GOPINATHA PILLAI v. SMT. LAKSHMIKUTTY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932** **CRP.No. 117 of 2006()** **-------------------------AGAINST THE ORDER DATED 17/01/2006 IN EP.90/2001 IN OS.273/1985 of PRL.MUNSIFF COURT,NEDUMANGAD RC.11/2002 of LAND TRIBUNAL, TRIVANDRUM** **....................** **REVN. PETITIONER(S): RESPONDENT IN THE RC.** **---------------------------------------------------------** **GOPINATHA PILLAI, S/O.KUMARA KURUP(LATE), AGED 61 YEARS, TITTAKUDI, KUNNUMPURATHU TC 22/39, KURIYATHU, MANACAUD P.O. THIRUVANANTHAPURAM.** **BY ADVS. SRI.M.R.SUDHEENDRAN SRI.S.SURAJ** **RESPONDENT(S): APPLICANT IN THE RC.** **------------------------------------------------** **SMT.LAKSHMIKUTTY, D/O.CHEMBAKAKUTTY, PULIMATHU MELATHIL, PUTHENVEEDU, VAMANAPURAM DESOM, PULIMATHU VILLAGE.** **R1 BY ADV. SRI.M.DINESH** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **ORDER ON C.M.P. NO.564/2006 & I.A.2763/2008** ## **IN** ## **C.R.P. NO.117/006** ## **CLOSED** **03/02/2011** **SD/- M.N.KRISHNAN, JUDGE** **/TRUE COPY/** **P.A. TO JUDGE** **svs** ## **M.N. KRISHNAN,J.** ........................................... C.R.P.NO.117 OF 2006 ............................................. Dated this the 3[rd] day of February, 2011. ## **O R D E R** This revision is preferred against the finding of tenancy in E.P.No.90/2001 in O.S.No.273/1985. The suit was one for redemption of a mortgage which had been decreed and a final decree had been passed. The question regarding entitlement to kudikidappu has been raised in that proceedings and the court found that, it can be relegated to the execution proceedings. It has to be stated that all the parties have accepted the said finding rendered by the court in the preliminary decree as well as in the final decree, or in other words, the finding rendered therein has become final. Thereafter the decree holder moved an application for delivery of the property and in that proceedings, the mortgagee raised the contention of kudikidappu right. Kudikidappu right was referred to the Land Tribunal and the Land Tribunal gave a verdict in favour of the judgment debtor/mortgagee and accepting : 2 : ## C.R.P.NO.117 OF 2006 that finding the executing court disposed of the application directing to demarcate the property of kudikidappu. It is against this, the civil revision is preferred. 2. The learned counsel for the revision petitioner at the outset has referred to the decision of the Hon'ble Supreme Court of India reported in **Victoria v. K.V. Naik** (1997 (6) SCC 23). It was also a case that had arisen under the Kerala Land Reforms Act. The learned counsel had brought to my notice following observation of the Hon'ble Supreme Court. “We find that later part of the view taken therein is not correct for the reason that if the plea has not been raised, it operates as constructive res judicata on the principle of “might and ought”. If it is taken and rejected, it operates as res judicata and the same cannot be raised in execution. Even if it is left open, in equity, justice and good conscience, it must not be extended to the mortgagee”. 3. Here is a case where a specific contention with respect to the right of kudikidappu was raised at the first stage itself. It was on account of the court, the said question was not adjudicated. The same question was again raised in ## : 3 : ## C.R.P.NO.117 OF 2006 the final decree proceedings and it was decided that it has to be decided in the execution proceedings. So it was on account of the finding of the court, consideration of the question of kudikidappu was postponed to the stage of execution proceedings. In such a situation, I may refer to the decision of a learned Judge of this Court reported in **Chellamma v. Ayyan Oman** (2001(2) KLT S.N. Page No.3,Case No.2). It was also a case where the question is that at the time of redemption, the mortgagee can set up the claim. The court observed that the petitioner took care to raise it before the Forum and the court thought it fit to relegate the decision on the aspect to the stage of delivery proceedings. Neither side had challenged the final decree passed in the case and the question therefore had necessarily to be considered in the delivery proceedings. It was after reference to the decision of the Supreme Court, the learned Judge had rendered such a decision. 4. So far as this case is concerned, there was absolutely no whisper by the decree holder against raising the tenancy question in the execution stage and I do not find : 4 : C.R.P.NO.117 OF 2006 any ground in the Memorandum of Revision as well regarding the same. So applying the principles laid down and the fact that the question of tenancy has been relegated to the execution proceedings by the orders of the court, it may not be proper to deny the right which a person has and therefore the contention that the matter cannot be referred to the Land Tribunal and the question of kudikidappu cannot be raised at this stage cannot be allowed. 5. Now on merits. After reading the order of the Land Tribunal, I am convinced that the Land Tribunal has not applied its mind at all properly in deciding the question. What is recited in the mortgage deed is that the property is mortgaged for a sum of `125/= and possession is handed over with the right to enjoy usufrcuts with a further stipulation that the mortgagee is entitled to construct a hut or shed for the purpose of his living by spending not more than ` 50/=. What was the cost of construction is a matter, that is an imperative factor, to arrive at the question of entitlement to kudikidappu. Similarly the question whether the mortgagee is having any other ## : 5 : ## C.R.P.NO.117 OF 2006 property at the time of claiming this kudikidappu also will be an important factor for considering the question of kudikidappu right. The Land Tribunal had just referred to the deposition of Secretary of the grama panchayat which would indicate that the building situated in the property is assessed in the name of the mortgagee. Just because property is assessed in a person's name, it will not ipso facto confer the right of kudikidappu. 6. Therefore the matter requires further evidence as well as legal consideration. The orders under challenge are set aside and the matter is remitted back to the executing court with a further direction to the court to refer the matter to the Land Tribunal again for finding the question of kudikidappu by directing the Land Tribunal to consider the question in the light of definition of kudikidappukaran and other provisions of the Kerala Land Reforms Act and for that purpose, permit all concerned to produce documentary as well as oral evidence in support of their respective contentions and the matter be disposed of in accordance with law. Parties are directed to appear before the executing : 6 : C.R.P.NO.117 OF 2006 court on 05.03.2011. Disposed of accordingly. ## **M.N. KRISHNAN, JUDGE.** **cl** : 7 : C.R.P.NO.117 OF 2006