Order

Leave granted.

This appeal is moved by the original defendants. In the suit of respondents an issue about defendants’ tenancy is not referred to the Lands Tribunal for consideration under Section 125 of the Kerala Land Reforms Act, 1864 by the High Court. The relevant issue No. 6 reads as under :

“Issue No. 6: Whether the defendants Nos. 1, 3 and 4 are entitled to fixity of tenure?’’

2. Relevant provisions of Section 125 of the Kerala Land Reforms Act are extracted as under :

“Bar of jurisdiction of Civil Courts. -(1) No Civil Court shall have jurisdiction to settle decide or deal with any question or to deter­mine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government:

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(3) If in any suit or other proceeding any question regarding tenant of Kudikidappuparn (including a question as to whether the person is a tenant or a Kudikidappukara) arises, the Civil Court shall stay the suit or other proceedings and refer such question to the land tribunal having jurisdiction over the area in which the land or part thereof is situate, together with the relevant records for the decision of that question only.”

3. We have heard learned counsel for the parties. Mr. P.S. Poti, learned senior counsel for the respondents invited our attention to a decision of a Full Bench of five learned Judges of the Kerala High Court in the case of Kesava Bhat v. Subraya Bhat1 wherein the Full Bench of five learned Judges overruled the earlier view of a Full Bench of three learned Judges and held that as in a suit for injunction only question of possession was relevant. An issue of tenancy put forward by the defendant in his written statement cannot be said to have been covered expressly by Section 125(1) and (3) of the Kerala Land Reforms Act, 1964.

4. Learned counsel for the appellants on the other hand submitted that the facts of the present case are squarely covered by a judgment of this Court in the case of Mathevan Padmanabhan alias Ponnan (Dead) through LRs. v. Parmeshwaran Thampi & Ors.2. Learned senior counsel for the respondents has placed before us the relevant pleadings. The plaintiffs in para 6 of the plaint have averred as under :

“Though the aforesaid Kelan had executed a registered Kanankuzhi­kanam document in favour of Kuzhikandiyil Cheeru and her children Chathu and Mathu on 27.1.1923 in respect of the property measuring E.W. 40 S.N. 30 Koles including property described in para 2 above which is the property described in the schedule hereunder, Kelan had not handed over the lease deed to them and possession of the property was not given to Cheeru and 2 others. Cheeru and 2 others had not registered any marupat and given to Kelan following the lease deed. The aforesaid Kuzhikanam document was only a sham document and not acted upon. The property described in the schedule hereunder never taken possession of by the above mentioned Cheeru, Chatu and Mathu or their legal repre­sentatives or the defendants and there was no occasion for that. The plaintiffs are in joint possession and enjoyment of the property mentioned in the schedule hereunder as co-owners in exlcusive posses­sion. On and after 27.1.1923 the date of the Kuzhikanam document the property mentioned in the schedule hereunder was in the exclusive possession and enjoyment of Kelan till his death, thereafter Krishnan till his death, in the possession enjoyment of the legal heirs of Krishnan till the above mentioned partition decree, subsequently in the possession and enjoyment of Lakshmanan the father of the plain­tiffs till the date of execution of the settlement deed and from the date of the settlement deed the plaintiffs as their own property with the knowledge of all without any objection continuously for more than 12 years. If the above mentioned Cheeru, Chathu and Mathu