IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO. 15221 OF 2007   

Amina Beevi                      …… Petitioner

Versus

Thachi & Ors.                       …… Respondents

WITH

SPECIAL LEAVE PETITION (CIVIL) NO. 19320 of 2007

The State Bank of Travancore,                   Alwaye Branch, Represented  by its Branch Manager                                       …… Petitioner

Versus

Tachil & Ors.                      …… Respondents

O R D E R

A. K. PATNAIK, J.

1. These Special Leave Petitions have been filed against the  

common judgment and decree dated 28.03.2007 passed by the  

Kerala High Court in Second Appeal Nos. 517 of 1988 and 311  

of 1988.

2. The  facts  very  briefly  are  that  Makkar  Sahib  was  the  

owner of the suit property and in the year 1945-46 he made  

an oral lease of the suit property in favour of Kunjali on an  

annual  rent.   Pursuant  to  the  oral  lease,  Kunjali  obtained  

possession of the suit property and remained in possession of  

the suit property.  Makkar Sahib died and on 24.07.1968, the  

legal heirs of late Makkar Sahib, namely, his wife Mariyumma,  

his daughter Kochu Pathu and his son Abdul Kadar executed  

a sale deed (Ext. A1) in respect of three acres of land out of the  

suit property in favour of Aisu and another sale deed (Ext. A2)  

in respect of two acres and one acre out of the suit property in  

favour  of  Fathima  Beevi  and  Amina  Beevi.  On  29.07.1968,  

Kunjali  executed  a  leasehold  assignment  deed  (Ext.  A3)  in  

favour  of  Abdul  Kadar.  On  29.07.1968  Mariyumma,  Kochu  

Pathu  and  Abdul  Kadar  executed  a  sale  deed  (Ext.  A4)  in  

favour  of  Kunjali  in  respect  of  75  cents  of  land.   The  

purchasers  of  the  suit  property  under  Exhibits  A1 and A2,  

namely, Aisu, Fathima Beevi and  Amina Beevi  obtained loans  

from  the  State  Bank  of  Travancore  and  mortgaged  the  

properties purchased by them under Exhibits A1 and A2 in  

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favour of the Bank as security for the loan.  When the loan  

was not repaid, the State Bank of Travancore filed a mortgage  

suit, O.S. No.131 of 1974, and obtained a decree for sale of the  

mortgaged property.   In the  year 1974,  Mariyumma, Kochu  

Pathu and Abdul Kadar also sold some portions of the suit  

property to V.K. Kesavan and Janaky.  Kunjali  died leaving  

behind his wife Thachi, sons C.A. Sulaiman and M.A. Karim  

and  daughters  Aisha,  Pathu  and  Howa.  Thachi,  Sulaiman,  

Aisha, Pathu and Howa (Plaintiffs) filed a suit, O.S. No.129 of  

1980,  against  Mariyumma,  Kochu  Pathu,  Abdul  Kadar,  

Fathima Beevi, Amina Beevi, Aisu, V.K. Kesavan, Janaky and  

the State Bank of Travancore (defendant nos. 1 to 9) and the  

Trial Court decreed the suit declaring that the plaintiffs have  

leasehold  right  over  the  suit  property  and  are  entitled  to  

recover possession of the suit property from defendants no. 1  

to 9 and are also entitled to mesne profit from the date of suit  

till recovery of the possession or till expiry of period of 3 years  

whichever  was  earlier.   Aggrieved,  the  State  Bank  of  

Travancore, Amina Beevi, V.K. Kesavan and Janaky filed three  

appeals, A.S. Nos. 111, 117 and 121 of 1986.  By a judgment  

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and decree dated 30.10.1987, the Additional District  Judge,  

Parur,  dismissed  the  appeals.   Against  the  judgment  and  

decree of  the  Additional  District  Judge,  Parur,  Amina Beevi  

and the State Bank of  Travancore filed Second Appeal  Nos.  

517 of 1988 and 311 of 1988 under Section 100 of the Code of  

Civil Procedure, 1908 and by the impugned common judgment  

and decree dated 28.03.2007, the High Court dismissed the  

second appeals.

3. Mr. C. S. Rajan, learned senior counsel appearing for the  

petitioner in S.L.P. (C) 15221 of 2007 Amina Beevi, submitted  

that  the  High  Court  has  taken  a  view  that  Ext.A3  was  a  

surrender  of  the  interest  of  the  tenant  Kunjali  in  the  suit  

property  in  favour  of  the  landlord  Abdul  Kadar  and  such  

surrender of the interest of the tenant in favour of any party  

other than the Government was prohibited under Section 51 of  

the Kerala Land Reforms Act, 1963 (for short ‘the Act’).   He  

submitted that a plain reading of Ext.A3 would show that it is  

not  a surrender  but an assignment  by Kunjali  in  favour  of  

Abdul Kadar and, therefore, the High Court was not right in  

coming to the conclusion that Ext.A3 was a surrender hit by  

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the statutory prohibition in Section 51 of the Act.  He next  

submitted that in any case the fact remains that the plaintiffs  

in the suit, who are the legal heirs of the tenant Kunjali, had  

been dispossessed of the suit land and their remedy was not a  

suit in the civil court but an application to the Land Tribunal  

under Section 13A of the Act for restoration of possession.  He  

cited the decision of this Court in  Koyappathodi Puthiyedath   

Ahammedkutty v. State of Kerala and Others [1987 (Supp) SCC  

158] in which it has been held that when a surrender is shown  

to  have  been  made  contrary  to  the  provision  contained  in  

Section 51 of the Act, the tenant concerned would be entitled  

to restoration of possession under Section 13A of the Act.

4. Mr. Parag Tripathi, learned senior counsel appearing for  

the  petitioner  in  SLP(C)  19320  of  2007,  the  State  Bank  of  

Travancore,  submitted  that  proviso  (a)  to  sub-Section  (1)  of  

Section 13A of the Act makes it clear that land sold to a bona  

fide purchaser is saved from the provisions of Section 13A of  

the Act.  He submitted that Aisu, Fathima Beevi and Amina  

Beevi were  bona fide purchasers of  the suit  property under  

Exhibits A1 and A2 and hence the purchases of land made by  

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them were protected  under  Proviso  (a)  of  sub-Section (1)  of  

Section  13A  of  the  Act.   He  further  submitted  that  in  

accordance with the provisions of sub-Section (3)  of  Section  

125 of the Act, the Trial Court in the present case referred the  

question whether the plaintiffs were tenants in respect of the  

suit property to the Land Tribunal and a reading of the order  

passed  by  the  Land  Tribunal  would  show  that  the  Land  

Tribunal has not properly decided the question whether the  

plaintiffs were tenants in respect of the suit property.

5. In reply, Mr. C.S. Vaidyanathan, learned senior counsel  

appearing  for  the  plaintiffs-respondents,  submitted  that  a  

plain reading of Ext.A3 would show that under Ext.A3 Kunjali  

has surrendered his leasehold right in favour of Abdul Kadar  

and  therefore  the  High  Court  was  right  in  coming  to  the  

conclusion that Ext.A3 though styled as leasehold assignment  

deed was actually  a surrender  of  tenancy rights  which was  

prohibited by Section 51 of the Act.  In reply to the contention  

of Mr. Rajan that the only remedy of the plaintiffs-respondents  

was to apply to the Land Tribunal under Section 13A of the  

Act and not a suit in a civil court, he submitted that Section  

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13A of the Act was an additional remedy given to the tenant  

who is dispossessed of his land and did not bar a civil suit for  

declaration  of  right  of  tenancy  and  for  recovery  of  the  

possession of land covered by the tenancy.  He submitted that  

Aisu, Fathima Beevi and Amina Beevi who were impleaded as  

defendants No.4, 5 and 6 in the suit have not taken any plea  

in their written statement that they were bona fide purchasers  

of  the  suit  property and hence  the contention of  Mr.  Parag  

Tripathi that the Act protected  bona fide purchasers of land  

does not arise for decision in this case.  He relied on the order  

passed by the Land Tribunal to show that the Land Tribunal  

has  gone  into  the  evidence  at  length  and  decided  that  the  

plaintiffs-respondents  were  tenants  in  respect  of  the  suit  

property.

6. The first question that we have to decide is whether the  

High Court was right in coming to the conclusion that Ext.A3  

though styled as assignment of leasehold right was in fact a  

surrender of the leasehold right by lessee in favour of landlord  

and  therefore  hit  by  Section  51  of  the  Act  which  prohibits  

surrender  of  interest  of  a  tenant  except  in  favour  of  the  

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Government.   We  have  perused  Ext.A3,  copy  of  which  has  

been annexed to SLP (C) 15221 of 2007 as Annexure P3, and  

we find that under Ext.A3 Kunjali, who was the tenant of the  

suit land, has assigned his “leasehold right and possession”  

and “relinquished” all his rights over the property in favour of  

Abdul Kadar.  In substance, therefore, Ext.A3 is a surrender of  

leasehold or tenancy right by the lessee or the tenant in favour  

of landlord.  Sub-Section (1) of Section 51 of the Act provides  

that notwithstanding anything contained in the Act, a tenant  

may terminate the tenancy in respect of any land held by him  

at any time by surrender of his interest therein but makes it  

clear in the proviso that no such surrender shall be made in  

favour  of  any  person  other  than  the  Government.   Hence,  

under Section 51 of the Act any surrender of his interest by  

the  tenant  to  any  person  other  than  the  Government  is  

prohibited.   Ext.A3,  being a surrender by the  tenant of  his  

interest in favour of a person other than the Government, was  

in  contravention  of  Section  51  and  was  void.   We  are,  

therefore, not inclined to disturb the finding of the High Court  

that Ext.A3 though styled as a leasehold assignment deed was  

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in  fact  a  surrender  of  the  interest  of  the  tenant  and  was  

prohibited by Section 51 of the Act.

7. The second question which we are called upon to decide  

in  this  case  is  whether  the  only  remedy  of  the  plaintiffs-

respondents was to apply to the Land Tribunal under Section  

13A of the Act and consequently the suit filed by the plaintiffs-

respondents was barred under the Act.  Section 9 of the Code  

of  Civil  Procedure,  1908  provides  that  Civil  Courts  have  

jurisdiction  to  try  all  suits  of  a  civil  nature  excepting  suits  

which  are  either  expressly  or  impliedly  barred.   Hence,  we  

have  to  consider  whether  the  suit  filed  by  the  plaintiffs-

respondents for declaration of their tenancy rights in respect  

of suit land and for recovery of possession of the suit land was  

expressly or impliedly barred by Section 13A of the Act.

8. Sections 13A and 125 of the Act, which are relevant for  

deciding this question are quoted herein below:  

“13A.  Restoration  of  possession  of  persons  dispossessed  on  or  after  1st April,  1964 –  (1)  Notwithstanding anything to the contrary contained  in any law, or in any contract, custom or usage, or in  any  judgment,  decree  or  order  of Court, where any  

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person  has  been  dispossessed  of  the  land  in  his  occupation on or after the 1st day of April, 1964, such  person shall, if he would have been a tenant under  this  Act  as  amended  by  the  Kerala  Land  Reforms  (Amendment)  Act,  1969,  at  the  time  of  such  dispossession, be entitled subject to the provisions of  this section to restoration of possession of the land:

Provided that nothing in this sub-section shall-

(a) apply in any case where the said land has  been  sold  to  a  bona  fide  purchaser  for  consideration before the date of publication of  the  Kerala  Land  Reforms  (Amendment)  Bill,  1968, in the Gazette; or

(b)  entitle  any  person  to  restoration  of  possession  of  any  land  which  has  been  resumed under the provisions of this Act.

(2) Any person entitled to restoration of possession  under  sub-section (1)  may,  within a period of  six  months from the commencement of the Kerala Land  Reforms (Amendment) Act, 1969, apply to the Land  Tribunal  for  the  restoration  of  possession  of  the  land.

(3) The Land Tribunal may, after such inquiry as it  deems fit, pass an order allowing the application for  restoration  and  directing  the  applicant  to  deposit  the compensation, if any, received by the applicant  under any decree or order of Court towards value of  improvements  or  otherwise  and  the  value  of  improvements, if any effected on the land after the  dispossession as  may be determined by the Land  Tribunal, within such period as may be specified in  the order.

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(4) On the deposit of the compensation and value of  improvements as required in the order under sub- section  (3),  the  Land  Tribunal  shall  restore  the  applicant to possession of the land, if  need be by  removing  any  person  who  refuses  to  vacate  the  same.

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 proceedings any question  regarding  rights  of  a  tenant  or  of  a  kudikidappukaran  (including  a  question  as  to  whether  a  person  is  a  tenant  or  a  kudikidappukaran) arises, the Civil Court shall stay  the  suit  or  other  proceedings  and  refer  such  question  to  the  Land Tribunal  having  jurisdiction  over the area in which the land or part thereof is  situate  together  with  the  relevant  records  for  the  decision of that question only.

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(4)  The  Land  Tribunal  shall  decide  the  question  referred to it under sub-section (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 have power to grant injunction in  any  suit  or  other  proceeding  referred  to  in  sub- section (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.”

9. A plain reading of Sub-Section (1) of Section 13A of the  

Act  quoted above  would show that  a  person who has been  

dispossessed of his land in his occupation on or after 1st April,  

1964 and such person would have been a tenant under the  

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Act as amended by the Kerala Land Reforms (Amendment) Act,  

1969,  at  the  time  of  such dispossession,  would  be  entitled  

subject to the provisions of the Section to restoration of the  

possession of the land.  It, thus, appears that any person who  

has  been dispossessed  of  land under  his  occupation  on  or  

after  1st April,  1964  and  such  person  would  have  been  a  

tenant under the Act as amended by the Kerala Land Reforms  

(Amendment)  Act,  1969  has  been  provided  with  a  special  

remedy of restoration of possession of land under Section 13A  

of the Act.  None of the sub-sections of Section 13A expressly  

state that a suit by a tenant for recovery of possession of land  

which was under his occupation was barred.  Hence a suit for  

recovery of possession by a tenant is not “expressly” barred.  

10. We  cannot  also  hold  that  such  a  suit  was  “impliedly”  

barred by Section 13A of the Act because of what is provided  

in Section 125 of the Act.  Sub-Section (1) of Section 125 of  

the  Act  quoted  above  states  that  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  

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Land Tribunal and sub-Section (3) of Section 125 states that if  

in any suit or other proceedings any question regarding rights  

of a tenant including a question as to whether a person is a  

tenant  arises,  the  Civil  Court  shall  stay  the  suit  or  other  

proceeding  and  refer  such  question  to  the  Land  Tribunal  

having jurisdiction over  the  area in  which the land or  part  

thereof  is  situate  together  with the  relevant  records  for  the  

decision of that question only.  Sub-Section (4) of Section 125  

further states that the Land Tribunal shall decide the question  

referred to  it  under  sub-Section  (3)  and return  the  records  

together with its decision to the Civil Court and under sub-

section (5) of Section 125 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.   These  

provisions  make  it  amply  clear  that  in  any  suit  regarding  

rights of a tenant, the rights of the tenant including a question  

whether a person is a tenant will have to be referred by the  

Civil Court to the Land Tribunal and after the Land Tribunal  

decides the question,  the Civil  Court will  decide the suit  in  

accordance  with  the  decision  of  the  Land  Tribunal.  

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Considering these clear provisions of Section 125 of the Act,  

we are of the considered opinion that the suit of the plaintiffs-

respondents for declaration that they were tenants in respect  

of the suit property and for recovery of possession of the suit  

property  from the  defendants and for  mesne profit  was not  

barred either expressly or impliedly by Section 13A of the Act.  

This  Court  has  also  not  held  in  Koyappathodi  Puthiyedath   

Ahammedkutty v.  State of Kerala and Others  (supra) cited by  

Mr.  Rajan that the tenant cannot institute a suit  in a Civil  

Court for declaration of his tenancy in respect of a land and  

for recovery of possession of the land covered by the tenancy.  

11. We may now take up the contention of Mr. Tripathi that  

the  Land  Tribunal,  to  which  the  claim  of  tenancy  of  the  

plaintiffs-respondents  was  referred,  has  not  considered  the  

claim properly.  We have perused the order dated 13.11.1984  

of the Land Tribunal, Perumbavoor, a copy of which has been  

annexed  as  Annexure  R-2  in  I.A.  No.2  of  2010  in  SLP  (C)  

No.19320 of  2007, and we find that the Land Tribunal  has  

dealt with the oral evidence of several witnesses and a large  

number of documents filed on behalf of the parties and has  

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come  to  the  conclusion  that  the  father  of  the  plaintiffs-

respondents  and  after  him  the  plaintiffs-respondents  had  

leasehold rights in the light of the available evidence.  We also  

find that the Trial Court has accepted this finding of the Land  

Tribunal  upholding  the  leasehold  right  of  the  plaintiffs-

respondents  and  has  decided  Issue  No.1  in  the  suit  

accordingly.  The finding of the Land Tribunal and the Trial  

Court  on this  point  is  a  finding  of  fact  based  on  oral  and  

documentary evidence and we are not inclined to disturb this  

finding in this Special Leave Petition.  

12. We also find that no issue was raised before the Trial  

Court  whether  Aisu,  Fathima  Beevi  and  Amina  Beevi  were  

bona fide purchasers of  the suit  property and therefore the  

Trial Court has not recorded a finding on this issue. In the  

absence of any finding on this issue of fact, we do not think it  

necessary to  decide  in  this  case whether  a  tenant  could  or  

could not recover land which was under his occupation from a  

bona fide purchaser by virtue of what is provided in Proviso (a)  

to Sub-Section (1) of Section 13A of the Act.  

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13. In  the  result,  we  hold  that  there  is  no  merit  in  these  

Special Leave Petitions and we accordingly dismiss the same.  

No costs.

……………………..J.                                                                   (D. K. Jain)

……………………..J.                                                                   (A. K. Patnaik) New Delhi, October 27, 2010.      

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