IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 CRP.No. 519 of 2010() --------------------- AGAINST THE ORDER DATED 22/09/2010 IN EP 173/2008 IN OS.312/1984 of ADDL.MUNSIFF COURT,NEYYATTINKARA .................... REVN. PETITIONER(S): 4TH JUDGEMENT DEBTOR/4TH DEFENDANT ------------------------------------------------------- AMMUKKUTTY AMMA KRISHNAKUMARI, MAYILOTTU KIZHAKKUMKARA PUTHEN VEEDU, MARANALLOOR DESOM, NEYYATTINKARA. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): DECREE HOLDER/PLAINTIFF -------------------------------------- RAJASEKHARAN NAIR, S/O. GOPALAN NAIR, MAYILOTTU MEKKUMKARA THEKKE PUTHEN VEEDU, MARANALLOOR DESOM, MARANALLOOR VILLAGE. ADV. SRI.S.EASWARAN FOR CAVEATOR(RESPONDENT) SRI.P.MURALEEDHARAN (IRIMPANAM)FOR CAVEATOR (RESPONDENT) THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.519 of 2010 -------------------------------------- Dated this the 15th day of December, 2010 ORDER Respondent filed O.S. No.312 of 1984 in the court of learned Additional Munsiff-I, Neyyattinkara for redemption of a mortgage. Petitioner/judgment debtor No.4 who alone contested the suit claimed to be an assignee from her father who himself was an assignee-mortgagee. It was also her claim that she redeemed the sub-mortgage created by her father in favour of one Ramakrishnan Nair as per release deed No.1617 of 1979. She claimed to be a cultivating tenant of the suit property and also a kudikidappukari in the building in the said property claiming that the building was constructed by her father (an assignee-mortgagee) in the year, 1970 spending `.50,000/-. The claim of tenancy and kudikidappu were referred to the Land Tribunal for a finding. The Land Tribunal found against both the claims and answered the reference accordingly. Though learned Munsiff accepted the findings on reference the suit was dismissed for other reasons which respondent challenged in A.S. No.780 of 1994 in the court of learned Sub Judge, Neyyattinkara. The appeal was allowed and the case was remitted to the trial court for fresh disposal. Petitioner challenged the remand order in this Court in C.M.A. No.50 of 2000. This Court allowed the C.M. Appeal in part confirming finding of the trial court on issue No.4 CRP No.519/2010 2 (relating to the claim of tenancy) but interfered with the finding of the Land Tribunal regarding kudikidappu and directed that issue regarding kudikidappu be referred to the Land Tribunal for a finding at the time of redemption (in accordance with Explanation-IV to Section 2 (25) of the Kerala Land Reforms Act - for short, “the Act”). Executing court referred the issue regarding kudikidappu to the Land Tribunal. The Land Tribunal took the reference on file as R.C. No.2 of 2009 and deputed the Revenue Inspector, the authorised officer to inspect the property and submit report. He did so. Respondent produced Exts.P1 to P3 to contend that petitioner is residing along with her husband in the property belonging to the latter. It is claimed that counsel for petitioner in the Land Tribunal was not able to take part in the proceedings allegedly on account of his acute illness. The Land Tribunal by Annexure-A6, order dated July 27, 2010 answered the reference against petitioner holding that she is not a kudikidappukari in the building in the suit property. That finding was accepted by the executing court and it ordered eviction. The order of the executing court and the finding of the Land Tribunal on reference are under challenge in this proceeding. Learned counsel for petitioner contended that petitioner did not get sufficient opportunity to contest the proceedings in the Land Tribunal, the finding of the Land Tribunal that petitioner is residing with her husband in the property belonging to the latter is not correct as is evident from the fact that even in the execution petition, address of petitioner is given as that of the building in the suit property. It is also the contention of learned counsel that the Revenue CRP No.519/2010 3 Inspector was not competent to give any such report in the matter of kudikidappu and hence the Land Tribunal was not correct in acting upon the said report of Revenue Inspector which itself according to the learned counsel is based on hearsay information and without verifying the relevant documents on the question whether petitioner is staying in the building in the suit property. Learned counsel contended that at the time the matter was being agitated before the Land Tribunal, Advocate Arun V.G. who was conducting the case on behalf of petitioner was seriously laid up in the hospital on account of dengue fever, his condition was so critical that he had to get blood transfusion even from the members of the local bar and it was in such a situation that the Advocate could not take part in the proceedings. It is contended that well before the Land Tribunal passed Annexure-A6, order an application was preferred on behalf of the petitioner on 21.07.2010 (its copy is Annexure-A5) requesting the Land Tribunal to reopen the case for further evidence but, no order was passed on that application. Instead, the Land Tribunal proceeded to pass Annexure-A6, order on July 27, 2010. Learned counsel for respondent contended that the very claim of a mortgagee setting up kudikidappu right in the property given as security is abhorrent to good conscience and playing upon the property of indigent mortgagor as the Supreme Court has stated in Victoria v. K.V.Naik and others ((1997) 6 SCC 23). It is also contended by learned counsel that since even as per the version of petitioner that she has no CRP No.519/2010 4 independent possession of the property as she is claiming under her father, question of status of kudikidappukari does not arise in view of the decision of this Court in Perila Janardhanan v. Vellachi Chinna (1972 KLT 207). According to the learned counsel, evidence produced before the Land Tribunal would show that petitioner is residing with her husband in the property belonging to the latter and hence her claim that she is in occupation of the building to satisfy the requirements of kudikidappukari as defined in Sec.2(25) of the Act does not arise. Learned counsel expressed reservation about alleged filing of Annexure-A5, petition before the Land Tribunal on 21.07.2010. It is submitted that on all occasions as and when petitioner filed any petition, copy of the same was given to the respondent except in the matter of Annexure-A5, petition, the information that the counsel has received from the client is that register maintained in the Land Tribunal does not contain any entry as to filing of Annexure-A5, petition in the Land Tribunal on 21.07.2010 which is justified by the report given by the Land Tribunal in answer to the direction given by this Court. According to the learned counsel, possibility of Annexure-A5, petition being introduced in the records after filing of this revision cannot be ruled out. 2. So far as maintainability of the claim of petitioner as kudikidappukari is concerned, I do not consider it necessary to go in detail into the correctness of the claim made by either side in view of the order I proposed to pass in this petition. But I must bear in mind that this Court while disposing of CRP No.519/2010 5 C.M.A. No.50 of 2000 set aside the finding of the Land Tribunal on kudikidappu obviously on the basis of Explanation-IV to Sec.2(25) of the Act and the relevant decisions on the point which required the claim of kudikidappu to be agitated and decided at the time of actual redemption and directed reference of the question to the Land Tribunal at the time of eviction. That judgment has become final and the parties are bound by it. This Court also cannot take a different stand. Hence the direction in the judgment in C.M.A. No.50 of 2000 has to be complied. Learned counsel for respondent contended that this Court in the judgment in C.M.A. No.50 of 2000 directed that the question of kudikidappu will be decided by the court below at the appropriate state and hence this Court has to decide the issue. Assuming so, the executing court referred the question of kudikidappu to the Land Tribunal for a finding and respondent did not challenge that order. Explanation-IV to Sec.2(25) of the Act still remains in the statute book. Hence at this stage, I am of the view that the contention of respondent that executing court should have decided the claim of kudikidappu raised by petitioner before the question was referred to the Land Tribunal cannot be accepted. 3. So far as Annexure-A6, order is concerned challenge is mainly on the ground that petitioner did no get sufficient opportunity to take part in the proceeding before the Land Tribunal. Though learned counsel for petitioner has a contention that report of the authorised officer cannot be taken into account, I CRP No.519/2010 6 do not consider it necessary to go into that question at this stage since that is a matter which the Land Tribunal has to decide if urged before it. It is seen from Annexure-A6, order that an application was preferred on behalf of the petitioner to examine the Revenue Inspector obviously to test correctness of the report he submitted (that petitioner is residing with her husband in the property belonging to the latter) but that application was not allowed. The reason stated in Annexure-A6, order is that in spite of giving sufficient opportunity and the case being posted on 29.05.2010, 10.06.2010 and 17.06.2010 and again on 13.07.2010 for steps, there was not even an objection preferred against report of Revenue Inspector and that all the time there was no representation for the petitioner stating that Advocates Gopinathan Nair and Arun V.G. were sick and they could not attend the case. Learned counsel for petitioner submitted that Advocate Arun V.G. who is the son of Advocate Gopinathan Nair who is one of the Senior Advocates of the local bar was in charge of conduct of the case. Learned counsel pointed out that name of Advocate Gopinathan Nair also figured in the vakalath as he also accepted engagement but Advocate Gopinathan Nair had virtually retired from practice as he is suffering from blindness and his son, Advocate Arun V.G. was authorised to conduct the case who at the relevant time was ill. Petitioner has produced today a certificate dated 09.10.2010 issued from Rollands Hospital where it is stated that Mr.Arun V.G., S/o. Gopinathan Nair, had been to that hospital on 11.06.2010 complaining of fever, he again had been to that hospital on 13.06.2010 and was CRP No.519/2010 7 admitted in the hospital for treatment. His illness was diagnosed as dengue fever and on 15.06.2010 he was referred to Ananthapuri Hospital for follow up treatment. In the light of the said medical certificate I do not find reason to discard the version of petitioner that her Advocate could not take part in the proceeding before the Land Tribunal due to illness. 4. Coming to Annexure-A5, application said to be preferred before the Land Tribunal on 21.07.2010, as there was dispute on the side of respondent as to whether such an application was actually filed, I called for a report from the Land Tribunal. The Special Tahsildar (LR), Thiruvananthapuram in his report dated 04.11.2010 has stated that there was no such application filed by Advocate V.G.Arun on behalf of the petitioner to reopen R.C. No.2 of 2009 for evidence on 21.07.2010. On 21.07.2010 there was no sitting in the Tribunal. Advocate V.G.Arun filed an application in the office of the Land Tribunal on that day in continuation of his application dated 13.07.2010. Application dated 13.07.2010 only requested for transfer of the sitting of the case from the Land Tribunal Head Quarters to Neyyattinkara Camp Sitting. The report would indicate that an application was preferred on 21.07.2010. The relevant portion of the report says: CRP No.519/2010 8 “...........On 21.07.2010 there was no sitting in this Tribunal. Adv. V.G.Arun filed an application before this office on that day in continuation of his application dtd.13.07.2010. ...........” To ascertain correctness of the statement as to the filing of application on 21.07.2010, I obtained the entire records from the Land Tribunal and it is seen that there is an application dated 21.07.2010 in the records submitted by Advocate V.G.Arun requesting to reopen the case for evidence and requesting time for adducing evidence. The original application contains an initial with date, 22.07.2010. The initial does not say whose it is. But, the application was preferred before the Tribunal and hence in the normal course the initial must be of the officer concerned. Hence I am persuaded to think that an application was preferred on 22.07.2010 (if not on 21.07.201 and going by the statement in the report dated 04.11.2010 referred to above, filing of the application could have been only on 21.07.2010) requesting the Land Tribunal to reopen the case and give opportunity to the petitioner to adduce evidence (it was on 27.07.2010 that the Land Tribunal entered the impugned finding – Annexure-A6). In the said application also, Advocate concerned had stated about his illness and undergoing treatment at various hospitals. I am persuaded to think that the Land Tribunal could have given an opportunity to the petitioner to adduce evidence at least when the application was received on 21.07.2010 or on CRP No.519/2010 9 22.07.2010. I am not persuaded to think that there was any willful failure on the part of the Advocate to appear before the Land Tribunal in the factual situation referred to above. 5. On the question of petitioner occupying the building in the suit property, learned counsel for petitioner relied on the address of petitioner given in the execution petition (Annexure-A2) while learned counsel for respondent has placed reliance on Exts.B1 to B3. I do not intend to go into that question since in view of what I have stated above I am inclined to give an opportunity to the petitioner to adduce evidence. I make it clear that it is open to both sides to place all their contentions before the Land Tribunal. 6. No doubt, the respondent instituted the suit for redemption in the year 1984 and it was for no fault of his that petitioner or her counsel could not take part in the proceedings before the Land Tribunal. But, I must also bear in mind that the parties were fighting at different levels, the suit having been dismissed originally, appellate court granted decree in favour of the respondent and that the matter was taken before this Court in C.M. Appeal. Hence, notwithstanding that the suit was filed in the year 1984 and in the circumstances stated above, I consider it just and proper to give petitioner an opportunity to adduce evidence. CRP No.519/2010 10 7. In the light of what I have stated above, order dated September 22, 2010 passed by the executing court and the finding of the Land Tribunal on reference are liable to be set aside and I do so. Resultantly this revision is allowed in the following lines: i. Order dated September 22, 2010 in E.P. No.173 of 2008 in O.S. No.312 of 1984 of the court of learned Additional Munsiff-I, Neyyattinkara and Annexure-A6, finding of the Land Tribunal dated July 27, 2010 are set aside. ii. E.P. No.173 of 2008 is remitted to the executing court for fresh decision. iii. Executing court shall forthwith transmit the relevant records to the Land Tribunal, Thiruvananthapuram. iv. The Land Tribunal shall expedite its proceeding and enter appropriate finding after giving both sides opportunity to adduce evidence as early as possible, at any rate within three months from the date on which the records are received by it. CRP No.519/2010 11 v. On receipt of the finding from the Land Tribunal, executing court shall pass appropriate orders based on the finding as early as possible. vi. Parties shall appear before the executing court on 05.01.2011. Registry shall transmit records of the Land Tribunal to the Land Tribunal, Thiruvananthapuram forthwith with a copy of this order. I.A. No.2472 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks