1. The question which falls for determination in this revision petition is whether the order of stay of the suit, O. S. No. 65 of 1969, Directed by the additional subordinate judge, Trichur, Is proper and legal. The determination of this short question has been so very much hedged in by decisions in regard to the scope of the enquiry in such matters, That it has occasioned this reference to a full bench of five judges.

2. The plaintiff - petitioner filed o. S. No. 65 of 1969, Sub - court, Trichur, To restrain the defendant by an injunction from interfering with his possession of a cashewnut garden. The filing of the suit had been preceded by an application filed by the respondent for fixation of fair rent in respect of the land. To that, The objection had been raised by the petitioner that the respondent was not a cultivating tenant. An

interim injunction had been granted in the suit and action for violation of injunction had also been launched. There was an amendment of the plaint adding an alternative prayer for recovery of possession with mesne profits, In case, It is found that the first defendant is in possession of the property. The application for amendment was moved in 1970 and was allowed in august, 1970. Thereafter, On 9 71973 the respondent filed an application for stay of the suit under s. 32 of the land reforms act and this was allowed by the learned sub - judge. Against the said order, The petitioner - landlord had preferred this revision petition.

3. S. 32 of the land reforms act reads as follows:

"32. Bar of suits for eviction etc., Pending application for determination of fair rent.

during the pendency of an application for determination of fair rent before a land tribunal, No court shall entertain any suit for eviction of the applicant from the land to which the application relates, Or pass any order of injunction prohibiting him from entering the land or pass any order staying the proceedings before the land tribunal".

counsel for the revision petitioner contended that the question of the status of the respondent as a tenant is not to be decided on his mere ipse dixit, But must be proved as any ordinary fact would be proved, Before the court could grant the relief of stay. It was also very feebly stated that under s. 32 of the act there was no power in the court to grant a stay of the suit.

4. The expression "land" occurring in the two places in s. 32 was substituted for the expression "holding" which occurred previously, By the amendment act 35 of 1969. This substitution was in accordance with the suggestion thrown out by a learned judge of this court in kurien v. Chacko (1965 klt. 468). The view has been taken that even without this amendment the same result should have followed on the language of the words used in the section. (see kadir mohammed v. Augusthy 1969 klt. 739).

5. Whether the question of tenancy for the purpose of the above section must be proved in the normal way before the court or is to be established on merely primafacie considerations, Presents cross - currents of judicial thought. A division bench of this court construing the provisions of a sister enactment, Viz. S. 8 of the prevention of eviction act, 1966, Took the view in job alias kochukutty v. Abraham tharakan (1968 klt. 23), That the court should at least be prima facie satisfied that the person in question was a tenant. The section there construed enjoined the court not to proceed with the suit till the record of rights was prepared, If a person represents that he is a tenant or the holder of a kudiyiruppu or kudikidappu etc. The question was whether a mere representation by the tenant would attract the section, Or whether a prima facie proof of the status would suffice, Or whether there should be full proof of such tenancy in the normal way. A division bench, Of which one of us (the chief justice) was a member, Observed thus:

"a court is not an automation but a judicial functionary whenever controversies are present. There can be no doubt that in all cases where there is a controversy as regards the status of the defendant, The court should at least be prima facie satisfied that the defendant has the status that he claims before it grants a stay under s. 8 of the act and issues the direction to the revenue divisional officer.

in the order of reference in one of the petitions heard along with this petition crp. 1019 of 1967 raman nayar j. Has stated as follows:

"and since i consider that 1967 klt. 508 requires reconsideration post before a division bench. S. 8 of act 12 of 1966 does not say that a suit for evict ion has to be stayed if the defendant claims to be a cultivating tenant any more than it says that it need not be stayed if the plaintiff avers that the defendant is not a cultivating tenant. Ft has first to be found that the defendant is a cultivating tenant before a stay is ordered, And i do not read s. 29 (6) of act 1 of 1964 as making a record of rights prepared under that section evidence on the question whether a person is a tenant at all"

we must say, With respect, That we are not in agreement with the view that a court should finally and definitely decide that the defendant is a cultivating tenant, The holder of a kudiyiruppu or kudikidappukaran before a stay is ordered under s. 8 of the act and the direction issued to the revenue

divisional officer. All that is required is a prima facie satisfaction on the part of the court that such is the case".

the question received elaborate examination at the hand of krishna iyer j. Of this court (as be then was) in kadir mohammed v. Augusthy varghese (1969 klt. 739), The learned judge, Construing the identical section with which we are concerned, Namely. S. 32 of the act, Noticed the divergence of judicial opinion on the nature of the proof needed before the provisions for stay can be availed of. The cross - currents of

judicial opinion were noticed to have been reflected in the decisions of madhavan nair j. In cherian v. Harihara iyer (1967 klt. 508) and of raman nayar j. In the order of reference made by the learned judge in c. R. P. No. 1019 of 1967 (referred to also by the division bench in 1968 klt. 23). Reference was also made to a previous division bench ruling in madhavan nair v. Kunjikavamma (1958 klt. 1048) rendered in respect of the provisions of s. 4 of act 1 of 1957. In the light of these, Krishna iyer, J. Was of the opinion that it is only after a final decision arrived at by the court regarding the rights claimed by the tenant that a stay of the proceedings could be granted. The decision in kurien v. Chacko (1965 klt. 468) had also taken the same view as in kochukutty v. Abraham tharakan (1968 klt. 23). The earlier division bench ruling in 1958 klt. 1048 was not noticed in the later division bench case (1968 klt. 23), Nor, By the learned single judge in kurian v. Chacko (1965 klt. 468). This is how the authorities stand on the question as to whether a prima facie proof would suffice, Or 'pucca' satisfaction of the status as a tenant had to be established before the provision for stay could be attracted.

6. But we think that for the purpose of this case it is unnecessary to pursue the investigations on this aspect and to resolve the conflict of judicial opinion disclosed in the above decisions. According to s. 125 (3) of the act whenever any question arises as to the rights of a tenant including the question whether a person is a tenant or not, Such question is to be referred for determination by the land tribunal and the decision of the tribunal is to be accepted by the court. Therefore, No question of the court deciding the question on prima facie proof or on pucca satisfaction, Can arise. The section reads as follows:

"125 bar of jurisdiction of civil courts:

(i) 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:

provided that nothing contained in this sub - section shall apply to proceedings pending in any court at the commencement of the kerala land reforms (amendment) act, 1969.

(2) no order of 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 made under this act shall be questioned in any civil court, Except as provided in this act.

(3) if in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, The civil court shall stay the suit or other proceeding 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 decision of that question only.

(4) the land tribunal shall decide the question referred to it under sub - section (3) and return the records together with its decision to the civil court.

(5) the civil court shall then proceed to decide the suit or other proceedings accepting the decision of the land tribunal on the question referred to it.

(6) the decision of the land tribunal on the question referred to it shall, For the purposes of appeal, Be deemed to be part of the finding of the civil court.

(7) no civil court shall have power to grant injunction in any suit or other proceeding referred to in sub - section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub - section has arisen, Till such question is decided by the land tribunal, And any such injunction granted or appointment made before the commencement of the kerala land reforms (amendment) act, 1969, Or before such question has arisen, Shall stand cancelled.

(8) in this section, 'civil court' shall include a rent control court as defined in the kerala buildings (lease

and rent control) act, 1965. "

on the language of the section, And unaided by any authorities, Clause (1) bars the jurisdiction of the court to deal with any question required to be settled, Decided or dealt with, By the land tribunal or the appellate authority or the land board or the taluk land board or the government. Consistent with the principle that a section dealing with ouster of jurisdiction is to be strictly construed, And on the language of clause (1) we have little difficulty in holding that the section is only prospective in its operation and not retrospective. The proviso to sub - section (1) seems to us only to make explicit what is implicit in the terms of the clause itself. But, Turning to sub - section (3), Both by its language and its purpose, It appears to have retrospective effect and would cover even suits instituted before the commencement of the act. Sub - section (3) refers to "any suit or proceeding" which should be there before the section is attracted or applied. In such a suit or proceeding any question regarding the rights of a tenant or kudikidappukaran must arise for determination. Such a question would include a question as to whether a person is a tenant or not. When such question arises the civil court is to stay the suit and refer the question for determination to the land tribunal. Under sub - section (5) the civil court is to accept the decision of the land tribunal and decide the suit. But it is clear from clause (5) and the provision made for appeal that the decision of the court including the finding of the land tribunal can be canvassed in appeal. Therefore, On the language of sub - clauses (1) and (3) we take the view that while sub - clause (1) bars the jurisdiction of civil courts to deal with particular classes of suits prospectively, Sub - clause (3) comprehends questions arising out of tenancy even in respect of such suits already instituted.

7. But this view which commends self to us on the language of the clauses has been stoutly contested by counsel for the petitioner. In particular, He placed strong reliance on the decision of a division bench of this court in gopalakrishnan nair v. Padmavathy amma (1970 k. L. T. 888). It was contended that s. 125 (1) could not have any retrospective operation so as to affect the suit, In this case, Instituted prior to 1 1 1970, And therefore the reference to the land tribunal for decision of the controversy cannot be made in respect of this suit. It was further said that the same would be the position under sub - section (3) as the scope of the said sub - section was the same as sub - section (1). We are unable to agree. Although subsection (1) bars the cognizance of the civil court only prospectively from 111970, Sub - section (3) comprehends even suits instituted prior to that date, In which any question regarding the rights of a tenant including the question whether a person is a tenant arises. Such question should be decided by the land tribunal. A decision by the civil court of the said controversy, Whether on prima facie satisfaction or on pucca proof of the status of a tenant, Would therefore be barred. This aspect of the matter did not receive attention in the decisions cited to us.

8. We shall now turn to the view taken of the scope of sub - sections (1) and (3) by the division bench ruling of this court in gopalakrishnan nair v. Padmavathy amma (1970 klt. 888). The division bench observed:

"a plain reading of the above provision does not bring out any intention on the part of the legislature express or otherwise to interfere with pending suits. A decision on a dispute whether a person is a tenant or kudikidappukaran is covered by s - 125 (1) as well. In view of the proviso the jurisdiction of the civil court to deal with that question in a pending matter had not been affected. In our view, S, 125 (3) covers only a category of cases referred to by s. 125 (1). If the plea that s. 125 (3) applies to pending cases is accepted there will be a conflict between sub - sections (1) and (3) of s. 125. It was submitted that this could be avoided by regarding sub - section (3) as a proviso to the proviso to sub - section (1) of s 125. It is not possible to agree to this contention for the reason that it will run counter to the intention expressed by the legislature even by some of the other provisions of the act"

9. With respect, We are unable to accept the above statement as correct. We have already pointed out the scope and object of the provisions of sub - sections (1) and (3). While sub - section (1) bars the jurisdiction of the courts prospectively, Sub - section (3) contemplates within its scope even pending actions in respect of which controversies of the type mentioned arise subsequent to the commencement of the act. There is clear indication in the provisions of the section, Read as a whole, Which seems to us to indicate the retrospective operation of sub - section (3), (see for instance clause (7) of s. 125 which has been struck down as unconstitutional as amounting to exercise of judicial power by the legislature.) we cannot accept the view of the division bench that s. 125 (3) provides for the same category of cases as are provided for under s. 125 (1) of the act. It follows that the division bench ruling in 1970 klt. 888, In so far as it concerns the scope of s. 125 (3), Cannot be accepted as correct, And must be overruled.

10. Indeed, A division bench of this court in sankaran v. Rajammal (1974 klt. 488) noticed the unreported decision of a learned judge of this court (krishnamoorthy iyer j., Who delivered the judgment of the division bench in 1970 klt. 888) in c. R. P. No. 298 of 1973. The learned judge there expressed the view that s. 125 (5) had to be construed in the light of s. 125 (1). The division bench expressed disagreement with this view and held that there is no warrant to construe s. 125 (3) in the light of s. 125 (1). We consider that the division bench has taken the correct view in regard to the scope of s. 125 (3).

11. We may refer to the observations of the full bench in narayanan nair's case (1970 klt. 659) at 694 para. 65, Which are to the following effect:

"65. S. 32 says that during the pendency of an application for determination of fair rent before a land tribunal no court shall entertain any suit for eviction of the applicant from the the land to which the application relates or pass any order of injunction prohibiting him from entering the land or pass any order staying the proceedings before the land tribunal. This section is obviously designed to prevent the institution of suits by landowners as a counterblast to applications by tenants for the determination of fair rent. We take it that the word 'eviction' here has not the meaning attached to it by s. 2 (12) of the act, Namely, Recovery of possession of land from a tenant, And that the section applies also to suits for recovery of possession on the allegation of trespass. Such a suit implies that the applicant for determination of fair rent is in possession of the land, And, That being so, We can see no objection to a suit for eviction being stayed pending disposal of the fair rent application. While there might be false claims of tenancy there might equally be false denials of tenancy. Under s. 101 (3) of the act, The land tribunal is competent to decide on claims of tenancy for the purpose of disposing of applications for the determination of fair rent. That being so, It is desirable that there should not be parallel proceedings in a civil court, Although ultimately the dispute might be one for a civil court to decide. It suits are allowed pending the disposal of the fair rent application, Such suits might be filed by way of harassment and will, In any case, Delay the proceedings before the tribunal"

the observations of the full bench were followed by a learned single judge of this court in two subsequent decisions in chacko v. Subramonian moothathu (1970 klt. 1022) and the electric and motor works (p) ltd. V. Y. W. C. A. Trivandrum (1971 klj. 75.) we are inclined to agree with the observations of the full bench regarding the scope of s. 32.

12. In the light of the foregoing discussions, We are of the view that in view of the provisions of s. 125 (3) the question whether a tenancy should be proved on primafacie considerations or on pucca satisfaction, Is itself out of bounds for the civil court. That being so the decision of the court below staying the proceeding was correct and calls for no interference in this revision petition. There is no force in the argument very feebly advanced that there is no power to stay the suit. We dismiss this revision petition, But there will be no order as to costs.

dismissed.