IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 6TH JULY 2010 / 15TH ASHADHA 1932 WP(C).NO. 20409 OF 2010(O) ---------------------------------------- OS.423/1998 OF PRL.M.C., KOCHI .................... PETITIONER(S): ----------------------- 1. THRESIAMMA, AGED 68 YEARS, W/O.LATE JOSEPH,KURISINGAL HOUSE, IV/97,CHELLANAM P.O.,KOCHI-682008. 2. JAISON, S/O.LATE JOSEPH,KURISINGAL HOUSE,CHELLANAM P.O., KOCHI-682008. 3. SUNNY, S/O.LATE JOSEPH,KURISINGAL HOUSE,CHELLANAM P.O., KOCHI-682008. 4. VARGHESE, S/O.LATE JOSEPH,KURISINGAL HOUSE,CHELLANAM P.O. KOCHI-682008. 5. ANTONY, S/O.LATE JOSEPH,KURISINGAL HOUSE,CHELLANAM P.O. KOCHI-682008. 6. LILLY, D/O.LATE JOSEPH,KURISINGAL HOUSE,CHELLANAM P.O. KOCHI-682008. 7. JESSY D/O.LATE JOSEPH,KURISINGAL HOUSE,CHELLANAM P.O. KOCHI-682008. BY ADV. SRI.T.A.NARAYANAN NAIR SRI.SHIVSHANKAR RAO RESPONDENT(S): ------------------------ JOHN, S/O.LATE JACOB VALIYATH, RESIDING AT H.NO.B-6,SAVITHA CO-OPERATIVE SOCIETY LTD, MAISHA NAGER,KOLWADA,THANA, BOMBAY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.20409 of 2010 ==================================== Dated this the 06th day of July, 2010 J U D G M E N T Petitioners are legal representatives of deceased defendant in O.S.No.423 of 1998 of the court of learned Principal Munsiff, Kochi. That is a suit for recovery of possession of plaint A schedule property after demolishing the structure allegedly put up by the deceased defendant. Respondent proceeded on the basis that predecessor-in-interest of petitioners trespassed into that property. Deceased defendant contended that he is entitled to kudikidappu in the suit property and the hut situated therein. He prayed for a reference of the issue regarding kudikidappu to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act (for short, “the Act”). Learned Munsiff allowed the request and referred the matter to the Land Tribunal which took the reference case on file as O.A. No.132 of 2009. While so on 22.03.2005 Land Tribunal passed Ext.P2, order stating that the sole defendant- predecessor-in-interest of petitioners has not appeared in the Land Tribunal and accordingly it decided that he has no right of kudikidappu in the suit property. Reference was answered W.P(C) No.20409 of 2010 -: 2 :- accordingly. Thereafter respondent on 13.03.2005 taking note of death of sole defendant impleaded petitioners as his legal representatives. They filed Ext.P5, written statement where in paragraph 2 they also contended in tune with the contention already raised by deceased defendant that the latter was a kudikidappukaran in plaint A schedule and on his death that right has devolved on the petitioners and hence petitioner are not liable to the evicted from plaint A schedule. Petitioners filed Ext.P6, application stating that they have filed O.A. No.132 of 2009 for purchase of kudikidappu in the Land Tribunal concerned and hence trial of the suit has to be stayed until the Land Tribunal decided O.A. No.132 of 2009. That application was dismissed by the learned Munsiff vide Ext.P7, order dated 26.03.2010. That order is under challenge in this Writ Petition. Learned counsel for petitioners contended that since the issue regarding kudikidappu is very much germane for consideration in the suit and that matter is under consideration of the Land Tribunal in O.A. No.132 of 2009 it is necessary and proper that trial of the suit is stayed until Land Tribunal decided O.A. No.132 of 2009. 2. It is not disputed that it is when the suit was pending in the civil court that petitioners filed O.A. No.132 of 2009 in the W.P(C) No.20409 of 2010 -: 3 :- Land Tribunal. The prayer in this Writ Petition is to stay trial of the suit until that application is disposed of by the Land Tribunal. That prayer cannot be allowed in view of the decision in Venkitarama Iyer v. Vesu Amma (1995 (2) KLT 295) where the Full Bench held that Land Tribunal is bound by the principle of lis pendense and that when the suit is pending in the civil court suo moto proceedings initiated by the Land Tribunal is hit by the principle of lis pendense. That principle should apply to the application filed by the petitioners in the Land Tribunal. Therefore request of the petitioners to stay trial of the suit until O.A. No.132 of 2009 is decided was rightly refused by the learned Munsiff. I do not find reason to interfere. 3. Learned counsel at this stage pointed out that sole defendant died on 13.03.2005 but Ext.P2, order is passed by the Land Tribunal on 22.03.2005 against the deceased sole defendant and hence that order is a nullity. It is also contention of learned counsel that in so far as Ext.P2, order passed by the Land Tribunal is a nullity for the said reason the question of kudikidappu raised by the deceased defendant and following him, petitioners ought to be referred to the Land Tribunal for a decision. 4. Learned counsel has shown me a copy of death W.P(C) No.20409 of 2010 -: 4 :- certificate issued by the Registrar of births and deaths which states that Joseph referred to therein expired on 13.03.2005. It is seen that Ext.P2, order was passed by the Land Tribunal against the defendant on 22.03.2005. If the contention of petitioners were to be accepted, Ext.P2, order may have no legal sanctity. Admittedly petitioners are impleaded as legal representatives of the deceased sole defendant and they have raised a contention regarding kudikidappu in accordance with their character as legal representatives. In such a situation it is for the learned Munsiff to decide whether issue regarding kudikidappu is required to be referred to the Land Tribunal again. It is open to the petitioners to move appropriate application in that regard before learned Munsiff and if any such application is received learned Munsiff shall consider that application and pass appropriate orders on the same expeditiously. With the above direction Writ Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv