The main legal point established in the judgment is that the civil court is bound to refer a disputed question of tenancy to the Land Tribunal for its decision under S.125(3) of the Kerala Land Reforms Act, but the plea of res judicata should be considered as a preliminary point concerning the jurisdiction of the court.

1. The short question that arises for decision in this revision is whether the civil court is bound to refer to the Land Tribunal a disputed question of tenancy, raised by one of the parties, where the opposite party resisted the claim for reference to the Land Tribunal, on the ground that the very same question had already been settled by a competent court having jurisdiction in earlier proceedings between the parties, and the plea, being barred by res judicata, did not arise in the subsequent suit.

2. The suit is one for recovery of seven items of properties on the strength of title. Defendants 1 and 2 set up a plea that they were tenants in respect of certain items of the suit properties, while the plaintiff contended that they were not tenants under him. It would appear that the 2nd defendant died during the pendency of the suit on 21-6-1972 and that the 4th defendant was impleaded as his sole legal representative. The counsel for the revision petitioner submitted that the disputed question of tenancy raised by the 2nd defendant was settled between the parties, a compromise evidencing the terms of the settlement having been filed. It is also submitted by the counsel that virtually the contest in the suit now is between the plaintiff on the one hand, and the 1st defendant on the other, as, on a petition filed by the plaintiff, it has already been recorded that the decree to be passed in the suit might be made subject to the reservation of the kudikidappu right claimed by defendants 7 to 13,16,17,19 and 21. Issue Nos. 16 and 20 in the suit read as follows.

"16. Whether the question regarding the kudikidappu right claimed by defendants 7 to 13, and 21 should be referred to the Land Tribunal?

20. Whether the claim of tenancy setup by defendants 1,3 and 5 is barred by resjudicata and if not whether the question has to be referred to the Land Tribunal for its decision?"

The finding dated 23-1-1976 entered by the learned Subordinate Judge on Issue Nos. 16 and 20 is as follows:

"...In the circumstances I am inclined to hold that it is proper that the question of tenancy raised by defendants 1, 3 and 5 also is referred to the Land Tribunal along with the plea of tenancy set up by defendants 2 and 4 and the kudikidappu right set up by the 17th defendant. The plea of res judicata can conveniently be considered along with the other issues. It is accordingly found that the question of tenancies set up by the defendants 1 to 5 and the kudikidappu rights set up by the 17th defendant should be referred to the Land Tribunal for its decision. It is made clear that the plea of resjudicata raised by the plaintiff will be considered along with the other issues,"

3. We have already noticed, from the submission made by the counsel for the revision petitioner, that the dispute between the plaintiff on the hand and the first defendant on the other alone survives for decision;

and in that sense, we are, in this revision, concerned only with the finding of the learned Subordinate judge on Issue No. 20.

4. There was previously a laud acquisition reference, L A. O. P. No. 21 of 1959, on the file of the Sub Court, Ottapalam. By Ext. A-1 judgment dated 7-4-1961 it was held in that reference that the 1st defendant was not having leasehold interest over items 1 to 5 as claimed by him. (He has not put forward any claim of leasehold interest over items 6 and 7) The plaintiff and the 1st defendant were parties to the proceedings leading to Ext. A-1 judgment. The finding that the 1st defendant had no leasehold interest under the plaintiff, entered in Ext. A-1 judgment, was confirmed as per Ext. A-2 judgment dated 5-4-1972 in A. S. No. 136 of 1961 on the file of the District Court, Palghat. The second appeal, S. A. 311 of 1963, filed against Exts. A-1 and A-2 judgments, was dismissed by a Division Bench of this Court on 25-1-'68 as per Ext A6 judgment.

5. The counsel for the 2nd respondent herein submitted that though the concurrent finding in Exts. A-1.