Abdul Jabbar v. Athar Jama-Ath Committee and Secretary Muhammed Salim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933** **CRP.No. 421 of 2011()** **--------------------AGAINST THE ORDER DATED 05/09/2011 IN IA.2313/2011 IN OS.839/2010 of PRL.MUNSIFF COURT, PALAKKAD** **....................** ## **REVN. PETITIONER(S): PETITIONER/DEFENDANT** **-----------------------------------------------------------------------** **ABDUL JABBAR, S/O.HUSSAIN RAWTHER, AGED 65 YEARS, KANNARA STREET, KOPPAM AMSOM, PALAKKAD.** **BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANAKANNAN** ## **RESPONDENT(S): RESPONDENTS/PLAINTIFFS** **-----------------------------------------------------------------** **1. ATHAR JAMA-ATH COMMITTEE, METTUPALAYAM STREET, PALAKKAD, REP.BY MUTHAVALLI – 614 715.** **2. SECRETARY, MUHAMMED SALIM, S/O.MOHAMMED ISMAIL, METTUPALAYAM STREET, PALAKKAD – 614 715.** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DS** ## **THOMAS P. JOSEPH, J.** **-------------------------------------C.R.P. No.421 of 2011 -------------------------------------Dated this the 29[th] day of September, 2011.** ## **ORDER** This civil revision is in challenge of the order dated September 5, 2011 on I.A.No.2313 of 2011 in O.S.No.839 of 2010 of the court of learned Principal Munsiff, Palakkad. 2. The question urged for a decision in this civil revision is whether a plea of commercial lease and protection under Sec.106 of the Kerala Land Reforms Act (for short, “the Act”) when raised in a civil court is required to be referred to the Land Tribunal for a finding in accordance with Sec.125(3) of the said Act. 3. Respondents filed the suit for a decree directing petitioner to vacate and surrender possession of the schedule property failing which they sought for delivery of the said property through the process of court. In answer to the averments in the plaint petitioner contended that he is a lessee entitled to protection of Sec.106 of the Act and that the said question has to be referred to the Land Tribunal for a finding as provided under Sec.125(3) of the said Act since the jurisdiction of the civil court to enter a finding on that question is ousted by Sub-sec.(1) of Sec.125 of the Act. Claiming so, petitioner filed I.A.No.2313 of 2011. That application was resisted by the respondents. Learned Munsiff, placing reliance on the decisions in **Govinda Panicker v.** **CRP No.421/2011** 2 **Sreedhara Warrier (2000 (2) KLT 43)** and **Sri Durga Talkies v. Shashi Kumar (2010 (1) KLT SN.51-Case No.63** ) rejected the request for reference holding that a plea of commercial lease coming under Sec.106 of the Act is not required to be referred to the Land Tribunal under Sec.125(3) of the Act. The said order is under challenge on the question above stated. 4. Learned Senior Advocate, Shri P.N.K.Achan appearing for petitioner has contended that finding of the learned Munsiff on the question of reference to the Land Tribunal is erroneous. It is contended that the Act contemplates various types of tenancies, tenancy in respect of the land, lease of land for commercial purpose, etc. and that in view of Sub-sec.(1) of Sec.125 of the Act, the civil court has no jurisdiction to decide a dispute which is required to be decided by the Land Tribunal. According to the learned Senior Advocate the question whether petitioner is entitled to the benefit of Sec.106 of the Act is to be decided by the Land Tribunal and hence that question is referable to it for a finding. Reliance is placed on the decisions in **Mathevan Padmanabhan alias Ponnan (Dead) through L.Rs. v. Parameshwaran Thampi ((1995) Supp. (1) SCC 479),Poovollaparmbil Chathu and others v. V.P.Sudheer and others (AIR 1999 SC 327), Chandy Varghese v. Abdul Khader (2003(3) KLT 553), Madhavi Amma v. Kesavan (2008(1) KLT SN.49-Case No.50)** and **Ramesh Gobindram (Dead)** **CRP No.421/2011** 3 ## **through Lrs. v. Sugra Humayun Mirza Wakf ((2010) 8 SCC 726)** . It is contended that the implication of Sub-sec.(1) of Sec.125 of the Act and the ouster of jurisdiction of the civil court in the matter of the determination of the question whether a party to the proceeding is entitled to the protection of Sec.106 of the Act was not specifically considered by this Court in **Govinda Panicker v. Sreedhara Warrier** and hence the decision requires reconsideration. Learned Senior Advocate has also referred me to the observations in paragraphs 23 and 36 of the decision in **Ramesh Gobindram (Dead) through Lrs. v. Sugra Humayun Mirza Wakf** . 5. The only question requiring consideration in this proceeding is whether the claim of petitioner for protection under Sec.106 of the Act is required to be referred to the Land Tribunal. Sec.106 of the Act states that notwithstanding anything contained in the said Act or in any other law or in any contract, or in any order or decree of Court, where on any land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before the 20[th] May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy and such rent shall be liable to be varied every twelve years. Clause (b) of Explanation to Sub-sec.(1) of Sec.106 of the Act states that “building” means a permanent or a temporary building and includes a shed. Sub-sec.(1A) deals with the power of the lessor or the lessee (of a commercial **CRP No.421/2011** 4 lease as stated under Sub-sec.(1) of Sec.106 of the Act) to apply to such authority as may be prescribed for varying the rent referred to in Sub-sec.(1). Sub-sec.(2) of Sec.106 of the Act states that if a lessee coming under Sub-sec. (1) of Sec.106 of the Act is dispossessed between 18[th] December, 1957 and the date of commencement of the Act as per any decree or order of the court, such person shall, on application to the Land Tribunal be entitled to restoration of possession. 6. Sub-sec.(1) of Sec.125 of the Act states that no civil court shall have jurisdiction to settle or decide or deal with any question or to determine any matter which is by or under the Act required to be settled or 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. Sub-sec.(3) of Sec.125 says that if in any suit or other proceedings 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. Sub-sec.(4) of Sec.125 requires the Land Tribunal to decide the question referred to it under Sub-sec.(3) and return the records together with its **CRP No.421/2011** 5 finding to the civil court. Sub-sec.(5) of Sec.125 states that 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. Sub-sec.(6) of Sec.125 states that the decision of the Land Tribunal on the question referred to it shall for the purpose of appeal, be deemed to be part of the finding of the civil court. 7. Referring to the said provisions it has been held by this Court time and again that the prohibition under Sub-sec.(3) of Sec.125 of the Act to decide right of a tenant or of a kudikidappukaran is confined only to the trial court and that the appellate court can decide the question on the evidence on record. The argument advanced by the learned Senior Advocate centers round Sub-sec.(1) of Sec.106 and Sub-secs.(1) and (3) of Sec.125 of the Act. 8. True that under Sub-Sec.(1) of Sec.125, there is an ouster of jurisdiction of the civil court to settle, decide or deal with any question or to determine any matter which is by or under the Act required to be settled or 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. But, it is relevant to note that so far as Sec.106 of the Act is concerned, jurisdiction of the Land Tribunal is as regards two things – in the matter of varying the rate of rent referred to in Sub-sec.(1) of Sec.106 and in the matter of restoring possession of the property to those lessees who were dispossessed in execution of any decree or order of court between 18[th] December,1957 and the date of commencement of the Act. **CRP No.421/2011** 6 9. The question whether in view of the above circumstances, the plea of commercial lease under Sec.106 of the Act when raised in the civil court is required to be referred to the Land Tribunal was specifically considered by the ## Division Bench of this Court in **Govinda Panicker v. Sreedhara Warrier** . The Division Bench held that what is required to be referred to the Land Tribunal under Sub-sec.(3) of Sec.125 of the Act are questions relating to tenancy or Kudikidappu. The Division Bench drew a distinction between a tenancy which is required to be referred to the Land Tribunal under Sub-sec.(3) of Sec.125 of the Act and a lease of land where the lessee has put a structure before the cut off date mentioned in Sub-sec.(1) of Sec.106 of the Act for the purpose mentioned therein. The Division Bench held that only a claim of tenancy coming under Sec.13 (of Chapter II of the Act) or a kudikidappu need be referred to the Land Tribunal in terms of Sub-sec.(3) of Sec.125 of the Act. The Division Bench considered ouster of jurisdiction under Sub-sec.(1) of Sec.125 of the Act as well, and read the same along with Sub-sec.(3) of the said Section. It is observed in paragraph 8 that by S.125 of the Act as amended by Act 35 of 1969 there was an ouster of jurisdiction of the civil court in the manner provided for in that Section. In the parent Act the exclusion of jurisdiction was limited only to the bar on questioning of orders of the Land Tribunal or the Land Board made under the Act in a civil court except as provided in that Act. But the Amendment Act (Act 35 of 1969) brought about a significant change in that Sub-sec.(1) of **CRP No.421/2011** 7 Sec.125 expressly excluded jurisdiction of the civil court in the matter of determination of any question or matter which was by or under the Act as amended by Act 35 of 1969 required to be settled, decided or dealt with or to be determined by the Land Tribunal or any of the authorities referred to in the said provision. The Division Bench referred to the scope of Sub-sec.(3) of Sec.125 of the Act and said that the said provision only required the civil court to refer questions regarding rights of a tenant or a kudikidappukaran (including a question as to whether a person is a tenant or kudikidappukaran) to the Land Tribunal. Reference was made to the various decisions of this Court and the Apex Court. In paragraph 13 of the decision the Division Bench pointed out: “As far as we can see, the Act makes a distinction between a tenancy and a lessee. What is protected by S.13 of the Act is a tenancy and what is provided is that every tenant shall have fixity of tenure in respect of his holding. S.13 does not speak of a lease or a lessee.” In paragraph 17 of the decision, reference was made to the decision in ## **Poovollaparmbil Chathu and others v. V.P.Sudheer and others** (supra, relied on by learned Senior Advocate) and it was held by the Division Bench that the question considered in the said decision was whether the lease originally granted by the landlord was acted upon and whether the defendants **CRP No.421/2011** 8 were in possession and continued to be tenants entitled to fixity of tenure under Sec.13 of the Act. In paragraph 18, reference was made to certain other decisions of this Court and it was held that in those decisions the question whether the claim for protection under Sec.106 of the Act had to be referred under Sub-sec.(3) of Sec.125 of the Act was not considered. It was assumed in the said decisions that the claim for protection by a lessee under Sec.106 of the Act had to be referred to the Land Tribunal for a decision. Hence the Division Hench refused to place reliance on the said decisions. In paragraph 19 of the decision the Division Bench held: “On an examination of the relevant provisions of the Act we think that a distinction has been made by the Act between a tenant as defined in the Act and a lessee as generally understood. We have already noticed that leases of land or buildings or of both granted for commercial purposes are exempted from the purview of Chapter II of the Act in which Ss.13, 72 and 72B occur, which confer fixity of tenure on a tenant and also confers on him, if he is a cultivating tenant, the right to see and obtain an assignment of the right, title and interest of the land owner over the land held by him on tenancy, which is defined by the Act as a 'holding'. S.13 of the Act speaks of a tenant being entitled to fixity of tenure. S.72B of the Act speaks of the right of a cultivating tenant to seek an **CRP No.421/2011** 9 assignment of the rights of the land owner over the holding. S.74 of the Act declares invalid all tenancies created after 1.4.1964. We may also notice that the definition of tenant occurring in S.2(57) of the Act indicates that the persons coming under that definition are persons who could claim fixity of tenure under S.13 of the Act. It is true that the expression tenant has been defined as a person who has paid or agreed to pay rent or other consideration for his being allowed to possess and enjoy any land by a person entitled to lease that land. But in the context in which the expression is used in the Act and the inclusive part of the definition of tenant, would indicate that a lessee of land for a commercial purpose cannot be said to come within the purview of that definition. It may be true that going by the definition of a lessee contained in S.105 of the Transfer of Property Act, such a lessee also may be a person who may have the obligation to make periodic payments in terms of money though not by way of share of crops. But we think that when we look at the scheme of the Act with particular reference to the distinction kept in view between a lessee of a land for a commercial purpose and a tenant as referred to in the Act, it cannot be held that the term 'tenant' as defined in the Act takes within its purview a lessee of land for a commercial purpose dealt with specifically and separately under S.106 of the Act. In Chidambaram v. Arunachalam (1978 KLT 571) the learned Single Judge assumed, if **CRP No.421/2011** 10 we may say so with respect, that a person entitled to relief under S.106 of the Act comes within the definition of tenant under S.2(57) of the Act. It is settled that an expression used in a statute has to be understood in the context of that statute and in the light of the various provisions in that Statute and the intention behind that Statute. If we are right in our conclusion that the Act has made a distinction between the tenant of an agricultural holding and the lessee of a commercial site, there can be no difficulty in coming to the conclusion that the definition of a tenant occurring in S.2(57) of the Act does not include within its purview lessee of a land leased for a commercial purpose coming within S.3(1)(iii) of the Act and under S.106 of the Act.” The result of the discussion is contained in paragraph 21 where it is held the claim of a lessee for protection under Sec.106 of the Act is not required to be referred to the Land Tribunal. Taking note of the various cases where, before the Division Bench laid down the law, claims under Sec.106 of the Act had already been referred to the Land Tribunal and findings obtained, the Division Bench held that in such cases, if the matter is pending before the appellate courts a remand of the cases to the trial court to enter a finding as to the claim under Sec.106 of the Act is not required. The Division Bench held: **CRP No.421/2011** 11 “..... We therefore direct that the first appellate Courts which are called upon to decide appeals raising claims for protection under S.106 of the Kerala Land Reforms Act should decide the appeals finally on the pleadings and the evidence available in the case, even if the finding at the first instance had not been rendered by the civil court itself but had been got rendered by a reference made under S.125(3) of the Kerala Land Reforms Act. We direct that no remand should be made solely on the ground that a finding was obtained by the trial Court on a reference made under S.125(3) of the Act. Obviously, the same would be the position regarding the second appellate Courts as well which are governed by the ratio in Kunjan v. Janaki (1980 KLT 796). ............” The Division Bench ultimately held: “in view of the interpretation placed by us on the scope of S.125(3) of the Kerala Land Reforms Act, the refusal by the trial Court to refer the question to the Land Tribunal is seen to be right and to be well within its jurisdiction.” **CRP No.421/2011** 12 10. Now I shall refer to the decisions which learned Senior Advocate has relied on and the question whether the claim of petitioner for protection of Sec.106(1) of the Act is referable to the Land Tribunal under Sub-sec.(3) of Sec.125 of the Act. 11. So far as the last limb of that argument is concerned I referred to Sub-sec.(1) of Sec.125 of the Act and the ouster of jurisdiction of the civil court to decide matters which are required to be settled, decided or dealt with or to be determined by the Land Tribunal or other authorities mentioned in Sub-sec.(1) of Sec.125 of the Act. I also pointed out from Sub-secs.(1A) and (2) of Sec.106 of the Act that so far as the claim of commercial lease coming under Sub-sec.(1) of Sec.106 of the Act is concerned, jurisdiction of the Land Tribunal is only in the matter of varying the rent referred to in Sub-sec.(1) of Sec.106 of the Act and restoration of possession to such of the lessees otherwise entitled to the protection of the Act and who lost possession by a decree or order of the court between 18[th] December, 1957 and the date of commencement of the Act. I also referred to Sub-sec.(3) of Sec.125 of the Act which required the civil court to refer only questions relating to tenancy and kudikidappu to the Land Tribunal for a finding and the decision in **Govinda Panicker v. Sreedhara Warrier** (supra) where the Division Bench took note of ouster of jurisdiction under Subsec.(1) of Sec.125 of the Act, read it along with Sub-sec.(3) of Sec.125 of the Act and held that the plea of protection under Sub-sec.(1) of Sec.106 of the Act if **CRP No.421/2011** 13 raised in the civil court is not required to be referred to the Land Tribunal. That decision is in answer to the second limb of the argument that learned Senior Advocate has advanced before me. 12. Now coming to the first limb of the argument based on the decisions which the learned Senior Advocate placed reliance, the decision in ## **Poovollaparmbil Chathu and others v. V.P.Sudheer and others** (supra) has been adverted to by the Division Bench in **Govinda Panicker** **v. Sreedhara Warrier** (supra) and on facts the said decision was distinguished. Another decision which learned Senior Advocate has referred to is **Chandy Varghese v. Abdul Khader** (supra). There, the Apex Court held that to claim benefit under Sec.106 of the Act, a person in occupation of land must prove that he has been granted a lease of land for commercial or industrial purpose and that he raised the building or structure thereon for commercial or industrial purpose prior to 20.05.1967. There, the Supreme Court was dealing with Civil Appeal No.123 of 2000 arising from the judgment of this Court, dated 07.12.1998 confirming the judgments and decrees of the trial and appellate courts allowing recovery of possession. I must bear in mind that it is subsequent to the decision of the High Court in that case that the Division Bench rendered the decision in **Govinda Panicker v. Sreedhara Warrier** (supra). I must also bear in mind that before the Supreme Court, the **CRP No.421/2011** 14 question whether protection claimed under Sub-sec.(1) of Sec.106 of the Act was required to be referred to the Land Tribunal for a finding was neither raised nor decided. I must also bear in mind that even if there was an initial irregularity committed by the trial court in referring that question to the Land Tribunal and inviting a finding, the first and second appellate courts were entitled even as per the decision in **Govinda Panicker v. Sreedhara Warrier** (supra) to refer to the evidence recorded in the Land Tribunal and enter a finding whether the lessee in that case was entitled to the protection of Sub-sec.(1) of Sec.106 of the Act. The Supreme Court in that case was deciding the correctness of judgment of this Court in the Second Appeal. **Mathevan Padmanabhan** **alias Ponnan (Dead) through L.Rs. v. Parameshwaran Thampi** (supra) relied on by the learned Senior Advocate concerned a plea raised by the tenant under Sec.72B of the Act which, even going by the decision of the Division Bench in **Govinda Panicker v. Sreedhara Warrier** (supra) is required to be referred to the Land Tribunal. Yet another decision learned Senior Advocate has referred to is **Madhavi Amma v. Kesavan** (supra) where a learned Judge of this Court stated that the question of tenancy if raised by the defendant and an issue if raised, it is not necessary for any party to file an application for reference of that question to the Land Tribunal. It was further observed that a party may claim that he is a cultivating tenant or kudikidappukaran. Another claim could be that he is entitled to the benefit of **CRP No.421/2011** 15 Sec.106 of the Act. The claim as a karayma holder, kudikidappu holder and like claims also could be advanced. When the dispute raised by the defendant is to be decided exclusively by the Land Tribunal, there is a bar of jurisdiction of the civil court under Sec.125(1) of the Act. But I must again advert to the decision in **Govinda Panicker v. Sreedhara Warrier** (supra) where the Division Bench has drawn a distinction between lessee of land coming under Sub-sec. (1) of Sec.106 of the Act and a tenant as defined in Sec.2(57) and coming under Sec.13 of the Act. I must also bear in mind that a precedent is a decision which lays down a principle of law.(see **Gangadhara Palo v. Revenue Divisional Officer and another ((2011) 4 SCC 602** ). The decisions relied on by the learned Senior Advocate have no application to the question involved and which is concluded by the decision in **Govinda Panicker v. Sreedhara Warrier** (supra). 13. Another decision which the learned Senior Advocate has referred is **Sri Durga Talkies v. Shashi Kumar** (supra) . There, it is held that there is no exclusion of the jurisdiction of the civil court either express or by implication in considering and deciding the question arising out of a claim by the person that he is a lessee entitled to the protection of Sec.106 of the Act. Learned Judge referred to the decision of the Division Bench in **Govinda** **CRP No.421/2011** 16 **Panicker v. Sreedhara Warrier** (supra) and held that a claim by a lessee under Sec.106 of the Act does not postulate that he is tenant or kudikidappukaran as covered by the Act and that only a claim of tenancy within the purview of Sec.13 of the Act (or a claim of kudikidappu, etc.) need be referred to the Land Tribunal in terms of Sub-sec.(3) of Sec.125 of the Act. It is also held that a lessee claiming the benefit under Sec.106 of the Act does not have the status of a tenant under the Act. That decision cannot advance the argument raised by the learned Senior Advocate. 14. The last decision relied on by the learned Senior Advocate is **Ramesh Gobindram (Dead) through Lrs. v. Sugra Humayun** **Mirza Wakf** (supra). There, the question considered was regarding jurisdiction of the Wakf Tribunal. My attention has been drawn to paragraph 23 of the said decision. There, what is dealt with is the exclusion of the jurisdiction of the civil courts to adjudicate upon disputes whether a particular property specified in the wakf list is or is not a wakf property or whether a wakf specified in the list is a Shia wakf or a Sunni wakf is clear and presents no difficulty whatsoever. It is also held that the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to in the said decision do not declare the law correctly. As aforesaid, every decision **CRP No.421/2011** 17 is an authority for the facts it decided. The decision did not concern the question of reference of claim of lease under Sec.106 of the Act to the Land Tribunal. Hence that decision also has no application to the facts of the case. 15. Here the claim made by the petitioner is one under Sec.106 of the Act. The decision of the Division Bench is specific and clear that the question is not required to be referred to the Land Tribunal. I do not find any reason for reconsideration of the decision rendered by the Division Bench and refer that question to a larger Bench. Learned Munsiff is right in placing reliance on the decisions in **Govinda Panicker v. Sreedhara Warrier** and **Sri Durga** **Talkies v. Shashi Kumar** and holding that the claim of commercial lease raised by petitioner is not required to be referred to the Land Tribunal. In that view of the matter I do not find any substance in the civil revision requiring its admission. Civil revision is dismissed. ## I.A.No.2187 of 2011 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**