Dismissed

Vamana Prabhu v. Sreekrishna Swami Devaswom

Kerala HC1 Apr 2013OP(C)/675/2013

Case brief

AI extract

What is this about?

Original Petition dismissed. The Court declined to quash the order appointing a Commissioner to ascertain construction costs where the report indicates the building is part of a larger structure, precluding 'hut' status. However, the Court reserved the right for the trial court to consider 'kudikidappu' claims if independent building status is proven during trial.

What did the court decide?

Original Petition dismissed. The order appointing Commissioner shall not stand in the way of the trial court considering a 'kudikidappu' claim if independent building status is proven during trial.

Vamana Prabhu Vs Sreekrishna Swami Devaswom — Landlord and Tenant | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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MONDAY, THE 1ST DAY OF APRIL 2013/11TH CHAITHRA 1935

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OP(C).No. 675 of 2013 (O)

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AGAINST THE ORDER DATED 10-1-2013 IN IA NO.2296/2012 IN OS NO.251/2009 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, KOCHI

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PETITIONER/PETITIONER/DEFENDANT:

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VAMANA PRABHU, AGED 78, HOUSE NO.5/817, GOPALAKRISHNA AVENUE ROAD KOCHI-682 002.

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BY ADVS.SRI.G.KRISHNAKUMAR SRI.TITTO THOMAS SMT.P.M.NASEEMA SRI. ANI JOSEPH

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RESPONDENT/RESPONDENT/PLAINTIFF:

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SREEKRISHNA SWAMI DEVASWOM,

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CC.NO.5/977 KOCHI- 2 .REPRESENTED BY ITS TRUSTEE PANDURANG K PARANJPE, RESIDING AT CC NO.5/972, G.K.AVENUE ROAD, KOCHI-682 002.

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BY ADVS. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MJL

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OP(C).No. 675 of 2013 (O)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXHIBIT- P1: TRUE COPY OF THE PLAINT DATED 9/7/2009 IN OS NO.251/09 ON THE FILE OF THE ADDITIONAL MUNISFF'S COURT, KOCHI.

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EXHIBIT- P2: TRUE COPY OF THE AMENDED WRITTEN STATEMENT FILED IN OS NO.251/2009 ON THE FILE OF THE ADDITIONAL MUNISFF'S COURT, KOCHI.

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EXHIBIT- P3: TRUE COPY OF THE IA NO.2296/2012 IN OS NO.251/2009 ON THE FILE OF THE ADDITIONAL MUNISFF'S COURT, KOCHI.

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EXHIBIT- P4: TRUE COPY OF THE COUNTER AFFIDAVIT IN EXT.P3 IA.

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EXHIBIT- P5: TRUE COPY OF THE ORDER DATED 10/1/2013 IN IA NO.2296/12 IN OS NO.251/2009 ON THE FILE OF THE ADDITIONAL MUNISFFS' COURT, KOCHI.

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RESPONDENT'S EXHIBITS:

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EXHIBIT R1(a): COPY OF COMMISSION REPORT DATED 10-9-2012 FILED IN O.S.251/2009 ON THE FILE OF MUNSIFF'S COURT, KOCHI

/TRUE COPY/

P A TO JUDGE

NIL

THOMAS P. JOSEPH, JUDGE.

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- - - - - - - - - - - - - - - - - O.P.(C). No. 675 of 2013

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- - - - - - - - - - - - - - - - Dated this the 1^st day of April, 2013.

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JUDGMENT

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This Original Petition is in challenge of Ext.P5, order dated 10.01.2013 on I.A. No. 2296 of 2012 in O.S No. 251 of 2009 of Munsiff's Court, Kochi.

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Respondent filed O.S. No. 251 of 2009 for eviction of petitioner from the building referred to in the plaint schedule. Though not in the original written statement, petitioner by way of amendment incorporated a contention that he is entitled to 'kudikidappu' over the building referred to in the plaint schedule.

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Petitioner filed I.A. No. 2296 of 2012 to appoint an expert Commissioner to ascertain cost of construction of the building at the time of its construction in the year 1932 obviously to show that cost of construction was less than `750 and hence the plaint shedule building is a 'hut' as defined in Section 2(25) of the Kerala Land Reforms Act (for short 'the Act'). That application was resisted by respondent and ended in Ext.P5, order.

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Learned counsel submits that petitioner has preferred objection to the report submitted by the Advocate

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O.P.(C) No. 675 of 2013 : 2 :

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Commissioner and that on evidence it is possible for petitioner to show that schedule building is not part of a building, but is an independent building. According to the learned counsel, in that situation, claim of 'kudikidappu' raised by the petitioner is required to be decided.

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Learned Senior Advocate for the respondent contended that the report submitted by the Advocate Commissioner clearly states that shedule building is part of a building, and hence it is outside the definition of 'hut' under Section 2(25) of the Act. It is also conteded that petitioner preferred objection to the report of the Advocate Commissioner only after Ext.P5, order which cannot be looked into.

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As per the report submitted by the Advocate Commissioner a copy of which is given to me for perusal, building referred to in the plaint schedule is stated to be part of a building. If schedule building is part of a building, question of it being charecterised as a 'hut' so as to claim kudikidappu does not arise in view of various authoritative pronouncements that part of building is not a 'hut'.

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Therefore, in the light of the report submitted by the

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O.P.(C) No. 675 of 2013 : 3 :

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Advocate Commissioner, question of assessing cost of construction at this stage does not arise.

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But if in the course of trial petitioner is able to show, after examining the Advocate Commissioner and by such other evidence, that the building in question is not part of a building but is an independent building even as on the date of its construction, trial court may have to consider at that stage the claim raised by the petitioner for 'kudikidappu' and take appropriate decision in the matter.

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Resultantly, this Original Petition is dismissed. But, it is made clear that if in the course of trial, petitioner is able to show that schedule building is not part of building but by itself is an independent building as on the date of its construction, learned Munsiff may have to consider whether claim of 'kudikidappu' is required to be referred to the Land Tribunal for a decision as provided under law. In doing so, Ext.P5 shall not stand in the way.

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sd/- THOMAS P. JOSEPH, JUDGE.

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O.P.(C) No. 675 of 2013 : 4 :

Vamana Prabhu v. Sreekrishna Swami Devaswom

Case brief

What is this about?

What did the court decide?

Vamana Prabhu v. Sreekrishna Swami Devaswom

Case brief

What is this about?

What did the court decide?

What the court decided

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