IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27661 of 2009(O)
1. MRS.ROSEBUD JOHNSON, W/O.LATE HENRY
... Petitioner
2. MRS.JASMIN RUBAI, AGED 57 YEARS
3. MAJOR GENERAL SELVAKUMAR HENRY JOHNSON,
4. SAMUEL VASANTHAKUMAR JOHNSON,
5. NOEL JOHNSON, AGED 44 YEARS, NOW RESIDIN
6. AARON BOBBY JOHNSON, AGED 39 YEARS,
Vs
1. LILY LEYON, THAYE VILASOM, KATTU ROAD,
... Respondent
For Petitioner :SRI.V.SURESH
For Respondent :SRI.M.BALAGOVINDAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :06/01/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.27661 OF 2009 ()
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Dated this the 6th day of January, 2010
J U D G M E N T
The writ petition is filed seeking mainly the following
reliefs:
i. to grant a writ of certiorari or such other
writ, order or direction as the court may
consider appropriate calling for the records
relating to Exts.P21 and P22 and quashing
them.
2. Petitioners are the additional decree holders in
E.P.No.42 of 1993 in O.S.No.1096 of 1966 on the file of the
Principal Munsiff Court, Thiruvananthapuram. The order
impugned arises in execution of the decree passed in the suit
allowing redemption of the property. In execution, the
judgment debtor has claimed kudikidappu right in the
mortgaged property, which has an extent of 20 cents. The
claim of kudikidappu canvassed was referred to the Land
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Tribunal. Previously, the Land Tribunal on such reference
after enquiry had negatived the claim of kudikidappu set up by
the respondent. The reference being returned with such
finding, the execution court endorsing that finding, ordered
for delivery. The order of the execution court was challenged
in revision by the respondent, and this Court, setting aside the
order passed by the Land Tribunal and vacating the final order
passed by the execution court, directed that court to take back
the execution petition and dispose the matter afresh in
accordance with law. After such remission, reference was
again made to the Land Tribunal to consider the claim of
kudikidappu canvassed by the respondent. The Land Tribunal,
on such reference, after enquiry, entered a finding that the
respondent is entitled to kudikidappu over an extent of three
cents of land in the suit property. Ext.P21 is the order passed
by the Land Tribunal. The reference being answered with
Ext.P21 order the execution court passed Ext.P22 order
directing the decree holder to take steps to demarcate the
three cents of land in the suit property in accordance with the
finding of the Land Tribunal. Propriety and correctness of
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Ext.P22 order is challenged in the writ petition invoking the
supervisory jurisdiction vested with this Court under Article
227 of the Constitution of India.
3. I heard the counsel on both sides. The finding
entered by the Land Tribunal under Ext.P21 order that the
respondent is entitled to the kudikidappu right over three
cents in the suit property covered by the decree allowing
redemption of the suit property, is sought to be assailed by the
learned counsel for the petitioners on various grounds, both
on disputed questions of fact and also under law. I find that
none of the contentions canvassed by the counsel against
Ext.P21 order of the Land Tribunal can be examined and
considered at this stage in exercise of the supervisory
jurisdiction vested with this Court under Article 227 of the
Constitution of India. The order passed by the Land Tribunal
passed on a reference from the civil curt has no independent
status enabling any of the parties to the reference to impeach
its correctness before any superior forum. The findings of the
Land Tribunal made on a reference from the civil court is
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binding on the court which made reference and the
correctness of that finding can be examined only in a
challenge against the final order of the civil court endorsing
such findings. In the present case, what is seen is that the
execution court, after receiving the findings made on
reference under Ext.P21 order by the Land Tribunal, without
endorsing such finding as statutorily mandated, and then,
passing final orders in the execution proceedings subject to
Ext.P21 order, for delivery of the mortgage property, has
passed Ext.P22 order directing the decree holder to take steps
to demarcate the three cents in accordance with the finding of
the Land Tribunal. Demarcation of the three cents,
presumably the kudikidappu holding of the respondent, lies
within the jurisdiction of the Land Tribunal, and the civil court
cannot usurp such jurisdiction. The Land Tribunal under
Ext.P21 order in answering the reference from the civil court
has held that the respondent is entitled to three cents in the
mortgage property as kudikidappu. In a reference made by
the civil court, the Land Tribunal cannot demarcate the
kudikidappu holding nor pass any order for issuing a purchase
WPC.27661/09 5
certificate to the kudikidappukaran, which has to be done in
separate proceedings as envisaged under the Land Reforms
Act. A civil court which has referred the claim of kudikidappu
of a party to the Land Tribunal as mandated by the Statute,
Land Reforms Act, has no jurisdiction to demarcate the
kudikidappu holding in the suit property even when a
reference is answered with a finding upholding the claim of
kudikidappu. Accepting and endorsing that finding in its
order, the civil court, which referred such question to the
Land Tribunal, has to pass appropriate orders in the suit or
proceeding. Whatever be the challenges against the finding
made by the Land Tribunal, a party aggrieved thereof, can
challenge such finding only after it is endorsed by the civil
court in its order, which has referred the question to the Land
Tribunal. In other wards, the final order passed by the civil
court endorsing the finding of the Land Tribunal alone can be
challenged and not any other order of the civil court with
reference to the finding of the Land Tribunal. Ext.P22 order
passed by the court below directing the decree holder to take
steps for demarcating the three cents in the suit property on
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the basis of the finding of the Land Tribunal is patently
erroneous and unsustainable under law. The execution court
has to endorse the finding of the Land Tribunal and pass
appropriate final orders in the execution proceedings. That
final order endorsing the finding of the Tribunal alone can be
challenged by the petitioners if at all they are aggrieved by
the finding made by the Land Tribunal on reference in the
execution proceeding. The writ petition is disposed as
indicated above, directing the execution court to pass
appropriate orders in the execution proceedings, taking note
of the observations made above and in accordance with law.
S.S.SATHEESACHANDRAN
JUDGE
prp