IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 3172 of 2009(C) ------------------------------------------ IA.2332/2008 IN OS.273/2004 of PRL.M.C.-II, KOZHIKODE .................... PETITIONER: MAMIYIL CHINNAN, S/O. VELAYUDHAN, RESIDING AT CHATHOTHARA HOUSE, OLAVANNA, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS: 1. C.SIVADASAN NAMBOODIRI, S/O. RAMAN NAMBOODIRI, RESIDING AT CHERUPLERI ILLAM, OLAVANNA, KOZHIKODE. 2. E.K. DEVAKI ANTHARAJANAM, D/O. RAMAN NAMBOODIRI, RESIDING AT EDAKKUTYPURATHE MULLAPALLI ILLAM, AZHINILAM, KOZHIKODE. 3. MAMIYIL KRISHNANKUTTY, RESIDING AT CHATHOTHARA HOUSE, OLAVANNA, KOZHIKODE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.3172 of 2009 C -------------------------- JUDGMENT The question that is urged before me is as to whether the trial court can refuse to refer the case to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, when contention regarding tenancy right is set up in the written statement filed in a suit for recovery of possession of immovable property on the strength of title without the defendants producing documents to substantiate tenancy right claimed and to discredit the case of the plaintiffs. 2. Petitioner is the first defendant in O.S.No. 273/04 on the file of the Munsiff's Court, Kozhikode. It is submitted that the suit is one filed by respondents 1 and 2 as plaintiffs for recovery of possession of the scheduled property from the defendants. 3. Counsel for the petitioner submits that defendants have filed written statement resisting the suit contending that they are tenants in WPC 3172/09 2 possession of the scheduled property from 1957 onwards on oral lease granted by the predecessor in interest of the plaintiffs and that they are entitled to fixity of tenure. He further submits that two applications were filed by the defendants in the court below, one as I.A.No.2589/08 on 8.7.2008 and another as I.A.No.2332/08 on 5.7.2008. I.A.No.2332/08 is an application for making a reference of the suit under Section 125(3) of the Kerala Land Reforms Act to the Land Tribunal for finding on the question of tenancy and I.A.No. 2589/08 was one for framing an issue regarding tenancy as contended by the defendants, as the court below did not raise an issue regarding tenancy right claimed, despite the contention advanced in the written statement claiming right of tenancy and fixity of tenure. The court below, however, by Exhibit P7 order rejected the request for reference of the case to the Land Tribunal observing that the court is not obliged to make a reference to the Land Tribunal merely because the WPC 3172/09 3 defendants have raised a contention that they have tenancy right in respect of the scheduled property when no documents were produced in support of their contentions and to discredit the case of the plaintiffs and further that petition has been filed at the fag end merely to delay the proceedings. Counsel for the petitioner/first defendant complains that I.A.No.2589/08 was dismissed subsequent to the dismissal of I.A.No.2332/08 as per the impugned order for the reason that I.A.No. 2332/08 was dismissed. 4. First of all, it is for the court below to frame necessary issues arising for trial on the pleadings of the parties. The question as to whether any particular issue does not actually arise for consideration under any circumstance urged is a matter to be decided by the court below after the issues arising on the pleadings are framed. It may be that an issue which arises on the pleadings may be one which do not actually arise for consideration, as that may be an issue that has WPC 3172/09 4 already been settled by adjudication made in some earlier proceedings, in which case, it can be said that a particular issue in relation thereto does not arise for consideration. In the instant case, the court, even if it had not raised any issue on the tenancy right contended in the written statement, should have raised an issue at least when it was so pointed out by the defendants filing I.A.No.2589/08 and considered as to whether such an issue does actually arise for consideration. If the court below is able to hold, on the materials available, that tenancy issue does not arise for consideration, it can enter a finding to that effect and close the matter as regards that issue. But, if it is otherwise, the court below has no alternative, but to make a reference under Section 125(3) of the Kerala Land Reforms Act in relation to the tenancy issue for consideration by the Land Tribunal. While rejecting the application for reference, the court below has also observed that no documents are produced to substantiate that WPC 3172/09 5 contention. The contention need not be substantiated before the civil court, as the defendants need substantiate their contentions only before the Land Tribunal competent to adjudicate the tenancy issue. But, all the same, it would be worthwhile for the defence when they set up tenancy right to produce relevant documents before the civil court for the reason that it would enable the court to consider as to whether the question of tenancy does actually arise for consideration and also for the reason that documents produced in the court will be duly indexed and there will be evidence of the documents having been produced in court, whereas, experience shows that documents produced before the Land Tribunal are later found to be missing and the appellate authority or the court dealing with the appeal will not be able to consider the documents, which were considered by the Land Tribunal for entering into a finding. 5. In the result, I set aside Exhibit P7 order passed by the court below and remit the matter back WPC 3172/09 6 to the court below for consideration afresh in the light of the observations made above, after raising necessary issue regarding tenancy, if it does arise on the pleadings. The defendants may also produce necessary documents, if any available, in support of the tenancy right claimed in the court below even before consideration of the question as to whether a reference has to be made to the Land Tribunal, without asserting the stand that it need be produced only before the Land Tribunal. The writ petition is disposed of with the above directions. Petitioner shall produce a copy of this judgment in the court below with notice to the counsel for respondents 1 and 2/plaintiffs, as this writ petition is being disposed of without notice to them. Issue copy of this judgment to the counsel for the petitioner urgently. 30th January, 2009 (K.P.Balachandran, Judge) tkv