IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 WP(C).No. 6924 of 2009(O) ------------------------------------- OS.NO.90/2008 OF ADDL.MUNSIFF, KASARAGOD. .................... PETITIONERS: --------------------- 1. HONAPPA GOWDA, S/O. CHINNAPPA GOWDA, RESIDING AT BANADAMOOLE OF DELAMPADY VILLAGE P.O.PANJIKALLU, KASARGOD TALUK AND DISTRICT. 2. PUTTANNA GOWDA, S/O. CHINNAPPA GOWDA, RESIDING AT BANADAMOOLE OF DELAMPADY VILLAGE P.O.PANJIKALLU, KASARGOD TALUK AND DISTRICT. BY ADVS. MR.D.KRISHNA PRASAD, MR.D.NARENDRANATH, SMT.O.K.SANTHA, SMT.P.L.MARY TREASA. RESPONDENTS: ------------------------ 1. VENKAMMA, 2. SHIVARAMA GOWDA, 3. LINGAPPA GOWDA, THE IST RESPONDENT IS THE WIFE AND RESPONDENTS 2 AND 3 ARE THE CHILDREN OF LATE KORAGAPPA GOWDA RESIDING AT GOPPALADKA, P.O.SULLIA,JALSOOR, DAKSHINA KANNADA DISTRICT, KARNATAKA STATE. 4. GANGADHARA GOWDA. 5. MADHAVA GOWDA, RESPONDENTS 4 AND 5 ARE THE CHILDREN OF CHINNAPPA GOWDA, ARESIDING AT BANADAMOOLE OF DELAMPADY VILLAGE, P.O.PANJIKALLU, KASARAGOD TALUK AND DISTRICT. R1 TO R3 BY ADVS. MR.T.SETHUMADHAVAN, MR.PUSHPARAJAN KODOTH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.6924/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION DTD. 07/06/2008 FILED BY THE 1ST DEFENDANT. EXT.P.2: COPY OF THE COMMUNICATION BEARING NO. B1.1199/08 DTD. 12/11/08 ISSUED BY THE SPECIAL TAHSILDAR (CR), KASARGOD. EXT.P.3: COPY OF THE ORDER DTD. 18/10/2008 IN O.S. NO.90/2008 OF THE ADDITIONAL MUNSIFF'S COURT, KASARGOD. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------- W.P.(C).No.6924 OF 2009 -------------------------- Dated this the 12th day of October 2009 ------------------------------------- JUDGMENT The writ petition is filed seeking the following reliefs. i) Issue appropriate writ, direction or order setting aside Ext.P3. ii) Issue appropriate writ, direction or order directing the Munsiff Court, Kasargod to reconsider issue No.2 in O.S No.90/2008 afresh. iii) Issue such other writ, direction or order as may be prayed for, in the facts and circumstances of the case. 2. Petitioners are the defendants 1 and 2 in O.S No.90 of 2008 on the file of Munsiff Court, Kasargod. Suit is one for recovery of possession based on title, and the respondents 1 to 3 are the plaintiffs. The other respondents are codefendants W.P.(C).No.6924 OF 2009 Page numbers in the suit. Admittedly there was a previous suit between the parties instituted by the first petitioner and his father against the presebt plaintiffs for a decree of injunction. That suit was decreed and the decision thereof was confirmed up to second appeal leaving the question of title open. Pursuant to that decree in the previous suit, plaintiffs filed the present suit for recovery of possession. The predecessor of the plaintiffs and Chinnappa Gawda, the predecessor of the defendants, are brothers, and the plaintiffs claimed under their father right over the plaint property as per a partition deed entered between the brothers. The defendants resisting the claim contended that from 1951 onwards under a lease granted by his brother, predecessor of the plaintiffs, their father continued in enjoyment of the property, and in continuation of their father they are in occupation and enjoyment of the plaint property. They also claimed fixing of tenure over the land under the provisions of Land Reforms Act, W.P.(C).No.6924 OF 2009 Page numbers for determination of which they have moved an application before the Land Tribunal. In the issues cast in the suit on the basis of the pleadings of the parties strangely enough the learned Munsiff had cast an issue as to whether the defendants, the legal heirs of Chinnappa Gawda, are cultivating tenants of plaint 'A' schedule property. On an application moved by the plaintiffs, that issue was considered preliminarily. The learned Munsiff, after such consideration entered a conclusive finding that the defendants are not cultivating tenants, answering the issue in favour of the plaintiffs. 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 counsel on both sides. The learned Munsiff has not taken note of the interdiction under subsection (1) of Section 125 of W.P.(C).No.6924 OF 2009 Page numbers the Kerala Land Reforms Act that a Civil Court is incompetent to decide any issue which fall for consideration under the provisions of the Act by the authorities constituted thereunder. The question whether the defendants are cultivating tenants or not needless to point out is an issue which can be determined only by the authority constituted under the Land Reforms Act and not by the Civil court. If at all such an issue arises in a proceeding or suit the mandate under Section 125 (3) of the Land Reforms Act has to be scruplously followed and a reference has to be made to the authority under the Act for its determination. Any decision of the court below without making such a reference to that authority, it has been declared by this court in “Kesava Bhat v Subraya Bhat” (1979 KLT 766) is void. So much so, Ext.P3 order is patently erroneous and unsustainable under law and it is liable to be set aside. Of course, the court can go into the question whether the issue arises for consideration for reference to the Land W.P.(C).No.6924 OF 2009 Page numbers Tribunal, and once it is found that an issue to be decided by the authority under the Land Reforms Act arises it has to refer the matter staying the proceedings of suit, and await the finding of the authority. The order impugned is set aside and the court below is directed to delete issue No.2 and, then, decide whether any issue has to be raised on the pleadings of the parties on the claim of fixity of tenure of the defendants. If any such issue arises from the pleadings, it has to be referred to the Land Tribunal for its decision and staying the suit till the finding is given Complying with the mandate under Section 125(3) of the the Land Reforms Act. Writ petition is disposed with the above directions. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv