Parameswaran Pillai and Another Vs Krishna Pillai and Another

K. Sadasivan, J.@mdashA temporary order of injunction passed by the Land Tribunal, Athiyannur in O.A. 120/71 restraining the landlord from entering upon the property in the possession of the tenant, is challenged in these proceedings. The land involved in the petition is comprised in S. No. 275/37,151/8 and 151/18B of Kottukal village and they are government Viruthi lands given to the tarwad of the petitioners and 1st respondent for rendering service in the Sree Padmanabhaswaray temple, Trivandrum. The tarwad of the petitioners and the 1st respondent was partitioned in the year 1104 M.E(SIC)1/2 and in the partition deed, provision was made for enjoyment of these viruthi lands by rendering the requisite services. Petitioner No. 1 is party No. 80; petitioner No. 2 party No. 35; aid the 1st respondent is party No. 56 in the partition deed. Properties comprised in S. No 151/8 and 151/18B were directed to be enjoyed by Narayana Pillai Neelakanta Pillai, party No. 14 during bis life time and thereafter by petitioner No. 1 by rendering services without default. Narayana Pillai Neelakanta Pillai died on 7 21971 whereupon petitioner No. 1 became karnavan and entered possession of the property. He still claims to be in possession and in cultivation of the lands.

2. 1st respondent filed an application before the Land Tribunal under S. 72B of the Land Reforms Act, 1963 as amended by Act 35 of 1969 (shortly stated the Act), for assignment of the land-holder''s right in his favour; all the 3 items viz, S. Nos. 275/37,151/8 and 151/18B were scheduled to the petition. Ex.-P1 is a true copy of the application. Along with Ex-P1, an application for temporary injunction to restrain the petitioners from entering upon the property was also filed, true copy of which is Ex-2. An exparte order of injunction was passed by the Tribunal on 1-4-1971, copy of which is Ex-P3. The petitioners entered appearance and filed their objections; but the order was confirmed by the Tribunal on 30 41971. Ex-P5 is the true copy of that order. This order is challenged on the ground that the Land Tribunal has no power under the Act to pass such an order. The land in question is Viruthi land belonging to government. S. 72B of the Act cannot apply to such lands. The petitioner''s case, therefore, is that the Ist respondent is not a cultivating tenant and there is no holding as defined in the Act, so that the provisions of S. 72B of the Act may be applied. The holders of viruthi lands have only the right of enjoyment and that right itself would continue so long as the services attached thereto are performed without default. They have no right in the soil except the above right of enjoyment. The petitioners would, therefore, pray for the quashing of Ex-P5 order dated 30-4-1971

3. In the counter affidavit, the 1st respondent would contend that the impugned order is perfectly within the jurisdiction of the Land Tribunal and not vitiated by any illegality or excess of jurisdiction. According to the respondent, he is in possession and enjoyment of the property as a cultivating tenant under a registered lease executed from the tarwad by Neelakanta Pillai Narayana Pillai on 16 111951. Neelakanta Pillai Narayana Pillai was the karnavan at the time and on his death the 1st petitioner became the karnavan. The respondent is entitled to fixity of tenure under S. 13 of the Act and is also entitled to purchase the right, title and interest of the tarwad, which is now represented by the petitioner, under S. 72B of the Act. As the peaceful enjoyment of the property by this respondent was disturbed by the petitioners he was obliged to move the Land Tribunal for an injunction. R. 92 of the Kerala Land Reforms Rules, empowers the Land Tribunal to issue injunction for implementing the provisions of the Act and the Rules. For a proper implementation of the provisions of the Act and the Rules, it is absolutely necessary that possession of the property continues with the respondent. The Land Tribunal, therefore, is perfectly justified in issuing the order.

4. The 2nd petitioner in his amended application has stated in addition that the provisions regarding tenancies will not apply to viruthi lands which are exempted under S. 3 of the Act.

5. We are not satisfied that the Land Tribunal has acted with jurisdiction in passing the order of injunction. Power of the Tribunal in passing interlocutory orders is contained in R. 92 of the Kerala Land Reforms (Tenancy) Rules. Power to grant injunction is also there; but orders passed under R. 92 (1), which is the relevant provision, should be for implementing the provisions of the Act and the Rules and not for any other purpose. R. 92 (1) runs as follows:

For the purpose of implementing the provisions of the Act and these rules, the Land Tribunal shall have power to issue commissions, grant injunctions, appoint receivers and make during the pendency of the proceedings such other interlocutory orders as may appear to the Tribunal to be just and necessary to meet the ends of justice.

So every time an interlocutory order is passed, the Land Tribunal should address itself to the question whether the order is one for implementation of the provisions of the Act and the Rules. An order that does not satisfy this requirement will be one passed without jurisdiction.

6. This court has held in Gopalakrishan Nair Vs. The Land Tribunal, Chengannur and Others, that the Land Tribunal can grant injunctions and make such other interlocutory orders, only to implement the provisions of the Act or the Rules. In that case the application before the Land Tribunal was for fixation of fair rent. An interlocutory order of injunction was passed preventing the respondents from entering into possession of the properties scheduled to the petition. The learned judge held:

Here, the application was one for fixation of fair rent and I am not satisfied that making of the order in question would in any way conduce to the implementation of the provisions of the Act or the rules. The function of the Land Tribunal was only to decide the question before it, namely, whether the petitioner was entitled to have the fair rent fixed and if he was so entitled, the amount at which it ought to be fixed. For that purpose, it was open to the Tribunal under S. 101 (3) to go into the question whether the relationship of landlord and tenant subsisted between the parties in respect of the item. When the Tribunal makes finding that the relationship between the parties is that of landlord and tenant and fixes the fair rent, S. 125 of the Act precludes a suit challenging the order. But it may not follow that a civil court is not competent to adjudicate the question whether the relationship of landlord and tenant exists between the parties for other purposes. S. 101 (3) only says that it shall be competent to the Tribunal to decide the question whether there is relationship of landlord and tenant for the purposes of the Act. The decision on the question of the relationship is only incidental to the decision of the issue for fixation of fair rent. I do not think that for implementing the provisions of the Act or the Rules, it was necessary for the Tribunal to have passed the order in question.

7. On the same lines is a subsequent decision of this court in Alavi v. Appellate Authority, Land Reforms (1972 KLT. 643). There, as in the present case, the application was under S. 72B. The court held:

Rule 92 of the Kerala Land Reforms (Tenancy) Rules, 1970 expressly provides that an order there under can be made only for the purpose of implementing the provisions of the Act or the said rules and in the case of an application under S. 72B, the grant of an injunction cannot in any manner implement the provisions of the Act or the Rules.

8. On the facts before us, we do not think that an order of injunction is called for to implement the provisions of the Act and the Rules. The question for consideration is whether the petitioner 1st respondent is a tenant entitled to apply under S. 72B for assignment of the jenmi''s right in his favour, and for a decision of this question an order of injunction need not be passed and if one is passed it would be impossible to bring it under R. 92 (1) for implementing the provisions of the Act and the Rules. The injunction issued by the Land Tribunal must, therefore, be vacated. Learned counsel pressed for a finding on the question of maintainability of the petition on the ground that the land being viruthi, there is no tenancy and as such the petitioner (1st respondent) is not competent to apply under S. 72B. In support of the contention a ruling of this court in Kochunni Kartha Vs. Krishna Marar and Others, was cited by the learned counsel. There the learned judge held that:

viruthi lands are lands the bare enjoyment of which is attached to the performance of future services as mere remuneration without any interest in the soil except that of enjoyment and which land could be resumed on non-performance.....................................One of the incidents of a lease-hold is that it is alienable like any other property unless there be a condition against alienation coming within the saving in S. 10 of the TP. Act, but it is settled law that so far as viruthi land is concerned it is by its very nature inalienable and holders thereof are in the position of tenants at will. Therefore, the grant of land on viruthi does not create a lease-hold right in the property so as to make of it a holding within the meaning of S. 2 (1) of Act 1 of 1957.

But we do not propose to make any pronouncement on the maintainability or otherwise of the petition. The Land Tribunal is wholly seized of the matter and it is for him to decide on the question of maintainability. Only an interlocutory order of injunction has been passed by the learned Land Tribunal and be is yet to enter into the merits of the petition. How far the decision above cited viz., Kochunni Kartha Vs. Krishna Marar and Others, would apply to the facts before him is also to be considered by him and in the circumstances, we would set aside the order of injunction and sand the case back to be proceeded with and disposed of according to law. The O.P. is allowed as indicated above and dismissed in other respects. No order as to costs.