If A Claim Of Tenancy Appears To Be Prima Facie Baseless, Civil Court Can Refuse Reference To Land Tribunal: Kerala High Court

The Kerala High Court while dealing with a tenancy case, established that simply because a contention was raised in the written statement, there is no necessity for the court to refer it to the Land Tribunal if it prima facie appears to be a baseless assertion.

Justice A. Badharudeen held that a civil court is only bound to refer a tenancy matter to the Land Tribunal if it finds sufficient force in the contention raised by the parties. 

"Courts have the power to decide whether the claim made in the written statement requires adjudication having regard to the frame of the suit, contentions in the written statement and also the claim of tenancy is having sustenance, prima facie."

The petitioners herein filed an application in a suit before a Principal Sub Court claiming that as the legal heirs of one Zachariah, they got tenancy right over 29 cents out of the total extent of the plaint schedule property. They sought a reference under Section 125(3) of the Land Reforms Act to get this claim adjudicated by the Land Tribunal.

However, the Munsiff dismissed the application finding that the petitioners will not get tenancy right over the property as on the commencement of the Land Reforms Act as the said property was government land, and was therefore vested with the government. 

Aggrieved by this decision, the petitioners moved a plea before the High Court. 

Advocate K.P. Sreekumar appearing for the petitioners argued that when the question of tenancy is raised by the defendants, it is not necessary for any party to file any application for referring it to the Land Tribunal for consideration.

It was further submitted that non-filing of an application before the Land Tribunal is not a ground for rejecting the request for a reference and that tenancy rights shall be referred to the Land Tribunal and the civil court has no jurisdiction to decide the same. 

Advocates T.C. Suresh Menon and B. Deepak appeared for the respondents in the matter.  

The Court noted that in the decision in Madhavi Amma v. Kesavan [2008 (1) KLT SN 49] relied on by the petitioners, the Single Judge had concurred with the earlier decisions and held that there may be several other instances where reference to the Land Tribunal is not only unnecessary but also unwarranted. In many cases, reference made to the Land Tribunal would be a futile exercise but even in such cases, the civil court is not bound to refer the question of tenancy raised by the defendant to the Land Tribunal.

Thus it was concluded that merely because a contention was raised in the written statement, there is no necessity for the court to refer it. 

If the Court satisfies that the claim of tenancy is prima facie bogus and baseless, the Court shall refuse reference and if the claim is found to be prima facie sustainable on an evaluation of the facts of the case, the court shall refer the same to the Land Tribunal.

"It is true that the Civil Courts cannot decide the question of tenancy. However, the Civil Courts can decide the genuineness of the claim to avoid reference of the claim for tenancy without considering its merits, as observed above."

In this case, the Munsiff found that as per the patta, the Government assigned land in favour of one P.P.Varkey on conditions in 1975. As per Section 74 of the Kerala Land Reforms Act, the creation of tenancy from 01.04.1964 is prohibited.

Therefore, it was found that prior to the issuance of patta under the Land Assignment Act, the Government was the owner of the property and, therefore, the contention raised by the legal heirs of Zachariah (son of P.P.Varkey) claiming tenancy right over 21 cents of land to Zachariah, is not prima facie sustainable.

Therefore, since P.P.Varkey did not claim tenancy right over the property, it cannot be held that his son Zachariah obtained the tenancy right.

Thus, prima facie the convention of tenancy raised by the petitioners will not sustain and, therefore, it was held that the Munsiff rightly negatived the said contention. 

Accordingly, the petition was dismissed.

Case Title: Annamma & Ors v. P.V. Varkey & Ors. 

Citation: 2022 LiveLaw (Ker) 180

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