JUDGMENT :

This is an Original Petition filed under Article 227 of the Constitution of India by the petitioners, who are the defendants in O.S.No.227/2018 pending before the Principal Sub Court, Trichur. The petitioners assail the order in I.A.No.10/2021 dated 22.10.2021.

2. Heard both sides, in detail.

3. The respondents herein are the plaintiffs in the above Suit. The petitioners filed I.A.No.10/2021 claiming that the petitioners, being the legal-heirs of one Zachariah, got tenancy right in respect of 29 cent (15 cent and 14 cent), out of the total extent of the plaint schedule property. Thus a reference under Section 125(3) of the Land Reforms Act was sought for, so as to adjudicate the said claim by the Land Tribunal. The contentions raised by the petitioners as extracted in the impugned order are as under:

“According to them the properties having an extent of 15 cents and 14 cents were taken on lease by their predecessor one Zachariah from his father Sri.P.P.Varkey on 01.01.1964. Thereafter, he is in absolute possession and enjoyment of the said property and had constructed a building in the 14 cents of property and he is entitled to get tenancy right over the same. The plaintiff has suppressed the said fact and filed this suit. This court has also framed issues regarding the same as issue Nos.1 and 2. Except the 29 cents of property leased out to the husband of the 1st defendant the rests of the properties were in the joint possession and ownership of the 1st defendant's husband and his brothers. Only from the plaint the defendants have come to know that with respect to the aforesaid property a patta has been obtained by Sri.P.P.Varkey. The said Varkey was not in a possession of the said property. The aforesaid 29 cents are not partible. Hence in order to determine the tenancy right of the husband of the 1st defendant the matter has to be referred to the Land Tribunal.”

4. The plaintiffs disputed the said claim. The learned Munsiff, after appraising the relevant conentions and after relying on decisions of this Court reported in [1979 KLT 766], E.Keshava Bhat v. Subraya Bhat; [1995 (2) KLT 115], Sundaran v. Mohammed Koya and also referring one decision reported in [2020 (5) KLT 384], NSS Karayogam No.1300, Mundapally v. State of Kerala, negatived the contention. The relevant observation of the learned Munsiff while disallowing the petition can be had from para.8 of the impugned order. The same is extracted hereunder:

“8. In this matter on going through patta issued to the predecessor of the parties produced as document No.1 in the plaint it can be seen that the same is issued under the Kerala Government Land assignment Act and rules and not under the Land Reforms Act. Hence it can be seen that it was a government land which was assigned to the predecessor of the parties on conditions. S.3 of the Kerala land Reforms Act exempts lands belonging to or vested in the Government from the operation of the tenancy provisions of the Act. S.74 prohibits creation of tenancies on and from the 1st of April, 1964 and any tenancy created in contravention of that provision shall be invalid. In this case the property belonged to the government till it was assigned to the predecessor of the parties in the year 1975. In the year 1975 the land became vested in the presdecessor and till that time it was with the government. From S.3 of the Act it is clear that no tenancy right can be claimed over the government land. Hence as on the date of alleged tenancy the predecessor was not the owner of the property and the same was vested with the government. The defendant had not pleaded how Sri.P.P.Varkey obtained right over the said property. As the matter stands at present it can be seen that patta issued by the Government under the Kerala Government Land assignment Act is in existence and no steps are seen taken to set aside the same. In such circumstances it is not possible to hold that the defendants will get tenancy right over the property as on the