@JUDGMENTTAG-ORDER
P.K. Balasubramanyan, J.@mdashThe Defendants in O.S. 60 of 1989 on the file of the Munsiff''s Court of Haripad are the Petitioners. That suit was filed by the Respondents herein for eviction of the Defendants from plaint. A schedule item No. 2 shed with arrears of rent and compensation for use and occupation. There was also a prayer for a permanent injunction restraining the Defendants from altering the shed described as plaint A schedule item No. 2 and from trespassing into plaint. A schedule item No. 1. According to the Plaintiff, in the year 1975, Plaintiff No. 1 let out the shed to Defendant No. 1. Defendant No. 1 had unauthorisedly permitted Defendant No. 2 to run a tailoring shop in the premises. The suit was filed after termination of the tenancy and exchange of notices. The entire property, which according to the Plaintiffs, have come to Plaintiff No. 1 was scheduled as plaint A schedule item No. 1 and the shed allegedly let out to Defendant No. 1 on daily fent, was scheduled as A schedule item No. 2.
2. In the written statement filed, the Defendants inter alia raised a plea that what was leased out was 2.50 cents of land, originally to the father of the first Defendant in the year 1950 on a ground rent of Rs. 24 per year and for the purpose of commercial use, that the father of Defendant No. 1 had put up the shed and was conducting a teashop in that shed and the lease of the shed set up in the plaint was not true. Defendants contended that they were entitled to the protection of Section 106 of the Kerala Land Reforms Act. An issue was raised in the suit on the question whether the Defendants are entitled to get protection u/s 106 of the Kerala Land Reforms Act and whether a reference u/s 125(3) of the Act has to be made to the Land Tribunal for a decision on that question.
3. The Defendants insisted that the question whether the Defendants are entitled to protection of Section 106 of the Kerala Land Reforms Act is a question that comes within the purview of Sub-sections (1) and (3) of Section 125 of the Act and hence that question required to be referred to the Land Tribunal since there was an ouster of the jurisdiction of the trial court in deciding that question. The Plaintiffs opposed this prayer contending that a question whether a person was protected by Section 106 of the Kerala Land Reforms Acf did not require to be referred to the Land Tribunal since such a question did not come within the ambit of Section 125(3) of the Act. The trial court took the view that the quesiton whether the defendants are entitled to the protection of Section 106 of the Kerala Land Reforms Act was not required to be referred to the Land Tribunal u/s 125(3) of the Act in the light of the decision of the High Court in Muhammed Shaheer v. Manu Vidyadharan 1990 (1) K.L.J. 690. The trial court therefore took the view that it can, by itself, decide the question without making a reference to the Land Tribunal. It is this order of the trial court that is challenged in this Civil Revision Petition.
4. When the Civil Revision Petition came up before a learned Single Judge, it was submitted on behalf of the Defendants that the decision in Muhammed Shaheer v. Nanu Vidyadharan 1990 (1) K.L.J. 690) rurs counter to the decision in Chidambaram v. Arunachalam (1978 KLT 571 and the decisions approving it and the court below was in error in following the decision in Muhammed Shaheer v. Nanu Vidyadhran 1990 (1) K.L.J. 690. The learned Judge felt that the decision in Muhammed Shaheer v. Nanu Vidyadharan 1990 (1) K.L.J. 690 was inconsistent with the decision in Ramadas v. Krishnan 1984 KLT 391 and Narayanan v. Parukutty Amma 1986 KLT 1340 and the matter had to be considered by a Division Bench. Thus the question that has been referred for decision is the correctness of the decision in Muhammed Shaheer v. Nanu Vidyadharan 1990 (1) K.L.J. 690 If that decision were correct, the revision may have to be dismissed since all that the trial court had done is to follow the latest pronouncement of this Court on the relevant question and in doing that, it could not be charged with having committed an error of jurisdiction warranting interference by this Court in revision u/s 115 of the Code of Civil Procedure. But of course, if we were to find that the decision in Muhammed Shaheer v. Nanu Vidyadharan 1990 (1) K.L.J. 690 cannot be considered to be good law, then it will have to be held that by refusing to refer the question to the Land Tribunal, the trial court has committed an error of jurisdiction calling for interference u/s 115 of the Code of Civil Procedure. In fact, what has been referred to the Division Bench by the learned Single Judge is also the question of the correctness of the decision in Muhammed Shaheer v. Nanu Vidyadharan 1990 (1) K.L.J. 690. We therefore consider that, what we are called upon to do in this revision is to decide whether Muhammed Shaheer v. Nanu Vidyadharan 1990 (1) K.L.J. 690 is rightly decided.
5. Before tackling the question posed for our decision, it may be necessary to consider the scheme of the Kerala Land Reforms Act, hereinafter referred to as the Act. Section 13 of the Act which occurs in Chapter II of the Act, confers fixity of tenure on a tenant and provides that no land or holding of a tenant can be resumed by a landlord except as provided in Sections 14 to 22 of the Act. Section 3(1) of the Act enacts the exemptions and provides that nothing, in Chapter II shall apply to the transactions specified in Section 3(1) of the Act. Section 3(1)(iii) exempts "leases of land or of buildings or of both, specifically granted for industrial or commercial purposes". The Act does not define a lease or lessee, though it defines a licence. Section 2(57) of the Act defines a tenant. It is an inclusive definition and takes in, the various persons described therein, but a lessee of land leased for a commercial purpose coming u/s 106 of the Act is not taken in. Of course, the opening words of the definition are wide and could take in a lessee of land. Section 74 of the Act which is also in Chapter II, provides that no tenancy shall be created in respect of any land after 1st April 1964 and Sub-section (2) of that section provides that any tenancy created in contravention of Sub-section (1) shall be invalid. Section 106 of the Act is not placed in Chapter II of the Act. It is placed in Chapter IV of the Act, bearing the heading ''Miscellaneous''. The said chapter mainly deals with the powers and procedure of the Tribunals created under the Act and creates appellate and revisional authorities and confers right of appeal and right of revision on the persons aggrieved. It is in that Chapter that Section 106 of the Act is inserted providing that, where on a land leased for commercial or industrial purpose, the lessee has constructed buildings for such commercial or industrial purpose before 20th May 1967, such lessee shall not be liable to be evicted from such land, shall be liable to pay rent under the contract of tenancy and such rent shall be liable to be varied every 12 years. The explanation says that lessee referred to in the section includes a legal representative or assignee of the lessee. Section 106(1A) provides that a lessor or lessee may anply to the concerned Land Tribunal for varying the rent whereupon the authority may pass orders varying the rent. Section 104(2) states that if any person who would have been entitled to the protection of Section 106 of the Act had been evicted between 18th December 1957 and 1st January 1970 in execution of a decree, that person can apply to the Land Tribunal for restoration of possession and obtain the same. Section 106A of the Act makes a special provision relating to buildings used by kudikidappukars for commercial or industrial purposes.
6. A kudikidappukaran is the other class of person protected by the Act from eviction as per Chapter II of the Act. Section 75 of the Act confers fixity on a kudikidappukaran. The exemptions are also provided by that section itself. A kudikidappukaran is defined in Section 2(25) of the Act and he is generally understood as a hutment/dweller who has been permitted to occupy the land of another and who has been either permitted to put up a hut of his own for such residence or is permitted to occupy a hut belonging to the land owner. The rights available to the kudikidappukaran including the right to purchase his kudikidappu and the appurtenant land, are set out in Chapter II of the Act itself. His additional right is referred to in Section 106A of the Act, which protects the right of a kudikidappukaran if he had constructed a building for commercial or industrial purposes before 20th May 1967 by providing that he could carry on such trade in the building without interference by the land owner and the kudikidappukaran shall be liable to pay rent as specified in Sub-section (2) of Section 106A of the Act.
7. Section 106 of the Act as amended by Act 35 of 1969 was originally struck down by this Court on the finding that it was not a measure of agrarian reform and was unconstitutional. See Krishna Pillai Govinda Pillai v. Sankara Pillai Govinda Pillai 1971 KLT 87 (F.B.). It is only thereafter that the amending Act, Act 35 of 1969 was also included in the IX Schedule to the Constitution by the Constitution (29th) Amendment Act, 1972. But the decision of the Full Bench referred to above indicates that Section 106 of the Act is not a provision relating to agrarian reform which is the essential object of bringing into force, the Kerala Land Reforms Act.
8. By Section 125 of the Kerala Land Reforms 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 the 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. Though the provision in the Parent Act creating a bar on questioning the orders of the Land Tribunal or the Land Board was preserved, Section 125(1) of the Act expressly excluded the 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 created under the Act. The section proceeds to set down the procedure for getting a question referred to under Sub-section 1 of Section 125, answered. It is in that context that Sub-section 3 of Section 125 provides that if in any suit or other proceeding, any question regarding the 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 the question to the Land Tribunal having jurisdiction over the area for the decision of that question only. Section 125(4) provides that the Land Tribunal shall decide the question and return the records together with its decision to the civil court. u/s 125(5), the civil court has to proceed to decide the suit accepting the decision of the Land Tribunal on the question referred to the Land Tribunal. Section 125(6) provides that the decision of the Land Tribunal obtained on a reference, should be deemed to be part of the finding of the civil court for the purpose of the appeal. There was no embargo placed on the power of the appellate court in considering the correctness of the finding of the Land Tribunal accepted by the trial court, while considering the appeal filed before it. The scope of Section 125 of the Act fell for decision in a number of cases. In Alavi v. Radha Varasyaramma 1976 KLT 691 (F.B.) a Full Bench of this Court held that the decision of the civil court without complying with Sub-sections 3, 4 and 5 of Section 125 of the Act, was not a nullity and an objection could not be taken for the first time in that regard in Second Appeal. In Eapen Chacko v. Provident Investment Co. (P) Ltd. 1977 KLT 1 the Supreme Court held that Section 125(1) and (3) of the Act are prospective only and cannot affect suits instituted prior to 1st January 1970, date of the coming into force of Act 35 of 1969. In Kesava Bhat v. Subraya Bhat 1979 KLT 766 (F.B.) a Larger Bench of this Court overruled the view of the Full Bench in Alavi v. Radha Varasyaramma 1976 KLT 691 (F.B.) and held that there was an ouster of jurisdiction of the civil court to decide a question of tenancy, by Section 125(1) of the Act and such a question must be referred to the Land Tribunal u/s 125(3) of the Act and dealt with as provided by that clause and the other clauscs of that section. The contravention of the provision Section 125(3), was a matter of jurisdiction and not one relating to procedure. If a question of tenancy arose, the civil court decree without reference to the Tribunal would be without jurisdiction and therefore null and void. But it was held that the ouster of jurisdiction was only of that of the trial court and not of the appellate court since the appellate court was given the power to examine the correctness of the finding returned by the Land Tribunal and adopted by the trial court in terms of Section 125 of the Act. This confining of the ouster of the jurisdiction only to the trial court was not in any manner modified by the larger bench in Kesava Bhat v. Subraya Bhat 1979 KLT 766 (F.B.). This aspect was highlighted by the Division Bench In Kunjan v. Janaki 1980 KLT 796 by pointing out that even if no reference was made by the trial court, once the question was considered and decided by the appellate court exercising appellate jurisdiction under the CPC the decree passed in the suit cannot be considered to be a nullity on the ground that no reference was made by the trial court in terms of Section 125(3) of the Act. This view has held the field in this Court all these years though occasionally attempts had been made to get the view reconsidered.
9. One other aspect requires to be considered before proceeding further. That is the view of this Court, that a question need not be referred u/s 125(3) of the Act to the Land Tribunal, unless the question really arises. In other words, this Court had taken the view that the civil court could examine the question whether the issue does really arise. Considering an analogous provision which provided for stay of all proceedings relating to eviction, Chief Justice M.S. Menon on behalf of the Division Bench in Kochukutty v. Abraham Tharakan 1968 KLT 23 stated that a court was not an automation but a judicial functionary whenever controversies are present. There could be no doubt that in all cases where there was 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 u/s 8 of the Prevention of Eviction Act. It is this principle that is echoed by the larger bench in Kesavd Bhat v. Subraya Bhat 1979 KLT 766 (F.B.) when it held that unless the question arises, the question need not be referred and the civil court had the jurisdiction to see whether the question does arise or not. It is in that process that in an earlier Full Bench of this Court and in Kesava Bhat''s case 1979 KLT 766 (F.B.), it was held that a plea that was shown to be barred by res judicata, could not be said to arise within the meaning of Section 125(3) of the Kerala Land Reforms Act. Thus consistently, this Court has held that the trial court in a suit in which a question is sought to be raised which could come within the purview of Section 125(3) of the Act, has the jurisdiction to consider whether the question in fact arises, before making a reference of that question. The view taken by the Full Bench in Lissy v. Kuttan 1976 KLT 571 that a question arises when a plea is raised, was not accepted in Kesava Bhat''s case 1979 KLT 766 (F.B.) by the larger bench.
10. The working of the Land Tribunal was found to be unsatisfactory and it was found by experience that sometimes questions referred to were never answered and the records were not re-transmitted to the civil court so as to enable the civil court to complete the adjudication in the pending suit. In Ambu v. Vellachi and Ors. ILR 1994 Ker 460 this Court made the following observations:
At a time when the functioning of Land Tribunals is in dormant stage without adequate infrastructure provided, Courts'' should consider whether a reference to the Land Tribunal is inviatable on the facts. Only if reference is found to be indispensable that the court need to resort to that course. Very often such reference, in these days (as the experience shows) amounts to consignment of suit records to cold storage, if not to unreclaimable range. Unfortunately the system of reference u/s 125(3) of the Act has now become a heaven for contumacious litigants and indulgers in dilatory tactics. Many a times the High Court has sounded to the Government to consider the desirability of retaining the system further.
11. The above observations were quoted and the mode of interpretation of Section 125(3) of the Act, was suggested by a Division Bench in Sundaran v. Mohammed Koya 1995 (2) KLT 115. The court stated:
the courts have to give useful and practical interpretation to lessen the abuse of the legal requirement envisaged in Section 125(3) of the K.L.R. Act.
Of course, the court there, was dealing with the aspect whether the civil court could consider whether the plea raised by the Defendant in the case, was bona fide or genuine and if it was satisfied that there was no reasonable prospect of the plea being upheld by the Land Tribunal, whether the court can justifiably take the view that the question does not reasonably arise in the case. It was held at the question did not reasonably arise, no reference need also be made u/s 125(3) of the Act. The same position was reiterated by the Division Bench in Kerala State H.W. Co-operative Society Ltd. v. Vadakke Madom Bhahmaswom 1996 (1) KLT 282. The court stated that if the question did not reasonably arise, civil court need not make a reference u/s 125(3) of the Act. This view has been approved by the Supreme Court in Thomas Antony v. Varkey Varkey 1999 S.C.W. 4112.
12. The discussion above is only intended to indicate that in interpreting Section 125(3) of the Act, what is called for is a pragmatic approach and not an approach with the object of expanding the jurisdiction of the Land Tribunal or unduly restricting the jurisdiction of the civil court. After all, the ouster of jurisdiction of the civil court is not to be readily inferred. It is in this context that the question whether a plea for protection u/s 106 of the Act has to be referred to the Land Tribunal for decision or not, has to be considered.
13. As far as we can see, the Act makes a distinction between a tenancy and a lease. What is protected by Section 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. Section 13 does not speak of a lease or a lessee. The same is the position with Section 74 of the Act which provides that after the commencement of the Act, no tenancy shall be created in respect of any land. The distinction becomes significant when we refer to the exemption contained in Section 3(1)(iii) of the Act, which exempts from the purview of Chapter II of the Act, leases of land, or of buildings or of both, specifically granted for industrial or commercial purposes. It is in this context that one has also to note Section 106 of the Act which speaks of a land being leased for a commercial or industrial purpose wherein a lessee had constructed buildings before the date referred to in that section, as being entitled to be protected against eviction only. We have already noticed that a lessee entitled to protection u/s 106 of the Act is not brought within the purview of the definition of a tenant occurring in Section 2(57) of the Act by inclusion. We have also noticed that Section 106 was not really a measure of agrarian reform, even though the Act itself was brought forward as a measure of agrarian reform. If one were to read in this context Section 125(1) and 125(3) of the Act, it is quite possible to say that a claim for protection u/s 106 of the Act by a person in a suit filed in a civil court, need not be referred to a Land Tribunal for decision, since there is no ouster of jurisdiction of the civil court, namely, the trial court, regarding the question. Section 125(1) merely provides that the civil court shall not have jurisdiction to settle, decide or deal with any question which is by or under this Act, required to be settled, decided or dealt with by a Land Tribunal. It may now be useful to quote Section 125(3) of the Act:
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.
Section 125(3) only speaks of a question regarding the rights of a tenant or of a kudikidappukaran. We have already noticed that a lessee seeking protection u/s 106 of the Act is not a tenant by description. He is also not a person on whom any right is conferred by Section 13 or Sections 72 and 72B of the Act. In fact, the transaction in his favour it one which is exempted from the operation of Chapter II of the Act by Section 3(1)(iii) of the Act. Prima facie, therefore it appears that the question whether a lesses of land is entitled to the protection of Section 106 of the Act, need not be referred to a Land Tribunal for decision.
14. Before proceeding further, two or three decisions of this Court have to be referred to. In Ayissabi v. Choyi 1966 KLT 757 a learned Judge held that for claiming benefits u/s 106, a subsisting tenancy is not to be predicated, since the word ''tenant'' used in the Act includes and quondam tenant as well. The learned Judge further stated that there was no warrant for drawing a distinction between a ''tenant'' and a ''lessee''. No reasons are given to support this observation and we find some difficulty in accepting this statement as such. As we see it, running right through the enactment, is a distinction between a tenant qualified for protection u/s 13 of the Act and a lessee qualified for protection u/s 106 of the Act. This distinctive treatment should have an object and that aspect cannot be ignored in the context of Section 3(1)(iii) of the Act and the placing of Section 106 in Chapter IV of the Act. In Ramachandran Pillai v. Joseph John 1978 KLT 528, another learned Single Judge following the decision in Ayissabi''s case 1966 KLT 757 stated that there was no warrant for drawing a distinction between a tenant and a lessee under the Act. There is no independent reasoning in that decision as well.
15. There was no reported decision as such, on the question whether a question arising out of a claim for protection u/s 106 of the Kerala Land Reforms Act, was liable to be referred to the Land Tribunal for a finding in terms of Section 125(3) of the Act. The general view appears to have been that no reference was called for to the Land Tribunal when the claim is one for protection u/s 106 of the Act. A learned Single Judge of this Court held in Chithambaram v. Arunachalam 1978 KLT 571 that such a question was liable to be referred to the land Tribunal in terms of Section 125(3) of the Act. After quoting Section 106 of the Act the learned Judge stated:
It is true that the word used in the section is lessee and not tenant. The Act does not define the words ''lease'' and ''lessee''. u/s 2(57) of the Act, a tenant means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land. There cannot be any doubt that a person entitled to relief u/s 106 of the Act comes within the definition of tenant in Section 2(57). It is by virtue of the exemption in Section 3(iii) of the Act that leases of land or of buildings or of both specifically granted for industrial or commercial purposes are exempted from the operation of Chapter II of the Act. Chapter II of the Act takes in Sections 3 to 80G. The exemption does not extend to Section 125 which deals with jurisdiction to decide disputes relating to claims of tenancy. u/s 125(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 kudikidappukaran) arises, the civil court is to 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. The section is widely worded and includes disputes whether a person is a tenant in relation to claims other than those covered by Chapter II of the Act. Since the persons on whom the rights u/s 106 are conferred are tenants under the Act, the dispute whether a person who claims such relief is a tenant or lessee falls u/s 125(3). Section 125(3) has taken away the jurisdiction of the Civil Court to decide any question which under the Act is required to be settled, decided or dealt with or to be determined by the Land Tribunal. The combined effect of the above provisions is that the Land Tribunal alone is competent to decide whether the Defendant in this case is entitled to the Benefits u/s 106 of the Land Reforms Act....
16. It was argued before the Division Bench in Ramadas Krishnan Nair 1984 KLT 371 that the Land Tribunal did not have jurisdiction to decide the question whether a person was entitled, to the protection of Section 106 of the Act and hence a reference of that question to the Land Tribunal u/s 125(3) of the Act was unwarranted. It is not seen from that decision that there was an argument that on the wording of Section 125(3) of the Act, no reference was called for when a claim was for protection u/s 106 of the Act. The Division Bench found that there was an implied conferment of jurisdiction in the Land Tribunal to decide that question in view of Section 106(1A) and Section 106(2) of the Act. The Division Bench stated the position thus:
Section 125(3) itself confers jurisdiction on the Land Tribunal. There is no necessity to search for power in the Land Tribunal in any other section of the Act. Moreover, Section 106(1A) and (2) gives authority to the Land Tribunal to vary the rent and also to restore possession in certain cases. This power necessarily implies that the Tribunal has jurisdiction to decide whether there is a lease protected u/s 106 or not, for, it is an incidental and ancillary power, necessary for the proper exercise of the jurisdiction. The contention therefore that the Land Tribunal has not been invested with jurisdiction to decide a dispute arising u/s 106 of the Act cannot be accepted.
It may be noted that the Division Bench only suggested that it was a power to decide a jurisdictional fact that was available to the Land Tribunal in dealing with a claim based on Section 106 of the Act, because their Lordships thought that the power to order restoration or to vary the rent necessarily implied that the Tribunal has jurisdiction to decide whether there is a lease protected u/s 106 or not, since it is an incidental and ancillary power necessary for the proper exercise of its jurisdiction. In Narayanan v. Parukutty Amma 1986 KLT 1340 the question whether a reference was necessary in terms of Section 125(3) of the Act was not considered. It was taken that such a reference was necessary in the light of the two decisions referred to above. The Division Bench held in that case that if an earlier reference had been made u/s 125(3) of the Act based on a claim of right as a kudikidappukaran by the Defendant, the Defendant could not seek a subsequent reference of a claim u/s 106 of the Act by invoking Section 125(3) of the Act. It is in this situation that another Judge of this Court in the decision in Mukammed Saheer v. Nanu Vidyadharan 1990 (1) K.L.J. 690 took the view that a question arising out of a claim for protection by a tenant u/s 106 of the Act, was not liable to be referred to the Land Tribunal in terms of Section 125(3) of the Act. The learned Judge stated that Section 106 of the Act could be seen to be a Code by itself and that meant that rights of the parties were to be determined only with reference to the provisions contained in that section. Section 106 of the Act in fact disentitled the Defendant from setting up any plea other than the plea that the owner of the land cannot evict him from the land. Since no claim for fixity of tenure could be made by a person claiming the protection of Section 106 of the Act, the question could be decided by the civil court and since no question of tenancy was involved, there was no need to make a reference to the Land Tribunal. The learned Judge stated that only questions which could be considered and decided by the Land Tribunal, need be referred to the Land Tribunal u/s 125(3) of the Act. A lessee who was entitled to the benefit of Section 106 of the Act, continued to be a lessee unlike the case of the tenants entitled to fixity of tenure who had been conferred the right to purchase the right, title and interest of the land owners over their holdings. It was also stated that on and from 1st January 1970, the only tenancy recognized under the Land Reforms Act was the one governed by Section 106 of the Act. It is the correctness of this decision and the resolution of the apparent inconsistency between that decision and the decision in Chithambaram v. Arunachalam 1978 KLT 571 that has been referred to the Division Bench. The fact that different views were taken and the further fact that a reference in that behalf is still pending, itself indicate that the question is not finally decided by this Court even at this stage.
17. The decision of the Supreme Court in
18. Reference was also made to the decision in Aleykutty Joseph v. Thomman Varkey 1999 (2) KLT 290 wherein a learned Single Judge did not follow the decision of the Full Bench in Sundaran v. Mohammed Koya 1995 (2) KLT 115 and following the decision in
19. 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 Sections 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''. Section 13 of the Act speaks of a tenant being entitled to fixity of tenure. Section 72B of the Act speaks of the right of a cultivating tenant to seek an assignment of the rights of the land owner over the holding. Section 74 of the Act declares invalid all tenancies created after 1st April 1964. We may also notice that the definition of tenant occurring in Section 2(57) of the Act indicates that the persons coming under that definition are persons who could claim fixity of tenure u/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 Section 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 u/s 106 of the Act. In Chidambaram v. Arunachalam 1978 KLT 571 the learned Judge assumed, if we may say so with respect, that a person entitled to relief u/s 106 of the Act comes within the definition of tenant u/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 is coming to the conclusion that the definition of a tenant occurring in Section 2(57) of the Act does not include within its purview lessee of a land leased for a commercial purpose coming within Section 3(1)(iii) of the Act and u/s 106 of the Act.
20. In Ramadas v. Krishnan Nair 1984 KLT 371 it was only found that the argument that the Land Tribunal did not have jurisdiction to decide the question whether a person was entitled to the protection of Section 106 of the Act as a lessee was not justified fully since by virtue of the provisions of Sections 106 and 106A of the Act the Land Tribunal is at least conferred with the jurisdiction to decide the jurisdictional fact as to whether a person would be entitled to relief u/s 106 of the Act while entertaining his application either for variation of rent or for restoration of possession. As we have noticed, the Division Bench had no occasion to consider and interpret the scope of Section 125(3) of the Act and there was no argument in that case that on the terms of Section 125(3) of the Act there was no warrant for a reference to the Land Tribunal or that there was no ouster of jurisdiction of the Civil Court when a claim is made for protection u/s 106 of the Act. Hence we do not think that the said decision stands in the way of our interpreting the scope of Section 125(1) and Section 125(3) of the Act. It is settled that the ouster of the jurisdiction of the Civil Court not is to be readily inferred. There must either be an expresss exclusion of the jurisdiction or an exclusion must arise by necessary implication. Tested in the light of that principle, we are inclined to the view that there is no exclusion of the jurisdiction of the Civil Court either express or by implication in considering and deciding a question arising out of a claim by a person that he is a lessee entitled to the protection of Section 106 of the Kerala Land Reforms Act. The expression tenant or kudikidappukaran employed in Section 125(3) of the Act has to be understood in the context of what we have stated above. Only a claim of tenancy coming within the purview of Section 13 of the Act need be referred to the concerned Lard Tribunal in terms of Section 125(3) of the Act.
21. Learned Counsel for the revision Petitioners invoked the principle of stare decisis and submitted that the decision in Chidambaram v. Arunachalam 1978 KLT 571 has been followed since the time it was rendered. We have indicated in the earlier part of this judgment that the question does not appear to have become settled and the decision in Muhammed Saheer v. Nanu Vidyadharan 1990 (1) KLT 690 itself bad struck a different note. We may also notice that the question has come up for reconsideration by us on a reference made by a learned Single Judge on the basis that the matter required to be reconsidered in view of the apparent conflict between the decisions in this Court. Moreover, what is involved is the question of the jurisdiction of the trial court to decide an issue when that court has jurisdiction over the subject matter and that court alone has jurisdiction to decide the suit filed before it finally. The principle that ouster of jurisdiction of a Civil Court cannot readily be inferred has also to be borne in mind. The fact that the Land Tribunals are manned by persons who are not equipped to decide complicated questions arising out of pleas based on Section 106 of the Act cannot also be ignored in this context. We are therefore of the view that it would not be proper for us not to consider the correctness of the decision in Chidambaram v. Arunachalam 1978 KLT 571 merely on the principle of stare decisis. We are satisfied that it is necessary to overrule the decision in Chidambaram v. Arunachalam 1978 KLT 571 and the decision in Aleykutty Joseph v. Thomman Varkey 1999 (2) KLT 290. We hence overrule the said two decisions.
22. We cannot leave this case without indicating what should be done in cases where a reference had already been made by the trial court and a finding obtained. On the scheme of the Land Reforms Act, it" clear that the jurisdiction of the appellate court has not been ousted. With reference to the earlier decisions of this Court this view was reiterated by a learned Single Judge of this Court in Shahul Hameed v. Hassan 1980 KLT 522. That principle was reiterated by a Division Bench in Kunjan v. Janaki 1980 KLT 796. It does not appear to be necessary to multiply authorities on this question because in our view, this has been the consistent view taken by this Court in almost all the cases. Therefore, in cases where answers have been obtained by the trial court, even if the answers are obtained from the Land Tribunal and made part of its decision, the Appellate Court is bound to decide the question on merits. The fact that a finding was obtained from the Land Tribunal by the Civil Court which had jurisdiction over the subject matter, it would only mean that there was no valid finding rendered by that court on that question since its jurisdiction in that behalf did not stand ousted. The appellate court which has all the powers of the trial court in view of section 107 of the Code, can decide that question on the evidence made available either before the trial court or before the Land Tribunal which forms part of the records returned from the Land Tribunal and decide for itself the question whether the claim u/s 106 of the Act has been made out. The appellate courts will not be justified in remanding the suits to the trial court only on the ground that a finding had been obtained from the Land Tribunal on a claim based on Section 106 of the Act and it was unnecessary in view of the present decision rendered by us. In Kunjan v. Janaki 1980 KLT 796 the Division Bench pointed out that on the aspect of the jurisdiction of the Appellate Court, there was no difference between a civil case and a criminal case and followed the decision in Janardhan Reddy v. State of Hyderabad AIR 1951 S.C. 227. It was held that the principle that applied was that there was a finality to the judgment which '' applied to civil as well as criminal cases and it is implicit in every system, wherein the provisions are found for correcting errors in appeal or in revision. We therefore direct that the first appellate courts which are called upon to decide appeals raising claims for protection u/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 u/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 u/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 and in view of the fact that the first appellate court did have jurisdiction to decide the question one way or the other on the scheme of the Kerala Land Reforms Act. We think it to be necessary to clarify this position so as to ensure that indiscriminate remands are not made by appellate courts in the light of the pronouncement made by us in the judgment on the scope of Section 125(3) of the Kerala Land Reforms Act vis-a-vis a claim for protection u/s 106 of the Act. We do not think that there is my impediment for "us to clarify the legal position for the general guidance of the subordinate courts while answering the reference made to us even though the said aspect may not strictly arise in this Civil Revision Petition.
23. In the case before us, the trial court has declined to make a reference u/s 125(3) of the Act by following the decision in Muhammed Saheer v. Nam Vidyadharan 1990 (1) KLT 690. In view of the interpretation placed by us on the scope of Section 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. As we have noted, all that the trial court has done is to follow the latest decision of this Court. Since we are in agreement with the conclusion in the decision of this Court relied on by the trial court, we have necessarily to hold that the trial court has not committed any error of jurisdiction while refusing to refer the question to the Land Tribunal. Thus no ground can be said to be made out for interference with the order of the trial court in exercise of our jurisdiction u/s 115 of the Code of Civil Procedure. We therefore confirm the order of the trial court and dismiss this Revision. We make no order as to costs.
