Allowed

Joseph v. Micheal Andrews

Kerala HC4 Mar 2016RSA/174/2013

Case brief

AI extract

What is this about?

In this second appeal regarding a suit for declaration and injunction over land, the High Court of Kerala held that the entitlement of kudikidappukars to purchase specific land extent under the Kerala Land Reforms Act requires determination by the Land Tribunal. The appeal against the appellate court's decree fixing boundaries was allowed, remitting the matter for reference.

What did the court decide?

Impugned decisions set aside; suit remitted to trial court for reference to Land Tribunal under Section 125(3); decision to be accepted by trial court if any question survives.

Joseph Vs Micheal Andrews — Landlord and Tenant | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937

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RSA.No. 174 of 2013 ()

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----------------------AGAINST THE DECREE & JUDGMENT IN AS 179/2010 OF II ADDL.SUB COURT, ERNAKULAM DATED 30-01-2012 AGAINST THE DECREE & JUDGMENT IN OS.NO. 1265/2007 OF II ADDL.MUNSIFF COURT, ERNAKULAM DATED 31-03-2010

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APPELLANTS/RESPONDENT NOS. 2, 6, 7 & 8/DEFENDANTS 2, 6, 7 & 8 AND LRS OF

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----------------------------------------------------------------------------------------------------------------------DECEASED R1 M.J. THOMAS & LRS OF DECEASED R5 BERNA GEORGE IN COURT

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----------------------------------------------------------------------------------------------------------------------BELOW :

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1. JOSEPH M.J., AGED 63 YEARS

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S/O.LATE ANNA, MADATHIPARAMBIL HOUSE

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NEAR TOWER LANE, MULAVUKAD NORTH,

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MULAVUKAD VILLAGE, KANAYANNUR TALUK.

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2. BABY, AGED 62 YEARS

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D/O.LATE ANNA, RESIDING AT PUNNATHARA HOUSE,

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PANAMPUKAD, MULAVUKAD VILLAGE, KANAYANNUR TALUK.

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3. VICTORIA XAVIER, AGED 61 YEARS

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D/O.ANNA, RESIDING AT 20/2766, MALIYEKKAL HOUSE

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KONAM ROAD, PERUMPADAPPU, KOCHI.

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4. RENCY THOMAS, AGED 59 YEARS

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D/O.ANNA, THAIKOOTTATHIL HOUSE, EZHUPUNNA SOUTH P.O. CHERTHALA.

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5. MARY THOMAS, AGED 67 YEARS

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W/O.M.J.THOMAS, MADATHIPARAMBIL HOUSE, MULAVUKAD P.O., MULAVUKAD NORTH

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MULAVUKAD VILLAGE, KANAYANNUR TALUK.

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6. JOSEPH KENSON M.T., AGED 45 YEARS

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S/O.THOMAS M.J., MADATHIPARAMBIL HOUSE MULAVUKAD P.O., MULAVUKAD NORTH,

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MULAVUKAD VILLAGE, KANAYANNUR TALUK.

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7. ANNIE M.T., AGED 44 YEARS

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D/O.THOMAS M.J., KATTANCHERY HOUSE, KOTHAD P.O.

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CHENNOOR, KADAMAKUDY VILLAGE, ERNAKULAM DISTRICT.

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...2/-

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RSA.No. 174 of 2013 () -2-

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8. MARY ANITHA ROY, AGED 40 YEARS D/O.THOMAS M.J., DAD QUARTERS, P2C

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CHIRAKKAL ROAD, PALLURUTHY, ERNAKLAM DISTRICT.

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9. MATHEENA RINI, AGED 38 YEARS

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D/O.THOMAS M.J., KOCHUPARAMBU HOUSE, CHARIANTHURUTH

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VARAPPUZHA P.O., ERNAKULAM DISTRICT.

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10. P.G.SEBASTIAN, S/O.BERNA GEORGE, PUNNATHARA HOUSE,

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KOTTAPURAM P.O., PIN-680 677.

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11. P.G.VARGHESE

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S/O.BERNA GEORGE, PUNNATHARA HOUSE, PANAMPUKAD VALLARPADAM P.O., PIN-682 504.

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12. ELIZEBATH P.G. ALIAS PREETHA BENNY D/O.BERNA GEORGE, PALLIPARAMBIL HOUSE, NADAKAVY P.O. UDAYAMPEROOR, KOCHUPALLY.

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13. DENNY GEORGE

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S/O.BERNA GEORGE, PUNNATHARA HOUSE, PANAMPUKAD VALLARPADAM P.O., PIN-682 504.

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BY ADV. SRI.ABRAHAM P.GEORGE

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RESPONDENTS/APPELLANT AND RESPONDENTS 3 & 4/PLAINTIFF AND

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------------------------------------------------------------------------------------------------------DEFENDANTS 3 & 4 :

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1. MICHEAL ANDREWS, AGED 54 YEARS, S/O.LATE FRANCIS KURISINGAL HOUSE, MULAVUKAD VILLAGE, KANAYANNUR TALUK MULAVUKAD P.O.- 682 504.

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2. JOHNSON P.A., AGED 63 YEARS S/O.LATE CELINE, RESIDING AT 39/1552, BANTHE NAGAR VENNALA P.O.-682 028.

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3. SHERLY DEVASSY, AGED 57 YEARS D/O.CELINE, PFA-21, PROVIDENT FUND ROAD KALOOR P.O., KOCHI-682 017.

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R1 BY ADV. SRI.T.H.ABDUL AZEEZ

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2016, THE COURT ON 04-03-2016 DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = = =

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R.S.A.No.174 of 2013.

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= = = = = = = = = = = =

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Dated this the 4^th day of March, 2016.

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J U D G M E N T

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Defendants 2, 6, 7, 8 and the legal

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representatives of deceased defendants 1 and 5 in a suit for declaration and injunction are the appellants in this second appeal.

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The first plaintiff is the mother of the second plaintiff. 8.5 cents of property described in the plaint A schedule is part of a larger extent held by Francis, the husband of the first plaintiff and the father of the second plaintiff. According to the plaintiffs, Francis had in his possession a total extent of 71 cents of property and there were five kudikidappukars in the said 71 cents including the

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predecessor of the defendants namely, Anna. It is the case of the plaintiffs that though Anna was entitled to apply for

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RSA.No.174/2013.

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assignment of three cents of property around her kudikidappu, neither she nor her successors had applied for assignment of the said property with a view to occupy the entire plaint A schedule property measuring 8.5 cents. According to the plaintiffs, the defendants, in the circumstances, are to be confined to the three cents which they are entitled to by fixing the boundary separating the said three cents with the remaining property of the plaintiffs so as to enable the plaintiffs to enjoy the remaining property. The three cents of property around the kudikidappu of the defendants is described in schedule B to the plaint. The plaintiffs, therefore, claimed a decree declaring that the defendants together are entitled to only three cents of land around their kudikidappu and a decree of permanent prohibitory injunction restraining the defendants from obstructing the plaintiffs from measuring and demarcating the property which the defendants are entitled towards their kudikidappu.

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RSA.No.174/2013.

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The suit was resisted by the defendants by

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filing a written statement. According to the defendants, the plaint A schedule property is a portion of a larger extent of property held by Koodalmanikyam Devaswom and that the predecessor of the plaintiffs Francis was holding 8 acres of land of Koodalmanikyam Devaswom including the plaint A schedule property as a lessee and therefore, the defendants are entitled to purchase ten cents of property around their kudikidappu and since they are in possession of 8.5 cents of property, they are entitled to purchase the said 8.5 cents towards their kudikidappu.

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When the case came up for trial, the defendants remained absent. Nevertheless, the trial court dismissed the suit as not maintainable holding that the issues in dispute between the parties are issues which are required to be decided by the Land Tribunal constituted under the Kerala Land Reforms Act, hereinafter referred to as 'the Act' for short. The second plaintiff took up the

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RSA.No.174/2013.

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matter in appeal. The appellate court, however, took the view that the suit is virtually a suit for fixation of boundary and consequently decreed the suit reversing the decision of the trial court fixing the boundary separating the plaint B schedule property from the plaint A schedule property in accordance with Ext.C1(a) sketch prepared by the Advocate Commissioner appointed in the suit. The defendants aforesaid are aggrieved by the said decision of the appellate court and hence this second appeal.

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Heard the learned counsel for the appellants as also the learned counsel for the first respondent, the plaintiff.

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The learned counsel for the appellants contended that in so far as the status of the defendants as kudikidappukars is admitted by the plaintiff, their entitlement is a matter for the Land Tribunal to decide. According to the learned counsel, the appellate court has virtually decided the extent of land which the defendants

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RSA.No.174/2013.

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are entitled to purchase under the Act towards their kudikidappu which is impermissible in law. Per contra, the learned counsel for the respondents contended that the defendants have no case in the written statement filed by them that they are entitled to purchase more than three cents of property by way of kudikidappu and therefore no question regarding the rights of a kudikidappukaran arises for consideration in the suit.

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Having heard the learned counsel for the

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parties on either side, the following questions of law are formulated for decision in the second appeal:

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(i) Does any question regarding the rights of a kudikidappukaran arise for consideration in the suit?

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(ii) Has not the appellate court erred in holding that the issues arising for consideration in the suit are not issues which are required to be decided by the Land Tribunal under the Act?

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Section 125(3) of the Act provides that if in

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any suit or other proceedings any question regarding rights

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RSA.No.174/2013.

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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. Section 125(4) of the Act provides that the Land Tribunal shall decide the question referred to it under sub-section (3) and return the records together with its decision to the Civil Court. Section 125(5) provides that the Civil Court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. The status of the defendants as kudikidappukars is not in dispute. The case of the plaintiffs is that the defendants together are entitled to only three cents of property around their kudikidappu. According to the learned counsel for the defendants, their specific case in the written statement is that they are entitled to purchase

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RSA.No.174/2013.

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the entire plaint A schedule property towards their kudikidappu. But, according to the learned counsel for the respondent, the defendants have not raised such a case in the written statement filed by them. The relevant portion of paragraph 3 of the written statement dealing with the extent of the kudikidappu which the defendants are entitled to purchase reads thus:

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“It is submitted that the defendants and their predecessors were the kudikidappukars in 8.5 cents of property in survey No.365 (re-survey No.272/1) of Mulavukad village for the last 70 years.”

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The relevant portion of paragraph 5 of the written statement dealing with the extent of the kudikidappu which the defendants are entitled to purchase reads thus:

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“Without prejudice to the above contentions it is submitted that even if the plaintiffs and their predecessors are found to be the jenmi with respect to the property in possession of the defendants they are not entitled for the benefits under the second proviso to Sec.80(A)(4)(E) of the KLR Act. The above enactment was to save the owners of small holdings. Admittedly the grandfather - Job Kurisingal was holding 8 acres of land or more. As per the answer

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RSA.No.174/2013.

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submitted to the interrogatories the plaintiffs themselves have admitted that grandfather Job was holding more than 3 acres of land. In the above circumstances the defendants together are entitled for 10 cents as kudikidappu. Whereas they are holding only 8.5 cents at present.”

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A combined reading of the aforesaid pleadings of the

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defendants would indicate beyond doubt that the case of the defendants is that they are entitled to purchase the entire plaint A schedule property towards their kudikidappu. Section 80B of the Act read thus:

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“ 80B. Procedure for purchase by kudikidappukaran:- (1) xxx xxx.

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(2) xxx xxx. (3) xxx xxx. (4) An order under sub-section (3) allowing an application shall specify:-

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(i) the extent of land which the kudikidappukaran is entitled to purchase;

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(ii) the purchase price payable in respect of the land allowed to be purchased by the kudikidappukaran;

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(iii) the amounts due to the person in possession of the land in which the kudikidappu is situate and other

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RSA.No.174/2013.

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persons interested in the land;

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(iv) the value of encumbrances subsisting or claims for maintenance or alimony charged on the land allowed to be purchased by the kudikidappukaran;

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(v) the amount payable to the holder of the encumbrance or the person entitled to the maintenance or alimony and the order of priority in which such amount is payable;

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(vi) such other particulars as may be prescribed.

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(5) xxx xxx.”

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It is evident from Section 80B of the Act that the extent of

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the land which the kudikidappukaran is entitled to purchase is a matter to be decided by the Land Tribunal. As noted

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above, the main issue arising for consideration in the suit is

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as to the extent of the land which the defendants together

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are entitled to purchase towards their kudikidappu. As

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such, I have no doubt that it is a case where the trial court

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should have referred the issue as to the extent of land which the defendants together are entitled to purchase towards their kudikidappu, for decision by the Land

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RSA.No.174/2013.

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Tribunal. If the said issue is answered in favour of the plaintiffs, of course, the court can fix the boundary separating the kudikidappu with the remaining property of the plaintiffs. On the other hand, if the said issue is answered in favour of the defendants, the suit can only be dismissed accepting the decision of the Tribunal.

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In the result, the impugned decisions are set aside and the suit is remitted to the trial court for fresh disposal with a direction to make a reference of the question as to the extent of land which the defendants together are entitled to purchase towards their kudikidappu, to the Land Tribunal for decision as provided for under Section 125(3) of the Act. The suit shall be decided by the trial court accepting the decision of the Land Tribunal, if any question survives after the decision of the Land Tribunal. In the peculiar facts and circumstances of the case, there will be a direction to the Land Tribunal concerned to answer the reference within a period of three months from the date of

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RSA.No.174/2013.

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receipt of the reference. The trial court shall forward a copy of this judgment also to the Land Tribunal for compliance of the direction as to the time limit in which the reference is to be answered. The parties are directed to appear before the trial court on 21.3.2016.

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Sd/- P.B.SURESH KUMAR,

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JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

Joseph v. Micheal Andrews

Case brief

What is this about?

What did the court decide?

Joseph v. Micheal Andrews

Case brief

What is this about?

What did the court decide?

What the court decided

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