Disposed

Joseph v. Mary George @ Marykunju

Kerala HC11 Aug 2016OP(C)/1543/2015

Case brief

AI extract

What is this about?

Petitioner challenged an order dismissing a writ petition seeking reference to the Land Tribunal under Section 125(3). The High Court distinguished the cited precedent, noting that when tenancy is an essential issue to determine possession in an injunction suit, a reference may be required, and disposed of the petition observing that the lower court must evaluate pleadings for a de novo reference

What did the court decide?

The petition was disposed of; the court directed the lower court to consider referring the matter to the Land Tribunal if tenancy is material to the determination of possession.

Joseph Vs Mary George @ Marykunju — Landlord and Tenant | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 11TH DAY OF AUGUST 2016/20TH SRAVANA, 1938

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OP(C).No. 1543 of 2015 (O)

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OS 234/2011 OF MUNSIFF COURT, ALUVA.

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PETITIONER:

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JOSEPH, S/O.JOSEPH PUNNAN, PULICKAL HOUSE, MEKKAD KARA, NEDUMBASSERY VILLAGE, ALUVA TALUK.

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BY ADV. SRI.WILSON URMESE

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RESPONDENT(S):

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1.MARY GEORGE @ MARYKUNJU D/O.PINADATH CHACKU, CHERIYAVAYALIPARAMBIL, THURUTHISSERY KARA, NEDUMBASSERY VILLAGE, ALUVA TALUK AND W/O.C.O.GEORGE, KARAYKIZHAKKUMURIYIL, KARATHEDATH, AMPUNAD, CHENNITHALA TRIPUNITHURA PAKUTHI, 27/345A, PLOT NO.23, CROSS ROAD 5 K.V COLONY, PANAMPILLY NAGAR, KOCHI - 682 036.

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2.MOLLY GEORGE, W/O.LATE GEORGE, CHERIYAVAYALIPARAMBIL HOUSE, CHERUPARAMBATH ROAD, KADAVANTHARA, KOCHI - 682 020.

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3.GEORGE PHILIP, H.NO.28/3023-C THIRD CROSS CHERUPARAMBATH ROAD, KADAVANTHARA, KOCHI - 682 020.

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BY ADV.SRI.P.VISWANATHAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No.1543 of 2015 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXHIBIT P1.	COPY OF THE PLAINT IN OS 234/2011 OF THE MUNSIFF
	COURT, ALUVA.
EXHIBIT P2.	COPY OF THE WRITTEN STATEMENT FILED BY THE
	DEFENDANTS IN OS 234/11.
EXHIBIT P3.	COPY OF THE ORDER DATED 17.09.14 IN IA 348/14 IN
	OS 234/11 OF THE MUNSIFF COURT, ALUVA.

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RESPONDENT(S)' EXHIBITS: NIL -----------------------

//TRUE COPY//

P.S. TO JUDGE

mbr/

K. Ramakrishnan, J.

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============================== O.P.(Civil)No.1543 of 2015

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============================== Dated this, the 11^th day of August 2016.

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J U D G M E N T

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1.This is a petition filed by the petitioner, challenging

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Ext.P3 order passed by the court below, under Article 227 of Constitution of India.

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2.It is alleged in the petition that the petitioner filed O.S.No.234/2011 before the Munsiff Court, Aluva, seeking injunction against respondents 1 to 3 against trespass and interfering with his peaceful possession and enjoyment of the property. According to him, he is a tenant under the first respondent and he is in possession of the property as a tenant and his possession in respect of the plaint schedule property has been admitted by the first respondent in the documents of sale executed in respect of the portion of property in favour of his wife and daughter by showing the neighbouring properties as in the possession of the plaintiff. The case of the respondents is that, he is not in possession of the

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O.P.(Civil)No.1543 of 2015 : 2 :

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property and he is not a cultivating tenant under the first respondent as claimed. In order to ascertain whether he is a tenant in possession of the property, he filed I.A.No.348/2014 before the Munsiff Court, to refer the matter to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act.

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3.After hearing both sides, the court below relying on the decision in Kesava Bhat Vs. Subraya Bhat [1979 KLT 766 (FB)] held that in the case of injunction suit, the question of tenancy does not arise for consideration. It is on that basis, the petition was dismissed. This order is being challenged by the petitioner by filing this petition.

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4.Heard Shri.Wilson Urmese, counsel appearing for the petitioner and Shri.P.Viswanathan, counsel appearing for the respondents.

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5.The counsel for the petitioner submitted that the Full Bench decision is not applicable to the facts of this case as those are all cases where only question of possession between rival tenants or suit for injunction simplicitor against trespass by some other person not being the

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O.P.(Civil)No.1543 of 2015 : 3 :

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landlord of the property, the question of tenancy does not arise for consideration and as such, in such cases, the reference is not required. But, it is a case where the plaintiff is claiming to be a tenant under the first respondent. So, in order to ascertain his nature of possession, the question of tenancy arises and by virtue of Section 125(3) of the Kerala Land Reforms Act, the matter has to be referred to the Land Tribunal.

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6.The counsel for the respondents submitted that though he had set up a case that the respondents are not cultivating tenants and also a contention that he is not in possession of the property, being a suit for injunction, question of possession alone need to be gone into by the court. The nature of possession need not be gone into by the court. Further, the petitioner has already filed an application before the Land Tribunal and Land Tribunal is now seisin of the matter as to whether he is a tenant under the first respondent or not. Counsel also submitted that, if the plaintiff is found to be in possession of the property, then, the remedy of the respondents is to file a

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O.P.(Civil)No.1543 of 2015 : 4 :

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suit for recovery of possession and they cannot take the law into their hands and evict the plaintiff from the property forcibly. He also had a case that they are in possession of the property and the plaintiff is not in possession of the property. He also submitted that the court need go into the question who is in possession of the property and title to the property or who is entitled to be in possession need not be gone into by the court.

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7.So, the points that has been considered in the Full Bench is different from the points to be considered in this case which requires an elaborated hearing. But, considering the submissions made by the counsel for the respondents herein that, that aspect need not be gone into in this case. Further, the counsel for respondents also submits that he will not raise the question as to whether he is a tenant or not in respect of the property. He will only confine to the question as to who is in possession of property alone for the purpose of disposal of the case. If that be the case, I do not think that there is any necessity to refer the matter to the Land Tribunal

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O.P.(Civil)No.1543 of 2015 : 5 :

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especially, when proceedings are pending before the Land

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Tribunal in respect of the same.

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8.Further, it is left to the court below to consider the question as to whether the question of tenancy arises for the purpose of determination of the case on the basis of the pleadings and if the question of tenancy is also to be a matter to be gone into by the court for the purpose of granting or denying the relief, then, at that time, court below is entitled to consider the question as to whether the matter has to be referred to Land Tribunal or not

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afresh on the basis of the evidence.

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With the above direction and observation, the petition is disposed of.

Sd/-

K.Ramakrishnan,

Judge.

Bb/16/08/2016

[True copy]

P.A to Judge

Joseph v. Mary George @ Marykunju

Case brief

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Joseph v. Mary George @ Marykunju

Case brief

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