## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE P.BHAVADASAN**
**FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932**
**SA.No. 731 of 1998(C)**
**--------------------------**
**AS.111/1996 of SUB COURT, NEDUMANGAD OS.753/1990 of PRL.MUNSIFF COURT,NEDUMANGAD**
**....................**
## **APPELLANT(S):APPELLANTS/DEFENDANTS IN SUIT**
**------------------------------------------------------------**
- ***1. MUTHAMMA, RESIDING AT VALIYAKALUNGU ROADARIKATHU VEEDU, KOTTAKKAKOM MURI, ARYANADU VILLAGE.(DIED. L.R. RECORDED)**
- **IT IS RECORDED THAT APPELLANT NO.1 IS DEAD AND APPELLANT NO.2 IS THE SOLE LEGAL REPRESENTATIVE OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 18/05/05 ON MEMO DATED 11/08/2004 (CF.4259/2004)**
**2. RAMASWAMY ASARY RAJAN, IN DO. DO.**
**BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE ADV. SRI.P.B.KRISHNAN**
## **RESPONDENT(S):RESPONDENTS/PLAINTIFFS IN SUIT**
**---------------------------------------------------------------**
**1. SASIDHARAN JAYAKUMAR,RESIDING AT ERAVOOR MAILADUMPARA KIZHAKKUMKARA VEEDU, KOTTAKKAKOM MURI, FROM ERAVOOR MAILANIKONATHU KRISHNA BHAVAN, KOTTAKKAKOM MURI ARYANADU VILLAGE.**
**2. SULOCHANA JALAJA KUMARI, IN DO. W/O. JAYAKUMAR, OF DO. DO.**
**R1 & R2 BY ADV. SRI.K.B.PRADEEP**
**THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**svs**
## **ORDER ON C.M.P. NO.2064/1998, I.A. NO.2317/2006,**
## **1585/2007 & I.A. NO.2732/2009**
## **IN S.A. NO.731/1998**
## **DISMISSED**
**21/01/2011**
**SD/- P.BHAVADASAN, JUDGE**
**/TRUE COPY/ P.A. TO JUDGE**
**svs**
## **P.BHAVADASAN, J.**
------------------------------------SA No.731 of 1998 ------------------------------------Dated this the 21[st] day of January 2011
## Judgment
Two principal questions of law that arise for consideration in this second appeal are :
1. Whether the courts below are justified in decreeing the suit in the absence of clear evidence regarding the title of the plaintiff ?
2. Whether the courts below are justified in law in declining to refer to the issue regarding kudikidappu ? To answer the above questions, it is necessary to refer to the essential facts of the case.
2. The suit was one for recovery of possession
on the strength of title. The plaintiffs laid claim to the suit property as per Exts.A1 and A3. According to the plaintiffs, the successor-in-interest of the defendants is allowed to occupy the property, when the latter refused to do so. Hence the suit.
3. The suit was resisted by the defendants
contending that five cents of property comprised in RS No.1477/1 had been given to the first defendant's husband
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Ramaswamy for putting up a residential building. He did so and his family started residing there. On the death of Ramaswamy, the defendants being the successors-ininterest, are in possession and enjoyment of the property. When the plaintiffs attempted to forcibly take possession of the suit property, the defendants had instituted OS No.450/86 against one of the plaintiffs and another person and that suit was decreed in favour of the defendants. In that judgment, it was held that the building belongs to the defendants herein i.e, the plaintiffs in that suit. Apart from that, the defendants had also set up a claim of kudikidappu. They contended that the plaintiffs are not entitled to recover the suit property and prayed for a dismissal of the suit.
4. On the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the documents marked as Exts.A1 to A16 from the side of the plaintiff and Exts.B1 to B8 from the side of the defendants. No oral evidence was adduced by either of the
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parties.
5. The trial court found that the plaintiffs have title to the suit property and that the question of kudikidappu does not arise for consideration in the suit. It was also found that the building in the property belonged to the defendants. On the basis of the above findings, a decree was granted to the plaintiffs for recovery of possession subject to certain conditions.
6. The defendants carried the matter in appeal as AS No.111/96 before the Sub Court, Nedumangad. On an elaborate consideration of the materials before it, the lower appellate court concurred with the trial court and dismissed the appeal. Thus, this appeal comes up before this court.
7. The learned Senior Counsel appearing for the appellants contended that the courts below were not justified in decreeing the suit. It was contended that there was an earlier suit between one of the plaintiffs and another person filed by the defendants, wherein the
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defendants herein figured as the plaintiffs. That related to five cents of land and building, which is the subject matter of the present suit also. In the said suit, as pr Ext.B5 judgment, it was found that the building belongs to the plaintiffs in the said suit while the land belongs to the defendants. The decree was granted in favour of the plaintiffs therein. It is also contended that the plea of kudikidappu ought to have been referred to the Land Tribunal. Though, according to the learned counsel, the first defendant had filed an OA before the Land Tribunal for kudikidappu rights and did not pursue the same, that will not preclude the defendants from urging the claim where the title is in issue. It is also contended that merely because Ext.A4 document has been produced and that the successor-in-interest of the first defendant had acquired the property by way of partition, does not mean that the question did not arise for consideration. It can well be said that the property obtained could be used for erecting a homestead, in which case the defendants would be entitled
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to kudikidappu rights. At any rate, according to the learned counsel, this was a question, which could not have been decided by the trial court in view of Section 125(3) of the Land Reforms Act and the matter ought to have been referred to the Land Tribunal for adjudication of the issue of kudikidappu.
8. The learned counsel for the respondents, on the other hand, contended that the application filed by the first defendant was not pursued and was dismissed as not pressed. Having done so, it cannot be said that the said issue now arises for consideration. It is also pointed out that the plaintiff has produced evidence to show that the predecessor-in-interest of the first defendant had properties which disentitled him to claim kudikidappu rights. Attention was drawn to the fact that the first defendant is the legal heir of her husband, who acquired the properties under Ext.A4. She had no independent claim of kudikidappu. As regards the question of title, attention was drawn to paragraph 11 of the written statement, wherein the title of
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the plaintiff is specifically admitted. It is contended that in the light of the specific admission, it was unnecessary for the plaintiff to adduce further proof with regard to the title. Accordingly, it was contended that there is no merit in the second appeal and the same may be dismissed.
9. It is true that the plaintiffs had produced only Exts.A1 and A3 in support of their title. But, Ext.A3 gift deed dated 20.08.1962 clearly states that the property that is being gifted as per the said document is 77 cents, retaining 20 cents out of the 97 cents, in favour of the second plaintiff. It could not, therefore, be said that even though the earlier documents are not produced, the plaintiffs cannot prove their title. Apart from the said fact, it needs to be noticed that there is specific admission by the defendants in the written statement that the plaintiffs have title to the suit property excluding five cents and the building therein. In the light of the said admission, it was unnecessary for the plaintiffs to adduce further evidence regarding their title.
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10. One needs to notice here that the neither side adduced any oral evidence. The definite case of the plaintiff is that five cents of property was in the possession of the successor-in-interest of the first defendant. It was given permission merely to occupy the property and he had no right of possession or title over the same. The contention of the defendants was that the property was given with the structures therein and the successor-ininterest of the first defendant started residing there. It is true that in OS No.450/86, which was merely a suit for injunction, there is a finding that the building belongs to the defendants. The defendants have come into possession of the building as legal heirs. However, the property continues to be owned by the plaintiffs in the present suit. There is nothing to show that the successor-in-interest of the first defendant had been granted five cents of property, involved in the suit. As rightly pointed out by the learned counsel for the respondents, since title is admitted, it is unnecessary for the plaintiffs to produce all the documents or to adduce
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oral evidence.
11. The learned counsel for the appellant relied on the decisions in _**Isaac v. Kunji Poulo**_ (1972 KLR 715) and _**Sulochana Amma v. Narayanan Nair**_ (AIR 1994 SC 152) to contend for the position that the fact that the OA filed by the first defendant was not pursued and it cannot be treated as res judicata in the present proceedings and if that be so, the court below ought to have referred the matter to the Land Tribunal for a decision. Relying on the decisions reported in _**Purushan v. Prakashan**_ (1977 KLT 10), _**Mohammed v. Abdurahiman**_ (1982 KLT 194) and _**Moothorakutty v. Chiruthakutty**_ (1995(1) KLT 251 FB), it was contended that the claim of kudikidappu could be raised even after 01.01.1970. Support from the above decisions was drawn for the contention that the legal heirs could claim on behalf of their predecessors-in-interest, kudikidappu rights even after 01.01.1990. One can have no quarrel with the above position at all.
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12. It is not in dispute that the first defendant had filed a petition before the Land Tribunal concerned, claiming kudikidappu, but for reasons best known to him, he did not pursue it. In fact, going by the records, it is seen that the OA was not pressed and it was dismissed. Even though that order may not constitute res judicata as such, it is a clear case of waiver of rights of the first defendant of her kudikidappu rights.
13. The contention taken by the learned counsel for the appellant that in the earlier suit,since the husband of the first defendant was found to be the owner of the building, there was no need to pursue the OA. That was the reason why it was not pressed.
14. The above contention cannot be countenanced at all. There is nothing in the earlier suit to show that she had any kudikidappu rights and there was no justification for not to pursue the OA. The OA was got disposed of without reserving the liberty to pursue her rights, if occasion arose in future.
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15. Apart from the above fact, Ext.A4 is produced by the plaintiff. Ext.A4 is the partition deed by which Ramaswamy, the husband of the first defendant obtained several items of properties including parambas. The learned counsel for the appellant contended that those items of properties may not be suitable enough to erect a homestead therein and in such a case, the successors-ininterest are entitled to claim kudikidappu. One could have appreciated the argument if the first defendant has gone into the box and spoken about the properties obtained by her husband under Ext.A4. The courts below have noticed that there were seven items of properties allowed to the first defendant's husband in the partition. It was the above fact which had persuaded the courts below to come to the conclusion that the question of kudikidappu does not arise for consideration in the suit.
16. It is well settled that merely because a plea of kudikidappu is taken, the civil court is not obliged to refer it to the Land Tribunal. It can certainly examine whether it
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actually arises for consideration so as to refer to the Land Tribunal. That is what the courts below have done. On the available evidence, the courts below have arrived at the right conclusion that the issue of kudikidappu right does not arise. No substantial questions of law arise for consideration in this second appeal. The second appeal is without any merits and it is liable to be dismissed. I do so. However, there will be no order as to costs.
## **P.Bhavadasan, Judge**
sta
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