John Santhyavu v. Joseph Chackola and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939** **SA.No. 681 of 2002 (F)** **-----------------------** **AGAINST THE DECREE AND JUDGMENT DATED 26.6.2002 IN AS 135/2000 of FIRST ADDITIONAL SUB COURT,ERNAKULAM** **AGAINST THE DECREE AND JUDGMENT DATED 4.10.1991IN OS 690/1985 of SECOND ADDITIONAL MUNSIFF COURT, ERNAKULAM** ## **APPELLANT/2ND APPELLANT/3RD DEFENDANT::** ## **--------------------------------------** ***JOHN SANTHYAVU, S/O. LATE SANTHYAVU, KALASSERY HOUSE, CHAKALAKAL ROAD,PERUMANUR DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** ## *** DIED. LRS IMPLEADED** ## **ADDL.APPELLANTS** **2. MARY JOHN, W/O. JOHN SANTHYAVU, KALASSERY HOUSE,CHAKALAKAL ROAD, PERUMANNUR DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **3. JASMI JOHN, S/O. JOHN SANTHYAVU OF DO DO** **LRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 AND 3 VIDE ORDER DATED 9.3.2004 ON IA.NO.457/2004** ## **BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR** **RESPONDENT(S)/RESPONDENTS & 1ST APPELLANT/ PLAINTIFFS & DEFENDANTS 1 & 2:** **-----------------------------** **1. JOSEPH CHACKOLA,** - **S/O. LATE JOSEPH CHACKOLA, PANAMPILLY NAGAR,, PERUMANOOR, ERNAKULAM.** ## **2. ANNAMMA JOSEPH CHACKOLA,** - **W/O. LATE JOSEPH CHACKOLA OF -DO- -DO-.** ## **3. NIMMI JOHN CHACKOLA,** - **W/O. LATE JOHN JOSEPH CHACKOLA, CHACKOLA HOUSE, PERUMANOOR, COCHIN-15.** **4. AMEL JOHN CHACKOLA,** **D/O. LATE JOHN JOSEPH CHACKOLA OF -DO- -DO-.** **5. JOHN JOSEPH CHACKOLA,** - **S/O. LATE JOHN JOSEPH CHACKOLA OF -DO- -DO-.** **6. THRESIA SANTHYAVU, W/O. LATE SANTHYAVU, KALASSERY HOUSE, CHAKALAKKAL ROAD, PERUMANOOR DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.** **7. STEPHEN SANTHYAVU,** - **S/O. LATE SANTHYAVU OF -DO- -DO-.** **R2TOR5 BY ADV. SRI.A.BALAGOPALAN R2TOR5 BY ADV. SRI.M.N.MANMADAN R2TOR5 BY ADV. SRI.PRAKASH P.GEORGE** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ....................................... S.A.No.681 of 2002 ........................................ Dated this the 22[nd] day of June, 2017. ## **JUDGMENT** The third defendant in OS.No.690/1985 on the file of the Second Additional Munsiff Court, Ernakulam is the appellant herein. The suit was filed by John Joseph Chackola against the appellant and respondents 6 and 7 for permanent prohibitory injunction restraining the defendants from putting up permanent construction in plaint B schedule and for mandatory injunction directing them to remove temporary shed in plaint B schedule. The case of the plaintiffs in the plaint was that plaint A schedule property of which plaint B schedule is a part originally belonged to Chackola Pau Lonappan and as per partition deed registered as document No.1798/1972, this property was alloted to Joseph Chackola as C schedule to the document. The plaintiffs are the legal heirs of said Joseph Chackola and they are in exclusive possession of the property. On the northern portion of the plaint A schedule property, late Santhyavu, the predecessor of the defendants, put up a house with permission of the predecessor in interest of the plaintiffs evidenced by Ext.A2 charthu and started residing there as a kudikidappukaran and as per the provisions of the Kerala Land Reforms Act, he is entitled to get three cents as kudikidappu as it is in the Corporation area. The said Santhyavu died and the defendants are his legal heirs. On 2.6.1985 the defendants S.A.No.681 of 2002 2 unauthorizedly put up a shed on the northern side of the kudikidappu property with an intention to claim two kudikidappu from plaint A schedule property and that will be outside the three cents of land. That shed was shown as B schedule to the plaint. It appears that the third defendant is trying to claim independent kudikidappu in respect of that portion and with such an intention that this has been done. So the plaintiffs filed the suit for injunction as well as mandatory injunction. 2. The defendants entered appearance and filed written statement contending that plaint B schedule is the kitchen of the defendants and subsequently the third defendant and his family started residing therein as their separate residence and he is entitled to get kudikidappu in respect of that portion. He is also having separate ration card from 1970 onwards. So the plaintiffs are not entitled to get any relief. So they prayed for dismissal of the suit. 3. The matter was referred to the Land Tribunal to consider the question as to whether the third defendant is entitled to get kudikidappu and the Land Tribunal by reference order, RC.No.6/88 found that the third defendant is not entitled to get independent kudikidappu as he is one of the legal heirs of the original kudikidappukaran, the legal heirs of Santhyavu are entitled to get 3 S.A.No.681 of 2002 only 3 cents of land and rejected that claim. Originally PW1 was examined and Exts.A1 and A2 were marked on the side of the plaintiffs. The third defendant was examined as DW1 and Exts.B1 to B4 were marked on his side. After considering the evidence on record, the trial court earlier dismissed the suit as the area covered by the kudikidappu has not been identified and as such, it was not possible to come to a conclusion as to whether the extension made is outside the kudikidappu area or not. Aggrieved by the same, the plaintiffs filed an appeal before the District Court, Ernakulam, which was made over to the Sub Court, Ernakulam as AS.No.65/1992. In the appeal, a commission was taken out and the Commissioner had submitted a plan and report identifying the plaint A schedule property, kudikidappu given to the predecessor of the defendants and the trespassed area covered by the disputed B schedule shed. The plaintiffs also filed an application to amend the plaint incorporating the schedule of properties in accordance with the Commissioner's report showing the kudikidappu area and also the trespassed area separately and that was allowed by the appellate court and thereafter the appeal was allowed and remanded to the court below for fresh disposal. After remand, the earlier Commissioner as well as the Commissioner who was deputed from the appellate court were examined as Pws 2 and 3 and Exts. 4 S.A.No.681 of 2002 C1, C1(a), C2 and C2(a) were marked. No further evidence was adduced on the side of the defendants. After considering the materials available on record, the trial court came to the conclusion that the yellow shaded area in Ext.C1(a) plan is the encroachment and plot A is the area covered by the original kudikidappu and the defendants have no manner of right to construct any shed beyond the kudikidappu area and decreed the suit directing the defendants to remove B schedule shed, which is shown as Plot B in Ext.C1(a) plan and also granted an injunction restraining the defendants from putting up any construction beyond kudikidappu area. Aggrieved by the same, defendants 1 and 3 filed AS.No.142/1999 before the District Court, Ernakulam which was made over to the Sub Court, Ernakulam where it was renumbered as AS.No.135/2002 and made over to the First Additional Sub Court for disposal and the learned First Additional Sub Judge by the impugned judgment dismissed the appeal. Aggrieved by the same, the present appeal has been filed. The following substantial questions of law in the Appeal Memorandum have been accepted as the substantial questions of law arose for consideration in the second appeal namely: (i) Whether the land used as pathway by a kudikidappukaran as in easement could be taken into account in determining the 5 S.A.No.681 of 2002 extent of land which the kudikidappukaran is entitled to produce? (ii) Is not a kudikidappukaran entitled to make additional structures for the convenient enjoyment of kudikidappu upto a maximum of 50% of the existing structure (hut)? (iii) Once it is shown that the kudikidappukaran is enjoying a small structure attached to kudikidappu, which is necessary for the beneficial enjoyment of the kudikidappu, is not the kudikidappukaran entitled to include the additional structures as part of the kudikidappu in determining the extent of land which he is entitled to purchase? (iv) Whether the lower courts were right in determining and demarcating the extent of kudikidappu, which is a function exclusively given to the Land Tribunal? (v) Is the suit as framed is maintainable without a relief for recovery of possession? (vi) Is not the relief for mandatory injunction barred by limitation? (vii) Whether the lower courts were right in decreeing the suit when there is no legal evidence tendered by the plaintiffs? 5. Heard Sri.Gopikrishnan Nambiar, learned counsel appearing for the appellant and Sri. Balagopalan, learned counsel appearing for respondents 1 to 5. 6 S.A.No.681 of 2002 6. Learned counsel appearing for the appellant submitted that the suit without the prayer for recovery of possession is not maintainable as mandatory injunction is not the relief to be granted. Further the suit was filed beyond 3 years of the construction of B schedule. He had also argued that a kudikidappukaran is not entitled to construct 50% more than the existing shed for his convenience and enjoyment and that also ought to have been considered by the courts below which has not been done. 7. On the other hand, learned counsel appearing for the respondents submitted that the appellant is not entitled to get any relief and both the courts concurrently found on facts that they are not entitled to get any relief. 8. It is an admitted fact that plaint A schedule property originally belonged to the predecessor of respondents 1 to 5 and under them the predecessor of the appellant Santhyavu was permitted to construct a shed for his residence as kudikidappukaran as per Ext.A2 and it is on that basis that Santhyavu put up a shed and stared residing with family. Under section 2(25) of the Kerala Land Reforms Act, in the case of Corporation, a kudikidappukaran is entitled to get 3 cents of land as kudikidappu. It is on that basis that the plaintiffs in the lower court restricted the area for S.A.No.681 of 2002 7 kudikidappu as 3 cents and further construction shown as B schedule shed was in excess of the permission granted and so they wanted for mandatory injunction to remove the same and also restraining him from doing any permanent construction there. Further there is no evidence to show what is the original construction made by the predecessor of the defendants so as to come to a conclusion whether the present shed will not exceed 50% of the original construction to make it a convenient enjoyment of the kudikidappukaran. The trial court as well as the appellate court on the basis of the evidence of DW1 came to the conclusion that the kudikidappu building is situated on the eastern portion of the plaint A schedule and that it is having an independent kitchen and the present B schedule is situated 2 to 3 feet away from that original structure where now the 3[rd] defendant and his family started residing. Further, the courts below rightly relied on Exts.B1 to B4 and came to the conclusion that B schedule shed now put up cannot be said to be a part of plot A original kudikidapu and necessary for proper enjoyment of the kudikidappu as claimed by the appellant and rightly held that he is not entitled to get any benefit of beneficial enjoyment as claimed by him as held in _**Velayudhan v. Varkey**_ (1987 (2) KLT 108) and rightly rejected the claim. Further the Land 8 S.A.No.681 of 2002 Tribunal in the reference order also held that the legal heirs of Santhyavu will be entitled to get 3 cents only and nothing more. 9. So under such circumstances, the courts below have come to a conclusion that since defendants have not adduced any evidence to prove the exact area covered by the original hut so as to infer that the present extension will only less than 50% of the original extent, thereby he is entitled to get that additional area as well, the appellant is not entitled to claim the benefit that he is entitled to put up 50% more than the original construction for his convenience and enjoyment. Since original construction was made with permission of the landlord and if any extension has been made beyond that permission, then the landlord is entitled to get a decree for mandatory injunction removing the excess that has been made by the licensee in the property that has been alloted to him as the possession of land by the kudikidappukaran is only that of a licensee and he cannot be treated as a trespasser. So under such circumstances the submission made by the counsel for the appellant that without the prayer for recovery of possession the suit is not maintainable, is also not sustainable. The courts below have rightly came to the conclusion that the dictum laid down in the decision reported in _**[Aspinwall Co.Ltd. v. Soudamini Amma**_ (1974 KLT 681 (DB)] and _**Krothapalli Sathyanarayana v.**_ 9 S.A.No.681 of 2002 _**Koganti Ramaiah and others**_ (AIR 1983 SC 452) are not applicable to the facts of this case. 10. As regards limitation is concerned, only when the plaintiffs came to know that the area has been extended on 2.6.1985 and only when they came to know that it is beyond the area that has been given for kudikidappu, then only right to file the suit arises. In this case, only on measurement of the property it was found that it is beyond the kudikidappu area, which has been marked as Plot A in Ext.C1(a) plan, immediately when they came to know that they are trying to extend their construction beyond the kudikidappu area permitted to them, the plaintiffs have filed the suit in 1985 itself . So under such circumstances, it cannot be said that the suit is barred by limitation as claimed by the counsel for the appellant. All these aspects have been properly considered by the courts below and rightly came to the conclusion that the defendants are not entitled to get any of the benefits claimed by them and rightly rejected their claim and the Land Tribunal also found that the third defendant is not entitled to get separate status of a Kudikidappukaran and rightly rejected his claim for separate kudikidappu in respect of the disputed portion. These aspects have been properly appreciated by the courts below and rightly came to the conclusion that the plaintiffs are entitled to 10 S.A.No.681 of 2002 get the relief as prayed for and rightly decreed the suit as prayed for as rightly confirmed by the lower appellate court. The questions of law raised are answered accordingly against the appellant and in favour of respondents 1 to 5 and the appeal lacks merit and the same is liable to be dismissed. In the result, the appeal fails and the same is dismissed. Considering the circumstances and also status of the parties, the parties are directed to bear their respective respective costs in the appeal. Sd/- ## **K. RAMAKRISHNAN, JUDGE.** _/true copy/_ _P.S to Judge_ cl 11 S.A.No.681 of 2002 **K. RAMAKRISHNAN, J.** ................................ S.A.No.681 of 2002 ............................... 22[nd] day of June, 2017. **JUDGMENT**