High Court of KeralaSingle Judge2013-01-09The Original Petition is disposed of with the d...

SIMHANADA BHAGAVATHY DEVASWOM v. PADMANABHAN S/o GOPALAN NAIR and others

Case / Petition Number:OP(C) NO.95 OF 2013

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thomas P. Joseph
Judgment Date: 2013-01-09
Court Decision / Holding: The Original Petition is disposed of with the following directions: the Munsiff is directed to expedite the proceeding and to issue the necessary directions to the Tribunal concerned to answer the reference at the earliest. On receipt of the reference, the Munsiff shall dispose of the suit as provided by law.
Final Disposition: The Original Petition is disposed of with the direction to expedite proceedings and to refer the question to the Land Tribunal for a finding at the earliest; the Munsiff is to dispose of the suit as per law after receiving the Tribunal’s finding.

Parties to the Case

Appellants / Petitioners

Simhanada Bhagavathy Devaswom

Respondents

Padmanabhan s/o Gopalan Nair
Sarathi s/o Gopalan Nair
Venugopalan s/o Gopalan Nair
Jaya Bharathi d/o Gopalan Nair
Meenakshikutty d/o Gopalan Nair

Legal Representation & Advocates

Counsels for Petitioners

• S.V. Balakrishna Iyer (Senior Advocate)
• P.B. Krishnan
• Geetha P. Menon
• N. Ajith
• P.B. Subramanyan

Case Synopsis & Summary

This is an Original Petition (Civil) No.95 of 2013 before the High Court of Kerala at Ernakulam challenging an order that referred a kudikidappu dispute to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. The petitioner, Simhanada Bhagavathy Devaswom, is represented by its newly elected managing committee headed by M.A. Krishnaji, following the resignation of the former president. The respondents—Padmanabhan, Sarathi, Venugopalan, Jaya Bharathi, and Meenakshikutty—assert kudikidappu rights in a schedule building and had previously found in R.C.P. 92 of 1979 that they were not kudikidappukars; the Government exempted the petitioner’s building from Act 2 of 1965, leading to the dismissal of a rent control petition. In 2012, the respondents again raised kudikidappu in O.S. 94 of 2012, prompting Ext.P1 (I.A.2554/2012) to refer the matter to the Tribunal for a finding. The Munsiff allowed Ext.P1 by Ext.P3, citing a prior reference. The petitioner argued that reference is not an automatic consequence of a kudikidappu claim and that genuine arising should be shown, citing K.S.H.W. Co-op. Society and Thomas Antony. The court, however, did not interfere with Ext.P3 but directed expeditious proceedings, ordering the Munsiff to obtain a decision from the Tribunal at the earliest and to dispose of the suit thereafter. The petition is disposed of with these directions.

Provisions of Law Cited

Section 125(3) of the Kerala Land Reforms ActSections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965

Legal Doctrines & Maxims

The question must genuinely and reasonably arise for a decision
Findings of a Tribunal on a reference have no independent stand and go with the ultimate decision

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that a reference to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act should not be automatic merely because kudikidappu is claimed. It is for the civil court to determine whether the kudikidappu issue genuinely and reasonably arises for decision, a determination that dictates whether a reference is warranted. The petitioner highlights earlier judicial pronouncements (K.S.H.W. Co-op. Society Ltd. v. Vadakke Madom Brahmaswom; Thomas Antony v. Varkey) to support the view that not every kudikidappu claim requires a reference; it emphasizes that materials from an earlier reference cannot bind this case, and that the court must rely on the facts and the genuine arising of the issue. The petitioner seeks to avoid protracted proceedings by arguing against a mechanical referral, noting that the building had been exempted from Act 2 of 1965 and that the prior reference in R.C.P. No.92 of 1979 has limited bearing on the current case.

Contentions of Respondents

The respondents urge that kudikidappu claims are real and require a Tribunal finding, especially since there was a prior reference in R.C.P. No.92 of 1979 wherein the Tribunal held the respondents were not kudikidappukars. They rely on the principle that such disputes should be referred to a Tribunal for a finding under Section 125(3) of the KLR Act, and that the Court should follow the Tribunal’s previous stance. They argue that Ext.P1/Ext.P3 were properly issued to secure a Tribunal finding so that the eviction dispute can be resolved consistently with the kudikidappu issue. They contend that the question genuinely arises given the renewed claim and the earlier reference’s findings, and therefore the matter should be referred for an authoritative determination by the Tribunal."},

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
K.S.H.W. Co-op. Society Ltd. v. Vadakke Madom Brahmaswom	1996 [1] KLT 282	Mentioned Only	Cited in the petitioner’s argument to illustrate that a reference is not automatically required for every kudikidappu claim; the court does not adopt it as controlling for this case.
Thomas Antony v. Varkey	2000 [1] KLT 12	Mentioned Only	Cited similarly to emphasize the conditional nature of when a reference is required rather than mandating a reference in all kudikidappu claims.
Mathevan Padmanabhan v. Parameswaran Thambi	[1995] Suppl. 1 SCC 479	Positive	Cited to support the proposition that Tribunal findings have no independent stand and must align with the ultimate decision; the earlier finding does not bind the present case.
Reghuram Rao v. Pathimabi	1997 [2] KLJ 234	Positive	Cited for the rule that Tribunal findings do not have independent standing and are to be harmonized with the final adjudication.
Padmanabhan v. Tharekkad Simhanatha Bhagavathy Devaswom	2012 [1] KLT 1	Positive	Cited to reinforce that the Tribunal’s finding is not independent of the parties’ ultimate conduct and must align with the decision in the proceeding.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against SIMHANADA BHAGAVATHY DEVASWOM v. PADMANABHAN S/o GOPALAN NAIR and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 9TH DAY OF JANUARY 2013/19TH POUSHA 1934** ## **OP(C).NO. 95 OF 2013 (O)** ## **-----------------------------------I.A. NO.2554 OF 2012 IN O.S NO.94 OF 2012, PRINCIPAL MUNSIFF'S COURT, PALAKKAD** ## **PETITIONER(S): ---------------------** **SIMHANADA BHAGAVATHY DEVASWOM, AGED 63 YEARS BY ITS MANAGING COMMITTEE PRESIDENT M.A.KRISHNAJI S/O.T.K.SUBRAMANYA IYER GEETHA SADAN THAREKKADU VILLAGE PALAKKAD-678001** **(THE PREVIOUS PRESIDENT WHOSE NAME FINDS A PLACE IN EXT.P3, NAMELY, T.G.NARAYANASWAMY, RESIGNED ON 5.7.2012. A NEW MANAGING COMMITTEE HEADED BY M.A.KRISHNAJI AS ITS PRESIDENT WAS ELECTED ON 15.7.2012 AND THE SAID ELECTION WAS APPROVED BY THE ASSISTANT COMMISSIONER, MALABAR DEVASWOM BOARD, PALAKKAD AS PER HIS PROCEEDINGS NO.A12/3446/2012/MDB DATED 21.7.2012. HENCE THE PETITIONER IS REPRESENTED BY ITS PRESENT PRESIDENT OF THE NEWLY ELECTED MANAGING COMMITTEE, NAMELY, M.A.KRISHNAJI)** **BY SENIOR ADVOCATE SHRI S.V.BALAKRISHNA IYER BY ADVOCATES SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN** ## **O.P(C)NO.95 OF 2013** ## **RESPONDENT(S): --------------------------** **1. PADMANABHAN S/O.GOPALAN NAIR RESIDING AT H.NO.9/677 COLLEGE ROAD PUTHUR AMSOM PALAKKAD TALUK PIN 678001.** **2. SARATHI S/O.GOPALAN NAIR RESIDING AT H.NO.9/677 COLLEGE ROAD PUTHUR AMSOM PALAKKAD TALUK PIN 678001.** **3. VENUGOPALAN S/O.GOPALAN NAIR RESIDING AT H.NO.9/677 COLLEGE ROAD PUTHUR AMSOM PALAKKAD TALUK PIN 678001.** **4. JAYA BHARATHI D/O.GOPALAN NAIR RESIDING AT H.NO.9/677 COLLEGE ROAD PUTHUR AMSOM PALAKKAD TALUK PIN 678001.** ## **O.P(C)NO.95 OF 2013** **5. MEENAKSHIKUTTY D/O.GOPALAN NAIR RESIDING AT H.NO.9/677 COLLEGE ROAD PUTHUR AMSOM PALAKKAD TALUK PIN 678001.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **O.P(C)NO.95 OF 2013** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXHIBIT P1 DATED 31.10.202, TRUE COPY OF I.A. NO.2554 OF 2012 IN O.S. NO.94 OF 2012 ON THE FILE OF THE MUNSIFF'S COURT, PALAKKAD FILED BY THE RESPONDENTS.** **EXHIBIT P2 DATED 7.11.2012, TRUE COPY OF OBJECTION TO I.A. NO.2554 OF 2012 IN O.S. NO.94 OF 2012 FILED BY THE PETITIONER.** **EXHIBIT P3 DATED 3.12.2012, TRUE COPY OF THE ORDER IN I.A. NO.2554 OF 2012 IN O.S. NO.2554 OF 2012 IN O.S. NO.94 OF 2012.** **EXHIBIT P4 DATED 17.7.2012, TRUE COPY OF WRITTEN STATEMENT IN O.S. NO.94 OF 2012 OF THE MUNSIFF'S COURT, PALAKKAD.** **RESPONDENT(S)' EXHIBITS: NIL** ## **TRUE COPY** **P.S. TO JUDGE** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.95 of 2013 ==================================== Dated this the 09[th] day of January, 2013** ## **J U D G M E N T** Exhibit P3, order dated 03.12.2012 on I.A. No.2554 of 2012 in O.S. No.94 of 2012 of the Principal Munsiff's Court, Palakkad referring the claim of kudikidappu raised by the respondents to the Land Tribunal (for short, “the Tribunal) for a finding under Section 125(3) of the Kerala Land Reforms Act (for short, “the KLR Act”) is under challenge. 2. The petitioner originally filed R.C.P. No.92 of 1979 for eviction of the respondents under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short, “the Act 2 of 1965”). The claim of kudikidappu raised by the respondents was referred to the Tribunal under Sec.125(3) of the KLR Act. The Tribunal entered a finding that the respondents are not kudikidapukars. As the Government had by then exempted buildings of the petitioner from the operation of Act 2 of 1965, the rent control petition was dismissed not pressed. Thereafter, the petitioner filed O.S. No.94 of 2012 for eviction of the respondents. The respondents again raised a claim of kudikidappu in their ## **O.P(C) No.95 of 2013** ## -: 2 :- written statement. They filed Ext.P1, application - I.A. No.2554 of 2012 to refer the question to the Tribunal for a finding. The petitioner preferred Ext.P2, objection. The learned Munsiff allowed Ext.P1, application by Ext.P3, order for the reason that there was an earlier reference of the question and that it is appropriate that the question is referred to the Tribunal for a finding. 3. The learned Senior Advocate for the petitioner, placing reliance on the decisions in **K.S.H.W. Co-op. Society Ltd. v. Vadakke Madom Brahmaswom** (1996 [1] KLT 282) and **Thomas Antony v. Varkey** (2000 [1] KLT 12) contended that it is not as if whenever a claim of kudikidappu is 'raised' or even 'arises', a reference is required. According to the learned Senior Advocate the question must reasonably and genuinely arise for a decision and then alone the question need be referred to the Tribunal. It is within the power of the civil court to decide whether the question of kudikidappu genuinely and reasonably arises for a decision. No such satisfaction is arrived at by the learned Munsiff before passing Ext.P3, order. The learned Senior Advocate pointed out that in the earlier reference in R.C.P. No.92 of 1979, the Tribunal had entered a finding that the ## **O.P(C) No.95 of 2013** ## -: 3 :- respondents are not kudikidappukars in the schedule building. 4. No doubt, reference of the question arises only if it genuinely and reasonable arises for a decision. Whether the question generally and reasonably arises for a decision shall depend on the facts and circumstances of each case. Though the finding entered by the Tribunal on the reference in R.C.P. No.92 of 1979 was against the respondents, that finding has no independent stand as held in the decisions in **Mathevan Padmanabhan v. Parameswaran Thambi** ([1995] Suppl. 1 SCC 479), **Reghuram Rao v. Pathimabi** (1997 [2] KLJ 234) and **Padmanabhan v. Tharekkad Simhanatha Bhagavathy Devaswom** (2012 [1] KLT 1), the latter being between the parties to this proceeding. The finding goes with the ultimate decision of the civil/rent control court. In this case, R.C.P. No.92 of 1979 was dismissed as not pressed. Therefore the finding entered by the Tribunal in the reference in that case does not exist. 5. Then the question is whether the claim of kudikidappu genuinely and reasonably arises for a reference? It is not disputed that in R.C.P. No.92 of 1979 the respondents wanted a reference ## **O.P(C) No.95 of 2013** ## -: 4 :- of their claim of kudikidappu, that reference was allowed and the Tribunal entered a finding. The petitioner has suffered an order of reference in R.C.P. No.92 of 1979 obviously because the circumstances were such that a reference was required. In such a situation, the petitioner cannot turn round and say that no reference is required in the present proceeding. The materials collected by the Tribunal to answer the reference in R.C.P. No.92 of 1979 cannot be taken into account by the trial court for any purpose. In that view of the matter I do not find reason to interfere with the impugned order. 6. But the matter cannot be prolonged. The reason is that the petitioner, be it in the form of a RCP asked for eviction of the respondents in the year, 1979 and it had to be left midway through for the reason of the buildings of the petitioner being exempted from the purview of Act 2 of 1965. In 2012, the petitioner has again asked for eviction of the respondents. The dispute has to be resolved at the earliest. ## **O.P(C) No.95 of 2013** **==> picture [41 x 10] intentionally omitted <==** 7. Hence the learned Munsiff is directed to expedite the proceeding and issue necessary direction to the Tribunal concerned as well to answer the reference at the earliest. On receipt of the reference, the learned Munsiff shall dispose of the suit as provided under law. The Original Petition is disposed of with the above direction. ## **THOMAS P. JOSEPH, JUDGE.** vsv