Allowed

Katalayi Sreekrishna Devaswom v. Choran Janaki

Kerala HC22 Nov 2016SA/134/2000

Case brief

AI extract

What is this about?

A second appeal challenging a lower appellate court order that reversed a trial court decree granting an injunction and restitution. The High Court restored the trial court judgment, holding the respondent was a trespasser whose 'kudikidappu' claim was dismissed by Land Tribunal authorities.

What did the court decide?

The Second Appeal is allowed; the lower appellate court's judgment is set aside; the trial court's judgment and decree are restored.

Katalayi Sreekrishna Devaswom Vs Choran Janaki — Property and Title | 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 K.HARILAL

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TUESDAY, THE 22ND DAY OF NOVEMBER 2016/1ST AGRAHAYANA, 1938

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SA.No. 134 of 2000 (G)

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AGAINST THE JUDGMENT IN AS.273/1996 of DISTRICT COURT, THALASSERY

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AGAINST THE JUDGMENT IN OS.92/1995 of ADDL.MUNSIFF COURT, KANNUR

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APPELLANT/RESPONDENT/PLAINTIFF

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THE KATALAYI SREEKRISHNA DEVASWOM THROUGH ITS EXECUTIVE OFFICER, CHIRAKKAL, KANNUR TALUK KANNUR DISTRICT

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BY ADVS.SRI.T.A.RAMADASAN SRI.CIBI THOMAS

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RESPONDENT/APPELLANT/ DEFENDANT:

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CHORAN JANAKI, D/O.SANKARAN NAIR RESIDING NEAR KATALAYI EMPLE CHIRAKKAL, KANNUR TALUK KANNUR DISTRICT

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R1 BY ADV. SRI.C.P.PEETHAMBARAN

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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S.A. No.134 of 2000 G

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Dated this the 22^nd day of November, 2016

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The appellant is the plaintiff in O.S. No.92 of

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1995 on the files of the Munsiff's Court, Kannur, as well as

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the respondent in A.S. No.273 of 1996 on the files of the District Court, Thalassery. The aforesaid original suit was one for simple permanent prohibitory injunction, restraining the respondent/defendant herein and her men from committing trespass into the plaint schedule property, by making any illegal entry and putting up any construction therein, in violation of the delivery order effected in E.P. No.376 of 1993 in R.C.P. No.210 of 1982 of the Munsiff's Court, Kannur. According to the plaintiff, the plaintiff has

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obtained an order of eviction under Sections 11(2)(a)(b), 11 (3) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 and the building and its premises were taken delivery by the plaintiff in E.P. No.376 of 1993 in R.C.P.No.210 of 1982 on 16.03.1994 and thus, the plaintiff was put in possession of the same. Thus, after the delivery of the property, the defendant had no right of re-entry into the leased premises. But, the defendant attempted to commit trespass into the plaint schedule property on 10.02.1995 and made preparations for the same. On the aforesaid cause of action, the plaintiff has sought for the reliefs mentioned above.

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In the written statement, the defendant contended that the hut in which she resides in the plaint schedule property is a 'kudikidappu' and she is a 'kudikidappukari' under the Kerala Land Reforms Act, 1963 (hereinafter referred to as 'the K.L.R. Act'). She has put up the thatched shed after obtaining requisite permission from Chirakkal

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Kovilakam in the year 1967 and thereafter, she has been residing in the shed. She filed O.A. No.2 of 1995 before the Land Tribunal, Kannur, for purchase of 'kudikidappu' right. When the defendant attempted to re-thatch the hut, the Executive Officer of the plaintiff Devaswom obstructed the same and against that, she had filed O.A. No.2 of 1995 before the Land Tribunal, Kannur, and an injunction has been granted against the plaintiff. According to the defendant, after knowing fully well the injunction passed against the plaintiff by the Land Tribunal, Kannur, the suit has been filed. Therefore, the suit is liable to be dismissed at the threshold itself. Since, the application seeking purchase certificate under the right of 'kudikidappu' was pending before the Land Tribunal, the plaintiff is not entitled to file a suit before the Civil Court. It is also contended that in case, the court finds that the suit is maintainable, the same is liable to be referred to the Land Tribunal under Section 155(3) of the K.L.R. Act.

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On the aforesaid rival pleadings, both parties

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adduced evidence consisting of the oral testimony of PWs 1 and 2, DWs 1 and 2, and Exts.A1 to A5, B1 to B4 and Ext.C1 Commission Report. After considering the aforesaid evidence, on record, the trial court decreed the suit, as prayed for. But, in the appeal filed by the defendant, the lower appellate court reversed the finding and allowed the appeal. Thus, the findings whereby the court below allowed the appeal are challenged in this Second Appeal.

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The questions of law framed in the Memorandum of Appeal will stand consolidated and re-framed as given below:

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1.“Whether the lower appellate court is justified in finding that the subject matter in E.P. No.376 of 1993 is not the subject matter in the present suit?

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2.Whether the court below is justified in finding that the thatched shed under which the defendant

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claims right of 'Kudikidappu' was not delivered to the plaintiff after evicting the defendant from the shed?

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3.Whether the lower appellate court is justified in finding that the defendant is in possession of the thatched shed under right of 'kudikidappu' claimed under the K.L.R Act?

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Coming to the first question, it is the case of the plaintiff that in execution of the order passed in R.C.P No.210 of 1982, the plaintiff has filed E.P. No.376 of 1993 and in that Execution Petition, the thatched shed, under which the defendant claims 'kudikidappu' right, was delivered to the plaintiff on 16.03.1994 and thereafter, the defendant attempted to trespass into the property, in violation of the order passed in the Execution Petition. On the other hand, the defendant contended that she was not evicted from the thatched shed, in execution of the order passed in R.C.P. No.210 of 1982, in E.P. No.376 of 1993 on

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16.03.1994. According to her, the delivery of the property was effected with respect to two shop rooms and a latrine only. Further, it is contended that she has put up the aforesaid thatched shed, after obtaining the requisite permission from the Chirakkal Kovilakam in the year 1967 and thereafter, she has been residing in the shed and she had filed O.A. No.2 of 1995 before the Land Tribunal, claiming 'kudikidappu' right in the said hut and the matter is now pending before the Tribunal.

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The point to be considered, at first, is, whether the subject matter in R.C.P. No.210 of 1982 is the subject matter in the present suit? Going by the plaint schedule, it is seen that the plaint schedule property includes two rooms, attached latrine and a well situating in 4.3 cents of property. It is the specific case of the plaintiff in R.C.P. No.210 of 1982 that the 1^st respondent therein, one 'Narayanan Nair' has transferred his tenancy to the 2^nd respondent, the defendant herein, who is a stranger and the

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defendant is in occupation of the premises, since, Narayanan Nair left the place and settled down at Guruvayur. In the R.C.P., the defendant herein along with said 'Narayanan Nair' had filed a joint counter statement contending that Narayanan Nair has tenancy right over the building and the appurtenant land. It is also contended that Narayanan Nair had constructed the shed effecting valuable improvements in the appurtenant land and such improvements were made with the concurrence of the landlord and the said Narayanan Nair is entitled to get the benefits under the K.L.R. Act. That apart, it is specifically contended that Narayanan Nair, with the permission of the original landlord, had constructed a shed for the purpose of his business, by utilising his own fund and the 2^nd respondent/defendant herein is only a female servant under the said Narayanan Nair for the conduct of the hotel business of him. Thus, it is the specific case of the defendant also in that R.C.P. that the thatched shed was

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constructed by the aforesaid 'Narayanan Nair' and the defendant is only a female servant in the hotel run by the said 'Narayanan Nair'. Thus, according to the defendant also, the thatched shed, the subject matter of the suit, was one constructed by Narayanan Nair and, it was also included in the subject matter of R.C.P.No.210 of 1982. It is pertinent to note that the defendant has not raised a contention that she is a 'kudikidappukari' in 4.3 cents scheduled in the said RCP.

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On a reading of the order passed in R.C.P., it could be seen that the case was conducted by the defendant herein and in the appellate stage, admittedly, 'Narayanan Nair' abandoned his claim and the Execution Petition was filed against the defendant alone. Going by Ext.A4, it is seen that the defendant was evicted from the structures in the plaint schedule property, having an extent of 4.3 cents with the aid of Women Police and it is specifically stated that the defendant herein is evicted from

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the plaint schedule property in R.C.P. No.210 of 1982 and the vacant possession was handed over to the plaintiff herein. Thus, Ext.A4 also fortifies the fact that the defendant was evicted from the shop rooms and all other structures appurtenant to the shop rooms.

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It is pertinent to note that the other two shop rooms were kept closed at the time of delivery. It is proved that the defendant was evicted from the structures in 4.3 cents of property after removing the obstruction made by the defendant. For the reason stated above, the lower appellate court is not justified in finding that the thatched shed under which the defendant claims right of 'kudikidappu' was not delivered to the plaintiff, after evicting the defendant from the shed.

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At this juncture, the definition of “building” described under Section 2(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 assumes significance. According to Section 2(1) of the said Act:

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'building' means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purpose and includes-

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(a) the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut, or part of such building or hut, and let or to be let along with such building or hut.

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It is pertinent to note that the grounds and structures appurtenant to the building are also included in the definition of the 'building' in the Kerala Buildings (Lease and Rent Control) Act, 1965 and in the instant case, the plaint schedule property is described as 'building' situating in 4.3 cents of property. Thus, the extent of property from which the defendant was sought to be evicted was specifically described in the schedule. Admittedly, the hut is a thatched shed situating in front of the shop rooms and the distance between the roof of the building and the roof of the thatched shed is only ½ feet. It has come out in evidence

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that the defendant and the said Narayanan Nair used to serve tea in the shed also and the shed was furnished with furniture for the conduct of the hotel. So, it stands proved that the thatched shed is a structure appurtenant to the building from which the defendant was sought to be evicted. The defendant has no case that the thatched shed is a numbered shed having independent entity under law. In the above analysis, this Court finds that the subject matter of the present suit was the subject matter of the earlier R.C.P. No.210/1982 and the plaint description and Exts.A1 to A4 obviously show that the R.C.P. was filed for evicting the said Narayanan Nair and the defendant from the building and other structures appurtenant to the numbered building in 4.3 cents of property and delivery was effected under Ext.A3 to that effect.

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Coming to the second question, it is the specific

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case of the defendant that she had put up a hut in the plaint schedule property in the year 1967 under the permission

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granted by Chirakkal Kovilakam and thereafter, she has been residing in the hut and thereby, she is a 'kudikidappukari' under the Land Reforms Act, 1964. In R.C.P. No.210/1982, the defendant has no case that she has been a 'kudikidappukari' and it is her specific case that she was a female servant in the hotel run by the said Narayanan Nair. Had she been a 'kudikidappukari', as contended by the defendant, certainly, she could have claimed that right in R.C.P. No.210/1982. That apart, if she had been a 'kudikidappukari' in the hut, certainly, she could have filed an obstruction petition claiming right under the Kerala Land Reforms Act in the Execution Petition, as all questions arising out of the execution shall be determined in the Execution Petition itself and not under a separate suit.

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The above view is fortified by the definition of 'tenant' provided under Section 2(6) of the Kerala Buildings (Lease and Rent Control) Act, 1965. As per the said definition, the 'tenant' does not include a 'kudikidappukaran'

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as defined in the Kerala Land Reforms Act, 1963. If that be so, had she been a 'kudikidappukari', as claimed by the defendant, she could have raised that contention either in the R.C.P. or in the Execution Petition.

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Even though the defendant has contended that she has been residing in the hut since 1967 onwards, no evidence has been adduced to establish her dwelling in the said shed. Had it been true and correct, certainly, she could have produced either the ration card or the voters list of any of the year since 1967 or any evidence which would prove her dwelling in the said thatched shed. Even though DW2 was examined to prove that she has been residing in the hut, after analysing his evidence, the trial court held that he is an interested witness only and his evidence cannot be relied on to arrive at a finding that the defendant is a 'kudikidappukari'. But, the lower appellate court has miserably failed to appreciate the evidence of DW2 in its correct perspective. Thus, the lower appellate court is not

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justified in finding that the defendant is in possession of the thatched shed under the right of ‘kudikidappu’ claimed under the K.L.R. Act.

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The appellant has filed I.A. No.2404/2014 along with an order passed in O.A. No.2/1995 of the Land Tribunal, Kannur, dismissing the claim of 'kudikidappu' raised by the defendant. Admittedly, the claim was dismissed, after the disposal of the Original Suit. Therefore, the appellant could not produce the same in the trial court and the aforesaid petition is filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908.

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Since the order passed in O.A. No.2/1995 is decisive in determining the question in controversy involved in this appeal, this document will stand accepted and marked as Ext.A6. Going by the order passed in O.A. No.2/1995, it is seen that the application filed by the defendant claiming 'kudikidappu' right over the property and the shed therein has been dismissed on 07.01.1997. In the

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affidavit filed by the appellant, it is stated that challenging the order dated 07.01.1997, passed by the Land Tribunal dismissing the application seeking 'kudikidappu' right, the defendant had preferred A.A. No.34/1997 and the same was also dismissed by the Appellate Authority on 02.07.1998. The defendant has not disputed the said averment in the affidavit. Thus, it could be seen that the claim of 'kudikidappu' stands dismissed by the competent authorities under the Kerala Land Reforms Act.

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That apart, going by the said order passed by the Appellate Authority under the Land Reforms Act, it is seen that the Authorised Officer, after enquiry, reported that the defendant was evicted from the shed in execution of E.P. No.376/1993 and thereafter, she trespassed into the said hut and she had filed an application before the Executive Officer of the Devaswom requesting to allot a room for her residence. It is pertinent to note that the defendant has claimed right of possession in the shed, on the basis of

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'kudikidappu' right only. No independent evidence has been adduced to substantiate the right and possession over the shed and the claim of 'kudikidappu' stands negatived by the competent authorities under the Kerala Land Reforms Act. In this view of the matter, it follows that the defendant is a trespasser only to the plaint schedule property and shed. An unlawful possession can never be recognised under law. In the above view of the matter, the lower appellate court is not justified in finding that the defendant has been in possession of the hut under the 'kudikidappu' right and the same was not delivered to the plaintiff, in execution of the order passed in R.C.P.No.210/1982.

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In the above analysis, I find that the lower appellate court has not considered the evidence, on record, and law in its correct perspective. The findings are illegal and vitiated by perversity. But, the trial court has considered the evidence and law in its correct perspective. Consequently, the judgment passed by the lower appellate

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court will stand set aside and the judgment and decree

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passed by the trial court will stand restored and stand in force.

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Thus, the Second Appeal is allowed as above. All pending Interlocutory Applications in this appeal will stand dismissed.

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Sd/- (K. HARILAL, JUDGE)

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DST/aks/25/11

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// True Copy //

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PA to Judge

Katalayi Sreekrishna Devaswom v. Choran Janaki

Case brief

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Katalayi Sreekrishna Devaswom v. Choran Janaki

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