IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 FAO.No. 231 of 2009() --------------------- AS.167/2007 of ADDL.DISTRICT COURT, KOZHIKODE OS.15/2004 of SUB COURT, QUILANDY .................... APPELLANT/IST RESPONDENT IN AS.167/07/PLAINTIFF ------------------------------------------------------------------- MARKAZZU SAAQUAFATHI SUNNIYA, A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, REPRESENTED BY ITS GENERAL SECRETARY-A.P.ABOOBACKER MUSALIYAR, S/O.AHAMMED HAJI, KUNNAMANGALAM AMSOM, KARANTHUR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENTS 1 TO 4/APPELLANT(S) 1 TO 4/DEFENDANTS 1 TO 4: ----------------------------------------------------------------------------- 1. OTHAYOTH PARAYI, W/O.LATE KANDAN, OTHAYOTH, KAKKANCHERRY P.O., KOZHIKODE DT. 2. SREEJA, D/O.PARAYI, OTHAYOTH, KAKKANCHERRY P.O., KOZHIKODE DISTRICT. 3. PUSHPA, D/O.PARAYI, OTHAYOTH, KAKKANCHERRY P.O., KOZHIKODE DISTRICT. 4. RAJU, S/O.PARAYI, OTHAYOTH, KAKKANCHERRY P.O., KOZHIKODE DISTRICT. 5. O.K.VELAYUDHAN, S/O.APPARI, BADAKKOTH MEETHAL, KAKKANCHERRY P.O., KOZHIKODE DISTRICT. ADV. SRI.K.SHRIHARI RAO FOR R2 TO 5 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 231 OF 2009 = = = = = = = = = = = = = = = Dated this the 9th day of November, 2009. J U D G M E N T This appeal is preferred against the order of remand passed by the learned Additional District Judge, Kozhikode in A.S.167/07. The said appeal was preferred against the judgment and decree of the Subordinate Judge, Koyilandy in O.S.15/04. It is seen from the extraction in the plaint in both the cases that the suit is one for a permanent prohibitory injunction. Whether a question of tenancy arises in a suit for permanent prohibitory injunction has been taken note of by a Full Bench of this Court in the decision reported in Kesava Bhat v. Subraya Bhat 1979 KLT 766(FB). In that decision the Full Bench of this Court held that, “In a suit for injunction, no question of tenancy or rights of a tenant arises, and reference to the Land Tribunal is not called for.” I am afraid this decision has been not brought to the notice of the Addl. District Judge who had heard the matter. That F.A.O. 231 OF 2009 -:2:- decision also deals with a situation how the question of tenancy arises in matters. So I find the order of remand passed by the learned Additional District Judge, is not proper and I set aside that order and send back the case to the Addl. District Judge, for proper consideration in the light of the enunciated principles laid down by the Full Bench of this Court. The decision reported in 1979 KLT 766 also considers where a matter of tenancy arises for consideration u/s 125(3) of the Land Reforms Act. If the learned Additional District Judge finds that the question of tenancy does not arise at all it is for him to consider the appeal on merits and the plaintiff can succeed in proving his possession on the date of institution of the suit. Therefore the order of remand is set aside and the matter is sent back to the learned I Addl. District Judge, Kozhikode for fresh consideration of the materials in the light of the discussions made above. Parties are directed to appear before the learned I Addl. District Judge on 11.12.2009. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-