Abraham Salamma and Others vs G. Viswanathan

P.B. Suresh Kumar, J—The plaintiffs in OS. No. 211 of 1992 on the file of the Court of Subordinate Judge, Kottarakkara are the appellants in this appeal. The sole defendant in the suit is the respondent.

OS. No. 211 of 1992 is a suit for recovery of possession and damages. The plaint schedule property is a property measuring 23 cents and a temporary cinema theatre. The suit property originally belonged to one Geevarghese Abraham. He transferred the suit property in favour of the plaintiffs as per two settlement deeds executed by him on 2.08.1982 and on 2.12.1986. While Geevarghese Abraham was holding the property, he leased out the same to one K.M. Cherian for the purpose of running a cinema theatre. On surrender of the property by the lessee, the property was leased out to the defendant for the very same purpose on 18.02.1982 for a period of two years and the lease was renewed from time to time till 1.01.1989. Geevarghese died on 08.05.2009 and on his death, the lease was terminated and the suit was filed seeking the aforesaid reliefs.

The defendant filed written statement contending inter alia that he is entitled to the protection of Section 106 of the Kerala Land Reforms Act (for short, ''the Act''). He has also filed an interlocutory application seeking an order to refer the claim raised by him for adjudication by the Land Tribunal as provided for under Section 125(3) of the Act. On the said application, the trial court had referred the said issue for adjudication by the Land Tribunal. Pursuant to the said order of reference, the Land Tribunal decided the claim of the defendant in the affirmative and forwarded the finding to the trial court. The trial court thereupon dismissed the suit based on the said finding. The plaintiffs are aggrieved by the said decision of the trial court and hence this appeal.

Heard the learned counsel for the appellants and the learned counsel for the respondent.

The materials on record indicate that the plaintiffs have not appeared before the Land Tribunal pursuant to the reference made by the trial court. The decision of the Land Tribunal, in the circumstance, was ex parte. Though the learned counsel for the appellants submitted the reasons for their absence before the Land Tribunal, I am not referring to those reasons, as I am convinced that the impugned order is liable to be set aside on a point of jurisdiction. It is settled that there is no ouster of jurisdiction for the civil court to decide a claim for protection under Section 106 of the Act and that the said claim, if raised shall be decided by the civil court itself. It is so held by this Court in Govinda Panicker and Another Vs. Sreedhara Warriar and Another . The decision of the Land Tribunal, based on which the impugned judgment was rendered by the trial court is, therefore, without jurisdiction. The impugned judgment, in the circumstances, is liable to be set aside.

In the result, the impugned judgment and decree are set aside and the suit is remitted to the trial court for decision on merits. The suit being one of the year 1992, I feel it appropriate to direct the trial court to dispose of the suit on merits, as expeditiously as possible, at any rate, on or before 30.06.2015 and it is ordered accordingly. The interim order passed by this Court on IA. No. 1386 of 2012 dated 7.8.2012 will continue until a final decision is taken in the suit.