IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WP(C).No. 27661 of 2009(O) -------------------------- AGAINST THE ORDER IN EP.412/1990 IN OS.1096/1966 of PRL.M.C.,TRIVANDRUM .................... PETITIONER(S): --------------- 1. MRS.ROSEBUD JOHNSON, W/O.LATE HENRY JOHNSON, AGED 73 YEARS, NOW RESIDING AT LANGHAM COURT, TARIFFA ROAD, NAIROBI, KENYA. 2. MRS.JASMIN RUBAI, AGED 57 YEARS NOW RESIDING AT 64, YESHWANT VIHAR, NANAWADI,BELGAUM. 3. MAJOR GENERAL SELVAKUMAR HENRY JOHNSON, AGED 55 YEARS, HEADQUARTERS 39 MOUNTAIN DIVISION, C/O.ARMY POST OFFICE. 4. SAMUEL VASANTHAKUMAR JOHNSON, AGED 53 YEARS, NOW RESIDING AT LANGHAM COURT, TARIFFA ROAD, NAIROBI, KENYA, 5. NOEL JOHNSON, AGED 44 YEARS, NOW RESIDIN G AT LANGHAM COURT, THARIFFA ROAD,NAIROBI, KENYA. 6. AARON BOBBY JOHNSON, AGED 39 YEARS, NOW RESIDING AT LANGHAM COURT, TARIFFA ROAD, NAIROBI, KENYA. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): --------------- LILY LEYON, THAYE VILASOM, KATTU ROAD, NANTHENCODE, THIRUVANANTHAPURAM. ADV. SRI.M.BALAGOVINDAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.27661/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED BY THE 2ND PETITIONER IN FAVOUR OF LT.COLONEL SUDHAKARAN DATED 24.9.2008. EXT.P1(A): COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED BY MAJOR GENERAL SELVA KUMAR HENRY JOHNSON IN FAVOUR OF LT.COLONEL SUDHAKARAN DATED 12.9.2008. EXT.P1(B): COPY OF THE GENERAL POWER OF ATTORNEY EXECUTED BY ROSEBUD JOHNSON AND OTHERS IN FAVOUR OF LT.COLONEL SUDHAKARAN DATED 27.10.2008. EXT.P2: COPY OF THE SALE DEED NO.6801/1127 DATED 19.12.1127 (ME) (AD 1948) EXECUTED BY ANNAPACKIAM THAYE AND HER SON. EXT.P3: COPY OF THE MORTGAGE DEED NO.175/1124 DATED 14.1.1124 (ME) (AD 1948) EXECUTED BY ANNAPACKIAM THAYE AND HER SON. EXT.P4: COPY OF THE LETTER DATED 20.6.1958 TO MRS.ANNAPACKIAM THAYE BY LILY LEYON. EXT.P5: COPY OF THE PLAINT FILED BY THE MORTGAGORS AS O.S.NO.1096/1966 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM DATED 19.12.1966. EXT.P6: COPY OF THE WRITTEN STATEMENT FILED BY LILLY LEYON IN O.S.NO.1096/1966 BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM. EXT.P7: COPY OF THE DEPOSITION DATED 29.1.1968 SUBMITTED BY LILLY LEYON IN O.S.NO.1096/1966. EXT.P8: COPY OF THE PRELIMINARY JUDGMENT DATED 21.3.1968 IN O.S.NO.1096 OF 1966 PASSED BY THE MUNSIFF COURT, TRIVANDRUM. EXT.P9: COPY OF THE JUDGMENT DATED 16.3.1972 IN A.S.NO.548 OF 1968 PASSED BY THE DISTRICT COURT OF TRIVANDRUM. EXT.P10: COPY OF THE ORDER DATED 4.10.1976 IN O.S.NO.1597/1978 PASSED BY THE LAND TRIBUNAL, TRIVANDRUM. EXT.P11: COPY OF THE JUDGMENT DATED 17.11.1983 IN CRP.NO.52 OF 1980 PASSED BY THIS HONOURABLE COURT. EXT.P12: COPY OF THE JUDGMENT DATED 19.8.1986 IN A.A.NO.387/1974 PASSED BY THE COURT OF APPELLATE AUTHORITY (LR) ATTINGAL. EXT.P13: COPY OF THE JUDGMENT DATED 12.9.1991 IN A.S.NO.452/1989 PASSED BY THE DISTRICT JUDGE, THIRUVANANTHAPURAM. WPC.27661/09 EXT.P14: COPY OF THE ORDER DATED 10.7.1991 IN C.M.P.NO.975/1991 IN C.R.P.NO.517/1991 OF THIS HONOURABLE COURT. EXT.P15: COPY OF THE REPORT NO.R.C.NO.20/92 DATED 4.3.1993 SUBMITTED BY THE REVENUE INSPECTOR, LAND TRIBUNAL, THIRUVANANTHAPURAM. EXT.P16: COPY OF THE REPORT SUBMITTED BY THE REVENUE INSPECTOR, LAND TRIBUNAL, THIRUVANANTHAPURAM. EXT.P17: COPY OF THE TESTIMONY OF LILY LEYON HELD ON 14.6.2002. EXT.P18: COPY OF THE TESTIMONY OF WILSON HELD ON 29.11.2007. EXT.P19: COPY OF THE ORDER DATED 6.7.2002 IN C.R.P.NO.350/2006 PASSED BY THIS HONOURABLE COURT. EXT.P20: COPY OF THE REPORT NO.RC.4/06 DATED 10.5.2007 SUBMITTED BY REVENUE INSPECTOR, LAND TRIBUNAL. EXT.P21: COPY OF THE ORDER DATED 16.2.2008 IN R.C.NO.4/2006 DATED 16.2.2008 PASSED BY THE LAND TRIBUNAL, THIRUVANANTHAPURAM. EXT.P22: COPY OF THE ORDER DATED 24.6.2008 IN E.P.NO.412/1990 IN O.S.NO.1096/1966 PASSED BY THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. RESPONDENTS EXHIBITS: EXT.R1(A): COPY OF THE JUDGMENT IN O.S.NO.1096/66 OF THE MUNSIFF COURT, THIRUVANANTHAPURAM DATED 21.3.1968. EXT.R1(B): COPY OF THE REPORT IN O.A.NO.1597/72 OF THE SPECIAL THASILDAR LAND REFORMS, THIRUVANANTHAPURAM. EXT.R1(C): COPY OF THE COMMISSION REPORT IN O.S.NO.1096/66 OF THE MUNSIFF CURT, TVM. EXT.R1(D): COPY OF THE JUDGMENT IN A.S.NO.452/89 OF THE DISTRICT COURT, THIRUVANANTHAPURAM DATED 12.9.1991. EXT.R1(E): COPY OF THE ORDER IN I.A.NO.1026/2001 IN E.P.NO.412/90 IN O.S.NO.1096/66 OF THE MUNSIFF COURT, TVM DATED 12.12.2001. EXT.R1(F): COPY OF THE REPORT OF THE AUTHORIZED OFFICER OF THE LAND TRIBUNAL DATED 20.5.2003. EXT.R1(G): COPY OF THE ORDER OF THE LAND TRIBUNA, TVM. IN R.C.NO.4/2002 DATED 14.3.2006. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.27661 OF 2009 () ----------------------------------- 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 WPC.27661/09 2 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 WPC.27661/09 3 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 WPC.27661/09 4 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 WPC.27661/09 6 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