Kerala High Court
Asokan vs Sreemad Janardhana Devasom on 14 February, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 14TH DAY OF FEBRUARY 2012/25TH MAGHA 1933
RSA.No. 232 of 2011 ( )
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AS.12/2008 of PRINCIPAL SUB COURT,KOCHI
OS.371/2004 of PRL.M.C., KOCHI
APPELLANT(S)/APPELLANTS 1 TO 4/DEFENDANTS 1,2,4 AND 9 IN O.S. :
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1. ASOKAN, S/O.BHARATHAN, 1/1388,
SOUTH THAMARAPARAMBU, FORT KOCHI, KOCHI.
2. XAVIER, S/O.PAUL, 1/1389,
SOUTH THAMARAPARAMBU, FORT KOCHI, KOCHI.
3. LEELA VISHWANATHAN, 1/1391,
SOUTH THAMARAPARAMBU, FORT KOCHI, KOCHI.
4. DEVAKY, W/O.GANGADHARAN, 1/1395,
SOUTH THAMARAPARAMBU, FORT KOCHI, KOCHI.
BY ADVS.SRI.M.R.HARIRAJ
SRI.SURAJ.S
SMT.VINEETHA B.
SRI.NIRMAL V NAIR
SRI.K.RAJAGOPAL
RESPONDENTS/PLAINTIFFS AND DEFENDANTS IN O.S.:
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1. SREEMAD JANARDHANA DEVASOM,
AMARAVATHI, FORT KOCHI, REPRESENTED BY ITS
MANAGING TRUSTEE, T.VIDYASAGAR, S/O.LATE TARANTO
SETH, RESIDING AT DRAVA SETTEE LANE, AMARAVATHI
KOCHI-1.
2. R.S.ASOK SETH, S/O.LATE RATNAKAR SETH,
RESIDING AT DRUVA SHETTY LANE, AMARAVATHI
KOCHI-1 (TRUSTEE SREEMAD JANARDHANA DEVASOM).
3. KAMALAKSHY, W/O.LATE KRISHNAN,
1/1393, SOUTH THAMARAPARAMBU, FORT KOCHI-1
R1 BY ADVS. SRI.G.SREENIVASA PRABHU
SRI.S.B.PREMACHANDRA PRABHU
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
14-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SD
THOMAS P. JOSEPH, J.
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R.S.A.No.232 of 2011
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Dated this 14th day of February, 2012
JUDGMENT
Defendants 1, 2, 4 and 9 in O.S.No.371 of 2004 of the Court of learned Munsiff, Kochi are the appellants before me challenging the decree for prohibitory injunction granted by that Court and confirmed by the first appellate court in A.S.No.12 of 2008.
2. Respondents 1 and 2/plaintiffs claimed title and possession of the suit property as per Ext.A1, document of the year, 1926 concerning plaint A schedule which is 76 cents. Plaint B to G schedules form part of plaint A schedule and are allegedly occupied by defendants by way of kudikidappu. Respondents 1 and 2 wanted appellants and other defendants to be restrained from trespassing into any part of plaint A schedule excluding the 3 cents which they are entitled to occupy by way of kudikidappu. Appellants and others contended that respondents have no right over plaint A schedule and that they are entitled to the protection of Sec.79A of the Kerala Land Reforms Act (for short, "the Act"). They also raised certain other contentions as to how they came into occupation of plaint B to G schedules. Trial court found that R.S.A.No.232 of 2011 -: 2 :- appellants and others are kudikidappukars in the respective plots occupied by them and that their entitlement is only to occupy 3 cents each since the property falls within the local limits of Kochi Corporation. Trial court granted decree for prohibitory injunction restraining appellants and others from trespassing into plaint A schedule excluding the 3 cents each in their occupation as shown by Advocate Commissioner in Exts.C1(a), plan. Trial court also directed that Ext.C1(a), plan be appended to the decree. That has been confirmed by the first appellate court. Hence the second appeal .
3. Learned counsel for appellants and defendants 1, 2, 4 and 9 contend that so far as appellants have not obtained purchase certificate under provisions of the Act as if they are kudikidappukars, occupation of appellants cannot be restricted to 3 cents each which they could have obtained by way of kudikidappu. But, now that they are in occupation of more area than 3 cents and hence courts below are not justified in granting a decree for prohibitory injunction. Reliance is placed on the decisions in Kurian Vs. Vasu & Anr. (1976 KLT 52) and Kannan Vs. Land Tribunal (1978 KLT 653).
R.S.A.No.232 of 2011 -: 3 :-
4. Learned counsel for respondents 1 and 2 contends that until kudikidappu right is purchased, occupation of appellants in the disputed property is only permissive under respondents 1 and 2 who are proved to be title holders of the suit property and that the right of appellants should be confined to 3 cents each. In the circumstance, it is open to the civil Court to grant decree for prohibitory injunction against entering any portion other than the 3 cents which appellants are entitled to get by way of kudikidappu. It is also contended that by not obtaining purchase certificate with respect to 3 cents each, appellants cannot claim a large right than what they can get by way of kudikidappu. Reliance is placed on the decisions in Paul @ Varkey Vs. Narayanan & Anr. (1974 KLT 29) and Thomas Vs. Kunju Lurumba (1995(1) KLT Case No.13 (Page 9)).
5. Title of respondents 1 and 2 over plaint A schedule of which, plaint B to G schedules form part has been found by the courts below on the strength of Ext.A1. That finding being based on facts and evidence does not involve any substantial question of law.
6. Then the next question is whether in their capacity as kudikidappukars who have not purchased right of kudikidappu, R.S.A.No.232 of 2011 -: 4 :- appellants are entitled to occupy any area beyond 3 cents (as the property falls within corporation limits). Kudikudappuran becomes owner of the property on purchase of kudikidappu. He is in permissive occupation of the property until he purchases kudikidappu. It is not disputed that entitlement of appellants is in respect of 3 cents under the relevant provisions of the Act. Question is whether merely because appellants have not opted to purchase kudikidappu, they cannot enjoy more extent than 3 cents which they are otherwise entitled to get by way of kudikidappu. Decisions relied on by learned counsel for appellants do not, with due respect hold so. In Kurian Vs. Vasu & Anr. (supra) it is only stated that in an application under Sec.75(2)(c) of the Act, when kudikidappukaran in panchayath area is offered alternate site in municipal area, it shall not be less than the extent of existing kudikidappu. In Kannan Vs. Land Tribunal (supra) the Court was dealing with an application under Secs.75 and 77 of the Act. On the other hand, in Paul @ Varkey Vs. Narayanan & Anr. (supra) question considered was maintainability of the suit filed by the landlord for injunction to restrain kudikidappukaran from interfering with his right after demarcating 10 cents (as the land falls within the local limits of R.S.A.No.232 of 2011 -: 5 :- panchayath). The issue was answered in the affirmative. If kudikidappukaran tries to interfere with the right of owner in regard to the latter's possession and enjoyment of the rest of the land (ie, excluding the 10 cents), kudikidappukaran is certainly liable to be restrained from doing so by an order of injunction issued by a Civil Court. In Thomas Vs. Kunju Lurumba (supra) kudikidappu was situated in a larger extent of land. Kudikidappukaran did not invoke the statutory right for assignment of land. Commission application to demarcate the possible area which kudikidappukaran may ultimately get was held maintainable. It is held that no person can be permitted to grab the larger extent of land under the guise of kudikidappu claim, that if such a person is not interested in having the statutory right for assignment of land, the alternative remedy of the owner of land in regard to his land is to set apart the maximum area which he may have to suffer under the statute and then to protect the remaining area for himself.
7. The latter decision applies to the facts and circumstances of this case. If appellants are not exercising their statutory right in respect of 3 cents which they are entitled to get and are attempting to trespass into the remaining property of the R.S.A.No.232 of 2011 -: 6 :- landlord, the latter is entitled to invoke power of the Civil Court to restrain the appellants in doing so. Trial court has done so and first appellate court has confirmed that.
8. There is no dispute regarding the extent of 3 cents available to the appellants by way of kudikidappu as marked in Ext.C1(a), plan. Trial court has granted decree for prohibitory injunction protecting the right of appellants with respect to those 3 cents marked in Exts.C1(a), plan. The decree is with respect to the remaining part of property belonging to respondents 1 and 4.
9. Having regard to the facts and circumstances of the case and on the factual position emerging in the case, no substantial question of law is involved in this case for consideration.
The second appeal is dismissed.
(THOMAS P. JOSEPH, JUDGE) Sbna/-