Vijayan Menon v. M/S Ansal Builders Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 WP(C).No. 37530 of 2008(P) -------------------------OS.654/2007 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER: --------------- VIJAYAN MENON, AGED 74 YEARS, S/O.KUNJAN MENON, KUNNAPPALLY, SANSKRIT COLLEGE ROAD, TRIPUNITHURA, ERNAKULAM DISTRICT. BY ADV. SRI.T.K.VENUGOPALAN SMT.PREETHA PETER RESPONDENT: ------------------ M/S.ANSAL BUILDERS LIMITED, ANSALS RIVER DALE, EROOR P.O., TRIPUNITHURA, PIN - 682 306. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.B.J.JOHN PRAKASH SRI.MATHEWS K.UTHUPPACHAN SRI.JOSEPH KODIANTHARA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON 11/01/2010 DELIVERED THE FOLLOWING: APPENDIX(WPC 37530/08) PETITIONER'S EXTS.: EXT.P1: TRUE COPY OF PLAINT IN O.S.654/07 ON THE FILE OF THE IIND ADDL. SUB COURT, ERNAKULAM. EXT.PP2: TRUE COPY OF WRITTEN STATEMENT FILED BY THE RESPONDENT. EXT.P3: TRUE COPY OF I.A.NO.4872/08. EXT.P4: TRUE COPY OF THE OBJECTION. EXT.P5: TRUE COPY OF ORDER DATED 26.8.08 IN I.A.NO.4872/08. RESPONDENT'S EXTS.: EXT.R(a): TRUE COPY OF PARTITION DEED NO.1265/1971 EXECUTED BETWEEN JANAKI AMMA AND OTHERS. EXT.R(b): TRUE COPY OF EXTRACT OF THE THANDAPER REGISTER IN RESPECT OF THANDAPER NO.394. EXT.R(c): TRUE COPY OF JUDGMENT DATED 31.7.2008 PASSED BY THIS HON'BLE COURT IN W.P.C.NO.23139/2008. **C.R.** ## **S.S. SATHEESACHANDRAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** W.P.(C) No.37530 of 2008 **- - - - - - - - - - - - - - - - - - - - - - - - -** Dated: 11[th] January, 2010 ## **JUDGMENT** The Writ Petition is filed seeking mainly the following reliefs: 1. To issue a writ of certiorari or any other appropriate writ or order or direction quashing Exhibit P5 order. 2. To issue a direction to the II Addl. Sub Judge, Ernakulam to consider and dispose of the case in accordance with law without making any reference to the Land Tribunal. 2. Petitioner is the plaintiff in O.S.No.654 of 2007 on the file of the II Additional Sub Court, Ernakulam. Suit is one for recovery of possession, and the respondent is the defendant. P5 order passed by the learned Sub Judge allowing the interlocutory application I.A.No.4872 of 2008 filed by the defendant for staying the suit and reference of the issue relating to tenancy under Section 125(3) of the Kerala Land Reforms Act to the Land Tribunal for determination is challenged by the petitioner/plaintiff in the writ petition invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. 3. Petitioner/plaintiff claimed title over the suit property having W.P.C.No.37530/08 - 2 - an extent of 56 cents comprised in survey No.476/8 of Kureekkad village as having obtained that property under a registered partition deed No.1265 of 1971. The defendant is a company engaged in land developments, construction of buildings and also doing real estate business. It is the case of the plaintiff that the defendant company approached him for sale of the suit property, but, the request made thereof was declined. However, taking advantage of the absence of the petitioner who is stated to be residing at a distant place, according to him, the defendant encroached upon the plaint property and filled it up with red earth and proceeded with development activities. At that stage, the suit was filed seeking recovery of possession of the suit property. The defendant company resisting the suit claim filed a written statement in which it was contended that the plaintiff has no title over the property. Alternatively, it was contended that if at all the plaintiff had any prior title to the property, it has come to vest in the State on the advent of the Land Reforms Act. Suit property was under the enjoyment of a tenant one Varkey from 1932 and by successive assignments the tenancy rights over the property vested upon two persons under a registered document No.2098 of 2005 and from those two persons, the defendant company obtained W.P.C.No.37530/08 - 3 - possession in 2005 to develop that property was the case pleaded disputing the claim for recovery of the property on the basis of title by the plaintiff. 4. The defendant company after filing written statement moved an application as I.A.No.4872 of 2008 under Section 151 of the Code of Civil Procedure for stay of the suit and reference of the issue relating to tenancy under Section 125(3) of the Land Reforms Act to the Land Tribunal. P3 is the copy of that application, to which the plaintiff has filed P4 objections contending that the defendant has no locus standi to file such a petition as no question of tenancy arise for consideration in the suit. While P3 application was pending consideration, an Advocate Commissioner was appointed by the court for measuring out the property on an application filed by the plaintiff. At that stage, the defendant moved a writ petition before this court seeking issue of a direction to the learned Sub Judge to dispose its P3 application. This court vide R(c) judgment dated 31.7.2008 directed the learned Sub Judge to dispose of P3 application as expeditiously as possible. It was further directed that the Advocate Commissioner appointed shall proceed with the inspection of the property only if it is found the question of tenancy does not arise and no reference of that W.P.C.No.37530/08 - 4 - question to the Land Tribunal under Section 125(3) of the Land Reforms Act arise for consideration. Pursuant thereto, the learned Sub Judge, after hearing both sides, passed P5 order referring the question whether the defendant or its predecessors in interest have got fixity of tenure over the plaint schedule property to the Land Tribunal for determination and entering of a finding on that question. Propriety and correctness of P5 order is impeached in the writ petition by the plaintiff. 5. I heard the counsel on both sides. Whereas the learned counsel for the petitioner/plaintiff contended that there is no bonafides in the claim made by the defendant company for referring the question of tenancy to the Land Tribunal, even disputing its locus standi to file P3 petition seeking a reference of that question to the Land Tribunal, the learned counsel for the respondent contended that on the basis of the pleadings and also materials produced, since the question of tenancy claimed over the suit property arises for determination, P5 order passed by the learned Sub Judge is proper, valid and correct and it does not call for any interference. 6. P5 order would disclose the learned Sub Judge has ordered for reference taking a view that the recitals in the partition deed of W.P.C.No.37530/08 - 5 - 1971 under which the plaintiff claimed title over the property and the documents produced by the defendant disclose that a question of tenancy arises for consideration in the suit. I am afraid the learned Sub Judge has not taken note of the defence contentions raised by the defendant in its written statement and also the case advanced in P3 petition in seeking a reference to the Land Tribunal. The defendant is a company engaged in land developments, construction of buildings and also doing real estate business. It has disputed the title of the plaintiff over the suit property setting up an alternative case if at all the plaintiff had any prior title, it had been lost after coming into force of the Land Reforms Act. Property was under the enjoyment of a tenant and by successive assignments the land vested on two persons, the executants of the agreement with the defendant by which the defendant company got possession of the property for development of the property was the case pleaded in the written statement to seek a reference of the question of tenancy under Section 125(3) of the Land Reforms Act. The case canvassed by the defendant in paragraphs 3 and 4 of its written statement reads thus: “3. The averments contained in para 1 of the plaint are absolutely false. The plaintiff has no title to the W.P.C.No.37530/08 - 6 - property. Even if the plaintiff had any title to the property, that has come to vest in the State with effect from 01.01.1970, in view of the Kerala Land Reforms Act. 4. The property was being held as a tenant by one Mr.Varkey from 1932 and he has assigned his tenancy rights in favour of Ashariparambil Kumari, W/o.Mr.Kumaran mentioned in the Partition Deed produced by the plaintiff. Mrs.Kumari's tenancy rights by successive assignments has come to vest in Mr.T.Sukumaran and Mr.M.N.Balakrishnan Nair by virtue of Document No.2098/2005. The defendant has obtained possession of the property in the year 2005 from the said Mr.M.N.Balakrishnan Nair and Mr.T.Slukumaran, in order to develop the property.” (underlining supplied). Denying the title of the plaintiff over the suit property, an alternative plea is set up by the defendant company that the persons with whom it had entered into an agreement for developing the property and thereby obtained possession, had tenancy rights by successive assignments from the tenant in enjoyment of the property which W.P.C.No.37530/08 - 7 - continued from 1932 onwards. P3 application seeking reference of the question of tenancy to the Land Tribunal was supported by an affidavit filed by the senior manager of the defendant company, in which specific case for such reference was mooted contending that the two persons with whom the defendant had entered into an agreement, put the defendant in possession of the plaint property for development on the basis of an agreement (underlining supplied). So much so, it is evident that the defendant company on the pleadings raised in its written statement and also in P3 petition has no case that it has any tenancy right over the property. 7. When the defendant company claims possession over the suit property on the basis of an agreement, that too for developing the property alone, with no claim of having obtained any tenancy right from the persons with whom it had entered into the agreement, can a reference be made at its instance to the Land Tribunal for determination whether the executants of the agreement had tenancy rights over the suit property is the question emerging for consideration. At the most, the defendant has obtained possession over the property on the basis of an agreement for developing the property by virtue of an agreement with some persons who are W.P.C.No.37530/08 - 8 - stated to be having tenancy rights over the property. It is interesting to note that even such agreement on the basis of which possession is claimed by the defendant company from such persons to develop the property was not produced before the court. Before me on the basis of some documents filed with a memo indicating that the above said persons with whom it had entered into an agreement had executed some sale deeds also in favour of the company, an argument was sought to be built up by the learned counsel for the respondent that it has obtained assignment of the tenancy rights at least over portions of the suit property.The documents which have been produced before this court on which reliance is sought to be placed by the learned counsel need not be adverted to as the pleading raised in the written statement of the defendant would show it has only got a case of possession over the suit property on the basis of an agreement for developing the property and not a case of obtaining any tenancy rights over the property. The case advanced by the defendant that the person from whom it obtained possession for developing suit property had tenancy rights by virtue of successive assignments from a tenant who had been enjoyment from 1932 onwards, is not at all sufficient to make a reference to the Land Tribunal for determination W.P.C.No.37530/08 - 9 - of the question of the tenancy rights when it has no case of acquiring any such tenancy right over the property. Someone else has tenancy rights over the suit property, whether it be the executants of the agreement from which the defendant has obtained possession to develop the property is not sufficient to hold that the question of tenancy arises for consideration by the civil court mandating stay of the suit and reference to the Land Tribunal to enter a finding on such question. Section 125(3) of the Kerala Land Reforms Act mandates a reference to the Land Tribunal 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 for consideration. If such a question arise 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. So long as the defendant company has not claimed the right of a tenant or a kudikidappukaran in the suit, but, set up a case that whatever right it has is only on the basis of an agreement for developing the property and that alone, it is incompetent and further it has no locus standi to seek W.P.C.No.37530/08 - 10 - for a reference on a plea that the persons with whom it had entered into an agreement had tenancy over the suit property and such question has to be determined by the Land Tribunal on a reference by the civil court. Persons who executed the agreement with the defendant who were stated to be having tenancy rights, according to the defendant, are not parties to the suit and no relief against them is claimed in the suit. P3 petition filed by the defendant company in the light of the pleas raised in its written statement deserve to be noticed, in the facts and circumstances of the case, only for its rejection. 8. Learned counsel for the respondent relying on **Balakrishnan Nair v. Radha Amma** (1987 (1) KLT 195) contended that the question of reference for determination of the tenancy right over the property sought to be recovered in the suit has to be examined giving the widest possible amplitude to the expression 'question regarding rights' under sub-section (3) of Section 125 of the Land Reforms Act and the absence of the landlord or the tenant as such in the suit or proceeding, as the case may be, does not take away the jurisdiction of the court to render a decision with respect to the tenancy rights canvassed on the finding to be obtained from the W.P.C.No.37530/08 - 11 - Land Tribunal after making a reference. Reliance placed on the decision by the counsel is found to be misplaced as it has no application to the given facts of the case. In the above reported decision, which was a suit for partition, there was a dispute regarding tenancy rights over some items between one of the defendants and his thavazhi tharavad. In other words, inter se dispute by rival claimants regarding tenancy arose for consideration and in that context it was held a question of tenancy had arisen for determination in the suit warranting reference to the Land Tribunal as mandated under Section 125(3) of the Land Reforms Act and the absence of the jenmi or landlord in the suit is immaterial for making such a reference. Merely because the present defendant company has canvassed that the persons with whom it had entered into an agreement for developing the suit property had got a tenancy rights, no question of reference to the Land Tribunal is called for as the plea so canvassed at the most is a challenge disputing the title of the plaintiff over the suit property by setting it upon a third party. In order to invite the application of Section 125(3) in the suit or proceeding, the rights of a tenant or kudikidappukaran should arise for consideration. The defendant company, as already indicated, W.P.C.No.37530/08 - 12 - claims only of a right to develop the property on the agreement executed by two other persons. Admittedly, it does not claim tenancy right over the suit property, but, sets up such right on the executants of the above agreement. When that be the case, no dispute regarding tenancy right arise for consideration in the suit. If the proposition canvassed by the learned counsel is accepted to, then on a mere plea by any party to a suit setting up a defence that he has right under some person who had got tenancy right over the property, determination of the tenancy right of such person by making a reference to the Land Tribunal has to be made in the suit or proceeding and that, of course, is not at all correct, and for the applicability of sub-section (3) of Section 125 of the Land Reforms Act a question regarding the right of a tenant or kudikidappukaran should arise in the suit or proceeding for determination before the civil court. Setting up tenancy right over some other person and claiming some right under him, but, without claiming any assignment of tenancy, a party to the suit cannot seek for reference to the Land Tribunal as no question of tenancy on such defence arise for consideration. Absence of landlord as party array in the suit for determination of the inter se dispute of tenancy rights by rival claimants in the suit is not fatal in W.P.C.No.37530/08 - 13 - making a reference under Section 125(3) of the Land Reforms Act for determining the question of tenancy rights is the spirit of the above reported decision, **Balakrishnan Nair v. Radha Amma** (1987 (1) KLT 195). That does not lend any assistance to the present defendant who does not claim any tenancy right over the suit property, but, got only possessory right, even on its own pleading, to develop the suit property on the basis of an agreement with some others, to contend that the executants of that agreement have tenancy right over the property and that question of tenancy has to be referred to the Land Tribunal for determination. A point in dispute should arise in the suit or proceeding whether the person who seeks for reference is a tenant or kudikidappukaran for making a reference under Section 125(3) of the Land Reforms Act. Since no such question of tenancy rights arise for consideration in the present suit in the light of the defence canvassed by the defendant company, no reference under Section 125(3) of the Land Reforms Act is called for. ## 9. The apex court in **Thomas Antony v. Varkey** [ 2000(1) KLT 12 (SC) ] has held in unequivocal terms that the civil court is not obliged to make a reference to the Land Tribunal for the reason that a party has raised a contention that he is a tenant or a W.P.C.No.37530/08 - 14 - kudikidappukaran. The question of reference emerge for consideration only if such question “arises” in the suit or the proceedings concerned. On the pleadings raised in the written statement, the defendant company has only a case of obtaining possession of the property for development and that alone and no case of any claim of tenancy over such property, and that being so, the question of reference does not arise for consideration in the present case. The learned Sub Judge was clearly in error in referring the question of tenancy canvassed without even noticing that the defendant has not raised any claim of fixity of tenure or any tenancy rights over the suit property. P5 order is liable to be set aside and I do so. The learned Sub Judge is directed to proceed with the trial of the suit after deleting the issue, if any, raised on the question of tenancy over the suit property and dispose the suit as expeditiously as possible, at any rate, within a period of six months from the date of receipt/production of a copy of this judgment. Writ Petition is allowed as indicated above. srd ## **S.S. SATHEESACHANDRAN, JUDGE** W.P.C.No.37530/08 - 15 -