Kerala High Court
V.Vijayan Alias Maniyan vs Mahesan on 21 July, 2011
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 15 of 2004(B)
1. V.VIJAYAN ALIAS MANIYAN, S/O. VASU,
... Petitioner
Vs
1. MAHESAN, S/O. KUMARAN,
... Respondent
2. RAJAN, S/O. PADMANABHAN,
3. SUBHASHINI,
4. REGHUVARAN,
5. KANAKAMMA,
6. ARJUNAN, S/O. PADMANABHAN,
7. PADMINI,
For Petitioner :SRI.J.OM PRAKASH
For Respondent :SRI.S.SANAL KUMAR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/07/2011
O R D E R
M.SASIDHARAN NAMBIAR,J.
---------------------------------------------
R.S.A.NO.15 and 31 OF 2004
---------------------------------------------
Dated 21st July, 2011
JUDGMENT
Appellant in R.S.A.15/2004 instituted suit seeking a decree for permanent prohibitory injunction in respect of 13 cents in R.S.No.259/2010 of Paravur village of Ambalapuzha Taluk contending that he was kudikidappukaran in respect of the property and the first respondent and his mother were the landlords and subsequently appellant filed a petition for purchase of kudikidappu and defendants 2 to 8 are the children of Padmanabhan, the elder brother and second defendant is the mother of defendants 3 to 8 and widow of Padmanabhan and they have no right to trespass into plaint schedule property. Respondents 3 to 5 and 7 in R.S.A.15/2004 filed O.S.158/1995 seeking a decree for recovery of possession of the plaint schedule property, which is 10 cents being part of the plaint schedule property in O.S.28/1998 contending that first respondent has no authority to grant any permission to grant lease the appellant to RSA 15 & 31/2004 reside in the building and though along with second respondent, first respondent resisted the suit contending that he is a kudikidappukaran in respect of 10 cents, by order of the Land Tribunal in O.A.185/1992 and extent of 3 cents comprising a pond on its eastern portion is also in his possession for the last several years and respondents 4 to 8 are not entitled to the decree for recovery of possession sought for. First respondent who is second defendant in O.S.158/1995 remained absent and was set exparte. Other defendants filed a written statement contending that they are co-owners of 56 cents of land in survey No.478/4-C and first respondent is also another co-owner and permission granted to the appellant is only temporary and he is not entitled to kudikidappu right. In O.S.28/1998, respondents 2, 3 and 7 filed a written statement contending that plaint schedule property forms part of 56 cents and the said property originally belonged to Komakarumbi, the mother of Kumaran and Padmanabhan and on the death of Komakarumbi property devolved on her two sons Padmanabhan and Kumaran and first respondent is the son of Kumaran and second respondent is the wife and other respondents, the children of Padmanabhan and RSA 15 & 31/2004 after the death of Padmanabhan and Kumaran property devolved on the respondents and altogether 56 cents is in their joint possession and appellant is not a kudikidappukaran and he is not entitled to a decree for injunction.
2. Respondents 4 to 6 and 8 filed a statement raising the same contentions in the other suit also. Both suits were tried jointly. Learned Sub Judge on the evidence found that though appellant purchased kudikidappu right from the Land Tribunal, the order is not valid and binding on the respondents, except first respondent and therefore appellant is not entitled to the decree sought for in O.S.28/1998. Finding that the plaint schedule property jointly belonged to respondents, preliminary decree was passed directing division of the property into 12 shares and allotment of one share to each of the respondents. Appellant challenged the decree before Additional District court, Alappuzha in A.S.69/1999 and A.S.70/1999. A.S.69/1999 is filed against the judgment in O.S.28/1998 and A.S.70/1999 as against the preliminary decree in O.S.158/1995. Learned District Judge on the evidence confirmed the findings of the learned Sub Judge that the order of the Land Tribunal permitting the appellant to RSA 15 & 31/2004 purchase kudikidappu was result of collusion between appellant and first respondent and it is not valid and binding on the other respondents and therefore held that appellant is not entitled to the decree for injunction. Learned District Judge found that when the property available for partition is 56 cents, a preliminary decree for partition of 10 cents alone could not have been passed, as done by the learned Sub Judge in O.S.158/1995 and therefore, allowed A.S.70/1999 set aside the preliminary decree. These appeals are filed challenging the decree. R.S.A.31/2004 is filed challenging the decree in A.S.70/1999. Appeals were admitted formulating the following substantial question of law.
Whether the Civil Court has jurisdiction to declare that the pattah issued by the Land Tribunal is not binding on the persons affected by the same when it is not a nullity and the persons affected by the same failed to resort to the remedies provided under the Kerala Land Reforms Act.
3. Learned counsel appearing for the appellant and RSA 15 & 31/2004 seventh respondent, who alone contesting the appeals were heard.
4. Learned counsel appearing for the appellant argued that even though appellant claimed possession of 13 cents of land, fact that he has been in possession of 10 cents of land is proved by the order of the Land Tribunal, as well as other evidence and hence courts below were not justified in holding that appellant is not entitled to the decree for injunction in respect of the said 10 cents.
5. Learned counsel appearing for the 7th respondent submitted that as rightly found by the courts below, purchase certificate was obtained by the appellant impleading only the first respondent and it was obtained collusively and as the other respondents are admittedly shareholders and they are not parties to the O.A proceedings, the order in the O.A or the purchase certificate is not binding on them and the courts below rightly found that appellant is not entitled to the decree sought for in O.S.28 of 1998.
6. Even though respondents 4 to 6 and 8 instituted O.S.158 of 1995 seeking a decree for declaration that the purchase RSA 15 & 31/2004 certificate issued by the Land Tribunal in O.A.185 of 1992 is not valid and binding on the plaint schedule property or on them, and a preliminary decree for partition was passed by the trial court, which was subsequently set aside by the learned District Judge, they did not challenge the decree in O.S.158 of 1995 as modified by the District Judge in A.S.70 of 1999. Hence dismissal of O.S.158 of 1995 has become final. In such circumstances, it is not necessary to go into the question whether the purchase certificate is valid and binding on respondents 4 to 6 and 8 and whether they are entitled to a decree for declaration sought for.
7. Though the appellant instituted O.S.28 of 1998 seeking a decree for injunction in respect of 13 cents, even according to the appellant, he was a kudikidappukaran and as per the order of the Land Tribunal, he obtained only ten cents. Hence he cannot claim the remaining three cents, which according to appellant lies to the east of the ten cents. As rightly argued by the learned counsel appearing for the 7th respondent, appellant has not taken out a Commission to identify and locate the ten cents from the thirteen cents. In such circumstances, he is not entitled to a decree for injunction, even if he is in possession of the ten cents RSA 15 & 31/2004 claimed by him. Therefore, I find no reason to interfere with the finding of the courts below that appellant is not entitled to the decree for injunction sought for in O.S.28 of 1995.
8. At the same time, it is clear that appellant claimed kudikidappu right in respect of the hut which was there in the plaint schedule property before the Land Tribunal. The Land Tribunal allowed him to purchase the kudikidappu right, though in that O.A only the first respondent was shown as the landlord. The property having an extent of 56 cents admittedly originally belonged to Komakarumbi and on her death, it devolved on her two sons, Padmanabhan and Kumaran. On the death of Kumaran, his rights devolved on the first defendant in O.S.28 of 1998. So also, on the death of Padmanabhan, his rights devolved on the second defendant, widow and defendants 3 to 8, the children. When the property originally belonged to Komakarumbi and on her death on Kumaran and Padmanabhan and on their death on defendants 2 to 8, and appellant is claiming kudikidappu, he should have impleaded the legal heirs of Padmanabhan also in the O.A proceedings. Whatever it be, it cannot be said that the purchase certificate issued by the Land Tribunal is null and void RSA 15 & 31/2004 as claimed by the defendants. It is not disputed that first respondent settled the claim for kudikidappu before the Land Tribunal and it was based on the settlement, appellant was permitted to purchase ten cents of land as kudikidappu by the Land Tribunal. As Kumaran is entitled to half of the entire 56 cents, it cannot be disputed that being the legal heir first respondent is definitely entitled to half of the property. If that be the case, when kudikidappu right was granted pursuant to the settlement with the first respondent, appellant is entitled to contend that the property covered under the purchase certificate should be alloted to the share of Kumaran in the event of partition. Though a preliminary decree was passed by the learned Munsiff to avoid further complication, first appellate court set aside that preliminary decree finding that the subject matter of O.S.158 of 1995 is only ten cents and a decree for partition cannot be passed in respect of the said ten cents of land alone and as the entire 56 cents is to be divided. I find no reason to interfere with that finding. It would have been better for the respondents to seek partition of the property so that the difficulty could have been avoided. But as the decree in O.S.158 of 1995 RSA 15 & 31/2004 has already become final, and the ten cents claimed under the purchase certificate was not identified, a decree for injunction cannot be granted in favour of the appellant as sought for in O.S.28 of 1995. Hence I find no reason to interfere with the decree passed by the first appellate court.
9. Appeals are dismissed reserving the right of appellant to institute appropriate suit.
M.SASIDHARAN NAMBIAR, JUDGE uj/lgk