Gopalan Nambiyar C. J.:-These two cases were heard together as they raised certain questions in regard to the scope of S.125(3) of the Kerala Land Reforms Act. The questions raised which have occasioned the reference will be dealt with in the course of our discussion.

A. S. A. No.1 of 1977

The appeal is by the defendant in O. S. No. 16 of 1972, Munsiff's Court, Kasaragod, a suit for a permanent injunction to restrain the appellant from trespassing on the plaintiff-respondent's property and from interfering with the plaintiff's possession. The plaint proceeded on the basis that the appellant was the plaintiff's agent and had no independent possession. Ext. Al in the suit evidenced the contract claimed to be one of agency. The appellant's defence was that he was a tenant The suit was filed on 19-1-1972, i. e. after the amendment of the Kerala Land Reforms Act I of 1964 by Act 35 of 1969. The appellant applied for purchase of the landlord's rights under S.72-B of the Act on the ground that he was a tenant. 1ssues 1 and 4 in the suit were as follows:

"1. Whether the plaintiff was in possession of the suit properties on the date of the plaint? 4. Whether the court has got jurisdiction to try the suit?

I.A. No. 463 of 1972 was filed by the appellant for reference of the question of tenancy for determination by the Land Tribunal under S.125(3) of the Land Reforms Act which requires that whenever in any suit or proceeding any question regarding the rights of a tenant arises, such question shall be referred to the Land Tribunal. The application was rejected on the ground that the suit was one for injunction and that the question whether the appellant was a tenant or not did not "arise" for consideration. Thereafter the suit was tried on the merits. On issue 1, the plaintiff's possession was found; the appellant was found only to be an agent and the suit was decreed with costs. On issue No. 4, it was held in paragraph 25 that in view of the order on I. A. No. 463 of 1972, the issue did not "arise" for consideration. On appeal, although the appellant pointedly raised the ground in the memorandum of appeal that the question of tenancy should have been referred for determination to the Land Tribunal, the same does not seem to have been urged before the lower appellate court, and is not seen dealt with in the judgment. The appeal was dismissed affirming the finding that the appellant is not a tenant. In second appeal to this Court, the contention was strongly urged by the appellant that as the question of tenancy raised by him was not referred for determination to the Land Tribunal under S.125 (3) of the Act, the decree passed by the trial court was wholly without jurisdiction. The learned judge held that as the plea in this form had not been specifically raised or pursued in the lower appellate court, it cannot be permitted to be raised in second appeal. Proceeding to deal with the matter on the merits, the learned judge affirmed the decree of the lower appellate court and dismissed the second appeal, holding that the plaintiff was in possession on the date of filing the suit and that the appellant was only an agent.

2. The point urged by counsel for the appellant is that quite irrespective of whether the suit was for an injunction or not, once the plea of tenancy had been raised by the defendant, the Court was bound to refer the question for determination to the Land Tribunal under S.125(3). Trial of the suit without such reference, and the decree passed therein, were said to be without jurisdiction and a nullity. A three Judge Full Bench of this Court in Alavi v. RadhaVaraysaramma (1976 KLT. 691) had taken the view that a decree passed in violation of S.125(3) of the Act and without reference of the question of tenancy to the Land Tribunal as required by the said Section, was not without jurisdiction, but was only a case of procedural irregularity. Counsel for the respondent canvassed the correctness of this proposition. The corr