IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 77 of 2010()
1. VIMALA BAI, TSUNAMI RELIEF COMP, NO.67,
... Petitioner
2. BABU, TSUNAMI RELIEF COMP, NO.67,
3. BABY, TSUNAMI RELIEF COMP, NO.67
4. SIBU, TSUNAMI RELIEF CAMP, NO.67,
Vs
1. PADMAVATHY, AMBALASSERIL,
... Respondent
2. MADHUBALA, AMBALASSERIL,
3. YATHEESWARANANTH, AMBALASSERIL,
For Petitioner :SRI.NAGARAJ NARAYANAN
For Respondent :SRI.B.MOHANLAL
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/06/2010
O R D E R
THOMAS P.JOSEPH, J.
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C.R.P. No.77 of 2010
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Dated this the 18th day of June, 2010
O R D E R
Petitioners are aggrieved as learned Munsiff declined to
order reference of the claim of kudikidappu raised by the
petitioners to the Land Tribunal for a finding.
Respondents/plaintiffs sued petitioners for prohibitory injunction
claiming that they are in exclusive possession and enjoyment of
the suit property and apprehending that petitioners might trespass
into the property and put up structures. On the petitioners’ claim
that their predecessor-in-interest was entitled to a right of
kudikidappu in the building situated in the suit property they filed
I.A. No.71 of 2008 requesting reference of the said question to the
Land Tribunal for a finding. That application was opposed by the
respondents. Learned Munsiff upheld the objection and dismissed
the application. Learned counsel for petitioners contends that an
application preferred by petitioners in the Land Tribunal is pending
consideration and that in so far as the issue regarding kudikidappu
very much arose for a decision in the case on hand learned Munsiff
ought to have referred the question to the Land Tribunal and
C.R.P. No.77 of 2010
-: 2 :-
placed reliance on the decision in Madhavai Amma v.
Kesavan (2008 [1] KLT SN 49 (Case No.50).
2. True, under Section 125(3) of the Kerala Land
Reforms Act (for short, “the Act”) when a question of Kudikidappu
which is required by the Act to be determined by the Land
Tribunal ‘arises’ for decision the civil court is obliged to refer
that issue to the Land Tribunal for a finding. Question is not
whether an issue regarding kudikidappu ‘is raised’ but whether it
‘arises’ for consideration. It can ‘arise’ only if it is relevant for
decision of the suit. Hence the question for consideration is
whether the issue regarding kudikidappu ‘arises’ for a decision so
that learned Munsiff was obliged to refer the issue to the Land
Tribunal. The decision of Full Bench of this Court in Keshava
Bhat v. Subaraya Bhat (1979 KLT 66 (F.B.) which holds the
filed even now is that in a suit for injunction based on possession
no question of tenancy ‘arises’ for a decision. That principle must
apply in the case of claim of a kudikidappu as well. In this case it
is the stand of respondents that the suit property belonged to
Brahmanandan, husband of respondent No.1 and father of
respondent No.2 onwards as per partition deed No.4475 of 1125
ME and that has been in their possession conducting a shop in
C.R.P. No.77 of 2010
-: 3 :-
the building in the suit property. While so accepting request of
husband of petitioner No.1 he was permitted to stay in one of the
rooms for sometime but he later shifted from the said premises.
In other words it is the case of respondents that as on the date of
suit petitioners or any of their predecessor-in-interest had no
right, title or possession of the suit property. The suit being one
for injunction based on possession what is relevant for
consideration is whether on the date of suit respondents were in
absolute possession of the property. Therefore question of
kudikidappu does not ‘arise’ for decision. For, if it is shown that
petitioners are in possession of the suit property or any portion of
it respondents would not get relief of injunction based on their
plea of possession. In the circumstances I do not find reason to
interfere with the order under challenge.
Civil Revision Petition fails. It is dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv