ORDER Leave granted. This appeal is moved by the original defendants. In the suit of respondents an issue about defendants’ tenancy is not referred to the Lands Tribunal for consideration under Section 125 of the Kerala Land Reforms Act, 1964 by the High Court. The relevant issue No.6 reads as under : "Issue No. 6 :Whether the defendants Nos. 1, 3 and 4 are entitled to fixity of tenure? Relevant provisions of Section 125 of the Kerala Land Reforms Act are extracted as under : "Bar of jurisdiction of civil courts. - (1)
No civil court shall have jurisdiction to settle
decide or deal with any question or to determine
any matter which is by or under this Act required
to be settled, decided or dealt with or to be
determined by the Land Tribunal or the appellate
authority or the Land Board or the Taluk Land
Board or the Government or an officer of the
Government :
(3)If in any suit or other proceeding any
question regarding tenant of Kudikidappuparn
(including a question as to whether the person is
a tenant or a Kudikidappukara) arises, the civil
court shall stay the suit or other proceedings and
refer such question to the land tribunal having
jurisdiction over the area in which the land or
part thereof is situate, together with the
relevant records for the decisionof that question
only." We have heard learned counsel for the parties. Mr. P.S.Poti, learned senior counsel for the respondents invited our attention to a decision of a Full Bench of five learned Judges of the Kerala High Court in the case of Kesava Bhat V. Subraya Bhat 1979 KLT 766 wherein the Full Bench of five learned Judges overruled the earlier view of a Full Bench of five learned Judges overruled the earlier view of a Full Bench of three learned Judges and held that as in a suit for injunction only question of possession was relevant. An issue of tenancy put forward by the defendant in his written statement cannot be said to have been covered expressly by Section 125(1) and (3) of the Kerala Land Reforms Act, 1964. Learned counsel for the appellants on the other hand submitted that the facts of the present case are squarely covered by a judgment of this Court in the case of Mathevan Pacmanadhan alias Ponnan (Dead) through L.Rs. V. Parmeshwaran Thampi & Ors. [(1995) Supp. 1. SCC 479]. Learned senior counsel for the respondents has placed before us the relevant pleadings. The plaintiffs in para 6 of the plaint have averred as under :
"Though the aforesaid Kelan had executed a
registered Kanankuzhikanam document in favour of
Kuzhikandiyil Cheeru and her children Chathu and
Mathu on 27-1-1923 in respect of the property
meansuring E.W.40 S.N.30 Koles including property
described in para 2 above which is the property
described in the schedule hereunder. Kelan had
not handed over the lease deed to them and
possession of the property was not given to Cheeru
and 2 others. Cheeru and 2 others had not
registered any marupat and given to Kelan
following the lease deed. The aforesaid
Kuzhikanam document was only a sham document and
not acted upon. The property described in the
schedule hereunder never taken possession of by
the above mentioned Cheeru, Chatu and Mathun or
their legal representatives or the defendants and
there was no occasion for that. The plaintiffs
are in joint possession and enjoyment of the
property mentioned in the schedule hereunder as
co-owners in exclusive possession. On and after
27.01.1923 the date of the Kuzhikanam document the
property mentioned in the schedule hereunder was
in the exclusive possession and enjoyment of Kelan
till his death, thereafter Krishnan till his
death, in the possession enjoyment of the legal
heirs of Krishnan till the above mentioned
partition decree, subsequently in the possession
and enjoyment of Lakshmanan the father of the
plaintiffs till the date of execution of the
settlement deed and from the date of the
settlement deed the plaintiffs as their own
property with the knowledge of all without any
objection continuously for more than 12 years. If
the above mentioned Cheeru, Chathu and Mathu or
their heirs or the defendants have any right over
the property mentioned in the schedule hereunder,
it is lost by adverse possession and limitation.
For the aforesaid reasons it is prayed that there
may be declaration that the plaintiffs are in
exclusive possession and enjoyment of the property
as co-owners." Learned senior counsel for the defendant-appellant on the other hand invited our attention to paras 6 and 7 of the written statement which read as under :
"6.The suit is for declaration of right and
title over the plaint schedule property to the
plaintiffs. These defendants claim tenancy under
the predecessor-in-interest and now under
plaintiffs. These defendants are entitled to get
fixity of tenure. The plaintiffs have no right to
dispute the tenancy. Since the question of title
and tenancy is involved, the Civil Court out
jurisdiction under Section 125(1) of KLR Act and so
the suit is liable to be stayed under Section 125(3)
of KLR Act and refer the matter to the concerned
Land Tribunal for a finding on the tenancy claimed
by these defendants.
7.The allegation that the lease deed dated
27.1.1923 is a share/documents and there is no valid
lease etc., are all absolutely false and all such
allegations are hereby denied. The allegation that
there is no "marupat" and due to that the lease is
invalid lease. The allegation that Krishnan was in
possession etc., are all totally false and all such
allegations are hereby denied. Krishnan or his son
Ladshmanan were never in possession of the plaint
marginal property. The revenue receipts produced
along with the suit does not pertain to the plaint
schedule property and 1986 assignment in favour of
Mathu is created by plaintiffs and others in order
to defeat these defendants." In our view, on these pleadings an issue would squarely arise whether the original lease dated 27th January 1923 was ever acted upon or not and whether pursuant to the said lease the defendants are in possession and continued as such in possession as tenants. This question is squarely covered by Section 125 of the Kerala Land Reforms Act. We may mention that the Full Bench judgment of five learned Judges in the case of Kesava Bhat (supra) was dealing with a case where the plaintiff had averred that the defendant is an agent and only the plaintiff’s possession was being tried to be disturbed by such an agent while the defendant’s plea was that he was a tenant. On the peculiar pleadings of that case it was found that an issue of tenancy did not arise. It is obvious that in such a case without getting decided the status of tenancy, injection suit could be decided on the question of possession on the date of the suit. Such being not the pleadings and issues arising in the present case they, in our view, are squarely covered by the decision of this Court in the case of Mathevan Padmanabhan (supra). It has been observed therein that the respondents in that case had laid the suit before the Principal subordinate Judge, Trivandrum for possession on the ground that the appellant had surrendered his tenancy rights and thereafter trespassed into the land thereby he was in illegal possession. It was the case of the appellant-defendant that he never surrendered the land and he continued to be the tenant and that, therefore, the respondents were not entitled to the possession of the land. This Court took the view that in such a case the issue of tenancy would arise under Section 125 of the Kerala Land Reforms Act and the Civil Court will have no jurisdiction to decide the said dispute of tenancy by itself.
Under these circumstances, it is not necessary for us to examine whether the question about reference of tenancy issue was rightly decided by the Full Bench of five learned Judges of the Kerala High Court or not on the facts of that case or whether this Full Bench judgment is impliedly over-ruled by the decision of this Court in the case of Mathevan Padmanabhan (supra). We leave this question open. In the result, this appeal is allowed. The impugned order of the High Court is set aside and the order of the Munsif dated 6th Feb. 1997 is restored. We direct the learned Munsif to refer the requisite issue pursuant to his order which is being confirmed by us to the concerned Land Tribunal. We direct the said tribunal, on the receipt of the reference, to decide the same after hearing the parties and permitting them to land relevant evidence on which they rely, as expeditiously as possible and preferably within a period of six months from the date of receipt of the said reference. No costs.