This case has a chequered career. Kunhan, the predecessor in interest of the petitioners filed R.C.P.No.62 of 1980 on the file of the Rent Control Court, Kozhikode against the respondent for eviction under Section 11(2)(b) and Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act (hereinafter referred to as the 'Rent Control Act'). In the Rent Control Petition, Kunhan contended that he purchased the land as per document No.2789 of 1978 of Sub Registry Office, Feroke. A house was constructed by him for the residence of his family. Another small house was constructed in the property for the separate residence of his son. That small house was leased out on 1.7.1979 to the respondent on a monthly rental of ` 25/-, Rent was in arrears from 1.9.1979. Kunhan also contended that the small house is bonafide required for the residence of his son. It is stated that the respondent is a close relative of Kunhan. 2. In the Rent Control Petition, the respondent contended that an extent of 4.5 cents of land was agreed to be sold by Kunhan to the respondent at the rate of ` 500/- per cent as per the oral agreement entered into in April 1978. A sum of ` 500/- was paid to Kunhan towards sale consideration. Again another sum of ` 500/- was paid and at that time possession of the property was given to the respondent. The respondent constructed a hut in the property and he started residing in that hut from 13.11.1978. The entrustment on 1.7.1979, as alleged by Kunhan, was denied by the respondent. The respondent denied the landlord tenant relationship. The respondent also contended that the hut belongs to him and the revenue assessment stands in his name. As per the records in the Panchayath, the respondent is the owner of the hut. The respondent also raised a contention that he is a kudikidappukaran, entitled to fixity of tenure under the Kerala Land Reforms Act and therefore, he is entitled to get assignment of 10 cents of land. The respondent contended that since he is a kudikidappukaran, he got permanent tenancy and therefore, the matter has to be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act.
3. The Rent Control Court referred the question of kudikidappu to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The Land Tribunal found that the respondent is a kudikidappukaran. Accordingly, the Rent Control Petition was dismissed. That order was challenged by Kunhan in R.C.A.No.118 of 1983 before the Appellate Authority. The Appeal was allowed and the finding of the Land Tribunal was set aside by the Appellate Authority. The case was remanded to the Rent Control Court to decide whether the denial of title set up by the respondent is bonafide. The respondent challenged that order in revision before the District Court. The revisional court allowed the revision and remanded the case to the appellate court. After remand, the Appellate Authority found that the respondent is not a kudikidappukaran. The case was remanded to the Rent Control Court to decide the question of denial of title. Again the respondent filed R.C.R.P.No.124 of 1985 before the District Court. The revisional court found that the respondent is a kudikidappukaran. Kunhan, the landlord, challenged that order in O.P.No.8221 of 1988 before the High Court. The Original Petition was disposed of by the order dated 3rd August, 1992, the operative portion of which reads as follows :
“In the result, I quash the decision of the revisional court in R.C.R.P.124/1985 and restore the decision of the Appellate Authority. The Rent Control Court will go into the question of bonafides of the denial of title put forward by the first respondent. In case the Rent control Court finds the denial to be bonafide, it will record a finding to that effect and direct petitioner to move the civil court for appropriate relief. In case the Rent Control Court is taking a contrary view, then the matter will have to be remitted back to the Land Tribunal for adjudicating the issue relating to the right of kudikidappu put forward by first respondent.”
4. Though the order passed by the High Court was challenged before the Supreme Court, the Special Leave Petition was dismissed. Thereafter, the Rent Control Court passed an order dated 14.12.2000, holding that the denial of title set up by the respondent/tenant is bonafide as provided in the first proviso to Section 11(1) of the Rent Control Act. This necessitated filing of a suit before the civil court by the legal representatives of Kunhan. (Kunhan died while the case was pending before the Rent Control Court and his legal representatives were impleaded). The legal representatives of Kunhan (petitioners in the revision) filed O.S.No.209 of 2002 before the Munsiff's Court, Kozhikode II(P). The case was made over to the court of the Additional Munsiff of I, Kozhikode, where it was re-numbered as O.S.No.321 of 2006. The court below raised issue No.3 as to whether the question of kudikidappu raised by the defendant should be referred to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. It was held that the question of Kudikidappu arises in the case and accordingly, the issue was referred to the Land Tribunal under Section 125(3) of the K.L.R.Act. The said order is under challenge by the plaintiffs in the suit.
5. The parties are bound by the judgment in O.P.No.8221 of 1988. Going by that judgment, if the Rent Control Court found that the denial of title was bonafide, the petitioner had to file a suit for eviction before the civil court based on his title. If the Rent Control Court found that the denial of title was not bonafide, the Rent Control Court was bound to refer the question of kudikidappu to the Land Tribunal. In the present case, the Rent Control Court having found that the denial of title was bonafide, it was not necessary to refer the question of tenancy of the Land Tribunal. The judgment in O.P.No.8221 of 1988 does not give any direction as to what procedure should be adopted if a suit is filed by the landlord. In other words, the question of reference under Section 125(3) of the Land Reforms Act by the civil court was not an issue before this Court in O.P.No.8221 of 1988.
6. The learned counsel for the petitioners pointed out that Kunhan got title to the property only as per the registered assignment deed dated 16.11.1978. It is curious how the respondent claims to have entered into an oral agreement for sale of a portion of the property in April 1978. It is also pointed out that the respondent claims to have started residence in the hut since 13.11.1978, while Kunhan did not get title to the property at that time. According to the counsel for the petitioners, these facts alone are sufficient to hold that, question of kudikidappu does not arise for consideration. The learned counsel for the respondent, on the other hand, submitted that this discrepancy is not relevant at all in deciding the question of kudikidappu. He pointed out that according to the plaintiffs, Kunhan leased out the house to the defendant on 1.7.1979. If the building is a hut as defined in the Land Reforms Act, the defendant would be entitled to fixity of tenure, notwithstanding any other discrepancy in the pleadings. The learned counsel for the respondent contended that the only question to be decided by the Land Tribunal is the cost of construction of the hut and the rent that would have fetched at the time of construction. It is not necessary to resolve this question in this revision.
7. It is submitted by the counsel on either side that a question of title of the plaint schedule property was raised in the suit. If so, before deciding that question, the claim of kudikidappu of the respondent does not arise at all. Section 125 (3) of the Kerala Land Reforms Act provides that if 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. It is well settled by the decision of the larger Bench in Kesava Bhat vs. Subraya Bhat (1979 KLT 766) that a reference to the Land Tribunal is required only if the question of tenancy or kudikidappu arises for consideration. It was held by the larger Bench, that in a suit for injunction, the question of possession alone is relevant and therefore, the question of tenancy does not arise. In Chacko Kochu vs. Abraham (1977 KLT 868), it was held that when the defendant questions the title of the plaintiff, and in the alternative raises contentions regarding tenancy or kudikidappu, it is necessary that, before a reference under Section 125 is made, the question of title is first determined. The question of tenancy or kudikidappu arises only if it is found that the plaintiff is the land owner.
8. The word “arises” occurring in Section 125(3) of the Kerala Land Reforms Act was a point which arose for consideration in various decisions of this Court including the larger Bench decision in Kesava Bhat vs. Subraya Bhat (1979 KLT 766). In the facts of the present case, as on the date of the filing of the suit, the question of kudikidappu did not arise for consideration. As on the date of the filing of the written statement, the question of kudikidappu did not arise for consideration, since that question can be decided only after holding that the plaintiff has title to the property. In other words, without deciding the question of title, there could be no reference to the Land Tribunal. To decide the question of title of the plaintiff, it is necessary to try the suit on the relevant issues. Section 125(3) of the Land Reforms Act does not contemplate the stay of the suit after commencement of trial and after rendering decision on one or more issues. It contemplates reference to the Land Tribunal only at the initial stage immediately after issues are settled. If a question of tenancy does not arise at that stage, it is not necessary to refer that question after the trial has commenced and one or more issues are answered by the civil court. Such a procedure was not contemplated by the law makers and we cannot read into Section 125(3) such a procedure. The word “arises” occurring in sub-section (3) of Section 125 can have no other interpretation, taking into account the purpose for which Section 125(3) is enacted. By Section 125(3), the law makers aimed at early disposal of claims of tenancy and kudikidappu. A protracted trial and a procedure which would result in delay in disposal of the suits was not contemplated when the law makers used the expression “arises” in Section 125(3) of the Kerala Land Reforms Act. Therefore, I am of the view that in the present case, the question of kudikidappu does not arise for consideration which mandatorily requires a reference under Section 125(3) of the Kerala Land Reforms Act. After deciding the question of title, all the questions arising in the suit can be decided by the civil court.
9. In other words, the civil court does not lack jurisdiction in the present case, to decide all questions including the question of kudikidappu raised by the defendant.
10. The Rent Control Petition was filed in 1980 and even after 30 years, the litigation has not come to an end at the trial court level. The trial court shall dispose of the suit as expeditiously as possible and at any rate within six months.
For the aforesaid reasons, the Civil Revision Petition is allowed and the order passed by the court below is set aside.
csl K.T.SANKARAN JUDGE