Kerala High Court
Nur Muhammed S/O. Khader Rowther vs Moideen Rowther on 5 October, 2009
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27507 of 2009(O)
1. NUR MUHAMMED S/O. KHADER ROWTHER,
... Petitioner
Vs
1. MOIDEEN ROWTHER, S/O. KHADER ROWTHER,
... Respondent
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :05/10/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No. 27507 of 2009
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Dated: 5th October, 2009
JUDGMENT
The Writ Petition is filed seeking the following reliefs:
1. To call for the records leading to the passing of Ext.P3 finding and set aside the same.
2. To direct the Court of the Munsiff of Palakkad to refer the question of 'kudiyirippu' raised by the defendant in O.S.No.409/2007 on its file to the Land Tribunal for a finding under Section 125(3) of the Kerala Land Reforms Act.
2. Petitioner is the defendant in O.S.No.409 of 2007 on the file of the Munsiff Court, Palakkad. Suit is for injunction both prohibitory and mandatory, and the respondent is the plaintiff. Resisting the suit claim, petitioner/defendant in his written statement claimed kudiyirippu over the structure and its appurtenant land, from which he is sought to be evicted by a decree of mandatory injunction. An additional issue raised in the suit whether the claim of kudiyirippu canvassed by the petitioner/defendant has to be referred to the Land Tribunal for determination was considered as a preliminary issue by the court below. After hearing both sides, the learned Munsiff passed P3 order holding that the question of kudiyirippu does not arise for W.P.C.No.27507/09 - 2 - consideration in the suit. P3 order is challenged by the petitioner/defendant invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India.
3. I heard the learned counsel for the petitioner. Having regard to the submissions made and taking note of the facts and circumstances presented, I find no notice to the respondent is necessary and it is dispensed with. Learned counsel for the petitioner submitted that since a decree of mandatory injunction seeking eviction from the structure occupied by the defendant is sought for in the suit, his plea of kudiyirippu has necessarily to be referred to and adjudicated upon by the competent authority, the Land Tribunal, as mandated under Section 125(3) of the Land Reforms Act. Observations made by the apex court in Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund [(2007) 13 S.C.C. 565] are relied by the learned counsel to impress me that once the structure is demolished under a decree of mandatory injunction, the person claiming kudiyirippu would be left with no remedy under law. In a suit for mandatory injunction seeking eviction of a party from a structure and a claim of kudiyirippu or kudikidappu is raised by the party sought to be evicted, according to the learned counsel, the W.P.C.No.27507/09 - 3 - question as to whether he is entitled to such claim arises for consideration and it has to be referred to the Land Tribunal for determination as mandated to the provisions of the Land Reforms Act. In the above decision relied by the learned counsel it is noticed that that the apex court has not laid down any proposition of law, but, true, it has not approved the opinion of the High Court in the granting of a decree of permanent injunction in mandatory form leaving the question of title open. There is nothing in the decision to indicate that in a suit for mandatory injunction where title of plaintiff is disputed for one reason or other by the defendant, whatever be the merit of that challenge, it has to be decided for granting the decree sought for. The above decision does not lend any assistance to the petitioner/defendant to sustain his challenge against P3 order.
4. P1 is the copy of the plaint and P2 is the copy of the written statement. It is interesting to note that in P2 written statement, petitioner/defendant has disputed the title of the plaintiff over the suit property contending that he has prescribed title over the same by adverse possession. P3 order of the court below would also show that one among the issues raised was whether the right of the plaintiff over the suit property is lost by adverse possession and limitation. W.P.C.No.27507/09 - 4 - Leaving that apart, the question posed for consideration is whether in a suit for mandatory injunction, if a claim of tenancy or kudiyirippu is raised by the defendant, whether a reference to the Land Tribunal by the civil court is warranted as covered by Section 125(3) of the Land Reforms Act. A Full Bench of this court in Kesava Bhat v. Subraya Bhat (1979 KLT 766) has held in a suit for injunction the only question to be considered is that of possession and the nature and the character of the possession is immaterial. In such a suit, no question of right of a tenant arises and reference to the Tribunal is not called for. The decision so rendered by this court applies only to a simple suit for injunction, but not to a suit in which a mandatory injunction is also sought against the defendant is the submission of the learned counsel. Mandatory injunctions are granted to prevent the breach of an obligation and also for the purpose of compelling specific performance of certain acts which the court is capable of enforcing. Needless to point out, the principles underlying mandatory injunctions are the same as those underlying perpetual injunctions. Is there breach of an obligation by the defendant entitling the plaintiff to compel the specific performance of certain acts as the court is capable of enforcing to remedy such breach, whether the breach is W.P.C.No.27507/09 - 5 - arising from contract or tort or trust or other obligations, is the question posed before the court in a suit for mandatory injunction. In such a suit, in examining the question of breach of obligation imputed against the defendants seeking compelling of specific performance of certain acts by him by a decree of mandatory injunction even if the question of title of the plaintiff over the property incidentally crop up for consideration, that would not confer any right on the defendant to resist the suit setting forth a claim of tenancy or kudikidappu to seek for a reference to the Land Tribunal. Questions to be considered in a suit for mandatory injunction relate to the breach of an obligation alleged entitling the plaintiff to compel performance such acts to undo such breach which are capable of being enforced by the court and the entire burden thereof being cast upon the plaintiff, it has to be stated that in such a suit no reference to the Land Tribunal to determine the question of tenancy, or right of a tenant or kudikidappukaran, arises for consideration. I do not find any impropriety or illegality in the order passed by the learned Munsiff that the additional issue raised in the suit does not arise for consideration.
5. Last of all, though not strictly relevant and necessary, I may also advert to the challenge raised against the impugned order W.P.C.No.27507/09 - 6 - of the learned Munsiff by the learned counsel banking upon some judicial decisions rendered with respect to a claim of kudikidappu and the need of a reference when such claim was made. A claim of kudikidappu falling under Section 2(25) of the Land Reforms Act is distinct and different from a claim of kudiyirippu. Kudiyirippu does not include a kudikidappu is amply made clear by the definition of kudiyirippu in Section 2(26) of the above Act. Furthermore, a person claiming kudiyirippu can do so only as a tenant, as covered under Section 2(57) of the Land Reforms Act, Section 74 of the Act forbid and interdict the creation of any tenancy after 1.1.1970. Petitioner herein has set up a claim of kudiyirippu, as seen from P2, his written statement, advancing a case that after the respondent/plaintiff purchased the property in January, 1974, under him, getting permissive occupation of the land and thereafter putting up a structure for occupation he continues to be so and, thus, he has got a right of kudiyirippu over that building and appurtenant premises. When that be the case, his claim of tenancy after 1.1.1970, repugnant to the creation of future tenancy after coming into force of the Land Reforms Act, deserve to be taken note of only for its rejection. Needless to say no question of tenancy arises for W.P.C.No.27507/09 - 7 - consideration for reference to the Land Tribunal, as covered by Section 125(3) of the Land Reforms Act, in the case.
The Writ Petition lacks merit, and it is dismissed.
srd S.S. SATHEESACHANDRAN, JUDGE