Saibensa Beegum v. Sainulabdeen Abdul Rasheed and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR MONDAY, THE 14[TH] DAY OF JUNE 2021 / 24TH JYAISHTA, 1943 RSA NO. 438 OF 2010** **AGAINST THE ORDER/JUDGMENT dtd.19.06.2009 IN AS 51/1997 OF I ADDITIONAL SUB COURT,THIRUVANANTHAPURAM [O.S.No.918/1984 on the file of Ist Addl.Munsiff's Court, Thiruvananthapuram)** ## **APPELLANTS/RESPONDENTS/ADDITIONAL DEFENDANTS 2 TO 8:** 1 SAINULABDEEN ABDUL RASHEED **(DIED)** , T.C. NO. 45/1055, CHITHRA NAGAR, IRANIMUTTOM VILLAGE, THIRUVANANTHAPURAM. 2 SHAJUDHI T.C.NO. 41/1362, PUTHEN STREET, ATTAKULANGARA, THIRUVANANTHAPURAM. 3 SAINULABDEEN T.C.NO. 41/1362, PUTHEN STREET, ATTAKULANGARA, THIRUVANANTHAPURAM. 4 A.DILAL T.C.NO. 41/1362, PUTHEN STREET, ATTAKULANGARA, THIRUVANANTHAPURAM. 5 JEENA T.C.NO. 41/1362, PUTHEN STREET, ATTAKULANGARA, THIRUVANANTHAPURAM. 6 A.ABDU **(DIED)** T.C.NO. 41/1362, PUTHEN STREET, ATTAKULANGARA, THIRUVANANTHAPURAM. 7 A.HALID,T.C.NO. 41/1362, PUTHEN STREET ATTAKULANGARA, THIRUVANANTHAPURAM. 8 A.ISMAIL T.C.NO. 41/1362, PUTHEN STREET, ATTAKULANGARA, THIRUVANANTHAPURAM. BY ADV SMT.MAJIDA.S R.S.A.No.438 of 2010 :-2-: ## **RESPONDENT/APPELLANT/PLAINTIFF:** SAIBENSA BEEGUM, ALAPPURATHU PUTHEN VEEDU,ATTAKULANGARA, THIRUVANANTHAPURAM NOW RESIDING AT WINDSON CASTLE,G-6, CRAN BURG NO.JO.08512,U.S.A. REP. BY, THE POWER OF ATTORNEY HOLDER-ABDUL LATHEEF MISSION COMPOUND, KARPURAMCHERRY,VADAKKEVILA VILLAGE, QUILON DISTRICT, NOW RESIDING AT T.C.37/772, PADMAVILASOM STREET, FORT, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2021, THE COURT ON 14.06.2021 DELIVERED THE FOLLOWING: R.S.A.No.438 of 2010 :-3-: ## **J U D G M E N T** This Regular Second Appeal is filed against the judgment and decree in A.S.No.51 of 1997 on the file of the First Additional Sub Court, Thiruvananthapuram (hereinafter referred to as 'the first appellate court') reversing the judgment and decree in O.S.No.918/1984, dismissing the suit on the file of the First Additional Munsiff Court, Thiruvananthapuram (hereinafter referred to as 'the trial court') . The appellants are the legal heirs of the deceased original defendant. The suit was originally filed for a perpetual prohibitory injunction restraining the defendants from trespassing into the plaint schedule property. Later, the plaint was amended incorporating additional prayers for declaration of title and consequential recovery of possession from the defendants. The parties will be referred to in the rank assigned to them in the suit for the purpose of convenience and clarity. 2. The amended plaint averments in brief are hereinbelow. R.S.A.No.438 of 2010 :-4-: The plaintiff is the absolute owner in possession of the plaint schedule property. A temporary shed with thatched roof was constructed by the plaintiff just behind the shop rooms bearing T.C.Nos.41/1362,41/1363 and 41/1364 in the plaint schedule property and the said shed was rented out to the defendant on 22.09.1980 for a monthly rent of Rs.50/- as per the rent deed dated 22.09.1980 executed by the defendant for the purpose of a workshop for making trunks. The defendant has filed a suit as O.S.No.1078 of 1980 against the father of the plaintiff seeking an injunction in respect of the plaint schedule property. The said suit was dismissed on 23.2.1981. Thereafter, the defendant filed O.A.No.622/1980 before the Land Tribunal for the purchase of kudikidappu right. The said petition was dismissed on 22.12.1981. Thereafter, the defendant filed yet another suit as O.S.No.1348/1982 for injunction. In the said suit, the injunction application was dismissed on 27.11.1982. After the dismissal of the injunction application, the defendant filed another before the Land Tribunal as application R.S.A.No.438 of 2010 :-5-: O.A.No.753/1981 claiming kudikidappu right. The defendant has obtained an ex parte order from the Land Tribunal without serving notice on the plaintiff, who was not in station. Under the guise of the order of the Land Tribunal, the defendant has no right to make any additional construction therein. An interim injunction was granted in this case along with the suit. After the service of the injunction order in the suit, it is alleged that the defendant unauthorisedly trespassed into the plaint schedule property and constructed a shop building consisting of three rooms with thatched roof and started business therein from 29.06.1984. Hence, the plaintiff seeks to declare the title of the plaintiff over the plaint schedule property and to remove the unauthorised construction made therein. A mandatory injunction directing the defendant to demolish the unauthorised construction is also prayed for by the plaintiff. 3. On the death of the original defendant, the additional defendants 2 to 8 were impleaded as per order in I.A.No.45 of 1991 before the trial court. The sole original R.S.A.No.438 of 2010 :-6-: defendant filed a written statement contending that the defendant has been residing in the building bearing No.TC 41/1362 of Attakulangara in Thiruvananthapuam Taluk. It is further contended that the defendant had constructed three shop rooms in his property pursuant to the order of the Land Tribunal in O.A.No.753/1981. After obtaining an ex parte order of injunction in the suit, the plaintiff tried to demolish the shed. The order of the Land Tribunal is binding on the plaintiff. The plaintiff has no cause of action and the suit is liable to be dismissed. 4. This second appeal was filed as early as on 9.12.2009 with an application for condoning delay of 54 days. Service was not complete. Hence, the delay was condoned only on 04.09.2019. When this second appeal has come up for admission, the learned counsel for the appellants submitted that this case has been pending before this Court for the last 11 years. According to the learned counsel for the appellants, the appellants are kudikidappukar over the plaint schedule property R.S.A.No.438 of 2010 :-7-: and they are entitled to get kudikidappu right as per the scheme of the Kerala Land Reforms Act,1963. On the other hand, the learned counsel for the respondent submitted that the question of kudikidappu right was considered in O.A.No.753 of 1981 before the Land Tribunal between the very same parties and the question does not arise for consideration in the suit. Accordingly, this Court directed the appellants to produce a copy of the order pronounced in O.A.No.753/1981 by the Land Tribunal. In the mean while, the executing court was directed to postpone the delivery proceedings, if any, if not already effected, by a period of two weeks. 5. The respondent filed the suit on the ground that the original defendant is a lessee as per Ext.A5 rental agreement for a monthly rent of Rs.50/- per month and during the course of the landlord-tenant relationship, the defendants trespassed into the plaint schedule property and made some illegal constructions, which necessitated the suit. On the other hand, the defendant contended that there is no landlord-tenant relationship between R.S.A.No.438 of 2010 :-8-: the plaintiff and the defendant and the defendant was put in possession of the property in the year 1954 by the then Janmi of the property one Krishnan Nair. According to the defendant, the plaintiff purchased the property subsequently and the defendant constructed the shed in the plaint schedule property, thereafter. It is the case of the defendant that the defendant obtained kudikidappu right through the Land Tribunal and the matter is still pending consideration. 6. Since there was a question as regards the kudikidappu right under the Kerala Land Reforms Act,1963 by operation of Section 125 of the Act, the civil court was obliged to refer the matter to the Land Tribunal. This is evident from Sections 125(1),(3) and (6) of the Act, which read thus. - “125. Bar of jurisdiction of civil courts.- 1. No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the Appellate authority or the Land Board [or the Taluk Land Board] or the Government or an officer of the Government: - Provided that nothing contained in this Sub-section shall apply to - proceedings pending in any court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969. 2. xxxxxx xxxxxxxx R.S.A.No.438 of 2010 :-9-: 3. If in any suit or other proceedings any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only. 4. xxxxxxxxxx xxxxxxx 5. xxxxxxxxxxx 6. The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil court.” A reading of the above provision would indicate that if in any suit or other proceedings, any question regarding kudikidappu right arises, the civil court should stay the suit or other proceedings and refer such dispute to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question. Subsection (1) of Section 125 creates an absolute bar on the civil court to settle, decide or deal with any question or determine any matter which is by or under this Act required to be settled or decided by the Land Tribunal or the Appellate Authority, as the case may be. The decision of the Land Tribunal on the question R.S.A.No.438 of 2010 :-10-: referred to it shall be deemed to be part of the finding of the civil court. In the case on hand, after the filing of the suit, but, before the reference was made, it was brought to the notice of the court that an original application was filed before the Land Tribunal originally claiming kudikidappu right. The Land Tribunal initially held that the defendant is a kudikidappukaran over the plaint schedule property. The matter was carried in appeal before the Appellate Authority constituted under the Act. The Appellate Authority, in its order No.A.A.1188 dated 25/7/1989, set aside the order of the Land Tribunal and remitted back to the Land Tribunal for fresh file and disposal, taking into consideration the facts, in accordance with law. Thereafter, the matter was considered by the Land Tribunal afresh and passed an order on 29.06.1998 in O.A.No.753 of 1981. The order dated 29.06.1998 was produced before the appellate court and the same was marked as Ext.A15 as additional document on the part of the respondent/plaintiff. It is clear from Ext.A15 that the Revenue Inspector attached to the Tribunal was appointed as R.S.A.No.438 of 2010 :-11-: authorised officer to make a local enquiry, investigation, inspection and to file a report regarding the facts and information required for the disposal of the case. Accordingly, the authorised officer filed a report before the Land Tribunal on 29.10.1992 as Ext.C1. The authorised officer reported that the land in dispute is an area of 7.5 cents of land with three shop rooms bearing T.C.Nos.41/1362 to 1364 respectively comprising in Re-Survey No.308/A of Muttathara Village. According to the authorised officer, the original applicant S.Abdul Rahim occupied a shop room on a rental arrangement before ten years back and he resided thereon. The original applicant constructed a shed on the backside of the shoproom and started manufacturing of trunks. Thus, the authorised officer reported that the three shoprooms have been rented out by the original applicant to strangers at present. Further, the Land Tribunal under Section 101(1)d of the Act read with 92 K.L.R.(T) Rules,1970, Advocate Sri.C.S.Vijayachandran Nair was appointed as commission to ascertain the age of the building, nature of the construction etc. R.S.A.No.438 of 2010 :-12-: required for the disposal of the case. Accordingly, the Commissioner filed Ext.C2 report. Going by the report, the Land Tribunal entered a finding that the shed was constructed without door and window and the age of the shed was above 25 to 30 years old. 7. In fact, the original applicant, who is the second defendant in the suit, contended before the Land Tribunal that he is residing in the disputed land for the last forty years and the signature of the applicant in the rend deed is false. The rent deed is marked as Ext.A5 before the Land Tribunal. The Land Tribunal considered the entire matter in detail and held that the original applicant filed an original application on 22.12.1981 wherein he admitted that he has been in possession of 5 cents of land on the backside of T.C.Nos.41/1362, 41/1363 and 41/1364 respectively. However, he claimed before the Land Tribunal that the entire shoprooms and land in dispute were in his possession. As per Ext.A8 produced before the Land Tribunal, it was disclosed that 75% of the shoprooms have already been acquired R.S.A.No.438 of 2010 :-13-: for widening the road and the remaining portion has been unauthorisedly constructed by the applicant and leased out to the strangers. On a consideration of Exts.C1, the Land Tribunal entered a finding that the original applicant in O.A.No.622/1980 entered into the property after executing the rent deed in the year 1980 and the present applicants are the legal heirs of the original applicant Sri.S.Abdul Rehim. It was also found that the original applicant in O.A.No. 622/1980 filed an application to withdraw the original application for filing a fresh application with correct name and address of the land owner. Thus, it was found that the applicant is not eligible for kudikidappu right under the provisions of the Kerala Land Reforms Act. The finding of the Land Tribunal is accepted by the first appellate court and reversed the finding of the trial court. On receipt of the decision of the Land Tribunal referred to by the defendant for the purpose of appeal, it must be deemed that the decision of the Land Tribunal be part of the finding of the civil court. There is nothing on record to show that the said finding has been set aside in R.S.A.No.438 of 2010 :-14-: accordance with law. In case the Tribunal recorded a finding positively in favour of the defendants, still the first appellate court is empowered to consider the finding thereon made. The appellate court gets power to go into that question and decide the question in accordance with law. Under the circumstances, the first appellate court has not committed any grave error in deciding the question of kudikidappu right on the strength of the finding of the Land Tribunal. In the case on hand, before the reference was made, the second appellant filed an original application for the purchase of kudikidappu right before the Land Tribunal and the Land Tribunal disallowed the claim on merits. Hence, the civil court was not bound to refer the matter to the Land Tribunal again for its finding. The Land Tribunal decided the matter finally. Hence, the contention of the learned counsel for the appellant that the trial court has committed grave error to determine the kudikidappu right as contemplated under sub-section (1) of Section 125 of the Act is without any basis. The Land Tribunal analysed the entire matter in detail. The first R.S.A.No.438 of 2010 :-15-: appellate court again considered the matter on merit and entered a finding that the appellants are not entitled to kudikidappu right in the plaint schedule property. 8. A second appeal only lies on a substantial question of law. An execution petition was filed by the decree holder in the year 2010 before the executing court. It is disclosed that when the executing court ordered delivery on 31/5/2016, the order was challenged by the appellant before this Court in OP(C) NO.1381/2016. A learned Single bench of this Court stayed the E.P. Proceedings as per order dated 7.6.2016 in the above O.P. However the Original Petition was finally dismissed by order dated 14.07.2017. Thereafter, the E.P. was posted for hearing and after the disposal of all pending execution applications, delivery was ordered in the matter on 24.02.2021. The report of the learned Munsiff would show that the delivery was obstructed by the judgment debtor and his family members and thereafter, on 2/3/2021, the decree holder filed an application seeking delivery of the property with police aid. R.S.A.No.438 of 2010 :-16-: 9. In O.P(C) No.1381 of 2016 [ **Shajudhi** v. **Sabinsa Begum** [2017(3) KLT 789] , learned Single Bench of this Court considered the contentions raised by the appellants on three grounds challenging the excutability of the decree. Firstly, in re spect of the decree schedule property, earlier a patta was granted on the application made by the appellants before the Land Tribunal concerned and they have got title over an extent of 3.5 cents of property. Secondly, they have constructed a building in the said property and it was not considered by the first appellate court while decreeing the suit. Thirdly, the building is situated in an area wherein the Kerala Buildings (Lease and Rent Control) Act,1965 is made applicable and by virtue of the non-obstante clause incorporated under Section 11(1) of the Act, no eviction can be granted in respect of the building situated in the property. All these grounds were properly considered by the executing court and ultimately ordered delivery of the property based on the decree granted by its order dated 31/5/2016. It was under challenge in O.P(C) No.1381/2016 before this Court. R.S.A.No.438 of 2010 :-17-: This Court considered all the contentions in detail and entered a finding that the findings of executing court are legally tenable and all the contentions raised the are by appellants unsustainable in law. The judgment of this Court in O.P(C).No.1381 of 2016 is self explanatory. There is clear finding in O.P(C) No.1381 of 2016 that the appellants are not entitled to get the benefit under the Kerala Buildings (Lease and Rent Control)Act,1965. Subsequent to the order in O.P(C) No.1381/2016 dated 14.7.2017, the appellants took proper steps to complete the service. The delay was condoned. When the appeal has come up for admission, the very same contention which has been raised in O.P.(C)No.1381/2016 and found against have been mooted before this Court. The judgment in OP(C) No. 1381/2016 has become final. The appellants are legally precluded from agitating the very same question before this Court. The grounds raised in the appeal are practically challenging the findings of this Court in O.P.(C) No.1381/2016. 10. Section 100 of the Code of Civil Procedure, as R.S.A.No.438 of 2010 :-18-: amended, restricts the right of second appeal to only those cases, where a substantial question of law is involved. Thus, the existence of a substantial question of law is the sine qua non for the exercise of Section 100 of the C.P.C. To be a question of law involved in the case, there must be first, a foundation for it laid in the pleading to the effect that the trial court and the first appellate court acted without jurisdiction against the scheme of the Land Reforms Act contemplated under Section 125(3) of the Kerala Land Reforms Act. Certainly, a question should emerge from the findings arrived at by the trial court and the first appellate court. It is clear from the finding of the trial court that the first appellant himself filed an original application before the Land Tribunal and obtained an order against him. Under such circumstances, it is necessary to establish before this Court that the question of law canvassed before this Court is necessary for a just and proper decision of this case. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact that the appellant is not entitled R.S.A.No.438 of 2010 :-19-: to kudikidappu right on the strength of the evidence adduced before the Land Tribunal, based on record, is not open to challenge in second appeal, particularly when the appreciation of evidence made by the first appellate court based on the finding of the Land Tribunal is correct. The first appellate court has considered the materials and acted on reliable evidence. The first appellate court has drawn right inferences from proved facts by applying the law correctly. The plaintiff claiming declaration of title and recovery of possession has succeeded in proving that the defendants are only tenants of the scheduled building. According to the appellants, the respondent during the pendency of the suit made certain construction in the plaint schedule property. There is no dispute with regard to the facts that certain constructions are therein in the plaint schedule property. The testimony of PW1 coupled with Ext.A4 would show that show cause notice was issued to the appellant from the City Corporation, Thiruvananthapuram as the appellants had made unauthorised construction near to the Building R.S.A.No.438 of 2010 :-20-: Nos.41/1362,41/1363 and 41/1364 situated in the plaint schedule property. 11. The plaint schedule property is having an area of 6.5 cents of land with building thereon within the jurisdiction of City Corporation, Thiruvananthapuram. As per the scheme of the Kerala Land Reforms Act, kudikidappu right can be claimed only in respect of three cents of land within city limits. As indicated earlier, the Land Tribunal entered a finding on 29.06.1998 that the applicant is not entitled to get kudikidappu right under the provisions of the KLR Act. In the written statement filed, the defendants specifically denied the landlord-tenant relationship raising the plea of kudikidappu right. According to him, the plaintiff is not the owner of the plaint schedule property and the plaintiff has no cause of action instituted through him. He has not raised the plea that he is a tenant under the decree holder. Before the trial court, his status as a tenant is denied by him and set up an independent title in the suit property. He also pleaded kudikidappu right alternatively to sustain his claim. When the R.S.A.No.438 of 2010 :-21-: defendant has no case that he is the tenant of the plaint schedule property, it is not logical on the part of this Court to extend the benefit of tenancy on him. In fact, the rental arrangement has not been pleaded or set up as a defence to resist the claim of eviction in accordance with the procedure established by law. Since the plea of tenancy is not raised as a defence, the same issue does not arise for consideration at all. 12. The trial court wrongly dismissed the suit holding that no finding has been rendered by the Land Tribunal, subsequent to Ext.A3 order in A.A.No.1188 dated 25.7.1989 in O.A.No.753/1981 of the Appellate Authority remanding the matter to the Land Tribunal. But, this is prima facie wrong from the order of the Land Tribunal dated 29/06/1998 which was considered by the First Appellate Court in detail. The validity of the final order of the Land Tribunal was considered by the appellate authority and entered a finding that the defendant has no right to claim kudikidappu right over the plaint schedule property. The sequence of events in this case would inter alia R.S.A.No.438 of 2010 :-22-: show that this case does not involve with substantial question of law as contemplated under Section 100 of the C.P.C. The finding of fact arrived at by the first appellate court is based on relevant evidence. Thus, this Second Appeal is liable to be dismissed. This Second Appeal is dismissed. Considering the facts and circumstances, there will be no order as to costs. Sd/- **N.ANIL KUMAR, JUDGE** MBS/