E. Keshava Bhat Vs. K.S. Subraya Bhat - Court Judgment

Gopalan Nambiyar, C.J.

1. These two cases were heard together as they raised certain questions in regard to the scope of Section 125 (3) of the Kerala Land Reforms Act. The questions raised which have occasioned the reference will be dealt with in the course of our discussion.

A. S. A. No. 1 of 1977:

The appeal is by the defendant in O. & No. 16 of 1972, Munsiff's Court, Kasaragod, a suit for a permanent injunction to restrain the appellant from trespassing on the plaintiff-respondent's property and from interfering with the plaintiff's possession. The plaint proceeded on the basis that the appellant was the plaintiff's agent and had no independent possession. Ext. A-l in the suit evidenced the contract claimed to be one of agency. The appellant's defence was that he was a tenant. The suit was filed on 19-1-1972, i.e. after the amendment of the Kerala Land Reforms Act I of 1964 by Act 35 of 1969. The appellant applied for purchase of the landlord's rights under Section 72-B of the Act on the ground that he was a tenant. Issues 1 and 4 in the suit were as follows;--

'1. Whether the plaintiff was in possession of the suit properties on the date of the plaint?

XX XX XX 4. Whether the court has got jurisdiction to try the suit?

XX XX XX XX I. A. No. 463 of 1972 was filed by the appellant for reference of the question of tenancy for determination by the Land Tribunal under Section 126 (3) of the Land Reforms Act which requires that whenever in any suit or proceeding any question regarding the rights of a tenant arises, such question shall be referred to the Land Tribunal. The application was rejected on the ground that the suit was one for injunction and that the question whether the appellant was a tenant or not did not 'arise' for consideration. Thereafter the suit was tried on the merits. On issue 1, the plaintiff's possession was found; the appellant was found only to be an agent and the suit was decreed with costs. On issue No. 4, it was held in paragraph 25 that in view of the order on I. A. No. 463 of 1972, the issue did not 'arise' for consideration. On appeal, although the appellant pointedly raised the ground in the memorandum of appeal that the question of tenancy should have been referred for determination to the Land Tribunal, the same does not seem to have been urged before the lower appellate court, and is not seen dealt with in the judgment. The appeal was dismissed affirming the finding that the appellant is not a tenant. In second appeal to this Court, the contention was strongly urged by the appellant that as the question of tenancy raised by him was not referred for determination to the Land Tribunal under Section 125 (3) of the Act, the decree passed by the trial court was wholly without jurisdiction. The learned Judge held that as the plea in this form had not been specifically raised or pursued in the lower appellate court, it cannot be permitted to be raised in second appeal. Proceeding to deal with the matter on the merits, the learned Judge affirmed the decree of the lower appellate court and dismissed the second appeal, holding that the plaintiff was in possession on the date of filing the suit and that the appellant was only an agent.

2. The point urged by counsel for the appellant is that quite irrespective of whether the suit was for an injunction or not, once the plea of tenancy had been raised by the defendant, the Court was bound to refer the question for determination to the Land Tribunal under Section 125 (3). Trial of the suit without such reference, and the decree passed therein, were said to be with out jurisdiction and a nullity. A three Judges Full Bench of this Court in Alavi v. Radha Varasyaramma (1976 Ker LT 601) had taken the view that a decree passed in violation of Section 125 (3) of the Act and without reference of the question of tenancy to the Land Tribunal was required by the said section, was not without jurisdiction, but was only a case of procedural irregularity. Counsel for the appellant canvassed the correctness of this proposition. The correctness of this view was doubted recently by another three Judges Full Bench in George v. Vareed (1978 Ker LT 691). In view of this, it was felt that the decision in Alavi v. Radha Varasyaramma (1976 Ker LT 691) required reconsideration. The matter was accordingly placed before this larger Bench. This is the main question that arises for consideration. But in dealing with it, various side issues and incidental questions also crop up, which bristle with conflict and controversy. One of these is whether in a plain and simple suit for injunction as in this case, a question of tenancy, or any rights of a tenant can be said to 'arise' for determination.

3. In Lessee v. Kuttan (1976 Ker LT 571), a Full Bench of three Judges of this Court overruled the Division Bench ruling in Alavi v. Mohammedkutty Haji (1973 Ker LT 937), and ruled that even a suit for injunction is liable to be referred to the Land Tribunal under Section 125 (3) of the Land Reforms Act. The correctness of the view taken by this Full Bench has been challenged before us by counsel for the respondent.

4. Other questions which arise in the course of tackling these main questions will be referred to in the course of the discussion.

5. Section 125 of the Act may be noticed:

'125. Bar of jurisdiction of civil courts, --

(1) No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government:

Provided that nothing contained in this sub-section shall apply to proceedings pending in any court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969. (2) No order of the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government made under this Act shall be questioned in any civil court, except as provided in this Act.

(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 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 the roof is situate together with the relevant records for the decision of that question only.

(4) The Land Tribunal shall decide the question referred to it under subsection (3) and return the records together with its decision to the civil court.

(5) The civil court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it.

(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Civil Court.

(7) No civil court shall have power to grant injunction in any suit or other proceeding referred to in Subsection (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal, and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or before such question has arisen, shall stand cancelled.

(8) In this section, 'civil court' shall include a Rent Control Court as defined in the Kerala Buildings (Lease and Rent Control) Act, 1965.' There can be little doubt that the first clause completely bars the jurisdiction of the civil court from deciding or dealing with questions which have to be decided or dealt with by the Land Tribunal or the Land Board or the Government or an Officer of Government. Clause (3) of Section 125 provides for a reference of any question regarding the rights of a tenant to the Land Tribunal and the staying of the suit till decision by the Tribunal if such a question arises in the suit. Section 101 (3) of the Act makes the jurisdiction of the Tribunal an exclusive one. The Civil Court is to incorporate the finding of the Tribunal on the question referred, in the decision to be rendered by it. The finding thus incorporated is liable to be challenged in appeal by the appellate court, and, of course, on further appeal by the second appellate court.

6. We shall first deal with the question whether a plain and simple suit for injunction is liable to be referred under Section 125 (3) of the Act. That should depend on whether a question regarding the rights of a tenant can be said to 'arise' in the suit. Unaided by authorities, we think that in suits for injunction, we are concerned only with the question of possession of the nature and the character of the possession is immaterial. If the plaintiff does not make out his possession, there is no need at all to consider whether the defendant is in possession, and if so, in what character or capacity; and if the plaintiff makes out his case of possession, the question of defendant's tenancy again would not fall for consideration. This was the view taken in the two decisions in Alavi v. Mohammedkutty Haji 1973 Ker LT 937 and Narayana Menon v. Kallandi (1973 Ker LT 983). As a statement of general principle applicable in the generality of cases for injunction, that is the view which commends itself to us. We are of the opinion that the decision in Lessee v. Kuttan (1976 Ker LT 571) which overruled the same cannot be accepted as laying down correct law. In that decision, a Full Bench of three Judges examined the position. The Full Bench after noticing the two decisions in 1973 KLT referred to supra, expressed itself thus:

'The matter raises a difficult question. In one sense it is correct to say that if the plaintiff is found to be in possession a further question whether the defendant is a tenant or not is immaterial and therefore it does not arise in the case. But we have to remember that in most of the cases of this type on the plea by the defendant that he is a tenant and a denial by the plaintiff of that plea an issue would normally have been framed whether the defendant is a tenant or not. We have not come across cases where in such circumstances the plaintiff sought to strike out the issue regarding the question whether the defendant is a tenant or not. It is even doubtful whether in such circumstances he could legitimately claim that the issue framed should be struck off. If there is such an issue framed in the case can it be said that the question whether the defendant is a tenant or not does not arise in the suit? We do not think it is possible and it is not as though a finding on such an issue has no bearing or has no relevance in determining the question of possession. In cases of disputed possession the evidence regarding possession will be conflicting. And very often the evidence would be mainly oral and it will be difficult to conclude whether the plaintiff's witnesses were speaking the truth or whether the defendant's witnesses were speaking the truth when each group asserted that the one or the other, the plaintiff or the defendant, was in possession. In such a situation the presumption that possession follows title which courts may draw in given cases, particularly, when it is established that the man with title had been in possession at some time, (though there is no specific statutory provision in the Evidence Act regarding such a presumption as in the case where title is presumed on possession being established under Section 110 of the Evidence Act) may be pressed into service. A finding whether the defendant is a tenant is therefore an important factor in cases of disputed possession and conflicting evidence. Further in all cases a finding on the question whether a defendant is a tenant or not would not only be relevant but useful for evaluating the evidence in the case regarding possession and in determining the probative value of such evidence. This being so we do not think the correct approach in such cases should be to proceed as if the question whether the defendant is a tenant or not has no bearing when the plaintiffs have chosen to rest their case purely on possession. With respect we are unable to agree with the view expressed in the two decisions to which we have referred to as well as in the other decisions of this Court. Those decisions have to be overruled and we do so.' (pp. 578 and 579). We are unable to accept the reasoning of the Full Bench. The rule of presumption following title, as is well known, is applicable only in certain limited classes of cases, and under limited conditions and circumstances. That rule has no relevance in deciding whether a question of tenancy 'arises' in a plain and simple suit for injunction. Nor are we impressed with the reasoning that a finding on tenancy would be relevant and useful in evaluating evidence as to possession. We are unable to see how this would be so. We therefore overrule the decision of the Full Bench in Lessee v. Kuttan (1976 Ker LT 571) on this point, and hold that the decisions in Alavi v. Mohammedkutty Haji (1973 Ker LT 937) and Narayana Menon v. Kallandi (1973 Ker LT 983) were rightly decided. We endorse the judgment of Mr. Justice Krishnamoorthy lyer in C. R. P. No. 298 of 1973 which was also overruled in Lessee v. Kuttan (1976 Ker LT 571).

7. As, however, the reference to the Full Bench of five Judges was occasioned to consider the other questions strongly debated before us, which frequently arise for determination, and which have to be settled for providing guidance to the lower courts, we shall deal with these questions. These are: when can it be said that a question regarding the rights of a tenant 'arises' within the meaning of Section 125 (3)? If a question thus 'arises', and is not referred to the Land Tribunal but is dealt with and disposed of by the civil court, is the resultant decree one without jurisdiction?

8. On the first of these questions, counsel for the appellant contended that a question of tenancy 'arises' the moment a plea of tenancy is raised in written statement. He placed reliance for this proposition on the decision of the Supreme Court in Bhimaji v. Dundappa (AIR 1966 SC 166). The Court was there concerned with Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948 This section was as follows:

'85-A. (1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer 'such issues' to such competent authority for determination.

(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

Explanation. -- For the purpose of this section a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906.'

The Section was introduced by an amendment of 1956. But even before the introduction of the section it had been ruled by the Bombay High Court in Dhondi Tukaram's case (AIR 1954 Bom 100), on the strength of Section 70 (b) and Section 85 that if a suit is filed on the footing of trespass and the defendant raises the plea of tenancy, the Civil Court had no jurisdiction to deal with the plea and the matter had to be referred to the Mamlathdar for decision. This was on the combined effect of Sections 70 (b) and 85 of the Act. The legislature, by enacting Section 85-A accepted this view. The Supreme Court affirmed the High Court's decision that till the Mamlathdar decided on the plea of tenancy, the Court was bound to stay proceedings and could not proceed on the basis that the transaction sued on was a mortgage. The actual decision of the Supreme Court was only to this effect. In the course of the discussion, the Court noticed the decision in Mudugere Rangaiah's case (ILR (1959) Mys 420). There the suit was for a declaration that the plaintiff was a tenant and for a permanent injunction. The defendant also claimed the status of a tenant under the same landlord as the plaintiff, and claimed that the Civil Court had no jurisdiction to decide the suit in view of Section 46 of the Mysore Tenancy Act. The Mysore High Court ruled that the jurisdiction of the Amildar was only in respect of cases 'arising by or under' the Mysore Tenancy Act, and the suit in question did not fall under that category, and therefore the Civil Court had jurisdiction. The Supreme Court guarded itself against expressing any view one way or the other on the decision in Mudugere Rangaiah's case (ILR (1959) Mys 420). The actual decision in AIR 1966 SC 166 therefore, does not touch this particular aspect.

9. In Noor Mohammad Khan v. Fakirappa (AIR 1978 SC 1217) construing the provisions of the Mysore Tenants (Temporary Protection from Eviction) Act, 1961 -- referred to in the judgment as Mysore Act and Karnataka Act -- and, in particular, Sections 4, 70 and 133 thereof, the Supreme Court observed :

'Rightly or wrongly he took the objection that he was a tenant and, therefore, could not be evicted by the Collector in pursuance of the final partition decree or order by giving actual delivery of possession to the appellants. An issue, therefore, arose for decision of the Civil Court in the suit or the execution proceeding which was a continuation of the partition suit as to whether respondent No. 1 was a tenant within the meaning of the relevant Acts. The stand taken on behalf of the appellants with reference to Section 52 of the T. P. Act may be good and may have force. Nonetheless, the jurisdiction of the Civil Court to decide this contentious issue was barred. The matter had to be decided by the Revenue Authorities.' (p. 1221).

In that case, Section 142 (1-A) of the Karnataka Act provided that if a person was a tenant he shall not be liable to be evicted from the land except in accordance with the provisions of the Act. Section 70 made it the function of the Mamlathdar to decide whether a person is, or was, at any time in the past, a tenant. Under Section 85 the jurisdiction of the Civil Court to decide any matter which had to be dealt with by the revenue authorities was barred. Under Section 133 any suit 'involving' any matter which had to be dealt with by the Revenue or Governmental authorities had to be stayed, It was on the combined operation of those provisions that the Supreme Court stated the position as noticed supra. The language of the provision construed was different,

10. Counsel for the appellant drew our attention to the recent decision of the Supreme Court in Gundaji v. Ramchandran (AIR 1979 SC 653). Under the provisions of the concerned statute, (the Bombay Tenancy and Agricultural Lands Act, 1948) the question whether a person was an agriculturist or not was confided to the exclusive jurisdiction of the Mamlathdar. Section 85 barred the jurisdiction of the Civil Court to settle, decide or deal with any question, required by the Act to be decided or dealt with by the the Mamlathdar or Tribunal or other authorities. Section 63 prohibited inter alia a sale of land in favour of one who is not an agriculturist. The suit was for specific performance of a contract of sale and the plea was raised that the plaintiff was not an agriculturist and an agreement of sale to him was opposed to the statute and to public policy. It was held, that the question should not have been proceeded with in the civil court. Paragraphs 14 and 18 of the decision are important. We extract the relevant passages:

'14. It would thus appear that even when a properly constituted suit is brought to the Civil Court having jurisdiction to try the same, prima facie, on a contention being raised by the defendant an issue may arise which the Civil Court would not be competent to try and the legislature stepped in to avoid the conflict of jurisdiction by introducing Section 85-A making it obligatory upon the Civil Court to refer such an issue to the competent authority under the Tenancy Act. Any controversy that such an issue is a primary issue or a subsidiary issue and hence triable by Civil Court must be said to have been resolved by laying down that the Civil Court will have no jurisdiction to try the same even if such an issue arose in a properly constituted civil suit cognisable by the Civil Court. And the ratio of the decision is that a contention raised by the defendant may have the necessary effect to oust the jurisdiction of the Civil Court in respect of the contention which is to be disposed of before the suit can be disposed of one way or the other.

X X X X 18. Thus, both on principle and on authority there is no escape from the conclusion that where in a suit properly constituted and cognizable by the Civil Court upon a contest an issue arises which is required to be settled, decided or dealt with by a competent authority under the Tenancy Act, the jurisdiction of the Civil Court to settle, decide or deal with the same is not only ousted but the Civil Court is under a statutory obligation to refer the issue to the competent authority under the Tenancy Act to decide the same and upon the reference being answered back, to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act.

19. If, plaintiff sued for specific performance of a contract for sale of agricultural land governed by the provisions of the Tenancy Act in the Civil Court and the defendant appeared and raised a contention that in view of the provisions contained in S. 63 of the Tenancy Act the plaintiff being not an agriculturist he is barred from purchasing the land, the issue would arise whether the plaintiff is an agriculturist Such an issue being within the exclusive jurisdiction of the Mamlatdar, it is incumbent upon the Civil Court to refer the issue to the competent authority under the Tenancy Act and the Civil Court has no jurisdiction to decide or deal with the same.' Many decisions were noticed and examined. The language of Section 85-A again, required that the relevant question must be 'involved' in the suit, The Court observed that there was no escape from the conclusion that the legislature had expressly ousted the jurisdiction of the Civil Court to decide any question which had to be dealt with by the authorities mentioned by the Act.

11. Counsel for the appellant contended, on the strength of the decisions in Noor Mohammad Khan v. Fakirappa, (AIR 1978 SC 1217) and Bhimaji v. Dundappa, (AIR 1966 SC 166) that the question of tenancy arises as soon as the plea was raised by the defendant that he was a tenant, and therefore the matter had to be referred to the Land Tribunal. We do not think this extreme position taken up by counsel for the appellant will be justified. A statement hi such wide and comprehensive terms is to be found in the Full Bench decision in Lessee v. Kuttan, (1976 Ker LT 571). The Full Bench observed:

'The only matter to be considered in the Court is whether any question regarding the rights of a tenant or a kudikidappukaran including the question as to whether a person is a tenant or a kudikidappukaran arises in a suit or proceeding. This, the Court will have to examine and for this purpose what will have to be examined are the pleadings, and we consider, nothing also. Whether the plea is frivolous or sustainable or prima facie true or not are all foreign to the scope of the enquiry before Court. We are in complete agreement with the decision in Sankaran v. Rajammal, (1974 Ker LT 488) where all the decisions on the subject on an analogous provisions of previous enactments have been reviewed. The view has been taken in the decision that Section 125 (3) has barred any consideration by the Court of the question even for the purpose of finding out whether a prima facie case has been established.' (p. 575).

We consider that the principle has been very widely and broadly stated in the above passage. We cannot accept the statement of the law as correct. Unless the question actually 'arises' for consideration, there is no obligation under Section 125 (3) to make a reference to the Land Tribunal. The mere incorporation of an unnecessary or irrelevant plea of tenancy into the written statement which has no relation whatever to the material averments and the reliefs sought in plaint, cannot attract the bar of Section 125 (1), or the provisions of Section 125 (3). It follows that the statement of the principle in Sankaran v. Rajammal (1974 Ker LT 488) which was approved by the Full Bench in Lessee v. Kuttan (1976 Ker LT 571) must also be overruled. That decision stated that Section 125 (3) bars any consideration by the court of the question even for the purpose of finding out whether a prima facie case has been established. We consider this an over-statement of the principle. It is only if the question arises for consideration that the obligation to refer under Section 125 (3) also arises. We do not think it can be the Intention of the Legislature to make the reference to the Land Tribunal dependent upon a plea in the written statement which has got no relation to the claim made in the plaint, and which would not, having regard to the frame of the plaint, or to other legal obstacles in raising the defence, call for any adjudication at all.

12. We may refer to the decision of the Supreme Court in Topandas v. Gorakhram Gokalchand (AIR 1964 SC 1348). The suit was there instituted in the City Civil Court, Bombay, for a declaration that the defendants were not entitled to remain in possession of a certain shop in Greater Bombay and for a permanent injunction restraining them from entering the shop. The defence was that the relationship between the parties was not that of licensor and licensee but of landlord and tenant and that under Section 28 (1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, read with Section 29-A thereof the suit was exclusively triable by the Court of Small Causes and not by the City Civil Court, This defence was overruled. Section 28 gave exclusive jurisdiction over suits or proceedings between landlord and tenant relating to recovery of rent or possession to the Small Cause Court; and Section 29-A provided that nothing in Section 28 (or 29) would bar a party to a suit in which a question of title to premises arises, from suing in a competent Court to establish his title to the premises. S.K. Das, J. speaking for himself and Hidayatullah, J. who formed the majority observed:

'It is to be noticed that the operative part of the sub-section refers to two matters (a) any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of Part II apply and (b) any application made under the Act or any claim or question arising out of this Act or any of its provisions. What is the true effect of Sub-section (1) of Section 28 with regard to the aforesaid two matters Does it mean that if the defendant raises a claim or question as to the existence of a relationship of landlord and tenant between him and the plaintiff, the jurisdiction of the City Civil Court is ousted even though the plaintiff pleads that there is no such relationship, and the only Court which has exclusive jurisdiction to try the suit is the Court of Small Causes, Bombay That is the question before us.' (p. 1352).

The learned Judges then referred to the Full Bench decision of the Allahabad High Court in Ananti v. Channu ((1930) ILR 52 All 501) and proceeded: 'Having regard to the general principle stated above we think that the view taken by the High Court in this case is correct. Section 28 no doubt gives exclusive jurisdiction to the Court, of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of Part II apply; it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its provisions -- all this notwithstanding anything contained in any other law. The argument of learned counsel for the appellants is that the section in effect states that notwithstanding any general principle, all claims or questions under the Act shall be tried exclusively by the Courts mentioned in the section, e.g. the Court of Small Causes in Greater Bombay, and it does not matter whether the claim or question is raised by the plaintiff or the defendant. The argument is plausible, but appears to us to be untenable on a careful scrutiny. We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred on certain Courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those Courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under Section 28 depends, we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go. The interpretation canvassed for by the appellants will give rise to anomalous results; for example, the defendant may in every case force the plaintiff to go to the Court of Small Causes and secondly, if the Court of Small Causes finds against the defendant's plea, the plaint may have to be returned for presentation to the proper Court for a second time.' (pp. 1252 and 1353).

13. Counsel oh both sides expatiated on the meaning of the expression 'arise'. The decision in Weed v. Ward, ((1889) 40 Ch ' D 555) was cited.

Cotton L. J. there stated that a question which 'arises' for consideration is something which will necessarily have to be decided. Much the same thing was said by Lindley, L. J. and Lopes, L. J. Being a plain and simple suit for injunction on the averment that the defendant was only the plaintiff's agent, we do not think any question regarding the rights of a tenant 'arises' so as to attract Section 125 (3) of the Act, Attention was called to the decision of a learned Judge of this Court in George v. Chakkunni, (1977 Ker LT 865). Our learned brother Bhaskaran, J. very rightly noticed that the legislature had guardedly used the expression 'arising' instead of 'raised'. It was observed that to invoke the Section it is not sufficient that a dispute regarding the right of tenancy is raised, and that the question should, on the other hand, 'arise' in the proceedings. The learned Judge was of the view that if as a matter of fact, the plea is barred by the operation of the principles of res judicata, the Court trying to proceed has no jurisdiction to try that question over again, and in that view, the question does not really 'arise' for decision. We give our assent to this exposition of the principle by the learned Judge.

14. We pass on to the next question : If a question of tenancy did 'arise' for determination, and was not referred for adjudication to the Land Tribunal, but was dealt with by the Civil Court itself, is the decree one without jurisdiction We are of the opinion, that the resultant decree passed by the Civil Court would be one without jurisdiction. We cannot accept the contrary view in Alavi v. Radha Varasyaramma, (1976 Ker LT 691) (FB). As this reference has been occasioned to consider the correctness of that view, we shall deal fully with that question. Before noticing the relevant decisions, we would stress that Section 125 (1) completely bars the jurisdiction of the Civil Court to settle, decide or deal with any question in respect of which appropriate provisions had been made in the Act for determination by the Land Tribunal, the Land' Board or the Government or an Officer of Government, A limited and qualified way of dealing with a question of tenancy by incorporating the finding of the Tribunal is provided by Section 125 (3); and by reason of the provisions of Clause (6), the finding of the Civil Court is liable to be examined by the Appellate Court on appeal. This, we gather, to be the effect of Section 125 of the Act.

15, In Alavi v. Radha Varasyaramma, (1976 Ker LT 691), a Full Bench of three Judges of this Court, examined the provisions of Section 3 of the Limitation Act, Section 11 of the Civil P. C. and various other provisions and also referred to the Full Bench decisions in Lessee v. Kuttan, (1976 Ker LT 571) and Ananthanarayana Iyer v. Paran, (1976 Ker LT 403), the former by three Judges, and the latter by five. In neither of these cases, did the question really arise, of the effect of a decision rendered in contravention of Section 125 (3). In Lessee v. Kuttan, (1976 Ker LT 571) the Full Bench of three Judges observed :

'By Sub-section (1) the jurisdiction of the Civil Court to settle, decide or deal with any question or to determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Government or an Officer of the Government has been ousted. The only saving provision is that nothing contained in the sub-section would apply to proceedings pending in any Court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969. There was the further bar introduced by Sub-section (2) which is a reproduction of the old Section 125 which we have already read. Thereafter came the most crucial provision for the purpose of these cases in Sub-section (3) which is rather sweeping in its ambit in that it comprehends any question regarding rights of a tenant or of a kudikidappu-karan including a question as to whether a person is a tenant or a kudi-kidappukaran. If any such question arose, the Civil Courts have been enjoined to stay the suit or other proceeding and refer the 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.

X X X X The combined effect of Sub-sections (3) and (4) is a bar on the Civil Court to try the question and a conferment of power on the Land Tribunal to decide.

This amounts to an ouster of the jurisdiction of the Civil Court and a conferment of the jurisdiction on a different Tribunal............It appears to us that there is an express bar by virtue of the ' provisions in Sub-section (3) read with Sub-section (4) of Section 125. Even if there is no express bar, there is certainly an implied bar. We must hasten to add that this ouster of jurisdiction is only as regards the Court of first instance. That Court has to accept the decision of the Land Tribunal on the question and then proceed to decide the suit. (Section 124 (5)). But the decision of the Land Tribunal has to be treated as a finding of the Civil Court for the purpose of the appeal (Section 124 (6)). The Appellate Court can therefore consider the correctness of that finding.'

16. In Ananthanarayana Iyer v. Paran, (1976 Ker LT 403 at p. 406) a Full Bench of five Judges of this Court speaking with respect to Section 125 stated thus:

'On the language of the section, and unaided by any authorities, Clause (1) bars the jurisdiction of the Court to deal with any question required to be settled, decided or dealt with, by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government. Consistent with the principle that a section dealing with ouster of jurisdiction is to be strictly construed, and on the language of Clause (1) we have little difficulty in holding that the section is only prospective in its operation and not retrospective.'

On this latter point, the decision has, no doubt, been overruled by the Supreme Court in Eapen Chacko v. Provident Investment Co. (P) Ltd., (1977 Ker LT 1), which held that the Section was retrospective. But the earlier proposition that there was a bar of jurisdiction, remains unshaken. A Full Bench of this Court in Narayanan Nair v. State of Kerala (1970 Ker LT 659) which considered the validity of the various Sections of the Land Reforms Act also dealt with Section 125 (1) on the footing that there was an ouster of jurisdiction of the Civil Court by the said Section. A Division Bench of this Court in Gopalakrishnan Nair v. Padma-vathy Amma, (1970 Ker LT 888 at p. 8911 again understood Section 125 (1) as providing for an ouster of jurisdiction of the Civil Court Both on the clear terms of the Section and on the welter of authorities noticed, we are unable to accept the decision in Alavi v. Radha Varasyaramma, (1976 Ker LT 691) that a decision in contravention of Section 125 (3) of the Act is not one without jurisdiction, as correct. After noticing the observation of the Full Bench in Lessee v. Kuttan, (1976 Ker LT 571) and in Ananthanarayana lyer v. Paran, (1976 Ker LT 403), the Full Bench in 1976 Ker LT 691 observed:

'It is true that reference was made to ouster of jurisdiction. But the term 'jurisdiction' has not been used in that decision in the strict senses of competency of the Court to decide the suit. The finding on the question which arises under Section 125 (3) has to be only by the Land Tribunal and the Civil Court had to decide the case accepting that finding of the Land Tribunal. To that extent the power of the Civil Court to find on the issue has been substituted by the power conferred on the Land Tribunal. The term 'ouster of jurisdiction of the Civil Court' has been used only to emphasise the aspect of 'conferment of power on a different Tribunal' to try and to find on the question. In other words the jurisdiction to enter a finding on the disputed question, in the first instance, has been given to the Tribunal and to that extent that power has been taken away from the Civil Court. That is the limited scope or extent of the 'ouster. In view of the provision in Section 125 (5) enabling the. Court and enjoining the Court to finally decide the suit between the parties, it is not possible to spell out an ouster of jurisdiction to decide the suit finally. Before the Full Bench the question whether the decision of a suit by the trial Court without complying with Section 125 (3) would be null and void did not arise and no such question was considered or decided.

18. In the decision of the Full Bench in Ananthanarayana lyer v. Paran, (1976 Ker LT 403), in para 7, the Court considered the question whether Sub-section (3) of Section 125 operates only in respect of suits and proceedings filed after 1-1-1970 as Section 125 (1) does or whether it operates even in respect of suits and proceedings instituted even before that date. It is while discussing that question that the Court observed:

'Although Sub-section (1) bars the cognizance of the Civil Court only prospectively from 1-1-1970, Sub-section (3) comprehends even suits instituted prior to that date, in which any question regarding the rights of a tenant including the question whether a person is a tenant arises. Such question should be decided by the Land Tribunal. A decision by the Civil Court of the said controversy, whether on prima facie satisfaction or on pucca proof of the status of a tenant, would therefore be barred.' The last sentence in the passage extracted cannot be understood divorced from the rest of the above paragraph in which it appears.' (pp. 698 and 699). We cannot accept the above exposition of law by the Full Bench that there is no ouster of jurisdiction by Section 125 (3) as correct. We are of the opinion that there is an ouster of jurisdiction of the Civil Court to decide a question of tenancy, by Section 125 (1) of the Act. Such a question must be referred to the Land Tribunal under Section 125 (3), and dealt with as provided by that clause and the other clauses of that Section. 1976 Ker LT 691 (FB), stating a contrary position cannot be accepted as correct and we overrule the said statement of legal principle. A contravention of the provisions of Section 125 (3) is a matter of jurisdiction and not one relating to procedure.

17. We may next refer to a decision of a Division Bench of this Court in Kunheema Umma v. P. Balakrishnan, 1967 Ker LT 629: (AIR 1967 Ker 97). The learned Judges there pointed out the essential distinction between an inherent want of jurisdiction and an irregular exercise of jurisdiction- It was pointed out that even an erroneous decision on a question of law can be res judicata. The general principle was stated thus in para 7:

'In other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The jurisdiction of a Court may be restricted by a variety of circumstances. The question of jurisdiction has to be considered with reference to the value, place and nature of the subject-matter. The classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction over the subject-matter is obviously of a fundamental character. The general rule is that if the Court rendering a judgment suffers from want of jurisdiction in respect of any one of the above matters its judgment is a nullity and may be ignored.

X X X X But this general rule is subject to certain well-defined exceptions, two of them being based on Section 21 of the Civil P. C. and Section 11 of the Suits Valuation Act, also dealt with in the decision of the Supreme Court cited above.'

18. In English Law the question of a decision without jurisdiction has recently received, and still continues to receive, a good deal of discussion in the academic world, consequent on the decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission, ((1969) 2 AC 147). See also the discussion of Mathew, J. in M.L. Sethi v. A.P. Kapur, (AIR 1972 SC 2379). In view of the pronouncements which we have noticed, we are not venturing on this aspect of the discussion. It is really unnecessary to do so.

19. We are of the opinion that being a suit for injunction, no question of tenancy or rights of a tenant arises, and reference to the Land Tribunal is not called for. On that footing the decision of the Civil Court, affirmed throughout, is correct and calls for no interference. If a question of tenancy arose, the Civil Court decree without reference to the Tribunal would be without jurisdiction, and therefore null and void. We would, in that event have held accordingly. But in this case, the Civil Court construed Ext. A-l agreement and held the defendant was only the plaintiff's agent and had no independent possession. We agree with the learned Judge in affirming the said finding. Our views on the questions discussed in the course of the judgment have been indicated.

In the result, we dismiss this appeal with no order as to costs. C. R. P. No. 241 of 1978:

20. This revision is preferred by the defendant in O. S. No. 143 of 1977, Sub-Court, Palghat. It was a suit for recovery of possession on title. The plea in defence was that the defendant was a tenant under the Land Reforms Act which expression comprised of course also a 'deemed tenant'. The plaintiff in the suit is a Receiver appointed in O. S., No. 32 of 1967, Sub-Court, Ottap-palam, which was a suit for partition. The present revision-petitioner was the 36th defendant in that suit and the property with which we are here concerned was item US of the C Schedule to the plaint. The revision-petitioner claimed that he was a tenant in respect of the said item and, in particular, a 'deemed tenant' under Section 78 of the Land Reforms Act introduced by Act 35 of 1969 with effect from 1-1-1970. Issue No. 38 in the suit related to the defendant's claim of tenancy. By judgment dated 29-5-1976 (Ext. Al) it was found that the 35th defendant was not entitled to reservation of any rights and that he was a trespasser. Being only a suit for partition no relief was granted against the 35th defendant. The division of properties was directed to be subject to the possessory rights of the 35th defendant, and the Receiver was referred to separate proceedings for recovery of possession from him. That led to the present suit. The revision petitioner pleaded his tenancy rights in defence. By way of rejoinder to the plea, the plaintiff raised the contention that the plea of tenancy was barred by res judicata by reason of Ext. Al judgment. Issue No. 2 related to the plea of tenancy by the defendant and issue No. 5 related to the plea of res judicata raised by the plaintiff. At the hearing of the suit the defendant contended that the question of tenancy had to be referred to the Land Tribunal under Section 125 (3) of the Land Reforms Act. The plaintiff countered that the question did not 'arise' for consideration as the same was barred by res judicata, and therefore there was no need for any reference to the Tribunal. The trial court found that the question regarding tenancy was res judicata by reason of Ext. Al judgment and therefore did not 'arise' for consideration in the suit and need not be referred to the Land Tribunal. Against that order of the trial Court the defendant has preferred this revision petition.

21. The main question that has been argued before us is whether a question, the determination of which is barred by res judicata can be said to 'arise' for consideration within the meaning of Section 125 (3), and therefore, should be referred for decision to the Land Tribunal. For the plaintiff-respondent, it is argued that res judicata bars the jurisdiction of the Court to try or determine the matter already decided, and therefore the question can not 'arise' for consideration. Reliance is placed on the three Judges Full Bench decision in George v. Vareed, (1978 Ker LT 691) to the effect that where a question of tenancy had been once decided by the Land Tribunal and the matter comes up for consideration again before a Civil Court, the same cannot be said to 'arise' for consideration so as to make a reference under Section 125 (3) necessary. It was ruled that a matter which had become res judicata cannot be said to 'arise' so as to be referred to the Tribunal under Section 125 (3). The principle was also stated by another three Judges Bench a little earlier in Govindan Gopalan v. Raman Gopalan, (1978 Ker LT 315). There it was ruled that the decision of the Land Tribunal as to the existence of a tenancy will be res judicata in a subsequent civil suit or proceeding between the same parties, and will bar a further decision on the same point by the Land Tribunal or a Court in the 'subsequent suit or proceeding. In such cases, if an issue of tenancy is raised, it need not be referred to the Land Tribunal under Section 125 (3) of the Act.

22. The view taken in Govindan Gopalan v. Raman Gopalan, (1978 Ker LT 315) and George v. Vareed, (1978 Ker LT 691) is said to be opposed to the earlier Full Bench decision in Lessee v. Kuttan, (1976 Ker LT 571). We have already quoted the relevant passages from that judgment and explained what we feel to be the correct principle.

23. Counsel for the petitioner placed the strongest reliance on the three Judges Full Bench decision in Lessee v. Kuttan, (1976 Ker LT 571), and in particular on paras 3, 4 and 5 thereof. We have already quoted the relevant passage in our judgment in A. S. A. No. 1 of 1977 and stated that we cannot accept the proposition laid down as representing correct law.

24. Our attention was called to the decision in Gopala Kurup v. Krishnan Nambiyar, (1977 Ker LT 409). A Division Bench of which one of us (myself) was a member, ruled that the liability or obligation to stay the suit under Section 125 (3) arises when a question regarding the rights of a tenant springs up for consideration; and that on such question so cropping up the Court is bound to stay the suit and refer the question for determination by the Land Tribunal. It was ruled that as a preliminary decree for partition has to settle the rights of parties, a question regarding the rights of a tenant arises for consideration even at that stage. The principle of that ruling has no direct application to the question before us.

25. Arguments were addressed as to when a question of tenancy or one regarding the rights of a tenant can be said to 'arise' within the meaning of Section 125 (3) of the Act. The differing viewpoints in regard to the scope of the expression are reflected in the majority and the dissenting judgments of the decision in Noor Mohammad Khan v. Fakirappa, (AIR 1978 SC 1217). We have discussed the case in our judgment in A. S. A. No. 1 of 1977. We wish to repeat that the statutory provision there considered was different and the question was whether the suit 'involved' any question regarding the rights of an agriculturist. We have . already made our comments on the decision in our judgment in A. S. A. No. 1 of 1977.

26. Counsel for the petitioner relied on a Division Bench ruling of this Court in Kunheema Umma v. P. Bala-krishnan, (1967 Ker LT 629). This decision again has been discussed by us in the earlier case. We have also noticed the decision of the Supreme Court in Topandas v. Gorakhram Gokalchand, (AIR 1964 SC 1348) that jurisdiction at the inception depends upon the averments in the plaint and not on the plea in defence. The decision of one of us (Eradi, J.) in Ibrahim v. Kunhikrishnan Nair, (1967 Ker LT 770 : 1968 Ker LJ 165) and of our learned brother Vadakkel, J. in Velayudhan v. Neela-kanta lyyan, (1975 Ker LT 611) are instances where a question of tenancy was held not to 'arise' for consideration,

27. Counsel for the revision petitioner invited our attention to O. 14, Rx. 1 and 2 of the Civil P. C. as recently amended. According to R. 1, issues 'arise' when a material proposition of fact or law is affirmed by one party and denied by the other. Sub-rule (5) of R. 1 reads:

'(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their Pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision or the case appears to depend.' Rule 2 of Order X was relied on, which is as follows :

'2. Oral examination of party, or companion of party. -- (1) At the first hearing of the suits, the Court -

(a) shall, with a view to elucidating matters in controversy in the suit, examine orally such of the parties to the suit appearing in person or present his Court, as it deems fit; and

(b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his Pleader is accompanied.

(2) At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court, or any person, able to answer any material question relating to the suit, by whom such party or his Pleader is accompanied.

(3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party.'

From these, it was argued for the petitioner that despite the prospect of the disposal of a case on a preliminary issue, there was an obligation on the Court to pronounce judgment on all issues. Hence, it was said that the issues 'arises' for determination as soon as they are framed. This is a misconception. The object of Sub-rule (1) is to avoid piecemeal disposal by the trial Court and to obviate, as far as possible, a remand back by the Appellate Court for want of a finding on all the issues. Indeed, Sub-rule (2) of Order 14 Rule 2 enables a trial in the first instance of an issue relating to jurisdiction or bar of suit created by in law for the time being in force. And O. 1, Rule 2 is sufficient to enable the Court to concentrate on the real questions arising in the case and proceed to trial. We do not think the provisions of Order 14 relied on by counsel are very material or helpful in deciding the question that we have to tackle in the present case.

28. Counsel for the revision petitioner, as a last resort, submitted that, in any event, there had not been a trial on the merits by the Court below as to whether the question of tenancy had become res judicata by reason of Ext. Al judgment, and that he was entitled to a remand back for trial of the question on the merits. Counsel emphasised that the partition suits in which the plea of tenancy was raised by the petitioner was of the year 1967, and that Act 35 of 1969 which amended the Land Reforms Act 1 of 1964 came into force only on 1-1-1970, which created rights on the basis of which the plea of tenancy was raised. It was argued that a party was not bound to set up rights acquired after the institution of the suit or the filing of the written statement, and that failure to urge such rights cannot constitute res judicata. Reliance was placed on George v. Vareed, (1978 Ker LT 691). After referring to the transitory provision, Section 108 (3) of the Land Reforms Act, the Full Bench in that case observed:

'There is thus a statutory mandate to dispose of in accordance with the provisions of the amended Act. We do not think that the judgment in A. S. No. 164 of 1971 either on its terms and scope, or read in the light of Section 108 (3), would preclude the respondent from raising the question of tenancy. As for the plea of waiver, we do not think that in the region of the provisions of a complicated statute of the type of the Land Reforms Act, and the recent nature of the amendments effected, so closely prior to the disposal by the execution Court, that the mere omission to urge before the execution Court to make a reference to the Land Tribunal would amount to a waiver of the right.' (p. 694).

The Full Bench further observed:

'Had the question of the tenancy right now set up by the appellant been decided on the earlier occasion so as to be barred by res judicata We think, not. The question mooted on the prior occasion in 1970 Ker LT 7S9, was only whether the respondent was entitled to fixity of tenure under Section 13 of the Land Reforms Act by reason of his claims for fixity of tenure under Section 4 of the Cochin Verumpattemdars Act, read with the proviso after Section 3 (1) (vii). This plea was negatived by our judgment on 29-10-1969. That was rendered long prior to the two Acts -- 35 of 1969 and 25 of 1971 -- which had introduced substantial amendments to the Land Reforms Act. By one of them Section 7-B under which the respondent now claims fixity of tenure was introduced. In such circumstances, we cannot hold that the decision in 1970 Ker LT 739 operates as res judicata against respondent's claim of rights which sprang into existence subsequent to the decision.'(p. 695).

The proposition put forward by counsel for the revision petitioner that failure to plead rights acquired pending the suit or proceedings, cannot constitute res judicata, is, in that form, unexceptionable, and supported by authority -- See, for instance, Abdulla v. Ayi-summa, (1958 Ker LJ 954). But we have to take note of the fact that although O. S. No. 32 of 1967 was filed before the Land Reforms Act and Act 35 of 1969, the revision petitioner wasimpleaded as a defendant therein onlyon 14-8-1972, that is, after Act 35 of1969. As against him, the suit is to beregarded as having been instituted onlyin 1972. The transitory provision Section 108 (3) of the Land Reforms Actcontains a mandate to the Court to dispose of the suit in accordance with theamended provisions of the Land Reforms Act. The suit O. S. -No. 32 of1967 was decreed only in 1976 (Ex. A-l).If in spite of these, the revision petitioner failed to substantiate his claimof tenancy, with respect to the provisions of the Land Reforms Act now relied on, we think he would be barredby the principle of constructive resjudicata from agitating the claim atthis stage of the proceedings.

: 29. That the effect of a plea of resjudicata is to prohibit an enquiry intomerits of the thing decided was statedby Mahmood, J. in a very old decisionin Sita Ram v. Amir Begam, ((1886)ILR 8 All 324 at p.331). It was statedthat res judicata prohibits the Courtfrom entering into an enquiry at all asto a matter already adjudicated upon.

In Pandurang v. Maruti, (AIR 1966 SC153 para 10), the Supreme Court statedthat the plea of res judicata concernsthe jurisdiction of the Court and thatit ousts the Court's jurisdiction todecide the matter which had already. been decided.

30. We do not think the revision petitioner is entitled a remand back for trial on the merits of the issue of res judicata. The Civil Court, which had to consider whether the rights of a tenant 'arises' for consideration, dealt with the question whether there had been an adjudication on the question of tenancy by Ext. A-l judgment. Counsel for the revision petitioner admitted that he was quite aware that the Civil Court was going to investigate the question and that he did not invite the Civil Court to take up and pronounce on issue No. 5 which concerned the question of res judicata and' enter a finding on the merits of that plea. The Court below has considered the question in the light of Ext. A-l judgment and clearly recorded its conclusion that the question regarding the rights of a tenant does not 'arise' for determination.

31. One other aspect of the matter was presented to us by counsel for the respondent. It was argued that whatever be the infirmities of the finding of the trial Court without reference to the Land Tribunal, the lower Appellate Court was fully competent to examine the finding and reverse or alter the same in appeal; and as, in this case, the lower Appellate Court has found against the tenancy on the merits, there is no scope for interference with the said finding in second appeal. Reliance was placed on the following passage in Alavi v. Radha Varasyaramma, (1976 Ker LT 691) (FB):

'Section 125 (3) imposes an obligation to refer the question only as long as the suit or proceeding was pending in the Court of first instance or before the authority competent to deal with it in the first instance. The Appellate Court, as is clear from Section 125 (1), is competent to decide the question itself and even reverse the finding of the trial Court though based on the finding of the Land Tribunal. It is evident that if a suit had been decided prior to the commencement of the Amending Act on 1-1-1970 by the trial Court no question of reference to the Tribunal by that Court would have arisen before it and naturally no such question can arise in appeal either. This has been so held by a Full Bench of this Court in S. A. 792 of 1973 (1976 Ker LT (SN) 87). Even in a case where the suit was decided after 1-1-1970 if any question arises regarding the right of a tenant or a kudikidappukaran in the appeal, Sub-section (3) does not cast an obligation on the Appellate Court to refer the question to the Land Tribunal.'

32. We do not wish to pronounce on this aspect. In one sense, the finding of the trial Court incorporating that of the Land Tribunal is open to review and reversal on appeal, by the Appellate Court. But is this provision to be read, as permitting or encouraging a bye-passing of the Tribunal in each case, and making good the omission by a finding on appeal That would make the provisions of Section 125 (3) otiose. Again, if the trial Court's finding on the issue of tenancy, without reference to the Appellate Tribunal, be void, what would be the result of the appellate court's decree entered again without repairing the omission of a reference to the Tribunal? But then, is not the appeal an ordinary appeal sanctioned by Section 102 of the Land Reforms Act, and liable to be dealt with under the general powers of an appellate court under the Civil Procedure Code? These are subtle aspects, into the nuances of which, we need not enter, on the actual facts disclosed.

We see no ground to interfere in revision with the said finding. We dismiss this revision petition with no order as to costs.

Viswanatha Iyer, J.

33. Section 125 of the Kerala Land Reforms Act has been the subject of a great deal of litigation and its scope and ambit continues to be a vexed question of utmost importance to the litigants and to all the courts. Considering the importance of the question raised in this case, I would like to separately express my views on them.

34. The defendant in a suit for a permanent prohibitory injunction to restrain him from entering the property of the plaintiff is the appellant in this case. In the suit the plaintiff alleged that the property is in his direct possession and the defendant, his close relative, was engaged to supervise the said properties for and on behalf of the plaintiff as per his directions, and he was also asked to occupy the house in the property as a licensee. The defendant had absolutely no right in the property and the risk of cultivation was entirely that of the plaintiff. Ext. A-l is a service contract dated 13-7-1963 executed by the defendant in favour of the plaintiff. In 1972 when the plaintiff went to the suit properties he found that the defendant had not attended to the watering of the gardens since two weeks. The defendant's reply to plaintiff's query amounted to a disobedience of the plaintiffs instructions. The defendant also threatenedthe plaintiff that he will not allow thelatter any more to take income fromthe properties. On these facts the plain-tiff filed a suit for injunction to restrain the defendant from entering into the suit property. He also initiatedseparate proceedings to evict the defendant from the building. The defendant's defence was that the plaintiff isnot in actual possession of the suit properties. The same was got delivery ofthrough court by the defendant on behalf of the plaintiff in O. P. 13 of 1961filed by the plaintiff to redeem a mortgage. At that time the property wasin a neglected condition. Subsequentlythe defendant entered into the contractreferred to above and while the rela- tionship was governed by that contract the plaintiff found it difficult tospend any more amount on the property and offered the defendant a leaseof the same if he would pay a reasonable rent. Accordingly the defendanttook the property on lease from 1-3-1964 and ever since that date he is inactual possession of it effecting improvements. He denied that he is in occupation of the house as a licensee. Onthese pleadings the following issueswere raised:--

'1. Whether the plaintiff was in possession of the suit properties on the date of the plaint?

2. Whether the trespass alleged is true?

3. Whether the plaintiff is entitled tothe injunction prayed for?

4. Whether the court has got jurisdiction to try the suit?

5. To what relief?'

Issue No. 4 was heard by the trial court as a preliminary issue. The jurisdiction of the court was questioned only on the ground that as the claim of tenancy put forward by the defendant can be decided only by the Land Tribunal the case can be proceeded with only after reference to and the decision of the Land Tribunal obtained under Section 125 (3) of the Kerala Land Reforms Act. This was not accepted by the trial court. By the decision dated 12-9-1972 the trial court held that as the suit is only for an injunction to restrain the defendant from entering into the property only the question of possession on the date of suit is material, the question of tenany does not arise and so no reference is called for. Thereafter the suit was tried and the trial Court found that the plaintiff was in possession on the date of the suit and consequently decreed the suit. On appeal and Second Appeal that finding was confirmed and it is against that this A. S. A. has been filed. At the hearing before the Division Bench it was contended that the non-compliance with the provisions of Section 125 (3) of the Land Reforms Act is a jurisdictional error going to the root of the matter and the view of the Full Bench decision in Alavi v. Radha Varasyaramma (1976 Ker LT 691) holding to the contrary is incorrect. Since the correctness of this is questioned, this case has come up before a larger Bench.

35. The counsel for the appellant contends that the trial court's decision not to stay the suit and refer the question of tenancy raised by the appellant to the Land Tribunal and sub- sequent consideration and decision of the issues raised in the case by the trial court is illegal without jurisdiction and renders the decree void. Even in a suit for injunction if the defendant raises a plea of tenancy, in the light of the Full Bench decision in Lessee v. Kuttan (1976 Ker LT 571) (FB), the suit has to be stayed and the question referred to the Land Tribunal. Failure to conform to the provision in Section 125 (3) of the Land Reforms Act goes to the root of the matter and this jurisdictional error of the court of first instance cannot be got over or cured by the appellate court and/or the second appellate court going into the question. In such circumstances the decree passed by the trial court confirmed in appeal and Second Appeal is illegal and void. The decision of the Full Bench in Alavi v. Radha Varasyaramma (1976 Ker LT 691) to the effect that the non-adherance to the procedure prescribed in Section 125 (3) does not render the decree passed by the civil court a nullity is incorrect and requires reconsideration.

36. In answer to this, the respondent's counsel submits that his client's suit is a suit of a civil nature and under Section 9 C. P. C., the civil court has got jurisdiction to entertain and to decide such a suit and there is nothing in Section 125 (3) prohibiting the entertainment or continuance of such a suit.

The relief asked for is not a relief which the Land Tribunal has to settle, or to decide under Section 125 (1) of the Kerala Land Reforms Act. That being so, there is no question of the rights of a tenant including the question whether there is a tenancy or not arising for decision in a suit for an injunction. Whether the defendant is a tenant or not, in a suit for injunction the material issue to be decided is the question of possession of the plaintiff on the date of the suit. The civil court is perfectly competent to proceed with the trial of the suit to go into that question and pass a decree in the light of the finding thereon. Such a decree will be a valid decree binding on the defendant. Respondent's counsel further argued that even assuming for arguments sake a question regarding the rights of a tenant does arise in a case and the court of first instance does not refer the matter to the Land Tribunal, and enters a finding thereon, it may be an illegal finding; but when an appeal is filed against that decision the appellate court is not prohibited from going into that question of tenancy and entering a finding one way or other on that question. This is because the jurisdiction of the trial court alone is taken away by the provisions of Section 125 (3). The appellate court has all the powers of a trial court uncontrolled by Section 125 (3) and the appellate court can decide the question arising from the pleadings but not decided by the trial court and itself come to a conclusion and pass a decree in the case. Such a decree will be a perfectly valid decree binding on the defendant. In such a case the trial court's finding on this question has only to be taken as no finding and the appellate court can, de hors that finding, go into that question and come to a decision. The jurisdiction of the appellate court and the second appellate court are not to any extent affected by the provisions of Section 125 (3). This is clear from Sub-sections (4) to (6) of Section 125. The respondent's counsel again submits that the decree passed by a court after applying its mind to the question whether the tenancy arises or not and holding that no such question arises is binding on the defendant and it cannot be taken as void for the purpose of appeal or execution or in collateral proceedings.' In other words he submits that the decision of the Full Bench in Alavi v. Radha Varasyaramma (1976 Ker LT 691) is correct and does not call for any reconsideration.

37. In the light of these arguments and counter arguments the questions that arise for decision in this case are:

(1) whether the civil court should, on a mere plea raised by the defendant and without applying its mind and being satisfied that a question of tenancy arises for consideration, refer the plea for decision by the Land Tribunal?

(2) whether in a suit for an injunction to restrain the defendant from entering into possession of the property, if the defendant pleads that he is the tenant in possession, does any question of rights of a tenant including the question whether a person is a tenant or, not arises for consideration; (3) if the trial court holds that no question under Section 125 (3) arises and enters a finding regarding possession of the plaintiff on the date of suit and passes a decree; is not that decree binding on the defendant, can he ignore it as a decision rendered without jurisdiction and (4) assuming that the trial court should, in the opinion of the appellate court, have referred the question of tenancy raised but did not, and had entered a decision on the issues raised in the case and passed a decree, is the appellate court competent to go into and enter a finding on the question of tenancy and dispose of the appeal on all the points urged before it. Will such a decree be a decree without jurisdiction? An answer to these points is necessary to decide this appeal.

38. To understand the points raised, it is necessary first to analyse the various provisions contained in Section 125 of the Land Reforms Act. Land Reforms Act confers various rights on the tenants and landlords. If any dispute arises between them in respect of the rights conferred by the Land Reforms Act Section 125 (1) provides that the Tribunals and authorities referred to in Sub-sections (1) alone have jurisdiction to settle or decide that dispute and not the civil court. The exclusive jurisdiction of these Tribunals and authorities is further emphasised by Subsection (21 according to which no order of these authorities shall be questioned in any civil court except as provided in the Act. This provision is only prospective and does not affect the jurisdiction of the civil court, to consider and deal with such rights if they are involved in any proceedings pending in any court at the commencement of the Act namely 1-1-1970. In a suit that may be filed after 1-1-1970, it may happen that rights conferred under the Act are raised and arise for determination. To meet such a situation, Sub-sections (3) provides that the court must stay the suit and refer the question to the competent Land Tribunal and that authority is required to decide that question and return the papers with its decision. The jurisdiction to entertain the suit and to pass a decree is not taken away from the civil court by this provision. The finding entered by the Land Tribunal is treated as a finding of the civil court for the purpose of appeal. That means the decision disposing of the suit is a decree as provided under the C. P. C. and if against that decree an appeal is permissible under the Civil Procedure Code or any other law, nothing in Section 125 prohibits that. Section 102 of the Land Reforms Act provides for an appeal by any person including the Government who is aggrieved by the order of the Land Tribunal under the various sections of the Act. Orders of the Land Tribunal under Sections 12, 13(A), 22, 23, 26, 31, 47, 48, 49, 57, 66, 72(F), 73, 77, 80-B, 90, 106 and 106(A) are all made appealable to the appellate authority under the Act. The order passed by the Land Tribunal under Section 125 (3) and (4) is not made appealable to the authorities under the Act, even though the rights that may be determined by the Land Tribunal are rights under the Act. The decision rendered by the Land Tribunal under Section 125 (3) and (4) had no independent legs to stand on. It is only a decision on one of the points raised in the suit and it has to be deemed to be a decision of the civil court for the purpose of an appeal. This is an important aspect to be borne in mind in understanding the scheme of Section 125 and to what extent the jurisdiction of the civil court to entertain a suit and pass a decree in respect of matters dealt with under the Act is taken away. The appeal that may be filed by the party aggrieved by the decision of the civil court accepting the finding of the Land Tribunal is not an appeal as provided for under the Land Reforms Act. It is an appeal in terms of Section 96 C. P. C. The appellate court is competent to go into the correctness of this decision as it can and it would go into the correctness of a finding entered by the court of first instance. That is the scheme of Section 125 of the Act.

39. To what extent Section 125 (3) is related to Section 125 (1) has been subject of great deal of litigation. Immediately after Act 36 of 1969 came into force a Division Bench of this Court in Gopalakrishnan Nair v. Padmavathi Amma (1970 Ker LT 888) had occasion to consider the scope and ambit of Section 125. After considering the various clauses in Section 125, this Court observed thus:

'......In our view Section 125 (3) covers only a category of cases referred to by Section 125 (1)......'

Again in C. R. P. No. 298 of 1973, (Ker) Krishnamoorthy lyer J. held as follows:--

'Section 125 (3), according to me, will have to be interpreted in the light of Section 125 (1) and if so interpreted, the civil court's jurisdiction is taken away only in respect of any question arising in any suit or other proceedings regarding the rights of a tenant or of a kudikidappukaran including a question as to whether a person is a tenant or a kudikidappukaran.'

But later a different view was taken by another Division Bench of this Court in Sankaran v. Rajammal (1974 Ker LT 488). After quoting the above passage, at page 492, the Division Bench observed thus:--

'......There is no warranty to construe Section 125 (3) in the light of Section 125 (1). Both the provisions deal with different matters. Even if Section 125 (3) is interpreted in the light of Section 125 (1), it makes no difference on the scope and applicability of Section 125 (3)......'

Later this view of the Division Bench was approved by a Full Bench of this Court in Ananthanarayana lyer v. Paran (1976 Ker LT 403). At page 407, para 10, the Full Bench observed thus:--

'Indeed, a Division Bench of this Court in Sankaran v. Rajammal (1974Ker LT 488) noticed the unreported decision of a learned Judge of this Court (Krishnamoorthy lyer J., who delivered the judgment of the Division Bench in 1970 Ker LT 8-88) in C. R. P. 298 of 1973. The learned Judge there expressed the view that Section 125 (5) had to be construed in the light of Section 125 (1). The Division Bench expressed disagreement with this view and hold that there is no warrant to construe Section 125 (3) in the light of Section 125 (1). We consider that the Division Bench has taken the correct view in regard to the scope of Section 125 (3).'

Later another Full Bench of this Court in Lessee v. Kuttan (1976 Ker LT 571) again affirmed the view taken by the earlier Full Bench. At page 574, para 2, it is observed thus:

'......The ambit and scope of Section 125 (3) cannot be whittled down by interpreting Sub-sections (3) as applicable only to cases where Section 125 (1) is attracted. The two provisions have to be read independently. If Section 125 (3) is satisfied the matter will have to be referred to a Tribunal, even if in given cases the terms of subsection (1) of Section 125 have not been satisfied.'

This understanding of the scope of Section 125 (1) and (3) was held to be not correct by the Supreme Court in Eapen Chacko v. Provident Investment Co. (Pvt.) Ltd. (1977 Ker LT 1). At page 8, the Supreme Court observed thus:--

'Section 125 (3) of the Act is equally prospective. Section 125 (3) of the Act will be applied with regard to the provisions contained in Section 125 (1) of the Act. Matters which will be within the mischief of Section 125 (1) of the Act are matters which will arise in suits or proceedings initiated or originated after commencement of the Act......'

In the light of this Supreme Court decision, we have now to proceed on the basis that Section 125 (3) will have application only in respect of matters dealt with under Sub-sections (1) which may arise in a suit filed after 1-1-1970.

40. Understanding the scope of Section 125 this way, I will deal with the points formulated above one by one.

Point No. 1 -- According to the counsel for the appellant once the defendant raises a plea of tenancy, the jurisdiction of the court to proceed with the case until the tenancy question is decided by the Land Tribunal is taken away or eclipsed and it is not open to the civil court to go into the question whether that question arises for the final determination of the suit one way or other. In support of his stand, he relies on some observations of the Full Bench decision in Lessee v. Kuttan (1976 Ker LT 571). In para 3 at page 575, the Full Bench observed thus:--

'......The only matter to be considered in the court is whether any question regarding the rights of a tenant or a kudikidappukaran including the question as to whether a person is a tenant or a kudikidappukaran arises in a suit or proceeding. This, the court will have to examine and for this purpose what will have to be examined are the pleadings, and we consider, nothing else. Whether 'the plea is frivolous, or sustainable or prima facie true or not are all foreign to the scope of the enquiry before court......'

With great respect these observations are very wide and to a large extent incorrect. The court is required to stay the suit only if a question of rights of a tenant including whether he is a tenant or not arises for decision in the case. Every matter stated in the pleadings cannot be said to arise for decision. Even in framing an issue, only material proposition or facts affirmed by one party and denied by the other will form an issue. When the legislature provides that when a question of rights of a tenant arises for decision, the civil court must stay the suit, it always contemplates a decision by the court whether such a question arises or not. The court has to form an opinion whether the question arises or not before it stays the suit. This jurisdiction to form that opinion is not taken away by mere filing a written statement mentioning some rights of a tenant. If this is not the position, the defendant can by his plea force the plaintiff to go to a forum where on his averment he cannot go. For example, the defendant can without any bona fides by setting up a plea of tenancy force the plaintiff to go to the Land Tribunal whether or not that plea has anything to do with the case or will be a defence to non-suit the plaintiff. If this is the law even in a pronote case if the defendant takes a plea that he is a tenant, it is not open to the court to go into the question whether that plea has any bearing to the adjudication of the claim of the plaintiff. This will be absurd. Instances of this kind can be multiplied to expose the absurdity. This can never be the law. It can never be denied that a court whose jurisdiction is sought to be ousted can decide whether the defence raised before it is bona fide. In The King v. Wrottesley (1830) 1 B & Ad. 648) following an earlier decision of Lord Ellenborough, Lord Tenterden C. J. observed thus:

'There is therefore no objection to the justices hearing this complaint; whether ultimately they can go on to judgment is a different question. A mandamus may issue commanding them to hear; when they have heard they will be able to say more of the case; but, at least, it will not come to this strange absurdity, that a man, by merely saying, 'I dispute the validity of the rate,' shall put an end to the jurisdiction of the justices. If, upon the hearing, this party satisfies the justices that there is a bona fide intention to contest the rate, the proceedings before them will go no further.' This is part of the inherent jurisdiction of the court. Otherwise the defendant, by raising some frivolous plea which may have no connection to the plaint claim can defeat and delay the progress of the case and it is to guard against such a situation. Section 151, C. P. C. states thus:'Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.'

So, before staying the suit, the court can decide whether the defence plea is bona fide and whether the grant or refusal of relief asked for by the plaintiff depends on the answer on the question of tenancy raised by the defence. The observations of the Full Bench referred to above, that the court can only look into the pleadings and nothing else is very wide, and with great respect is incorrect.

41. In support of this contention, the appellant's counsel placed before us two recent decisions of the Supreme Court for our consideration. The first case is in Noor Mohd. Khan v. Fakirappa (AIR 1978 SC 1217). In that case a provision of the Bombay Tenancy and Agricultural Lands Act, 1948, which is somewhat similar to Section 125 of the Kerala Land Reforms Act, came up for consideration. Section 85-A of the Bombay Act reads as follows:--

'Suits involving issues required to be decided under this Act: (1) If any suit instituted in any civil court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority'), the civil court shall stay the suit and refer such competent authority for determination.

(2) On receipt of such reference from the civil court the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the civil court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.'

Pending a partition suit one of the defendants created a lease in favour of and inducted a stranger into possession of the property. The stranger was impleaded in execution and when eviction was sought for from him he put forward a plea that he is a tenant. The question whether he will be a tenant or not is to be decided under Section 70 of the Bombay Act by the Mamlat-dar constituted under that Act. A question arose whether further proceedings in the execution case have to be stayed and the case referred to the Mam-latdar to decide whether the person in possession is a tenant or not. In disposing of that case, the Supreme Court by a majority held that the matter has to be referred to the Land Tribunal. This is what the Supreme Court said:

'......Rightly or wrongly he took the objection that he was a tenant and, therefore, could not be evicted by the Collector in pursuance of the final partition decree or order by giving actual delivery of possession to the appellants. An issue, therefore, arose for decision of the civil court in the suit or the execution proceeding which was a continuation of the partition suit as to whether respondent No. 1 was a tenant within the meaning of the relevant Acts. The stand taken on behalf of the appellants with reference to Section 52 of the T. P. Act may be good and may have force. Nonetheless, the jurisdiction of the Civil Court to decide this contentious issue was barred. The matter had to be decided by the Revenue Authorities. If the Revenue Authorities finally came to the conelusion that respondent No. 1 was a tenant within meaning of the relevant provisions of the law, it is plain that no actual delivery of possession could be effected in favour of the appellants in respect of the disputed land.........'

In upholding the High Court's direction to stay the suit and refer the case to Mamlatdar, the majority took the view that if the plea of tenancy raised by the person in possession is found in his favour, that will be an effective answer against the plaintiff's claim and so a question of tenancy is involved. Whether the plea is acceptable or not is according to the majority, for the Mamlatdar to decide. Thus the entire judgment proceeds on the basis that the court can decide whether a question is involved. This decision does not support the appellant's plea that the moment the defendant raises the plea the suit must be stayed without considering whether the question of tenancy arises for determination. The next case that is relied on is a decision of the Supreme Court in Gundaji v. Ramachandra (AIR 1979 SC 653). That was also a case where the scope of Section 85-A of the Bombay Act which is somewhat similar to Sub-sections (1) to (5) of Section 125 came up for consideration. Under the Bombay Tenancy and Agricultural Lands Act, 1948, an agricultural land can be purchased by or assigned only to an agriculturist. The question whether a person is an agriculturist or not can be decided only by the Mamlatdar appointed under the Bombay Act. It is within his exclusive jurisdiction. The plaintiff in that case sued for specific performance a contract of sale of an agricultural land. One of the defence contentions was that this contract cannot be enforced by the plaintiff because he is not an agriculturist. If the contract is enforced, it will be a violation of the provisions of the Tenancy Act. The questions arose whether in the nature of this defence plea the question whether the plaintiff is an agriculturist or not should be referred to the Mamlatdar. The contention that this question, whether the plaintiff is an agriculturist or not, is only a subsidiary or incidental issue and that the main issue is whether there is a contract of sale and so no reference to the Mamlatdar is necessary was not accepted. The principle is stated thus: (at page 657).

'......Therefore, if an issue arises in a Civil Court whether a person is an agriculturist within the meaning of the Tenancy Act, the Mamlatdar alone would have exclusive jurisdiction under the Tenancy Act to decide the same and the jurisdiction of the Civil Court is ousted. The Civil Court as required by a statutory provision contained in Section 85-A, will have to frame the issue and refer it to the Mamlatdar and on the reference being answered back, to dispose of the suit in accordance with the, decision recorded by the competent authority on the relevant issue. To translate it into action, if the Mamlatdar were to hold that the plaintiff is not an agriculturist, obviously his suit for specific performance in the Civil Court would fail because he is ineligible to purchase agricultural land and enforcement of such a contract would be violative of statute and, therefore, opposed to public policy.' The Supreme Court holds that if the defence plea against the plaintiff's claim is found in his favour by the Mamlatdar, that may be an effective answer to the plaintiff's claim and thus there is no escape out of the situation that an issue arises for determination. In other words on the facts pleaded the court holds that an issue arises for determination and consequently the reference to the concerned authority was held to be obligatory. This is different from saying that the court cannot look into the question whether a question of tenancy arises or not. So the tall contention raised by the appellant that the moment the defence takes a plea that he is a tenant or he has got rights of a tenant, the court must hold its hand and refer the matter to the Land Tribunal cannot be accepted. The court has got jurisdiction to go into the question namely whether a question of tenancy arises, that question being such which if found in favour of the tenant will non-suit the plaintiff or in- any way will have an impact on the reliefs asked for. That jurisdiction is not taken away by Section 125 (3) of the Land Reforms Act.

42. What all aspects can be looked into by the court to come to the conclusion that a question does or does not arise may vary from case to case. As an illustration it can be said that if the defendant is precluded from raising that plea by the principle of res judicata it will be competent to the court to hold that no question of tenancy arises for determination. If the tenant pleads that he is a tenant under some person unconnected in interest with the plaintiff, that may be a case where it may be open to the court to hold that no question of tenancy arises for determination. In all cases the question will depend on the nature of the plaintiff's allegations or the reliefs asked for and the defence plea. The next point that I am going to consider is another illustration.

Point No. 2:-- This relates to the question whether a suit for injunction has to be stayed if a tenancy question is raised by the defendant. A suit for an injunction restraining the defendant from interfering with the possession of the plaintiff is entertainable and can be proceeded with and decided by a civil court. The civil court has jurisdiction over the subject matter and the parties to the litigation. Whether the relief asked for by the plaintiff can be granted or not will depend upon the finding of the court namely whetherf the plaintiff has established his pos-session on the date of the suit. Enquiry regarding the question of possession is not on one of the matters' covered by Section 125 (1) of the Act. The defendant may claim possession on any title. He may claim that he is the owner or that he is a tenant or a mortgagee. Decision regarding his title or the nature and character of his title is not material or relevant in considering the granting or refusing the relief asked for by the plaintiff. The plaintiff will have to succeed or fail on the question of possession. Conversely the plaintiff may, claiming to be a tenant in possession, ask for an injunction to restrain the defendant from interfering with his possession. The defendant may claim that he is the owner and is in possession. Even in such a case decision on the question whether the plaintiff is a tenant entitled to be in possession or not a no use to the relief asked for. He will fail unless he is able to prove his possession on the date of suit if he proves his possession on the date of suit the relief can be granted irrespective of the question whether the plaintiff is a tenant or the defendant is a tenant. In other words as no rights conferred by the Act will affect the decision no question of the defendant's rights including the question whether he is a tenant or not arise for adjudication in a suit filed for an injunction. To such a suit Section 125 (3) has no application. The jurisdiction of the Court is not to any extent taken away by the defence plea and the Court of first instance can go into the question of possession and come to a conclusion itself on that question. In such a suit even if one of the parties traces his possession to a lease, that is only an evidence on the question of possession. But no question of lease arises for determination.

43. The view that I have taken is supported by a decision of this Court in C. R. P. No. 1430 of 1972. In that case in a suit for an injunction, the defendant claimed that he is a tenant and an issue was raised whether the defendant is a tenant or not. To adjudicate on that issue the suit was stayed and the case was referred to the Land Tribunal. This was challenged in revision. In disposing of that revision, Krishnamoorthy lyer, J,, observed thus:

'The suit is for permanent injunction to restrain the defendants from entering into the suit properties and interfering with the possession of the plaintiff. The plaintiff can succeed in the suit only by proving possession of the property in him. This is not a suit for recovery of possession of the property from the defendants. The defendants claim possession and according to the learned counsel for the defendants-respondents that possession is traceable to a lease. If the defendants are in possession of the property, the plaintiff is liable to be non-suited in the suit and the question whether the possession of the defendants is traceable to a tenancy right or any other right is absolutely irrelevant Issue No. 4 framed under such circumstances is, in my view, absolutely unnecessary and uncalled for. I do not very much appreciate the contention that when the defendants establish a tenancy right, it is possible for them to rely for their possession on the basis of a presumption arising therefrom. For this purpose, I do not think a finding under Section 125 (3) of the Act I of 1964 from the Tribunal is called for and Section 125 (3) is not intended to cover such cases. I, therefore, set aside the order of the Court below and allow the revision petition. I make no order as to costs.'

Later the same learned Judge in disposing of C. R. P. No. 298 of 1973 (Ker) observed thus:

'For example, if in a suit for injunction whereby the plaintiff wants to restrain the defendant from interfering with the plaintiff's possession of the property the defendant raises a plea that he is in possession of the property as a tenant, a very literal interpretation of Section 125 (1), (2) and (3) will compel the Court to refer the issue to the Land Tribunal. If the reference is made and the Civil Court is obliged to decide the suit on the basis of the finding of the Land Tribunal there is an abdication of the function of the Civil Court. The question in such cases is only who is in possession of the property on the date of suit. The defendant's claim of possession based on the tenancy is immaterial for the reason that if it is found that the defendant is in possession of the property, whether it be as a lessee or otherwise, no relief of injunction can be granted to the plaintiff. In such cases, counsel appearing in the case, agreed that no reference under Section 125 (3) is called for.'

This view was approved by a Division Bench of this Court in Narayana Menon v. Kallandi, (1973 Ker LT 983). At page 985, the Division Bench observed thus:

'The section will be attracted only if any question arises regarding the rights of a tenant or a hudikidappu-karan including, of course, the question as to the status of the persons as a tenant or a kudikidappukaran. In suits for injunction the only question that arises for determination is whether the plaintiff is in possession or not. In considering that question, the Court may well have to evaluate the evidence on the side of the defendant also, as to his possession. But if, on such evaluation, the Court comes to a conclusion that the plaintiff is not in possession, the suit has to be dismissed, and it is quite unnecessary and irrelevant to consider the defendant's possession whether as a tenant or otherwise. Equally, if the plaintiff is in possession, it follows that the defendant was not, and could not be, in possession; and for that reason, the plaintiff would be entitled to the injunction asked for. In either case, the suit is not one in which the question regarding the rights or status of a tenant or a kudikidappukaran arises, within the meaning of Sub-section (3) of Section 125 of the Act. This was the view taken by our learned brother Krishna-moorthy lyer, J. in C, R. P. No. 1430 of 1972 with which we find ourselves in complete agreement. We may point out that the decision has been followed in a number of other decisions in this Court. Section 125 (3) being a Section that ousts the jurisdiction of the ordinary Civil Court, we are not prepared to give any broader or wider scope that what the circumstances warrant. Raman Nayar, J. as he then was, in Vasudeva Kurup v. Amini Amma (1964 Ker LT 468) ruled that a person in possession is entitled to remain in possession even as against the true owner until he is thrown out or evicted by due process of law. That is a principle that assumes importance in suits for injunction.'

Again another Division Bench took the same view and that decision is reported in Alavi v. Mohammedkutty Haji (1973 Ker LT 937). But later when the same question came up for consideration before a Full Bench of this Court in Lessee v. Kuttan (1976 Ker LT 571 (FB)), after referring to the above cases, the Full Bench overruled them and so doing has held as follows:

'The matter raises a difficult question. In one sense it is correct to say that if the plaintiff is found to be in possession a further question whether the defendant is a tenant or not is immaterial and therefore it does not arise in the case. But we have to remember that in most of the cases of this type on the plea by the defendant that he is a tenant and a denial by the plaintiff of that plea an issue would normally have been framed whether the defendant is a tenant or not. We have not come across cases where in such circumstances the plaintiff sought to strike out the issue regarding the question whether the defendant is a tenant or not. It is even doubtful whether in such circumstances he could legitimately claim that the issue framed should be struck off. If there is such an issue framed in the case can it be said that the question whether the defendant is a tenant or not does not arise in the suit? We do not think it is possible and it is not as though a finding on such an issue has no bearing or has no relevance in determining the question of possession. In cases of disputed possession the evidence regarding possession will be conflicting. And very often the evidence would be mainly oral and It will be difficult to conclude whether the plaintiff's witnesses were speaking the truth or whether the defendant's witnesses were speaking the truth when each group asserted that the one or other, the plaintiff or the defendant, was in possession. In such a situation the presumption that possession follows title which Courts may draw in given cases, particularly, when it is established that the man with title had been in possession at some time, (though there is no specific statutory provision in the Evidence Act regarding such a presumption as in the case where title is presumed on possession being established under Section 110 of the Evidence Act) may be pressed into service. A finding whether the defendant is a tenant is therefore an important factor in cases of disputed possession and conflicting evidence. Further in all cases a finding on the question whether a defendant ia a tenant or not would not only be relevant but useful for evaluating the evidence in the case regarding possession and in determining the probative value of such evidence. This being so we do not think the correct approach in such cases should be proceed as if the question whether the defendant is a tenant or not has no bearing when the plaintiffs have chosen to rest their case purely on possession. With respect we are unable to agree with the view expressed in the two decisions to which we have referred to as well as in the other decisions of this Court. These decisions have to be overruled and we do so......'

With great respect, I do not agree with these observations. The Full Bench proceeds on the basis that finding on such an issue will be convenient and useful in determining the question of possession in case of disputed possession. The possession that follows titte may be pressed into service and therefore according to the Full Bench a finding whether the defendant is a tenant or not is an important factor in case of disputed possession and con flicting evidence. It is further said that a finding on the question whether a defendant is a tenant or not will be useful in evaluating the conflicting evidence in the case regarding possession and determining the probative value of such evidence. According to me these reasons are no reasons at all to hold that the rights of a tenant including whether he is a tenant or not arise for determination in a suit for injunction. In the absence of that factor in the case, reference to the Land Tribunal is uncalled for. It may be that the contesting parties may try to lead evidence on the question of possession and in the conflicting nature of the evidence the Court may have to come to a conclusion on that question. The task may be difficult. That is the function of the Court. To assist that determination law does not warrant a reference to the Land Tribunal and call in aid its decision. Jurisdiction of a Civil Court is not to be taken away on such consideration of utility of a decision of a Land Tribunal to appreciate the evidence in the case. The Land Tribunal's finding on the question will not constitute any title known to law from which a presumption can be drawn regarding possession. It is doubtful whether the finding of the Land Tribunal will be relevant under any provisions of the Evidence Act. If reliance is placed on it, it will be basing a conclusion on evidence not available on the date of suit. Hence the view taken by the Full Bench on this matter is clearly wrong and it has not laid down the correct law. Therefore I hold that in a suit for an injunction to restrain the defendant from interfering with the possession of the plaintiff even if the defendant puts forward a plea that he is a tenant no question of a right of tenancy arises for determination to stay the suit and refer the case to the Land Tribunal.

Point No. 3. In the light of what I have said above in a suit for an injunction even if the defendant pleads that he is a tenant, that question does not arise for determination and the final decision of the Court is binding on the defendant. The Court has got jurisdiction over the subject-matter and the parties and at no stage of the suit is the jurisdiction taken away on the basis of the defence plea. The decree passed in such circumstances is binding as any other decree. The defendant cannot ignore it and unless that decision is set aside in appeal, it is final and binding on the defendant.

Point No. 4: To understand the point and to come to a conclusion on it, it is necessary to keep in mind once again the scheme envisaged in Section 125 of the Act. Section 125 (3) to (6) provides that if a question of tenancy arises the Civil Court must stay the suit until the return of the answer to be rendered by the Land Tribunal on reference and that the Civil Court should proceed with the case accepting the finding of the Land Tribunal and that finding will be deemed to be the finding of the Civil Court for the purpose of appeal. Nothing is said against the jurisdiction of the Appellate Court.

44. In this respect, the scheme of Section 125 is different from Section 85-A and other provisions of the Bombay Act referred to earlier. In the Bombay Act, the jurisdiction of the Appellate Court is also taken away by providing an appeal to the appellate authority constituted under that Act against the decision of the Mamlatdar on a reference to it by the Civil Court. So under the Bombay Act, the exclusion of jurisdiction of the hierarchy of Civil Courts is complete. No Civil Court is competent to go into any matter required to be settled, decided or determined or dealt with by the authorities under that Act. But that is not the scheme of the Kerala Act. From the decree that may be passed by the Court of first instance an appeal lies as provided for under Section 96 C. P. C. Section 107 read with Order 41, C. P. C. makes it clear that the Appellate Court has all the power of a trial Court under the Code. It can enter a finding on any issue that arises for determination whether that issue has been decided or not or whether the finding of the lower Court is illegal or improper. Illegality may arise either because the trial Court has no jurisdiction or because it violates some other provision of law. Whatever it be, if the jurisdiction of the Appellate Court is not taken away, as is clear from Section 125 (6), the Appellate Court can go into the issue that arises for determination even if that issue relates to a question of tenancy. If the Land Tribunal has entered a finding on that issue and the Court of first instance adopted it, the correctness of that finding can be gone into by the Appellate Court. It can affirm, modify or reverse the finding of the Land Tribunal which is deemed to be the finding of the Court of first instance. It can come to its own conclusion on that question and dispose of the appeal on the basis of that conclusion. This being the scheme of Section 125, even if the trial Court was wrong in its conclusion that no question of tenancy arises for determination and disposes of the suit itself, if an appeal is filed, the Appellate Court can either set aside that finding and remand the case to the trial Court or dispose of the case itself if it is satisfied that the remand is unnecessary. If the evidence is sufficient to dispose of an issue, which has not been disposed of by the trial Court, the appellate Court is not bound to remand the case. It can decide the appeal completely and that decision will be binding on the parties to the appeal just like any other decision of the appellate Court.

45. Further even the filing of a suit for possession in a civil Court is not barred unless the plaint allegations show that the matter or the relief asked for in the plaint is one which is to be dealt with or decided by the authorities constituted under the Land Reforms Act. The Civil Court has ordinary general jurisdiction. The Civil Court also has jurisdiction over the subject-matter and parties to the litigation. A decree if passed on the proof of the plaint allegations will be a decree within its jurisdiction. Is the position different if on the defence allegation an issue relating to the rights of a tenant including the question whether the defendant is a tenant or not arises Section 125 (3) casts a duty on the Court to stay the suit and refer the question to the Land Tribunal. If the Court omits to do it by inadvetence or deliberately and goes into the merits of it and passes a decree is the decree a nullity The jurisdiction of the Land Tribunal is limited to enter a finding on that issue. It has no power to dispose of the suit. That jurisdiction is from the beginning of the suit with the Civil Court only. The issue which the Land Tribunal is to decide may be only one. The other issues may have to be decided by the Civil Court alone. That one issue may concern only one or more defendants, and not the other defendants, or there may be other questions to be decided as against them or other properties. Such is very often the case in partition suits. The view that the decree passed by the Court ignoring, as it might have, the obligatory duty cast on it by Section 125 (3) is a nullity will have serious consequences. Then there will be no finality to any Civil Court decree relating to property disputes. It may be that on the finding in favour of the tenant the Court dismisses the suit. Is the dismissal a nullity which the plaintiff can conveniently ignore and leisurely bring another suit on the same cause of action If he cannot is the position different for a defendant. Does the violation of Section 125 (3) have that disastrous consequences? I think that the maximum that can be said against such a decree is that a Court which has jurisdiction over the subject-matter and parties has passed a decree ignoring a mandatory provision of law. It has refused to follow a statutory procedure to arrive at a finding on one question. It has failed to do its duty and thereby committed a serious error of law but that error of law can be corrected only in the manner laid down in the C. P. C. If the party aggrieved does not take appropriate steps to have that error corrected this decree which does not decide any rights of a tenant under the Act will hold good and will not be open to challenge on the basis of being a nullity. Whether the violation of the duty is a violation of Section 3 of the Limitation Act or Section 11, C. P. C. or Section 125 (3) of the Land Reforms Act, the position is the same. The failure to do its duty under the statutory provision is certainly an error of law but it does not render the decree a nullity. This is a decree binding the parties unless set aside in appeal. According to me the principle stated in Alavi v. Radha Varasyaramma, (1976 Ker LT 691) (FB) is the correct law.

46. When an appeal is filed against that decision whatever error of law the Court of first instance committed is before the Appellate Court. The powers of the Appellate Court are not in any way restricted under the scheme of Section 125 (3) to (6). The Appellate Court has power to set aside the decree and direct the trial Court to follow the procedure prescribed, or it can itself decide that question as it can decide any other question of fact or law arising for determination. The decision of the Appellate Court will be a valid and binding on the parties to it.

47. Now coming to the facts of this case, the suit is for an injunction only. The trial Court had not framed an issue regarding tenancy on the allegations contained in the written statement. The trial Court was moved in the matter to stay the suit and refer the case to the Land Tribunal to decide the question of tenancy raised in the pleadings. The trial Court came to the conclusion that no such question arises for decision. On the evidence let in by both the parties, the Court came to the conclusion that the plaintiff was in possession on the date of the suit. Following this a decree was passed. On appeal the. Appellate Court also found that the plaintiff was in possession on the date of the suit and sustained the decree for an injunction. In second appeal also that decree has been confirmed. As I stated earlier, even assuming that the trial Court should have referred the matter to the Land Tribunal, there was no such duty cast on the Appellate Court and' the second Appellate Court Those Courts were perfectly competent to consider all the points that arise for determination and have passed a decree sustaining the injunction granted by the trial Court. There is no illegality in the decree passed by the lower Courts and by the learned single Judge of this Court. Hence this appeal has only to be dismissed. I agree with one decree proposed by my Lord Chief Justice. C. R. P. No. 241 of 197fl

48. This revision petition is against an order passed by the trial Court refusing to refer a question of tenancy raised by the defendant for decision by the Land Tribunal. The lower Court refused to refer on the ground that the plea raised by the defendant is barred by res judicata. In an earlier suit, O. Section 32/67 for partition this petitioner was impleaded in 1972 as a party to that suit. He contended that he is a tenant and his tenancy right may be reserved to him in the partition decree. He did not move for reference of the question to the Land Tribunal. The Court went into the question of tenancy and found that the petitioner is not entitled to any right as a tenant. But since the plaintiff has not paid the court-fee for recovery of possession only a declaration was made that the petitioner is not entitled to any tenancy right. Following this the plaintiff, who is a receiver appointed in that case, filed the present suit for recovery of possession. The tenant again put forward a plea that he is a tenant. In answer to that the plaintiff took up the stand that his plea is barred by res judicata. This plea was accepted by the lower Court. The lower Court found that the earlier decision is res judicata to the defendant raising the same question over again in this suit and as such the defendant cannot raise this plea and in turn no question of tenancy arises. It is this that is challenged in this C. R. P.

49. The contention of the petitioner's counsel is that it is not open to the Court to go into the question of res judicata, in considering the question whether the defendant is a tenant or not. An issue has been framed on that finding. That being so the petitioner's counsel contends that the Court has no jurisdiction to refuse to refer the case to the Land Tribunal on holding that the plea of tenancy is barred by res judicata. The petitioner also contended that the finding of the Court below that the plea is barred by res judicata is incorrect.

50. In the connected case I have dealt with the point whether it is open to the Court to consider and decide whether a question of tenancy arises or the Court should simply refer the question to the Land Tribunal when such a plea is taken by the defendant. I have held that the Court has to decide whether a question of tenancy arises or not before referring the case to the Land Tribunal. The plea of res judicata bars the Court from trying the same question over again. So if there is res judicata to the question of tenancy raised, there is no scope for holding that a question of tenancy arises for determination. The principle laid down in the decision of this Court in George v. Chakkuni, (1977 Ker LT 865) is correct,

51. The further question is whether there is a decision of the lower Court to the effect that the plea raised by the defendant is barred by res judicata. The lower Court has dealt with this point in refusing the application to refer the matter to the Land Tribunal. It is only holding that the plea of tenancy is barred by res judicata that application to refer the matter to the Land Tribunal has been rejected. It contains a decision on the question of res judicata. As is seen from Ex. A-1 Judgment, in the earlier suit, the defendant raised a plea that he is a tenant. That suit was a suit pending at the commencement of the Amending Act of 1969 and Section 125 (3) has no application. It was found that the plea of tenancy is not sustainable and the reservation asked for by him was not allowed. It is res judicata to the defendant to raise the plea over again. The contention of the petitioner's counsel that the petitioner was impleaded only in the year 1972 and the suit can be deemed to be commenced as against him only in 1972 and therefore the lower Court was not competent to go into the question of tenancy without referring the same to the Land Tribunal is also not incorrect. The proceedings were pending on 1-1-1970. Proviso to Section 125 (1) of the Act says that 'nothing contained in this sub-section shall apply to proceedings pending in any Court at the commencement of the Kerala Land Reforms Act. The pendency contemplated there is pendency of the proceedings. This cannot be controlled by the provisions of Order 1 R. 10 (5), C. P. C. which provides that as against persons added, the proceedings shall be deemed to have begun only on the service of summons. But this is different from saying that the suit is not pending on the date of commencement of the Amending Act. In this position, I agree with the view expressed by Bala-gangadharan Nair, J. in Mohammed v. Pathumma, (1977 Ker LT 730). Hence this objection regarding the competence of the Court which tried O. S, 32/67 cannot also be questioned. The lower Court rightly held that there is no need to refer the question to the Land Tribunal as the defence plea is barred by res judicata. Hence this C. R. P. is dismissed. No costs.

PER FULL BENCH

52. Leave to Supreme Court is asked for. We do not think any substantial question of law of general importance arises on which, in our opinion, a pronouncement by the Supreme Court is necessary. We reject the request for leave to appeal to Supreme Court.