The main legal point established is that in proceedings under O.21 R.101 of the Code, the civil court has jurisdiction to decide questions regarding right, title, or interest in the property, and R.101 of 0.21 of the Code overrides the exclusion of jurisdiction as provided in S.125(3) of the Kerala Land Reforms Act.

1. Pursuant to a decree for specific performance of contract, a document of conveyance was executed in favour of the decree-holder through court. The decree-holder applied for delivery of possession of the property on the strength of the said instrument. When Amin went to the property to effect delivery the present appellant offered resistance and obstructed delivery, contending that he is kudikidappukaran of the building situated in the property. The decree-holder filed as application for removal of obstruction, under 0.21 R.97 of the Code of Civil Procedure (for short the Code). The execution court allowed the application holding that "no application under 0.21 R.97 would lie at the instance of an obstructor in anticipation of his dispossession in execution of a decree to which he is not a party". The lower appellate court, though differed from the reasoning of the execution court, dismissed the appeal holding that the question of kudikidappu does not arise for consideration and that the appellant has not proved that he has any right, title or interest in the property. It was also found that "the appellant is set up by the 6th defendant for the purpose of delaying the execution".

2. Both sides agreed that the reasoning of the execution court is unsupportable in law. Evidently the ratio in Prabhakaran v. Prakashan (1985 KLT. 225) was misapplied by the execution court. This is not a case where the obstructor has filed an application for adjudication of his right to possession under a right or title. The application is under O.21 Rule 97(1), complaining of resistance or obstruction caused by the appellant. Hence there is no question of any anticipatory application against dispossession. But the lower appellate court held that the obstruction was occasioned without any valid ground. That finding is challenged in this appeal.

3. Learned counsel for the appellant contended that the lower appellate court ought to have directed the execution court to refer the claim of kudikidappu (raised by the appellant) to the Land Tribunal, as provided in S.125 (3) of the Kerala Land Reforms Act ('KLR. Act' for short). On 6-3-1987 the decree-holder filed the application under 0.21 R.97 (I) of the Code. On 9-11-87, counsel for the appellant reported that be has no evidence. On 7-1-1988 the decree-holder filed an application for permitting him to cross-examine the obstructor. Though that was allowed, the obstructor was not cross-examined, presumably because the obstructor did not want to adduce any evidence on his part. Learned counsel for the appellant sought to justify the aforesaid stand by contending that the execution court should have referred the matter to the Land Tribunal for determining the question of kudikidappu raised by the appellant. The decision of a Bench of five judges of this Court in Kesava Bhat v. Subraya Bhai (1976 KLT 766) was cited in support of this contention that contravention of the provisions of S.125 (3) is a matter of jurisdiction and not merely one relating to procedure.

4. S.125 (1) of the KLR Act takes away the jurisdiction of the civil court to decide any question which is to be decided by the Land Tribunal. Sub-section (3) provides the procedure for making reference of such question to the Land Tribunal. If in any suit or other proceeding any question regarding the rights of a tenant or a kudikidappukaran, including the question as to whether be is a tenant or kudikidappukaran, arises the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal. The jurisdiction of the civil court is taken away to decide such questions. Can it be held that civil court regains jurisdiction to decide such questions under any special circumstances. The provision contained in R.101 of 0.21 of the Code is to be scrutinised in this context and background. R.101. as it now stands after amendment by CPC. (Amendment) Act 104 of 1976 reads thus:

"101. Question to be determined. All questions