Venkitarama Iyer v. Vesu Aimna

Pareed Pillay, C.J.:-

10. The bench decision of this court (1984 klt 397) was confirmed by the supreme court in malhevan padmanabhan v. Parameshwaran thampi (1995 supp (1) scc 479). The supreme court held thus:

"the very dispute whether the appellant is a tenant and is entitled to purchase the property by virtue of that capacity, Hinges upon the determination of the question whether he is a tenant. When that dispute is pending adjudication, The tribunal was not right in directing the appellant to purchase the property. Ultimately, If the high court on appeal, Finds that the appellant is not a tenant, His entitlement to purchase the property also is lost. Under 'those circumstances, The appropriate course would have been to keep the application under s. 72 - b pending till the dispute as to the tenancy of the applicant was resolved."

as the decision of the land tribunal (ext. B6) was rendered when the question of disputed tenancy was pending before the civil court, Attempt to circumvent it cannot be allowed.

11. The learned munsiff upheld the tenancy set up by the defendants only on the basis of the decision of the land tribunal in s. M. 1559 of 1979. As the decision in the suo molu proceedings cannot be given any effect, In view of the fact that it has been obtained during the pendency of the civil suit, And as that has been relied by the courts below the judgment and decree of the courts below cannot be sustained.

12. In a sundaran v. P. V. Mohammed koya (1995 (2) klt 115 =1995 (2) klj 60) division bench of this court held:

"it is now well nigh settled thai unless the question legally arises, There is no obligation for the civil court to make a reference of it. But merely because a person raised a claim without any bona fides, Can it be said that the said question would arise in the case. If the motive of the party who raised the plea is only to procrastinate the proceedings it is the duty of the civil court to decide first whether the queslion genuinely arises in the case. The amplitude of the expression "arises" must be constricted to what genuinely arises in a case in view of the very unsatisfactory function of the present land tribunal system in kerala. In the light of the above situation, The courts have to give a useful and practical interpretation to lessen the abuse of the legal requirement envisaged in s. 125 of the klr act. The civil court can consider whether the plea raised by the defendant or the respondent in the case is bona fide or genuine. If there is no reasonable prospect of the plea being upheld by a land tribunal, The civil court can justifiably take the view dial the question does not reasonably arise in the case. If the question does not reasonably arise in the case the civil court need not make the reference under s. 125 (3) of the klr act"

the judgment and decree of the trial court which have been confirmed by the sub judge are set aside. The appeal stands allowed and the case is remanded to the trial court for consideration of the defendant's claim of tenancy afresh. Whether reference to the land tribunal is necessary in the circumstances of the case also will have to be considered by the munsiff in the light of the above decision. There will be no order as to costs. Court fee paid shall be refunded to the appellant.