S.A. No. 39 of 2000

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939** **SA.No. 39 of 2000** **AGAINST THE JUDGMENT & DECREE DATED 21-12-1998 IN AS 893/1994 of SUB COURT, NEYYATTINKARA** **AGAINST THE JUDGMENT & DECREE DATED 26.02.1991 IN OS 665/1988 of I MUNSIFF COURT, NEYYATTINKARA** ## **APPELLANTS:-(APPELLANTS 2 TO 5/PLAINTIFFS 2 TO 5)** **1. PARAMESWARAN NADAR SATHYANANADHAN NADAR, KANAKOTTU PADIPPURA VEEDU, OTTASEKHARAMANGALAM DESOM, OTTASEKHARAMANGALAM VILLAGE** **2. PARAMESWARAN NADAR SARVESANADHAN NADAR OF DO. DO.** - ***3. PARAMESWARAN NADAR SACHIDANANDHAN OF DO. DO. (DIED, LRS IMPLEADED)** - ***4. PARAMESWARAN NADAR SAJIVANADHAN NADAR OF DO.DO.(DIED, LRS IMPLEADED)** ## **ADDITIONAL APPELLANTS:** **5. PADMAVATHY, D/O.MARYAMMAL, AGED 58 YEARS, KANAKODU VEEDU, OTTASEKHARAMANGALAM, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125** **6. SANJAY ANAND P.S., AGED 24 YEARS, KANAKODU VEEDU, OTTASEKHARAMANGALAM, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125** **7. SOURAV ANAND P.S.(MINOR), AGED 12 YEARS, REPRESENTED BY MOTHER, PADMAVATHY, KANAKODU VEEDU, OTTASEKHARAMANGALAM, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125** ## **ADDL.APPELLANTS 8 TO 10** **8. LICY R., AGED 55 YEARS, KAANAKODU ANANDA BHAVAN, OTTASEKHARAMANGALAM, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125** **9. AHUL S.ANAND, AGED 22 YEARS, KAANAKODU ANANDA BHAVAN, OTTASEKHARAMANGALAM, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125** **2** **SA.No. 39 of 2000** **10. ASA L.ANAND, AGED 26 YEARS, KAANAKODU ANANDA BHAVAN, OTTASEKHARAMANALAM,NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125** **[THE LEGAL HEIRS OF THE DECEASED 3RD APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 8 TO 10 AS PER THE ORDER DATED 17.8.2017 IN IA 3291/2013]** - **BY ADVS.SRI.G.S.REGHUNATH** - **SRI.R.T.PRADEEP** - **SRI.V.VIJULAL** ## **RESPONDENTS:- (RESPONDENTS/DEFENDANTS 2 TO 6)** - ***1. SNEHAPPU THANKAMMA, KADAKKARIKATHU VEEDU, VATTATHOTTAM MEKKETHATTU PURAYIDOM, OTTASEKHARAMANGALAM DESOM AND DO.VILLAGE (DIED; LEGAL HEIR RECORDED)** **(LEGAL HEIR RECORDED)** **2. NARAYANAN KUTTAN, VATTATHOTTAM MEKKE MANNADI PURAYIDOM VATTATHOTTAM OF DO. DO.** **3. K.CHELLAN, RECEIVER ADVOCATE OF MUNSIFF'S COURT, NEYYATTINKARA** **4. RAGHAVAN SASIKUMAR, VATTATHOTTATHU MANNADI VEEDU, OTTASEKHARAMANGALAM DESOM, DO VILLAGE.** **5. VALSALA, D/O. RAGHAVAN, DO. DO. ADDL.RESPONDENTS 6 AND 7 IMPLEADED ADDL.R6. SANGEETHA P.S., AGED 29 YEARS, KANAKODU VEEDU, OTTASEKHARAMANGALAM NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125 ADDL.R7 SOUMYA P.S., AGED 26 YEARS, KANAKODU VEEDU, OTTASEKHARAMANGALAM, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 125** **[THE LEGAL HEIRS OF THE DECEASED 4TH APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 5 TO 7 AND ADDL.RESPONDENTS 6 AND 7 AS PER THE ORDER DATED 17.8.2017 IN IA 2835/2013** **3** **SA.No. 39 of 2000** **[THE SECOND RESPONDENT IS RECORDED AS THE LEGAL HEIR OF THE DECEASED FIRST RESPONDENT, AS PER ORDER DATED 4.11.2013 IN MEMO DATED 17.8.2006, BEARING CF 4870/06]** **R4 & R5 BY ADV. SRI.R.S.KALKURA SRI.D.SAJEEV** **HIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J. ------------------------------S.A.No.39 of 2000 ---------------------------------------------Dated this the 1[st] day of February, 2018** ## **JUDGMENT** Plaintiffs 2 to 5 in O.S.No.665 of 1988 on the file of the First Additional Munsiff's Court, Neyyattinakara are the appellants. The appeal was admitted on the following substantial questions of law: 1. When the lower court has found that the defendants have not perfected their title over plaint D schedule by adverse possession and limitation, should not the lower court grant a decree to the plaintiff allowing the plaintiff to put up boundary to separate plaint D schedule from B and C schedule properties ? 2. Is the finding of the lower court dismissing the suit valid on the ground that the plaintiff has not prayed for recovery of the property from the receiver ? 3. If the title of the plaintiff over the plaint D schedule property is found in favour of the plaintiff can the prayer for putting up boundary be rejected on the ground that the said property is in the possession of the receiver on behalf of the plaintiff ? **SA No.39/2000** **2** 4. When the plaintiff has admitted that the defendants are in the possession of B and C schedule, can the suit be dismissed on the ground that defendants have not obtained pattayam for the said properties from the Land Tribunal ? 5. Can the suit be dismissed on the ground that defendants have not obtained pattayam from the Land Tribunal ? 2. Heard the learned counsel appearing for the appellants, 2[nd] respondent and respondents 4 and 5. 3. Brief facts relevant for disposal of the appeal are thus: Prayer in the suit is to put up boundaries in respect of plaint B schedule Items 1 and 2. Case pleaded in the plaint is that plaint A schedule land originally belonged to one Parameswaram Nadar. 1[st] plaintiff is his wife and plaintiffs 2 to 5 are his children. He had filed O.S. No.833 of 1961 before the Court of Munsiff, Neyyattinkara, in which his title to and possession over plaint A schedule land was declared. Defendants 1 to 3 in the present suit were the defendants in O.S. No.833 of 1961. Subsequently, the plaintiffs filed O.S.No. 640 of 1970 for **SA No.39/2000** **3** recovery of the buildings situated in plaint A schedule therein. In that case, a question of kudikidappu was raised which was referred to the Land Tribunal concerned for adjudication. Land Tribunal, after taking evidence, entered a finding that the defendants in that suit (defendants 1 to 3 herein) were entitled to Kudikidappu rights. Recording that finding, the suit was dismissed. The plaintiffs filed an appeal against rejection of their claim in respect of one of the buildings, which is situated in the present C schedule. That appeal was allowed. In execution, the person at present in occupation of the C schedule was evicted. Later, a compromise was arrived at between the parties and the property now shown in C schedule was gifted to the son of the defendant in the earlier suit. Ext.B1 is the gift deed executed in favour of the son of the defendant in O.S.No. 640 of 1970 in respect of plaint C schedule. According to the plaintiffs, in the present suit they have no objection in allotting 10 cents each to 1[st] defendant and 3[rd] defendant in kudikidappu right. Rest of the property has to be secured by putting up a boundary, is the submission. 4. Defendants 1 to 3 filed a written statement disputing **SA No.39/2000** **4** the description of plaint schedule properties. They have also contended that they are in possession of properties in excess of kudikidappu right and they are legally entitled to posses the same. It is their contention that they have perfected title over a property having more than 10 cents in extent. 5. Before the trial court, plaintiffs examined no witness, DW1 testified and Exts.A1 to A7 and B1 marked. Exts.C1 and C1 (a) are the Commissioner's plan and report. 6. Learned counsel for the appellants contended that the courts below thoroughly went wrong in dismissing the suit for fixation of boundary finding that it could not be done until the kudikidappukars purchased property through Land Tribunal. According to the learned counsel, the finding is legally unsustainable for multiple reasons. 7. Before discussing those aspects, I shall refer to the history of the case to find out what are the defences possible to the respondents in this case. 8. Admittedly, the parties fought the first round of litigation as O.S.No.833 of 1961 in the very same court. Ext.A1 **SA No.39/2000** **5** is the judgment in O.S.No.833 of 1961 and Ext.A2 is the decree therein. 1[st] defendant in O.S.No.833 of 1961 is the 1[st] defendant in the present suit and 2[nd] defendant therein is the 2[nd] defendant here. 5[th] defendant in O.S.No.833 of 1961 is the 3[rd] defendant in this case. With them on party array, the trial court found that plaintiff in the suit (predecessor in title of the present plaintiffs) was having title to the plaint A schedule property as per Ext.P8 proceedings of the Special Tahsildar for assignment of kundukrishi lands in Thiruvananthapuram District regarding Survey No.290/1 of Ottasekharamangalam Village in Neyyattinkara Taluk. This finding has become final. The suit was decreed declaring that the plaintiffs' predecessor in interest was having title and possession over plaint A schedule property. Even though the extent of plaint A schedule property involved in O.S.No.833 of 1961 was shown as 2 acres and 35 cents, a Commissioner deputed in the case found that the actual extent of the property shown in A schedule was 2 acres and 86.75 cents. Since the Judgment and decree in O.S.No.833 of 1961 has become final, the present plaintiffs have shown in plaint A schedule an extent of 2 acres and 86.75 cents. However, Exts.C1 **SA No.39/2000** **6** and C2 Commissioner's report and plan would show that the actual extent measured out in this case was only 2 acres and 77.648 cents. 9. It is the contention of the learned counsel for the appellants that the extent has no relevance in this case because as per the finding in Exts.A1 and A2, the entire A schedule belongs to the plaintiffs and the defendants are estopped from contending against the findings in Exts. A1 and A2. I accept that contention and find that this being a suit for fixation of boundary, total extent of plaint A schedule property has no bearing on deciding the issues involved in this case. 10. Learned counsel for the contesting respondents strongly contended that the finding in O.S.No.640 of 1970 that the 1[st] and 3[rd] defendants are kudikidappukars will not bind them for the reason that ultimately the suit was dismissed. Since they had no right of appeal, the finding may not operate as res judicata. In support of this contention, a decision of a Division Bench reported in **Padmanabhan v. Tharekkad Simhanatha Bhagavathy Devaswom [2012 (1) KLT 1]** is relied on. Placing **SA No.39/2000** **7** reliance on **Sukumaran Nair V. Kumaran Asari and others** **[1981 KLN 723],** the Division Bench held that an adverse finding in a proceeding which ended in favour of a party will not operate as res judicata against him in any subsequent proceedings where the same question was raised. Learned counsel for the appellants controverted this document by placing reliance on **Pawan Kumar Gupta v. Rochiram Nagdeo [1999** **(4) SCC 243]** where the Supreme Court, in express terms declare the law, thus: Thus the sound legal position is this: if dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit. **SA No.39/2000** **8** 11. It is therefore clear that determination of status of the defendants 1 and 3 in O.S.No.640 of 1970 that they are kudikidappukars, cannot be challenged at this distance of time in this proceedings. 12. Another important factor pointed out by the counsel for the appellants is that no where in the written statement they have pleaded a kudikidappa right. It is very evasively pleaded in the written statement that the defendants are in possession of lands in excess of 10 cents. What exactly is the extent in their possession has not been stated precisely. This assumes importance in the context of the plea raised by the defendants/respondents that a suit for fixation of boundary may not lie without a prayer for recovery of possession. This contention may not hold good mainly for two reasons. Firstly, the contesting defendants are found to be kudikidappukars in a competent proceeding and that finding has become final. For the aforesaid mentioned reason, they cannot raise a plea against that finding in this proceedings as it is hit by principles of res judicata. Secondly, there is no definite pleading regarding the extent of property which they allegedly possess requiring a claim **SA No.39/2000** **9** for recovery of possession in this case. It is trite law that recovery of possession can be sought only if there is a definite case for a party that he is in possession of a certain extent of immovable property. The plea of recovery of possession cannot be claimed in respect of an uncertain extent of property. Learned counsel for the appellants, relying on **Chandramathy v. Devakey Amma [2010 (4) KLT 465]** contended that the fact situation in this case would clearly show that the plaintiffs are entitled to file a suit for fixation of boundary alone since no recovery of possession was needed in this case. I am in agreement with the view expressed by the learned Single Judge in **Chandramathy's case** especially in a case where there is no reason to hold that the defendants are in possession of any extent which should be recovered from their possession. 13. Regarding the findings by the court below that no boundary can be fixed without the defendants purchasing kudikidappa is legally not sustainable. Section 2(25) of the Land Reforms Act (in short, the Act) defines kudikidappakaran in the following terms: **SA No.39/2000** **10** 'Kudikidappukaran' means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and- (a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or (b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and 'kudikidappu' means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto: 14. Section 80A of the Act deals with right of kudikidappukaran to purchase his kudikidappa. Section 80B of the Act deals with the procedure for purchase of kudikidappa. My attention has been drawn to Rule 77 of the Kerala Land Reforms (Tenancy) Rules, 1970. It reads thus: **SA No.39/2000** **11** Lands adjoining kudikidappu and determination of - market value. (1) The Land Tribunal shall, as far as possible, make available to the kudikidappukaran for his purchase, such portion of the land adjoining the kudikidappu which is necesary or useful for the convenient enjoyment of the kudikidappu: Provided that the Land Tribunal shall, as far as practicable, make available the portion which when purchased will cause the least inconvenience to the person in possession of the land in which the kudikidappu is situate. 2.The market value of the land to be purchased by a kudikidappukaran shall be determined in the manner provided in the Kerala Land Acquisition Act, 1961, for acquisition of land under that Act. 15. It is discernible from Section 79A of the Act that kudikidappukaran is entitled to customary and other rights provided therein. It is the case of the plaintiffs therein that they are conceding that the contesting defendants are entitled to get 10 cents each as kudikidappars and they are seeking to fix the boundary leaving out 10 cents by the side of the houses in the possession of the contesting defendants. The Commissioner’s plan and report, which has not been objected to at all by the **SA No.39/2000** **12** contesting defendants, would show that plot shown as ABPO in Ext. C1(a) plan is plaint item No.1 in B schedule. The property demarcated as FGVRQ is Item No.2 in B schedule. The Commissioner has set apart 10 cents in each of these plots. UVRST is the plaint C schedule in respect of which no relief is claimed by the plaintiffs because it has been gifted to the son of one of the contesting defendants in O.S. No.640 of 1970 against whom an appeal was preferred by the plaintiffs and later settled. On going through the Commissioner’s plan and report, it can be seen that the plaintiffs seek fixation of boundary through line 'BP' and 'PO' in respect of the first item in B schedule and through line 'FQ' and 'QR' in respect of Item No.2 in plaint B schedule. 16. The contention raised by the respondents that they are entitled to property in excess of 10 cents has not been established. Going by the legal principles, kudikidappukaran can be treated as an irrevocable license holder. I find no legal impediment for a landlord to gift 10 cents to a kudikidappukaran even before his purchase. Only thing borne out from the provisions in the Act is that kudikidappukaran will get title in **SA No.39/2000** **13** respect of his holding only after purchase, as provided under the Act. Having regard to the submissions at the Bar and on perusal of the records, I am of the view that the courts below committed a legal error in dismissing the suit. Therefore, the question of law raised are decided in favour of the appellants and the suit is decreed as follows: O.S.No.665 of 1988 on the file of the First Additional Munsiff's Court, Neyyattinkara is decreed. The court below shall take steps to fix 'BP' and 'PO' line as the western and southern boundary respectively of plaint item No.1 in B schedule. Similarly, 'FQ' and 'QR' line shall be fixed as northern and eastern boundary of item No.2 in B schedule. The plaintiffs are entitled to get it fixed through the process of Court. The parties are directed to suffer their respective costs. All pending interlocutory applications will stand dismissed. Sd/- **A. HARIPRASAD JUDGE** JV