Dismissed

Madhavi v. Subramanian

Kerala HC29 Nov 2016OP(C)/3019/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition challenging an order dismissing an application to refer tenancy/kudikidappu questions to the Land Tribunal. The court held no tenancy was prima facie established based on pleadings, thus no merit for interference, reserving power to refer if tenancy issues arise during evidence.

What did the court decide?

The petition was dismissed in limine with a direction to the trial court to consider referring the matter to the Land Tribunal if a tenancy question arises during evidence.

Madhavi Vs Subramanian — Landlord and Tenant | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

¶4

TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938

¶5

OP(C).No. 3019 of 2016 (O)

¶6

OS 478/2009 OF MUNSIFF COURT, CHAVAKKAD

¶7

PETITIONER(S):

¶8

1. MADHAVI,

¶9

AGED 77 YEARS, W/O.THANDENKKATTIL KRISHNAN, IRINGAPPURAM AMSOM, PUTHAMBALLI DESOM, PUTHAMBALLY P.O., MAMMIYOOR, THRISSUR DISTRICT.

¶10

2. PURUSHOTHAMAN,

¶11

AGED 57 YEARS, S/O.THANDENKKATTIL KRISHNAN IRINGAPPURAM AMSOM, PUTHAMBALLI DESOM,

¶12

PUTHAMBALLY P.O., MAMMIYOOR, THRISSUR DISTRICT.

¶13

BY ADV. SRI.P.RAMACHANDRAN

¶14

RESPONDENT(S):

¶15

1. SUBRAMANIAN,

¶16

AGED 75 YEARS, S/O.MATHRAMKOTTY SANKARAN, GURUVAYOOR AMSOM, MUTHUVATTOOR DESOM CHAVAKKAD P.O., THRISSUR DISTRICT-680 506.

¶17

2. SATHI @ SATHEESH,

¶18

AGED 34 YEARS, S/O.THANDENKKATTIL KRISHNAN, IRINGAPPURAM AMSOM, PUTHAMBALLI DESOM, PUTHAMBALLY P.O., MAMMIYOOR, THRISSUR DISTRICT-680 103.

¶19

3. BHAGAVANDAS, AGED 33 YEARS, S/O.THANDENKKATTIL KRISHNAN, IRINGAPPURAM AMSOM, PUTHAMBALLI DESOM, PUTHAMBALLY P.O., MAMMIYOOR, THRISSUR DISTRICT-680 103.

¶20

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

msv/

¶22

OP(C).No. 3019 of 2016 (O)

¶23

APPENDIX

¶24

PETITIONER(S)' EXHIBITS

¶25

P1 TRUE COPY OF THE PLAINT IN OS 478/09 ON THE FILE OF THE MUNSIFF COURT, CHAVAKKAD.

¶26

P2 TRUE COPY OF THE WRITTEN STATEMENT DT.5-5-2011 BY THE DEFENDANT 1 AND 2 IN OS 478/09 ON THE FILE OF HER MUNSIFF COURT, CHAVAKKAD.

¶27

P3 TRUE COPY OF THE AFFIDAVIT AND PETITION IN IA 1528/13 IN OS 478/09 ON THE FILE OF THE MUNSIFF COURT, CHAVAKKAD.

¶28

P4 TRUE COPY OF THE OBJECTION DT.27-6-16.

¶29

P5 TRUE COPY OF THE ANSWER GIVEN TO THE INTEROGATORIES SERVED ON THE PLAINTIFF.

¶30

P6 TRUE COPY OF THE ORDER DT.16-8-16 IN IA 1528/13 IN OS 478/09 ON THE FILE OF THE MUNSIFF COURT, CHAVAKKAD.

¶31

RESPONDENT(S)' EXHIBITS

NIL

//TRUE COPY//

P.S.TO JUDGE

msv/

K. RAMAKRISHNAN, J.

¶37

O.P.(C).No.3019 of 2016

¶38

Dated this the 29^th day of November, 2016.

¶39

JUDGMENT

¶40

This is a petition filed by the petitioners challenging Ext.P6 order passed by the court below dismissing the application to refer the matter for Land Tribunal under section 125 (3) of the Kerala Land Reforms Act (hereinafter referred to as 'the Act')under Article 227 of the Constitution of India.

¶41

It is alleged in the petition that the first respondent herein as plaintiff filed Ext.P1 suit as OS.No.478/2009 on the file of the Munsiff Court, Chavakkad for mandatory injunction directing the petitioners herein to vacate the house situated in the plaint schedule property. It is alleged in the plaint that the first petitioner herein is the sister of the first respondent. On that relationship, she was permitted to stay in the house which was assigned to him by their father, as he was working abroad, the first petitioner and her husband were looking after the parents. Though he wanted them to vacate the premises, they did not vacate the premises. So the suit was filed. The respondents filed Ext.P2 written statement wherein they have contended that the plaintiff is not entitled to get the relief of mandatory injunction. The petitioners are residing there as kudikidappukars and the building therein was constructed by using the funds of the first petitioner and as such the plaintiff is not entitled to get the relief. The petitioners

¶42

O.P.(C).No.3019 of 2016 2

¶43

field Ext.P3 application as IA.No.1528/2013 to refer the matter for Land Tribunal under section 125(3) of the Act for considering the question of kudikidappu raised in the written statement as that arises for consideration. The first respondent herein field Ext.P7 objection to the same stating that the ingredients of kudikudappu has not been made out. The allegations are not sufficient to raise the question of kudikidappu and so there is no necessity to refer the matter. The petitioners filed an application to answer the interrogatory served and Ext.P5 is the questions with answers given by the plaintiff to the interrogatories. After considering the materials on record, the court below found that the tenancy question does not arise for consideration and dismissed the application. Aggrieved by the same, the present petition has been filed.

¶44

Heard Sri. P. Ramachandran, learned counsel appearing for the petitioners. This court felt that the petition can be disposed of at the admission stage itself after hearing counsel for the petitioners.

¶45

Counsel for the petitioners submitted that even going by the answers given to the interrogatories, it is clear that the building was entrusted for occupation for the first petitioner and their family to live and the house in the property was constructed with her funds and ownership stands in the name of

¶46

O.P.(C).No.3019 of 2016 3

¶47

the husband of the first petitioner in the panchayath records and all these things will go to show that she is residing there as a kudikidappukari and as such the question arises for consideration which ought to have been referred to the Land Tribunal under section 125(3) of the Act and the court below was not justified in dismissing the application. The counsel also submitted that if for any reason this court found that there is no prima facie case made out for reference at this stage, at the time of evidence if a case is made out for considering the question as to whether tenancy has to be considered, then that option may be given to the court below to exercise the power to refer the matter under section 125(3) of the Act.

¶48

It is an admitted fact that the first respondent is the plaintiff in the court below and the plaint schedule property was assigned by the father to the plaintiff and the first petitioner as the sister of the first respondent. It is also not in dispute that the property belonged to the father was given to two brothers namely the plaintiff and another by name Velayudhan by separate documents. It is also not in dispute that in the plaint schedule property, the tharavadu house was situated, where even after the settlement deed in favour of the plaintiff, the parents were residing there. It is also seen from the allegations in the written statement itself that since the plaintiff was away, the first

¶49

O.P.(C).No.3019 of 2016 4

¶50

petitioner along with the family were residing in the tharavadu along with the parents to look after them till their death. It is thereafter, according to the petitioners that the house was constructed and they are residing there. Except a permissive occupation provided for their occupation to look after the parents in the absence of the plaintiff, there is nothing on record to show that there is any landlord tenant relationship created between the parties. For the purpose of referring the matter to the Land Tribunal, there must be a tenancy created. Without a tenancy being created, there is no question of considering that question arises by the Land Tribunal. Even in the answers given by the plaintiff to the interrogatory served what is mentioned is that they have been permitted to occupy considering the relationship and not otherwise. There is no material before the court below to come to a conclusion that permission was given in the nature of landlord tenant relationship and by virtue of that relationship any construction has been made by the first petitioner so as to bring her within the definition of kudikidappukari for referring the matter to the Land Tribunal at this stage. According to her, the building was constructed with her funds but the records show that it stands in the name of her husband. There is inconsistency in the version regarding the entrustment also. Under such circumstances the court below has rightly come to the conclusion

¶51

O.P.(C).No.3019 of 2016 5

¶52

that on the basis of the pleadings and materials available, there is no bonafide claim for kudikidappu has been made out for the purpose of referring the matter for consideration as provided under section 125(3) of the Act to the Land Tribunal to consider the question as to whether the first petitioner is a kudikidappukari or not and this court do not find any reason to interfere with the order passed by the court below dismissing the application to refer the matter for Land Tribunal to consider the question of kudikidappu claim made by the first petitioner in her written statement invoking the supervisory jurisdiction under Article 227 of the Constitution of India. The petition lacks merit. However during the course of evidence, if the court below is satisfied that there arises a question of tenancy, it is that court to consider at that time as to whether to get a finding on that aspect the matter has to be referred to the Land Tribunal or not as provided under section 125(3) of the Act as at any stage of trial, that power can be exercised by the court below.

¶53

With the above directions and observations, this petition is dismissed in limine. Registry is directed to communicate a copy of this judgment to the court below immediately.

¶54

Sd/-

¶55

K. RAMAKRISHNAN, JUDGE.

¶56

Madhavi v. Subramanian

Case brief

What is this about?

What did the court decide?

Madhavi v. Subramanian

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M.M.Abdul Kareem Vs Pareed Muhammed @ K.M.Pareed

K.S.Hamsa Vs Prasad

Canara Bank Vs Sreelatha S.B.

Sreedevi M a Vs Sreelal

Vasanthakumari Vs Rajan

Josna Vs Anand George