IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 RSA.No. 560 of 2008() --------------------- AS.115/2001 of SUB COURT, NEYYATTINKARA OS.35/1995 of I ADDL. MUNSIFF'S COURT, NEYYATTINKARA .................... APPELLANTS/APPELLANTS/PLAINTIFFS. ----------------------------------------------------- 1. SILVIYA DORAL KARNALA BAI, MUKKOLAKKAL VILAKATHU VEEDU, KARUMANNOR DESOM, PARASSALA PAKUTHY. 2. JOSHWA AZARIA JUSTIN MARTIN, OF -DO-. BY ADV. SRI.B.KRISHNA MANI RESPONDENT/ RESPONDENT/DEFENDANTS. -------------------------------------- LEKSHMI VIMALA, RESIDING AT COMPANY QUARTERS, WORKING AT CEMENT JALI COMPANY OF APPAVU PANICKER, MUKKOLAKKAL VILAKOM PURAYIDOM, KARUMANOOR DESOM, PARASSALA PAKUTHY AND PODUKALVILA PUTHEN VEEDU, KILLIYOOR DESOM, DO. VILLAGE, KANYAKUMARI DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.560 OF 2008 --------------------------- DATED THIS THE 22ND DAY OF JUNE, 2009 JUDGMENT Plaintiffs in O.S.No. 35/1995 on the file of the Ist Additional Munsiff's Court, Neyyattinkara are the appellants herein. This appeal is directed against the judgment and decree in A.S.No.115/2001 on the file of the Sub Court, Neyyattikara. The suit was filed for injunction. The trial court dismissed the suit holding that the plaintiffs are not entitled to get the relief of injunction, which was confirmed in appeal by the Appellate Court. Hence, the second appeal. 2. According to the plaintiffs, plaint A schedule property belongs to the lst plaintiff, that the B schedule building was built by the plaintiffs and that they are residing in the property. Defendant is the daughter of one Lekshmi Nadathi, who is the sister of the lst plaintiff's mother. The defendant is -2- R.S.A.No.560/2008 not having any manner of right or possession over the plaint schedule property, that she is residing in a shed situated just east to the eastern boundary of plaint A schedule property, that Kochummani Nadar, father of the defendant, resided in the lean to of the building as a tenant. He died in the year 1980 and his wife in the year 1986. Thereafter, plaintiffs took possession of the room. The suit was filed apprehending trespass by the defendant. 3. The defendant in the suit contended that she is a Kudikidappukari of B schedule shed, that she is residing therein for quite so many years, that she filed O.A.No.36/92 before the Land Tribunal for getting purchase certificate and that the same was dismissed and that the appeal A.A.No.450/95 was pending before the Appellate Authority. She also contended that the averment in the plaint that the building was constructed by the plaintiffs is incorrect and that they have no manner of right or possession over plaint B schedule shed. -3- R.S.A.No.560/2008 4. Learned counsel for the plaintiffs produced Ext.A12 order passed by the Land Tribunal, Neyyattinkara in O.A.No.36/1992. The said O.A. was dismissed by the Land Tribunal holding that the applicant has no locus standi to file the application. The trial court and the Appellate Court noted that statutory appeal before the Appellate Authority is pending against Ext.A12 order. The trial court held that on the basis of Ext.A12 order since Ext.A2 order has not become final, this Court is not in a position to say that the claim raised by the defendant is tenable or not. 5. Ext.A2 is the order passed in O.A.No.475/72. The said O.A. was filed by the father of the defendant. The lst plaintiff is the 3rd respondent in the said O.A. The mother and sister of the lst plaintiff were also parties in Ext.A2. In Ext.A2 order, the Land Tribunal held that the applicant was holding the property as Kudikidappukaran. The plaintiffs themselves had admitted that the father of the defendant was in possession of a -4- R.S.A.No.560/2008 room in B schedule building as a tenant. The trial court and the Appellate Court taking into consideration Ext.A2 order of assignment held that it can be safely concluded that the Land Tribunal has upheld the right of Kochummani Nadar, who is none other than the father of the defendant as Kudikidappukaran. It is also noticed that the records were not prepared during the pendency of the appeal in orders passed in other O.A. The trial court noticed the fact that Ext.A2 order has not been challenged or set aside by any competent authority. Kudikidappu is a heritable right. It was further held that on the death of Kudikidappukaran, the right of Kudikidappu will devolve on the legal heirs of Kudikidappukaran though no purchase certificate has been issued in the name of the father of the defendant, but that will not in any way take the right vested on the father of the defendant as Kudikidappukaran, that the defendant being the daughter of Kudikidappukaran, the Kudikidappu right will devolve on her, who is a legal representative of the -5- R.S.A.No.560/2008 Kudikidappukaran. The admission of the plaintiffs is that the father of the defendant was a tenant of a portion of B schedule property, that there was a rental arrangement between the plaintiffs and father of the defendant and that after the death of the father of defendant, mother of the defendant was in possession of the property and she continued her residence in the property till her death. The trial court further held that even if it is assumed that the father of the defendant has not obtained any kudikidappu right, admittedly he was a tenant in the B schedule building and hence his right will devolve on his legal heirs, after his death. Therefore, the plaintiffs are not entitled to get an injunction as against the defendant. 6. The suit was filed for injunction simplicitor and the question to be decided in this suit is whether the plaintiffs are in possession of the plaint schedule property or not and for the purpose of deciding the question of possession as on the date of suit. It is open to the plaintiffs to approach the appropriate Forum -6- R.S.A.No.560/2008 for relief, if any, available to him after the finality of the decision in the Kudikidappu case. 7. The Lower Appellate Court also considered the issues raised by the appellants/plaintiffs. The Appellate Court also came to the same conclusions based on the materials on record. The findings recorded by both the courts below are based on facts. I do not find any reason to interfere with the judgment and decree passed by the courts below. No question of law much less any substantial question of law arises for consideration. The appeal therefore fails and accordingly it is dismissed. HARUN-UL-RASHID, Judge. kcv.