M/S.ANSAL BUILDWELL LIMITED v. VIJAYAN MENON

M.SASIDHARAN NAMBIAR, J............................................WP(C).No. 23139 OF 2008............................................DATED THIS THE 31st DAY OF JULY, 2008JUDGMENTPetitioner is the defendant and respondent, the plaintiff inO.S.654 of 2007 on the file of Sub Court, Ernakulam. Suit is for recovery of plaint schedule property. Petitioner filed Ext.P3written statement. In the written statement, it was contended that respondent/plaintiff has no title and title of the property vested with Government on 1.1.1970 and property has been in the possession of one Varkey from 1932 as a tenant and he assigned the tenancy right and now it vests with petitioner company. Petitioner filed Ext.P8 petition, to stay the suit under Section 125(3) of Kerala Land Reforms Act and refer the question of tenancy to the concerned Land Tribunal. Meanwhile, on an application filed by respondent, a Commissionwas appointed to identify the plaint schedule property with the assistance of a private Surveyor. This petition is filed under Article 227 of Constitution of India for a direction to Sub Judgeto dispose Ext.P8 petition and to stay further proceedings till adecision is taken therein.

Learned senior counsel appearing for petitioner was WP(C) 23139/20082heard. The argument of learned senior counsel is that title deed of the respondent itself establish the tenancy right claimed by petitioner and in such circumstances, learned Sub Judge should have referred the question of tenancy to Land Tribunal and as no order is passed in Ext.P8 application, necessary direction is to be issued. It was also submitted that identity of the property is notin dispute and therefore inspection by a Commissioner is not warranted at this stage and it is only an attempt to black-mail the petitioner.

On hearing the learned senior counsel and going through the plaint, written statement and Ext.P8 petition and Ext.P2 partition deed, by which respondent claim title. I find force in the submission. Sub Judge, Ernakulam is directed to dispose Ext.P8 application as expeditiously as possible. It is further directed that Commissioner is to inspect the property only if it is found that question of tenancy does not arise and the suit is not to be referred to the Land Tribunal under Section 125(3) of Kerala Land Reforms Act. Writ petition disposed accordingly.M.SASIDHARAN NAMBIAR, JUDGElgk/-