IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27612 of 2008(K)
1. MAMPILAI KUDUMBA DHARMADAIVSTHANAM TRUST
... Petitioner
2. MAMPILAI KUDUMBA DHARMADAIVSTHANAM TRUST
3. MAMPILAI KUDUMBA DHARMADAIVSTHANAM TRUST
Vs
1. DEVASSY, AGED ABOUT 75,
... Respondent
2. AUGUSTY, AGED 45, S/O. ESTAPPAN,
3. OUSEPH, AGED 50, S/O. ESTAPPAN,
4. JOSE, LATE DEVASSY,KALLARAKKAL, MANJAPRA
5. MARY, D/O. LATE DEVASSY,
6. AANI, D/O. LATE DEVASSY,
7. CHERICHIKUTTY, D/O. LATE DEVASSY,
8. BHAVANI AMMA, AGED 68,
9. OMANA, AGED 54, D/O. BHAVANI AMMA,
For Petitioner :SRI.GOVIND K.BHARATHAN (SR.)
For Respondent :SRI.PAUL K.VARGHESE
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/06/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.27612 of 2008
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Dated this the 21st day of June 2010
J U D G M E N T
Petitioners are plaintiffs in O.S.No.329 of 2003 of the
court of learned Munsiff, Aluva. Petitioner No.1 is
described as a Trust. Suit was for recovery of possession of
the property from respondents on the strength of their title.
Respondents raised a plea of tenancy and requested
learned Munsiff to refer the issue to Land Tribunal
concerned for a finding. In the mean time, respondents had
filed O.A.Nos.31 and 32 of 1976 claiming tenancy right, it is
not disputed, concerning the suit of property. Though
learned counsel for respondents have a contention that
petitioners were not parties to the said proceedings the
Land Tribunal accepting the report (of the authorized
officer) held that property in question is exempted from
tenancy under Sec.30 of Kerala Land Reforms Act (for short
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“the Act”). Accordingly, without conducting further enquiry
into the matter those applications were dismissed. Learned
Munsiff before whom a request for reference of the same
issue to the Land Tribunal was made, held that the question
does not “arise” for consideration and declined the request.
That order was challenged in this Court in W.P.(C) No.6632
of 2005. It was argued before this Court that O.A.Nos.31
and 32 of 1976 were not decided on merit but, were
dismissed for default and hence, decision in those
applications will not operate as resjudicata and hence,
learned Munsiff was not correct in declining to refer the
question which really arose for consideration to the Land
Tribunal. This Court held that the said contention cannot
be accepted and that in view of the decision in O.A.Nos.31
and 32 of 1976, “the issue does not very seriously arise for
decision”. But, this Court noted that the decision of Land
Tribunal was without conducting enquiry into the matter
and that the said fact cannot be lost sight of. Writ petition
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was disposed of refusing to interfere with the order
declining to refer the matter to the Land Tribunal but,
directing learned Munsiff to “formulate issue as to whether
the petitioners are having tenancy right over the property.
The above issue should be tried by the learned Munsiff as a
preliminary issue and the petitioners should be directed to
produce whatever evidence they have. Issue should be tried
by the learned Munsiff along with the other issues and
decision on that issue also be given. Since the suit is of the
year 2003, the learned Munsiff will special list the suit for
trial in the earliest available special list”. After the said
order was passed by this Court on 21.6.2007 learned
Munsiff formulated an issue regarding tenancy and
enquired into the matter. Respondents adduced evidence in
support of their claim of tenancy before the learned
Munsiff. Learned Munsiff as per the impugned order
stated that issue regarding tenancy genuinely arise for a
decision and accordingly referred the matter to the Land
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Tribunal for a decision. That order is under challenge in
this writ petition at the instance of plaintiffs. Learned
counsel for petitioners contended that the decision in
O.A.Nos.31 and 32 of 1976 would operate as resjudicata
and hence, issue regarding tenancy cannot genuinely arise
for a decision. Reliance is placed on a decision in
Govindan Gopalan v. Raman Gopalan (1978 KLT 315).
It is also the contention of learned counsel for petitioners
that so far as order dated 21.6.2007 of this Court stood,
learned Munsiff could not refer the matter to Land Tribunal
for a decision since learned Munsiff was bound by the said
decision. Learned counsel for respondents contended that
no question of resjudicata arose from the decision in
O.A.Nos.31 and 32 of 1976 in so far as those decisions are
not on merit and, without conducting any enquiry
whatsoever. It is also the contention of learned counsel that
as per the scheme of Sec.125 of the Kerala Land Reforms
Act, whenever any question required by that Act to be
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decided by the Land Tribunal arose, civil court ceases to
have jurisdiction in the matter and the civil court is bound
to refer the issue to Land Tribunal for a finding. According
to the learned counsel, purport of the decision of this Court
dated 21.6.2007 is that once learned Munsiff formulated an
issue regarding tenancy and on enquiry it is found that
issue regarding tenancy genuinely arose, learned Munsiff
has to comply with the statutory provision (Sec.125(3) of
the Act). It is pointed out by learned counsel that SM
proceedings are pending in the Land Tribunal concerning
the very same matter involving the petitioners also.
2. So far as the decision on O.A.Nos.31 and 32 of
1976 is concerned, this Court while disposing of W.P.(C)
No.6632 of 2005 held that contention of respondents that
the said orders are not based on any evidence cannot be
accepted. This Court also stated that in view of the said
orders, issue regarding tenancy does not “very seriously
arise for decision”. The Land Tribunal, so far as the
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decision in O.A.Nos.31 and 32 of 1976 stood, is bound by
the said orders and cannot ignore it or reach a different
conclusion. As such, respondents cannot now contend that
decision on O.A.Nos.31 and 32 of 1976 is inconsequential so
far as their claim of tenancy is concerned. So far as the
order of Land Tribunal in O.A.Nos.31 and 32 of 1976 stands,
a reference to the Land Tribunal is also futile as the Land
Tribunal could not go beyond its earlier orders [see
Krishnamma v. Nageswari Amma (1984 KLT 810)]. So
far as the order dated 21.6.2007 stands, parties are bound
by the said order and hence, respondents cannot ignore the
decision in O.A.Nos.31 and 32 of 1976 on the ground that it
is disposed of without evidence. Which itself is not correct
as the Land Tribunal has relied on the report of the
authorized officer.
3. Then the question is whether learned Munsiff was
correct in referring the matter to Land Tribunal after
recording evidence. It is clear from the wordings of the
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order dated 21.6.2007 of this Court in W.P.(C) No.6632 of
2005 that issue regarding tenancy was also directed to be
tried by the learned Munsiff. It is evident from the direction
that learned Munsiff had to record evidence produced by
the respondents as to the plea of tenancy and that learned
Munsiff had to decide that issue also along with other
issues. As such, learned Munsiff was bound by the said
order, so far as it stood. In view of the said order, I am
unable to accept the contention that learned Munsiff was
justified in referring the matter to the Land Tribunal. It
follows that learned Munsiff is bound by the decision of this
Court dated 21.6.2007. I make it clear that so far as that
order stand, learned Munsiff has to follow the direction
contained therein.
Resultantly, this writ petition is allowed. Order
under challenge referring the issue regarding tenancy to
the Land Tribunal is set aside. Learned Munsiff shall decide
the issue in accordance with direction contained in the
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order of this Court dated 21.6.2007. Learned Munsiff shall
decide the issue on the strength of evidence untrammelled
by any observation contained in this order as to the
acceptability of the contention of the respondents.
THOMAS P. JOSEPH, JUDGE.
Jvt