Judgment

Per D.P. Mohapatra, J.-

While making a reference to the Tribunal mandatory the legislature cannot be said to have intended that even a patently frivolous, malafide and illegal plea of tenancy taken by a party merely to delay the proceeding and to remain in possession of the property is also to be referred to the Tribunal. The statutory provisions, in our considered view, envisage a case where a bonafide and legally sustainable plea of tenancy is taken by the party, that question shall be referred to the Tribunal. (Para 20)

(ii) Kerala Land Reforms Act, 1963-Section 125(6) - Reference to Tribunal to decide question regarding status of a person as a tenant or kudikidappukaran-Building nature of findings of Tribunal-Trial Court (Court making reference) has to accept decision of Tribunal-Trial Court cannot record contrary finding on question of status of a person-Appellate Court is not precluded from going into correctness of findings of Tribunal.

From the statutory scheme of Section 125 it is clear that when a question regarding status of a person as a tenant or as a kudikidappukaran arises in any suit or proceeding before a civil Court that Court shall refer the matter to the Land Tribunal for a decision on that question only. On receipt of the decision of the Tribunal on the question the trial Court shall decide the suit or proceeding accepting the decision of the Tribunal on the question referred to it. In sub-section (6) of Section 125 a provision is made that the decision of the Land Tribunal on the question referred to it shall for the purposes of appeal be deemed to be a part of the finding of the civil court. It follows that while the trial Court is to accept the decision of the Tribunal and base its decision in the suit or proceeding on the same, no such constraint is placed on the appellate court while deciding the appeal arising from the suit or proceeding. Before the appellate court it is open to the parties to challenge the finding recorded by the trial court on the basis of the decision of the Tribunal, as any other finding. The Tribunal has been cerated as a special forum for adjudication on the question should be confined to one forum i.e. the Tribunal and the civil Court should not go into the very same question again after the decision of the Tribunal is received by it. (Para 20)

(iii) Kerala Lant Reforms Act, 1963 - Section 74 r/w Section 125-Bar for creation of tenancy-In suit for mandatory injunction defendant claimed to be a tenant-Tenancy claimed to be created in 1971-Civil court referred issue to be decided by Tribunal-Tribunal gave finding in favour of defendant-Trial Court did not accept findings of Tribunal, and held that alleged tenancy hit by provisions of Section 74-Held : Tribunal had no jurisdiction to record contrary findings-Decree of trial Court in favour of plaintiff land owner, however, court not be interfered with since in view of absolute statutory bar for creation of tenancy contained in Section 74 no Court can record a finding on the issue of tenancy created after the Act came into force. (Paras 21 to 23)

Result : Appeal dismissed.

Cases referred :

1. Keshava Bhat v. Subraya Bhat, 1979 Keala Law Times 766 : Approved. (Para 2)

2. Muhammad Haji v. Kunhunni Nair, 1993(1) Kerala Law Times 227 : Approved. (Para 2)

3. Sundaram v. Mohammed Koya, 1995(2) Kerala Law Times 115 : Approved. (Para 2)

4. Sankaranarayanan Potti (dead) by L.Rs. v. K. Sreedevi & Ors., 1998(3) SCC 751 : 1998(3) Supreme 320. (Para 4)

Counsel for the Parties :

For the Appellant : Dr. Jose P. Verghese, P.V. Dinesh, M.T. George, Advocates.

For the Respondent : T.L.V. Iyer, Sr. Advocate, Subramonium Prasad, Advocate.

IMPORTANT POINTS

1. Under Section 125(3) of the Kerala Land Reforms Act, if the Civil Court is of the opinion that there is not even a remote possibility of a defendant s plea of