Saidalikutty @ Kunhutty Haji v. Narayanan, Sudhakaran, Kesavan Moossad and Kolleth Hamza

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** ## **WEDNESDAY,THE 19TH DAY OF SEPTEMBER 2018 / 28TH BHADRA, 1940** ## **OP(C).No. 1559 of 2012** **AGAINST THE ORDER/JUDGMENT IN OS 55/2009 of MUNSIFF COURT, TIRUR** ## **PETITIONER/S:** **SAIDALIKUTTY @ KUNHUTTY HAJI AGED 63 YEARS S/O. AHAMMED, KADALAYI HOUSE, VALAVANNOOR(PO) PINTIRUR TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.JAMSHEED HAFIZ** ## **RESPONDENT/S:** |**1**|**NARAYANAN**| |---|---| ||**S/O. LATE THEKKANAT MUNDANKUTTY, THEKKANAT HOUSE,**| ||**VALAVANOOR.P.O., PIN-676551, TIRUR TALUK, MALAPPURAM**| ||**DISTRICT.**| |**2**|**SUDHAKARAN**| ||**S/O. LATE MANAKKAMVEETTIL THAMI, MANAKKAMVEETTIL**| ||**HOUSE,VALAVANOOR.P.O., PIN-676551, TIRUR TALUK,**| ||**MALAPPURAM DISTRICT.**| |**3**|**KESAVAN MOOSSAD**| ||**S/O. LATE VELLANASSERY ILLATH**| ||**VASUDEVAN,VALAVANOOR.P.O., PIN-676551, TIRUR TALUK,**| ||**MALAPPURAM DISTRICT.**| |**4**|**KOLLETH HAMZA**| ||**S/O. ALAVI,KOLLETH HOUSE,VALAVANOOR.P.O., PIN-676551,**| ||**TIRUR TALUK, MALAPPURAM DISTRICT.**| ||**BY ADVS.**| ||**SRI.K.JAYESH MOHANKUMAR**| ||**SRI.PUSHPARAJAN KODOTH**| ||**SRI.T.SETHUMADHAVAN (SR.)**| ## **OTHER PRESENT:** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.07.2018, THE COURT ON 19.09.2018 PASSED THE FOLLOWING:** _OP(C) 1559/2012_ 2 ## **JUDGMENT** The 2[nd] defendant in the suit is before this Court aggrieved by the reference of the suit to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act, 1963 (for brevity “the Act”) for finding on the question of tenancy. 2. O.S.No.55/2009 on the file of the Munsiff's Court, Tirur, is a suit filed for recovery of plaint B- Schedule property on the strength of the title. Item No.1 in plaint A-Schedule comprised in R.S.No.112/9 in Valavannoor Amson in Valavannoor Village consists of a Temple and adjoining land, while item No.2 is the Temple pond and the appurtenant property comprised in R.S.No.112/7. The properties originally belonged to the family of the 3[rd] plaintiff in the suit, which was managing the affairs of the Temple. But because of the after effects of the land reforms, and other constraints, the 3[rd] plaintiff's family was not in a position to continue with the management of the affairs of the Temple and hence, in the year 2004, the affairs of the Temple along with its properties were entrusted to plaintiffs 1 and 2. 3. About 8 years prior to the filing of the suit, defendants 1 and 2 allegedly trespassed into the property, adjoining the Temple pond described as item No.2 of plaint A-Schedule property, and the property so encroached upon by the defendants is more particularly _OP(C) 1559/2012_ 3 described in plaint B-Schedule, having an extent of 10 cents in R.S.No.112/7. Consequent to the entrustment of the management of the Temple to plaintiffs 1 and 2, they approached the defendants requesting them to vacate and hand over the encroached portion of the property. But that did not yield any positive result. Hence, the plaintiffs were constrained to file Ext.P1 plaint, as representatives of the public, under Order I, Rule 8 of C.P.C. 4. The defendants appeared and filed separate written statements as Exts.P2 and P3. The contention of the 1[st] defendant in Ext.P3 is that he had purchased the _verumpattom_ right over the property from one Usman vide document No.1391/92 and as a cultivating tenant, continues to be in exclusive possession. 5. The contention of the 2[nd] defendant in the written statement filed as Ext.P2 is that the 3[rd] plaintiff's family had entrusted the disputed property to one Sankunni Nair as early as in 1939 on lease and the tenancy right that Sankunni Nair had in the property was sold by him vide document No.2128/67 to one Pottachola Muhammed. Usman purchased the property from Pottachola Muhammed. Thereafter, he sold 4.5 cents of property to one Amina vide document No.644/89 and one cent of land to Kalarikkal Gangadharan vide document No.1088/89. Amina also sold the above property to Kalarikkal Gangadharan vide document No.1086/89. Thereafter, the tenancy of Kalarikkal Gangadharan had over the property was sold by him vide document No.1989/89 to the 2[nd] defendant and he _OP(C) 1559/2012_ 4 continues to be in possession of that property. There was a small thatched hut in the property constructed by Usman and Amina, which got dilapidated, but the remnants are still visible in the property. 6. The 3[rd] plaintiff's family, which had only _jenmam_ right over the property, sold that right in the disputed property, along with some other properties to one Kunhippokker vide registered sale deed No.2128/67. Consequent to which, the 3[rd] plaintiff did not have any right, whatsoever, over the disputed property. Exercising his right over the property, Kunhippokker had even filed a suit as O.S.No.68/1968 before the Munsiff's Court, Tirur against Pottachola Muhammed and some others. Pottachola Muhammed filed a counter-suit as O.S.No.80/1968 against Kunhippokker and others claiming that he was in exclusive possession of the property. The suits were jointly tried and the Court found that Pottachola Muhammed was in exclusive possession of the property as tenant and that Kunhippokker had only _jenmam_ right over the property and no possession. Resultantly, O.S.No.68/1968 filed by Kunhippokker was dismissed, while O.S.No.80/1968 filed by Pottachola Muhammed was allowed. Kunhippokker challenged the common judgment by filing A.S.Nos.113/1972 and 114/1972 before the Sub Court, Tirur. But the appeals were dismissed and thus the possession of Pottachola Muhammed stands established even in litigation before the Munsiff's Court, Tirur. Consequent to the assignment of the _jenmam_ right by the 3[rd] plaintiff and his predecessors-in-interest to _OP(C) 1559/2012_ 5 Kunhippokker, no interest remained with the 3[rd] plaintiff which could have assigned to plaintiffs 1 and 2 as claimed in the suit. The entrustment of the affairs of the Temple and the disputed property, is therefore, not valid. The defendants have thus seriously challenged the title of the plaintiffs over the disputed property. 7. In view of the contention raised in the plaint and the written statements, the learned Munsiff framed issue No. 1 regarding the tenancy right claimed by the defendants and vide Ext.P6 concluded that the question of tenancy does arise for consideration in the suit, which needs determination by the Land Tribunal. Hence, the trial of suit was stayed under Section 125 of the Act, and it was referred to the Land Tribunal for a finding on the question of tenancy. 8. The 2[nd] defendant in the suit is aggrieved by the judgment on issue No.1 in Ext.P6 and has therefore, approached this Court with this petition challenging the reference order under Section 125 of the Act. 9. The learned Counsel for the petitioner relies on the decision of this Court in _**Chacko Kochu v. Abraham,**_ _**1977 KLT 868**_ , wherein it is held as follows:- _“When the defendant questions the title of the plaintiff, and in the alternative raises contentions regarding tenancy or kudikidappu, it is necessary that, before the reference under S.125 is made, the question of title is first determined. The question of tenancy or kudikidappu can arise only if it is found that the plaintiff is a landlord. If it is on the other hand found that the plaintiff has no title to the land, the question of tenancy or kudikidappu in_ _OP(C) 1559/2012_ 6 _relation to the plaintiff does not arise at all. The learned Munsiff, it would appear from the order, lost sight of the fact that the question of the plaintiff's title was specifically raised in the written statement. It is only on finding that the plaintiff has title to the land, will the question of reference under S.125 arise. The order under challenge is set aside and the Civil Revision Petition is according allowed. The parties are directed to bear their respective costs.”_ The learned Munsiff has certainly got jurisdiction to decide the question whether the dispute regarding the tenancy arises for consideration within the purview of Section 125(3) of the Act. In _**Raghavakurup v. Padmavathi Amma, 1995 (1) KLT 16,**_ this Court has held that an ouster of jurisdiction of the civil court can be given wider scope than that is contemplated by the relevant provisions and that the jurisdiction of the civil court to issue a commission or to sent the disputed documents to experts' opinion and take decision of that issue cannot be ousted, even though the question of tenancy is left for the decision of the Land Tribunal in terms with Section 125(3) of the Act. In _**Kesava Bhat v. Subraya Bhat, 1979 KLT 766**_ , a Larger Bench of this Court has specifically pointed out that the civil court has jurisdiction to see whether the question coming within the purview of Section 125 of the Kerala Land Reforms Act 'arises' in a case. The learned Counsel for the respondents herein would point out to the averment in Exts.P2 and P3 written statements to argue that there is an admission in the written statements that the _jenmam_ _OP(C) 1559/2012_ 7 right in the property belongs to the 3[rd] plaintiff's family and that the defendants are holding the property as a cultivating tenant under the said family. When such question of tenancy arises for consideration, it is not within the jurisdiction of the Munsiff to decide on the question of tenancy and it was only appropriate to refer the question of tenancy to the Land Tribunal for a decision. 10. _Per contra_ , the learned Counsel appearing for the petitioner herein submits that there is a categorical denial of the 3[rd] plaintiff's title over the property, insofar as the specific contention of the defendants is that the _jenmam_ right over the property which the 3[rd] plaintiff's family had over the disputed property along with other items were assigned as early as in 1967 to Kunhippokker and in that assignment deed, the 3[rd] plaintiff is himself a signatory. After having assigned the _jenmam_ right in the property, there was no title subsisting for the 3[rd] plaintiff or his family over the property which could have been assigned in 2004 to plaintiff 1 and 2. The question of any existing right over the property claimed by the plaintiffs can only be decided by a civil court and not by a Land Tribunal. 11. Section 125(3) of the Kerala Land Reforms Act enjoins on a Civil Court whenever a dispute as to the tenancy arises to refer that matter to the Land Tribunal. But in every case, where the defendant raises the case of tenancy or _kudikidappu_ , need not be referred. Only the cases, where such contention arises in the nature and _OP(C) 1559/2012_ 8 circumstances of the case, need be referred before coming to the conclusion as to the sustainability of the claim for _kudikidappu_ . This position is now trite. It is true that the defendants claimed exclusive possession in the form of tenancy right over the disputed property, but that right is not claimed directly under the 3[rd] plaintiff's family, but by devolution of interest traced back to the lease in favour of Sankunni Nair, and subsequent assignment by him in favour of Pottachola Muhammed, Usman, Amina and Kalarikkal Gangadharan. Item No.2 is found to be in exclusive possession of the defendant's predecessors-in-interest as early as in 1967 by the Munsiff's Court, Tirur. The question of assignment of tenancy right by the Land Tribunal is only consequential to the determination of title claimed by the plaintiffs, which is the main dispute in the suit. In case they do not have any _jenmam_ right or title, no question of tenancy would arise for determination requiring the matter to be referred to the Land Tribunal to decide. The learned Munsiff should first decide the question of title of the plaintiffs in the suit for recovery of possession. Only in case the plaintiffs are able to establish their title, does the question of reference to the Land Tribunal arise. In case the plaintiffs have no existing _jenmam_ or existing proprietary right over the property, no question of tenancy arises _inter se_ parties. Hence, the question of tenancy does not at present, arise for consideration and the reference made as per Ext.P6 is not sustainable, and _OP(C) 1559/2012_ 9 the same is set aside. The Original Petition is allowed. No order as to costs. **Sd/-** **ASHOK MENON JUDGE** _OP(C) 1559/2012_ 10 ## APPENDIX PETITIONER(S)' EXHIBITS : EXHIBIT P1 COPY OF PLAINT IN O.S.55/2009 BEFORE THE MUNSIFF COURT TIRUR DT.3.1.2009. EXHIBIT P2 COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER/2ND DEFENDANT IN O.S.55/2011 BEFORE THE MUNSIFF COURT, TIRUR DATED 04.11.2009. EXHIBIT P3 COPY OF THE WRITTEN STATEMENT FILED BY THE 4TH RESPONDENT/1ST DEFENDANT IN O.S.55/2011 BEFORE THE MUNSIFF COURT, TIRUR DATED 14.08.2009. EXHIBIT P4 COPY OF THE IA.23/2010 IN O.S.55/2009 BEFORE THE MUNSIFF COURT TIRUR DATED 04.01.2010 EXHIBIT P5 COPY OF THE COUNTER TO THE IA.23/2010 IN O.S.55/2009 BEFORE THE MUNSIFF COURT TIRUR DATED 01.06.2010. EXHIBIT P6 COPY OF THE ORDER DATED 11.01.2012 IN O.S.55/2009 BEFORE THE MUNSIFF COURT, TIRUR. RESPONDENT(S)' EXHIBITS : NIL /TRUE COPY/ PA TO JUDGE _dkr_