Babu @ Surendran v. Rajendran, Sreedhara Panicker, Rajendran, Vamanan and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 24TH DAY OF JANUARY 2018 / 4TH MAGHA, 1939** **OP(C).No. 1252 of 2015** **RC.NO.1/2008 OF LAND TRIBUNAL, THIRUVANANTHAPURAM EP NO:262 OF 2002 IN OS.NO.303 OF 1985 OF SECOND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA** **---------** **PETITIONER(THIRD JUDGMENT DEBTOR IN EP.NO.262 OF 2002/SECOND APPLICANT IN RC.NO.1 OF 2008:** **BABU @ SURENDRAN, S/O.SREEDHARA PANICKER,AGED 57 YEARS, RESIDING AT ROADARIKATHU KADAYARA PUTHEN VEEDU, AZHAMKAL, MUKUNDARA DESOM, OTTASHEKHARAMANGALAM PAKUTHY, THIRUVANANTHAPURAM.** **BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. SRI.GOVIND PADMANAABHAN** **RESPONDENT(S)(ADDITIONAL THIRD DECREE HOLDER AND JUDGMENT DEBTORS 2, 4 AND 5 IN EP NO:262 OF 2002/RESPONDENTS 2 AND 3 AND APPLICANTS 3 AND 4 IN RC NO:1 OF 2008):-:** **1. RAJENDRAN, S/O.BHASKARAN NAIR, CHAMAVILA PUTHEN VEEDU, MUKUNDARA DESOM, KALLIKAD VILLAGE, THIRUVANANTHAPURAM-695 572** **2. SREEDHARA PANICKER, ARJUNAN ROADARIKATHU KADAYARA PUTHEN VEEDU, AZHAMKAL, MUKUNDARA DESOM, OTTASHEKHARAMANGALAM PAKUTHY, THIRUVANANTHAPURAM-695 125** **3. RAJENDRAN, S/O.SREEDHARA PANICKER, HAVING PERMANENT ADDRESS AT ROADARIKATHU KADAYARA PUTHEN VEEDU, AZHAMKAL, MUKUNDARA DESOM, OTTASHEKHARAMANGALAM PAKUTHY, THIRUVANANTHAPURAM.** **2/-** **-2-** ## **OP(C).No. 1252 of 2015** **4. VAMANAN, S/O.SREEDHARA PANICKER, HAVING PERMANENT ADDRESS AT ROADARIKATHU KADAYARA PUTHEN VEEDU, AZHAMKAL, MUKUNDARA DESOM, OTTASHEKHARAMANGALAM PAKUTHY, THIRUVANANTHAPURAM.** **R1 BY ADVS. SRI.L.MOHANAN SMT.LIGEY ANTONY SRI.K.SREEKUMARAN NAIR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **OP(C).No. 1252 of 2015 (O)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1. A TRUE PHOTOCOPY OF THE PRELIMINARY DECREE DATED 16.08.1988 OF THE COURT OF THE PRINCIPAL MUNSIFF, NEYYATTINKARA, IN O.S.NO:303 OF 1985.** **EXHIBIT P2. A TRUE PHOTOSTAT COPY OF THE FINAL DECREE DATED 26.02.1991 OF THE COURT OF THE PRINCIPAL MUNSIFF, NEYYATTINKARA, IN I.A.NO:2679 OF 1989 IN OS NO:303 OF 1985.** **EXHIBIT P3. A TRUE PHOTOCOPY OF THE EXECUTION PETITION NO:262 OF 2002 IN OS NO:303 OF 1985 BEFORE THE COURT OF THE PRINCIPAL MUNSIFF, NEYYATTINKARA.** **EXHIBIT P4. A TRUE PHOTOCOPY OF THE ORDER DATED 12.04.2005 OF THE LAND TRIBUNAL, THIRUVANANTHAPURAM, IN RC NO:7 OF 2003.** **EXHIBIT P5. A TRUE PHOTOCOPY OF THE JUDGMENT DATED 31.10.2005 OF THE HONOURABLE COURT IN WRIT PETITION (CIVIL) NO:30540 OF 2005.** **EXHIBIT P6. A TRUE PHOTOCOPY OF THE ORDER DATED 19.06.2007 OF THE COURT OF THE SECOND ADDITIONAL MUNSIFF, NEYYATTINKARA, IN EP NO:262 OF 2002 IN OS NO:303 OF 1985.** **EXHIBIT P7. A TRUE PHOTOCOPY OF THE JUDGMENT DATED 20.08.2007 OF THIS HONOURABLE COURT IN WRIT PETITION (CIVIL) NO:22599 OF 2007. EXHIBIT P8. A TRUE PHOTOCOPY OF THE REPORT DATED 02.05.2009 SUBMITTED BY THE REVENUE INSPECTOR BEFORE THE LAND TRIBUNAL, THIRUVANANTHAPURAM, IN RC NO: 1 OF 2008.** **EXHIBIT P9. A TRUE PHOTOCOPY OF THE ARGUMENT NOTE, (WITHOUT ANNEXURE) SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE LAND TRIBUNAL, THIRUVANANTHAPURAM, IN RC NO: 1 OF 2008. EXHIBIT P10. A TRUE PHOTOCOPY OF THE ARGUMENT NOTE, (WITHOUT ANNEXURE) SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE LAND TRIBUNAL, THIRUVANANTHAPURAM, IN RC NO: 1 OF 2008. EXHIBIT P11. A TRUE PHOTOCOPY OF THE ORDER DATED 29.12.2014 OF THE LAND TRIBUNAL, THIRUVANANTHAPURAM, IN RC NO: 1 OF 2008.** **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **ALEXANDER THOMAS, J** . ------------------------------------------------- O.P.(C) No. 1252 of 2015 ------------------------------------------------Dated this the 24[th] day of January, 2018 ## **JUDGMENT** The petitioner herein is the 3[rd] Judgment Debtor in the Execution Petition, E.P. No.262/02 in O.S. No.303/1985, now on the file of the Second Additional Munsiff's Court, Neyyattinkara. The respondents herein are the second additional decree holder and judgment debtors 2, 4 & 5 in the execution petition. 2. The predecessor in interest of the 1[st] respondent herein had filed O.S. No.303/1985 seeking redemption and partition. One Smt. Dakshayaniamma Thankamma, the mother of the petitioner and respondents 2, 3 & 4 herein, was arrayed as the 1[st] defendant in the said suit and she raised a contention that she is entitled for the benefit under the Kerala Land Reforms Act. The trial court had then passed Ext.P1 preliminary decree for partition and redemption relegating the question of kudikidappu and now the issue is at the execution stage. Later, Ext.P2 final decree was also passed. The 1[st] respondent has preferred Ext.P3 Execution Petition. Pending the execution proceedings, the question of kudikidappu was referred to OP(C) : 1252 of 2015 -:2:- the Land Tribunal. As per Ext.P4 order, the Land Tribunal returned the reference to the execution court with a finding that the abovesaid Smt.Dakshayaniamma Thankamma (who had by then expired) was not entitled to kudikidappu. The present petitioner and respondents 2, 3 & 4 herein, who are the legal heirs of Smt. Dhakshayani Amma Thankamma, had impugned Ext.P4 order before this Court by filing W.P.(C) No.30540 of 2005 in which this Court had rendered Ext.P5 judgment dated 31.10.2005 whereby it was held that the execution court should decide whether Ext.P4 order is a nullity to examine the question of kudikidappu independently. In pursuance of Ext.P5 judgment, the execution court has considered the question as to whether Ext.P4 order is nullity or not to examine the question of kudikidappu independently. This was so ordered by Ext.P6 order which was challenged by filing W.P.(C) No.22599 of 2007 in which this court has rendered Ext.P7 judgment wherein it was ordered that Exts.P4 & P5 orders were set aside and this Court remanded the matter again to the Land Tribunal. In pursuance of Ext.P7 judgment the matter was again referred to Land Tribunal. Petitioner had given evidence as PW1. Report of the Revenue Inspector is marked as OP(C) : 1252 of 2015 -:3:- Ext.C1 and Ext.P8 report was marked as Ext.C2. Ext.C3 is the Advocate Commissioner's report. The 1[st] respondent had not adduced any oral evidence. Therefore, the Land Tribunal had rendered the impugned Ext.P11 proceedings dated 29.12.2014 in Reference Case, R.C. No.1 of 2008, wherein the claim of Kudikidappu was negatived. 3. It is aggrieved by Ext.P11 order that the petitioner has instituted this original petition. The prayers in this Original Petition (Civil) filed under the enabling provisions of Article 227 of the Constitution of India are as follows : “i. Set aside Ext.P11 order. ii. Declare that the petitioner, along with the other predecessors in interest of Late Dakshayani Amma Thankamma (that is the respondents 3 and 4 herein) are entitled to kudikidappu as regards the eastern 7.5 cents out of the larger extent of Fifteen cents of property in Re Survey No.151/15(Old Survey No.44/1A) in Block No.31 of Ottashekharamangalam Village, Thiruvananthapuram District. iii. Dismiss (Ext.P3) Execution Petition No.262 of 2002 in O.S. No.303 of 1985 of the Court of Second Additional Munsiff, Neyyattinkara and iv. Grant such other and further reliefs that are deemed fit and proper in the facts and circumstances of the case.” OP(C) : 1252 of 2015 -:4:- 4. Heard Sri.Shinod G.P., learned counsel for the petitioner and Sri.L.Mohanan, learned counsel appearing for the 1[st] respondent. This court, as per order dated 6.8.2015, had ordered that as respondent Nos.2 to 4 and other judgment debtors are sailing along with the petitioner, notice to respondent Nos. 2 to 4 is dispensed with. Both sides have been heard. 5. One of the contentions urged by Sri.L.Mohanan, learned counsel appearing for the 1[st] respondent is that the present original petition filed under Article 227 to directly impugn Ext.P11 is not maintainable, in view of the rulings of this Court in the decisions reported in **Sreedharan v. Krishnan** (1981 KLT 554), **Kaliyanikutty Amma v. Govindan Nair** (1981 KLT 560) and by a Division Bench of this Court in **Mohammed v. Musthaffa** (1978 KLT 168). In **Muhammed** ’s case (Supra) the division bench of this court has held that it will not be proper for this court to exercise its jurisdiction under Article 226 & 227 of the Constitution of India to examine the legality and correctness of the finding recorded by Land Tribunal as per the reference under Section 125(3) of the Land Reforms Act, 1964. The Division Bench in para 2 of the said OP(C) : 1252 of 2015 -:5:- judgment has also placed reliance on an unreported judgment of the learned single Judge (Chandrasekhara Menon, J) of this court in O.P. No.4558 of 1974 wherein it was held that resort to the jurisdiction under Article 226 or 227 of the Constitution of India, it is not right or proper to examine the correctness of the findings of the Land Tribunal at that stage. The division bench held in **Mohammed** ’s case (Supra) that no writ petition in the matter would lie at this stage of that case, in view of the fact that the decision of the Land Tribunal will form part of that findings of the Munsiff's court in its judgment in Original Suit and being a finding imparted to the judgment in the civil suit, the parties to the suit will be entitled to take the matter in appeal to the higher court and it will not be proper for this Court to exercise the jurisdiction under Article 226 or 227 to examine the correctness of this finding at that stage. 6. The learned single Judge of this Court in **Sreedharan** 's case (supra) has held that when a civil court accepts a finding returned to it by the Land Tribunal and passes a final order, the finding thereafter would become part of the decision of the civil court and this is abundantly made clear under Section 125(6) of the Kerala Land OP(C) : 1252 of 2015 -:6:- Reforms Act. That being so, when this Court examines the order under revision which contains the findings of the learned Tribunal also it is open to this Court to consider the jurisdictional error committed by the Tribunal, if any, in arriving at its finding and this Court finds any such error of jurisdiction, then jurisdiction under Section 115 of the CPC could be exercised. Section 125(6) of the Land Reforms Act has found a place in the statutory book in 1970, when the provision enabling the party to file appeal against the orders in execution was removed by amendment of the CPC with effect from 01.02.1977 etc., and that there can be no doubt that the decision of the Land Tribunal will form part of the findings of the civil court, not only for the purpose of appeal but also for the purpose of revision and this Court can in appropriate cases interfere with the finding of the Land Tribunal when orders accepting the findings of the Land Tribunal come before it in revision. 7. The learned Single Judge of this Court in **Kaliyanikutty Amma** 's case (supra) has held that the findings of the Tribunal could not be independently treated as a finding of the civil court, unless the civil court in the proceedings before it accepts the order of the Tribunal as such, until it is incorporated. OP(C) : 1252 of 2015 -:7:- 8. The learned Single Judge of this Court in **Kaliyanikutty Amma** 's case (supra) has held that the findings of the Tribunal could not be independently treated as a finding of the civil court, unless the civil court passes some orders or judgment in the proceedings before it, then the order of the Tribunal as such, i.e., until it is incorporated in the order or judgment of a civil court, has no existence as a findings of a civil court and cannot be equated with the decision of the civil court so as to attract the operation of Section 115 CPC. When the finding of the Land Tribunal is accepted by the civil court, the order or judgment of the civil court would be appealable or revisable depending upon the application of Section 96 or Section 115 of the CPC as the case may be and till then the findings of the Land Tribunal is not appealable or revisable. 9. In that view of the matter this Court held in **Kaliyanikutty Amma** 's case (supra) that the revision instituted therein for directly challenging the order of reference of the Land Tribunal before it had formed part of the civil court decision, this court held that it was not maintainable. In the instant case also both parties would agree that the impugned Ext.P11 proceedings of the Land Tribunal answering OP(C) : 1252 of 2015 -:8:- the reference made by the civil court was challenged directly by the petitioner by filing OP(C) under the enabling provisions of Article 227 of the Constitution of India and that it has not so far formed part of the civil court's decision in the execution petition concerned in the manner known to law. 10. In that view of the matter, Sri.L.Mohanan, learned counsel appearing for the 1[st] respondent is certainly right in contending that the present petition filed under Article 227 of the Constitution of India so as to make a direct challenge against Ext.P11 proceedings of the Land Tribunal before it had attained status of the decision by the civil court in the execution proceedings in the manner known to law is not maintainable in the light of the above said dictum laid down by this Court in the above said rulings. 11. Ext.P11 order was rendered on 29.12.2014 and the instant original petition has been filed on 24.05.2015. Both sides would submit that in view of the interim order of stay granted by this Court, it appears that the civil court has not rendered the decision in the execution petition so as to incorporate the impugned Ext.P11 proceedings of the Land Tribunal. If that be so, the execution court OP(C) : 1252 of 2015 -:9:- concerned (court of the Second Additional Munsiff, Neyyattinkara) will take necessary action to ensure that its decision on the Execution Petition is rendered, so as to incorporate the impugned Ext.P11 proceedings in the manner known to law, without any further delay and certified copies of such order of the execution court should be furnished to both sides, if applications in that regard are properly made by the parties concerned. Thus, leaving open all contentions of both sides and giving liberty to the aggrieved party to work out his remedy in the manner known to law, this petition is only to be dismissed as not maintainable. Accordingly, with the above observations and directions, this Original Petition (Civil) will stand dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** ttb