IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 WP(C).No. 28925 of 2008(R) ------------------------------------ OS.66/2006 of SUB COURT, TIRUR .................... PETITIONER : ---------------- P.P.SAFIA, D/O.VEERANKUTTY, PUTHEN CHALIL FARM, GOVINDAPURAM P.O., PALAKKAD DISTRICT, (NOW RESIDING AT PUTHENCHAL P.O U.C.COLLEGE, ALWAYE, ERNAKULAM DISTRICT). BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT : ----------------- THAMARASSERI VELAYUDHAN, S/O.APPI, THAMARASSERI HOUSE, MAKKATTIPARAMBA, NEAR G.M.M.U.P.S., KUMMIPPALAM, P.O.ERAMANGALAM, VIA.PONNANI, MALAPPURAM DISTRICT. ADV. SRI.A.A.ABUL HASSAN - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING : WP(C).No. 28925 of 2008(R) APPENDIX PETITIONER'S EXHIBITS : EXT.P1: TRUE COPY OF PLAINT IN O.S.66/06 BEFORE THE SUB COURT, TIRUR EXT.P2: TRUE COPY OF WRITTEN STATEMENT IN O.S.66/06 DATED 13.11.2006 EXT.P3: TRUE COPY OF ORDER DATED 25.06.2008 IN I.A.2187/07 IN O.S.66/06 OF THE SUB COURT, TIRUR -TRUE COPY- P.A. TO JUDGE pac K.P. BALACHANDRAN, J. ------------------------------------- W.P(c) No. 28925 of 2008 ---------------------------- Dated this the 19th day of November, 2008 JUDGMENT Heard counsel on both sides. This writ petition has been filed by the petitioner/plaintiff assailing the order of reference under Section 125(3) of K.L.R. Act for finding on the issue regarding the tenancy. Under Section 125(3) of K.L.R. Act, a reference of dispute regarding tenancy or kudikidappu alone is required to be referred to the land tribunal. Issue No.2 in the suit is as to whether defendant is a tenant under the plaintiff as seen from Para 4 of Exhibit P3 order referring the case to the land tribunal. The plaint consists of two schedules. Plaint A schedule is a property of 3 cents comprised in resurvey No.69/1D and plaint B schedule is a shed bearing No.5/1702 comprised in resurvey No.69/1D. Though it is not clear from the description of schedules A and B, that B schedule is a shed in A schedule property, in para 4 of the plaint it is specifically alleged that B schedule is a shed put up by the predecessor-in-interest of the plaintiff in plaint A schedule property. Therefore, there is no ambiguity in the case of the plaintiff that B schedule structure stands in A schedule property. Exhibit P2 is written statement filed by the defendant in the suit claiming tenancy right. All the same his case is that he is not aware as to which is the W.P(c) No. 28925/2008 2 scheduled property and pleads ignorance of plaintiffs rights and has taken up definite contention that he has no licence agreement or arrangement at all with the plaintiff or his purchasers. In short, he has disputed the title of the plaintiff over the schedule property. All the same, he advanced a claim of tenancy right over the property which he describes in his written statement as items 1 and 2. He does not give the survey number of the property. The two items mentioned in Exhibit P2 are two separate items of property and shed therein is mentioned to be one that is taken within items 1 and 2 properties and total extent is stated as 2 cents. This property according to the defendant is not the property scheduled to the plaint. Unless and until the defendant has got a case that he is claiming tenancy right as stated in the written statement in relation to the plaint schedule property, there is no purpose to be served by making a reference of the case to the Land Tribunal for rendering a finding on the tenancy issue contented by him. Further, it is worthy to note that he has no right of kudikidappu as long as the defendant who claimed tenancy right has no case that the property scheduled in the written statement over which he claims tenancy right is the property scheduled to the plaint. The reference to the land tribunal of issue-2 regarding tenancy in the circumstances is unwarranted. It is for the civil W.P(c) No. 28925/2008 3 court to adjudicate as regards the identity of the property and not for the land tribunal. Exhibit P3 order making a reference of the case to the land tribunal for finding on issue - 2 deserves therefore to be set aside allowing this writ petition. In the result allowing this writ petition I set aside Ext. P3 order passed by the Sub Judge, Tirur. K.P. BALACHANDRAN, JUDGE scm