The certificates of purchase obtained by tenants under the Kerala Land Reforms Act are not conclusive proof of tenancy if the procedure established by law was not followed.

This petition by the defendant No. Inj O.S. No. 173/88 pending in the court of the learned subordinate judge, Palakkad is against the order dated 7-1-1991, on the petitioner's I.A.No.3237/90, whereby the learned subordinate judge held that the question whether Ammukutty Rawther, the father of the plaintiff No.2 was a tenant did not arise in the suit. Therefore, he rejected the aforesaid application in which the petitioner had prayed that the question of tenancy be referred to the Land Tribunal under 8.125(3) of the Kerala Land Reforms Act.

2. Sulekha Umma, the respondent No.l is the plaintiff No. 1. She is the sister of the petitioner/ defendant No.l. The respondent No.2, the husband of respondent No.l is the plaintiff No.2. The respondent No.3 who is a brother of respondent No.2, is the defendant No.2. In this judgment the parties are referred to with reference to their nomenclatures in the suit.

3. Briefly stated facts are these:

In a partition evidenced by deed No.1986/1951, the plaintiff No.1, the defendant No.1 and their mother, since deceased, each received 1/3 share of the lands. Upon the death of the mother in 1970, her 1/3 share devolved upon the plaintiff No.l and defendant No.l. Therefore, the plaintiff filed this suit for partition of her mother's property. She claims division between her and defendant No.l in the ratio 1:2. In his written statement the defendant No.l made a counter claim and urged that there is slime more property in the possession of the plaintiff No.l which should also be partitioned. In reply to the counter claim, the plaintiff No.l contended as under:

i) the property claimed in the counter claim belonged to the father of the Plaintiff No.2, Ammukutty Rawther, who held the property as tenant.

ii) The tenancy was created by the defendant No.l as the intermediary of the Jenmi Meenakshy.

iii) It was the defendant No.l who passed receipts for rent in favour of Ammukutty Rawther.

iv) Later the Jenmi herself accepted Ammukutty Rawther as her tenant.

v) Upon the death of Ammukutty Rawther, the property which is the subject matter of the counterclaim was partitioned between plaintiff No.2 and his brother defendant No.2. Eventually, plaintiff No.2 and defendant No.2 were declared owners under the Kerala Land Reforms Act. They hold purchase certificates O.A.2108/1975 and 2109/1975 from the Land Tribunal No.III, Alathur.

The defendant No.l alleged to be the intermediary was not a party to the proceedings in which purchase certificates were granted.

In the meanwhile, the Jenmi Meenakshy Amma filed O.S.No.155/69 for recovery of rent. The defendant No.l was a party to the suit. It is alleged that he admitted that Kammukutty Rawther was the tenant. However, the judgment and pleadings in O.S.No.155/69 in which the defendant No.l is supposed to have admitted the tenancy were not produced in the trial court.

4. The learned Principal Subordinate Judge, Palakkad, held that the question of tenancy of Kammukutty Rawther did not arise. His decision is based on two reasons:

a) in O.S. No.155/69 the defendant No.l had admitted the tenancy of Ammukutty Rawther.

b) the purchase certificate implied a conclusive finding that Kammukutty Rawther was the tenant. Therefore he dismissed the application.

5. Since the question of tenancy has been raised in the counter-claim, I will consider whether the counter-claim is "a suit or proceeding' within the meaning of 8.125(3) of the Act. The petitioner is not the owner of the land whose tenancy is in question. He is an intermediary. The question of tenancy of Ammukutty does not arise on the plaint„ for, the plaintiffs did not rely upon, the interests of the plaintiff No.2 and defendant No.2 as tenants. It is in answer to the counter claim, that ammukutty' s tenancy and the ownership of plaintiff No.2 and defendant No.2 based on succession to such tenancy, was set up by the plaintiff. In order to attract S.125(3) the question of tenancy must arise "in any suit or other proceeding". In o