 of 2004 on the file of the Principal Munsiff Court II, Kozhikode. Suit is one for recovery of possession and the respondents are the defendants. At the fag end of the trial, it is submitted, the respondents moved an application for reference to W.P.(C).No.25411 OF 2009 Page numbers the Land Tribunal to consider the plea raised by them in the written statement that they have fixity of tenure over the property sought to be recovered. Though the application was objected to by the petitioners / plaintiffs the learned Munsiff after considering the question whether the respondents / defendants are entitled to fixity of tenure arise for consideration in the suit by Ext.P4 order directed for referring that question to the Land Tribunal for determination. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented with reference to Ext.P4 order, I find W.P.(C).No.25411 OF 2009 Page numbers no notice to the respondents is necessary and hence it is dispensed with. Learned counsel for the petitioners submitted that previously the petitioners had filed a suit for injunction and there was an interim injunction in force till the disposal of that suit. That suit was withdrawn since there was some mistake in the description of the property, and such withdrawal was granted with liberty to file a fresh suit. In the present suit filed for recovery of possession after withdrawal of the earlier suit, the learned counsel submits, in the written statement initially filed by the defendants there was only a vague plea that they are cultivating tenants pursuant of an oral lease obtained by their predecessor in respect of the suit property in the year 1957. No specific particulars were furnished in the written statement to show that they are entitled to any benefits covered under the Land Reforms Act. When W.P.(C).No.25411 OF 2009 Page numbers an amendment was carried out in the plaint to correct some mistakes in the description of the suit property, the defendants in their additional written statement raised a plea of fixity of tenure over the suit property. But still no issue as to their entitlement of fixity of tenure was raised by the court. Only after trial commenced, the defendants filed an application for raising an additional issue as to their claim of fixity of tenure and for its reference to the Land Tribunal. That application being dismissed by the trial court, the defendants approached this court filing a writ petition. The order of the trial court was set aside by Ext.P3 judgment directing for considering the matter afresh in accordance with law. Ext.P3 judgment, it is submitted, was passed without notice to the petitioners / plaintiffs in the suit. On the facts and circumstances presented and also the contentions W.P.(C).No.25411 OF 2009 Page numbers raised in the written statement of the defendants, it is submitted by the learned counsel, the issue regarding the question of tenancy does not arise in the suit. 4. After going through the additional written statement (Ext.P2) of the defendants, which alone is produced, and also Ext.P4 order passed by the learned Munsiff, I find it cannot be stated that the issue of fixity of tenure canvassed by the defendants does not arise for consideration. It is true this court as well as the apex court has held that if only the issue arises for consideration, then alone a reference to the Land Tribunal as mandated by Section 125 of the Land Reforms Act emerge for consideration. But the scope of enquiry thereof is very limited. A meticulous consideration of the claim of tenancy canvassed by the defendants in his written W.P.(C).No.25411 OF 2009 Page numbers statement cannot be gone into by the Civil court to determine whether a prima facie case has been made out for reference to the Land Tribunal. The defendants have taken conflicting plea that they have perfected title by adverse possession, as an alternative plea, is canvassed by the learned counsel for the petitioners / plaintiffs to urge that their plea of tenancy lacks bonafides. I find, that circumstance is not sufficient to discard the plea of tenancy if it is otherwise found arising in the suit. If the court is prima facie satisfied that the claim of fixity of tenure is not bonafide no issue arise for reference under Section 125 of the Land Reforms Act for determination by the Land Tribunal. But where the contentions raised in the written statement disclose that the issue in fact arise for determination the court has no other go but to refer it to the Land Tribunal, unless it is W.P.(C).No.25411 OF 2009 Page numbers barred by resjudicata or by any other interdiction under law as stated in “Kesava Bhat v Subraya Bhat” (1979 KLT 766). After going through Ext.P4 order, I find the learned Munsiff was perfectly justified the holding that the question of tenancy arises for consideration in the suit, and as such it has to be referred to the Land Tribunal for determination. There is no impropriety or illegality in Ext.P4 order. Writ petition lacks merit, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv