IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 WP(C).No. 3299 of 2009(P) OS.310/2004 OF MUNSIFF'S COURT, KAYAMKULAM PETITIONERS: DEFENDANTS 1 & 2: --------------- 1. M.VIJAYALEKSHMI AMMA,ILLIKKULATH, CHERAVALLI MURI, KAYAMKULAM VILLAGE. 2. VIJAYAMOHANAN (ERRONEOUSLY STATED AS VIJAYAKUMAR IN THE IMPUGNED ORDER), ILLIKKULATH, CHERAVALLI MURI,KAYAMKULAM VILLAGE. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.SURYA SASI RESPONDENT: PLAINTIFF: --------------- V.G.ARAVINDAKSHAN, VETTATHETHU, CHERAVALLY MURI, KAYAMKULAM VILLAGE. ADV. SRI.ROY CHACKO THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 3299 OF 2009 P ------------------------------------------------------ Dated this the 6th March, 2009 JUDGMENT The writ petitioners are defendants 1 and 2 in O.S.No.310 of 2004, on the file of the Court of the Munsiff of Kayamkulam. The suit was filed by the respondent for recovery of possession of the plaint schedule property after demolishing the shed in the property. The writ petitioners filed written statement and contended that they are entitled to the protection of Section 106 of the Kerala Land Reforms Act. They also raised a contention that in view of the earlier litigations, the present suit is barred by res judicata. 2. The court below raised an issue regarding res judicata, but did not raise an issue as to whether the writ petitioners are entitled to the protection under Section 106 of the Kerala Land Reforms Act. 3. The petitioners filed I.A.No.126 of 2009, praying for raising additional issues touching upon the plea of res judicata and the plea of protection under Section 106 of the Kerala Land Reforms Act. The court below held that the issue regarding res judicata has already been raised and, therefore, that question does not arise. As regards the defence W.P.(C) NO.3299 OF 2009 :: 2 :: raised under Section 106 of the Kerala Land Reforms Act, the court below considered the case on the merits on the basis of the documentary evidence available in the case and held that the petitioners have not made out the ingredients of Section 106 of the Kerala Land Reforms Act. On that finding, the court below rejected the prayer made by the petitioners to raise an additional issue as to whether the defendants are entitled to the protection of Section 106 of the Kerala Land Reforms Act. \ 4. The contention of the petitioners is that in the written statement, the defence under Section 106 of the Kerala Land Reforms Act was specifically raised. The grievance of the petitioners is that the court below has arrived at a conclusion that the petitioners are not entitled to the protection of Section 106 of the Kerala Land Reforms Act at the stage when the question of raising an additional issue was raised. The finding should be arrived at, according to the petitioners, only after the trial of the suit. 5. A counter affidavit is filed by the respondent in this Writ Petition. In the counter affidavit it is stated thus: “... The matter can certainly be decided by the civil court after framing necessary issue. However as the plea has been belatedly taken by the petitioners, this Hon'ble Court may allow the plea to be raised only on appropriate terms as this Hon'ble Court may deem fit to impose. W.P.(C) NO.3299 OF 2009 :: 3 :: Therefore, it is respectfully prayed that this Hon'ble Court may be pleased to dispose of the writ petition by issuing necessary direction to the court below to raise the issue and to pass necessary orders on the same in accordance with law and in the light of the judgment of the Hon'ble Division Bench in Govinda Panicker's case. The petitioner shall not be allowed to further raise a contention that the issue has to be referred to the Land Tribunal. The trial of the suit therefore need not be held up and protracted. The case had already come up in the special list on 14.1.2009 and it is only due to the pendency of the writ petition that the trial has been adjourned.” 6. I am of the view that the court below was not justified in arriving at a finding on the question whether the writ petitioners are entitled to the protection of Section 106 of the Kerala Land Reforms Act. The prayer made by the petitioners before the court below was only that an additional issue should be raised. On the basis of the pleadings in the case, an issue as to the availability of the protection of Section 106 of the Kerala Land Reforms Act should have been raised. Having not raised such an issue, the writ petitioners were justified in praying for raising that issue as an additional issue. The court below was not justified in rejecting that prayer. 7. At the same time, as pointed out by the learned counsel for the respondent, a Division Bench of this Court in Govinda Panicker v. Sreedhara Warrier 2000 (2) KLT 43 has held that the question whether a party is entitled to protection of Section 106 of the Kerala Land Reforms W.P.(C) NO.3299 OF 2009 :: 4 :: Act need not be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, since such a question is not one which comes under Section 125(3). Therefore, the apprehension of the respondent that a contention would be raised by the petitioners for a reference to the Land Tribunal, is to be taken care of. Therefore, the court below need not refer the question under Section 106 of the Kerala Land Reforms Act to the Land Tribunal in view of the Division Bench decision in Govinda Panicker's case. The court below shall raise the appropriate additional issues. After raising the additional issues, the court below shall expedite the trial of the suit. The Writ Petition is allowed as indicated above and the order impugned is set aside to that extent. (K.T.SANKARAN) Judge ahz/