IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 RSA.No. 1139 of 2011() ---------------------- AS.93/2005 of I ADDL.SUB COURT,TRIVANDRUM OS.1807/1997 of II ADDL.MUNSIFF COURT,TRIVANDRUM .................... APPELLANT/ADDL.11TH RESPONDENT/ LR OF 3RD DEFENDANT: ------------------------------------------------------------------------- MOHAMMED NOUFAL, S/O.MAJEED, T.C.30/985, VATTAVILA VEEDU, PETTAH, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD RESPONDENT(S): RESPONDENTS/APPELLANTS 1 TO 3 -------------------------------------------- 1. S.JAMEELA BEEVI,W/O.ABOOSHAHUMAN, T.C.NO.4/204, PRASANTH NAGAR, WEST FORT, THIRUVANANTHAPURAM-695 023. 2. REENA, D/O.JAMEELA BEEVI, T.C.4/204, PRASANTH NAGAR, WEST FORT, THIRUVANANTHAPURAM-695 023. 3. SHYLA, D/O.JAMEELA BEEVI, T.C.4/204, PRASANTH NAGAR, WEST FORT, THIRUVANANTHAPURAM-695 023. 4. PATHUMMAL BEEVI, W/O.LATE MUHAMMED HANEEFA, VATTAVILA VEEDU, T.C.30/985 (OLD TC 29/936), VANCHIYOOR VILLAGE, PETTAH.P.O., THIRUVANANTHAPURAM-695 024. 5. RAFEEKA, D/O.LATE MUHAMMED HANEEFA, VATTAVILA VEEDU, T.C.30/985 (OLD TC 29/936), VANCHIYOOR VILLAGE, PETTAH.P.O. THIRUVANANTHAPURAM-695 024. 6. SAUDUNATH, D/O.LATE MUHAMMED, VATTAVILA VEEDU, T.C.30/985,(OLD TC 29/936), VANCHIYOOR VILLAGE, PETTAH.P.O., THIRUVANANTHAPURAM-695 024. 7. SUBAIDA, D/O.LATE MUHAMMED HANEEFA, VATTAVILA VEEDU, T.C.30/985 (OLD TC 29/936), VANCHIYOOR VILLAGE, PETTAH.P.O., THIRUVANANTHAPURAM-695 024. 8. NADIRSHA @ MAHEENKANNU, S/O.LATE MOHAMMED HANEEFA, VATTAVILA VEEDU, T.C.30/985 (OLD TC 29/936), VANCHIYOOR VILLAGE, PETTAH.P.O.,THIRUVANANTHAPURAM-695 024. 9. MAJEEDA, D/O.LATE MUHAMMED HANEEFA, VATTAVILA VEEDU, T.C.30/985, (OLD TC 29/936), VANCHIYOOR VILLAGE, PETTAH.P.O., THIRUVANANTHAPURAM-695 024. 10. HASEENA, D/O.LATE MUHAMMED HANEEFA, VATTAVILA VEEDU, T.C.30/985, (OLD TC 29/936), VANCHIYOOR VILLAGE, PETTAH.P.O., THIRUVANANTHAPURAM-695 024. 11. RASHEEDA, W/O.MAJEED, VATTAVILA VEEDU, T.C.30/985, (OLD TC 29/936), VANCHIYOOR VILLAGE, PETTAH.P.O., THIRUVANANTHAPURAM-695 024. 12. MOHAMMED NAZEEM, S/O.MAJEED, VATTAVILA VEEDU,T.C.30/985, (OLD TC 29/936), VANCHIYOOR VILLAGE, PETTAH.P.O., THIRUVANANTHAPURAM-695 024. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1139 OF 2011 --------------------------------------------- Dated 25th October, 2011 JUDGMENT One of the legal heirs of third defendant in O.S.1807/1997 on the file of Additional Munsiff Court, Thiruvananthapuram is the appellant. On the death of the plaintiff respondents 1 to 3, the legal heirs were impleaded in the suit as additional plaintiffs. Respondents 4 to 12 are the other defendants. Suit was filed for declaration of title and recovery of possession with mesne profits. Plaintiff contended that the plaint schedule property belongs to him under Ext.A1 sale deed and late Mohammed Haneefa was permitted to reside in the plaint schedule building RSA 1139/11 2 T.C.29/936, as a licensee. The license was subsequently terminated and recovery of possession was sought for. Instead of vacating the building Mohammed Haneefa filed O.A.239/1977 claiming kudikidappu right before the Land Tribunal. The O.A was dismissed. Mohammed Haneefa challenged that order before Appellate Authority (Land Reforms) in A.A.1214/1997. The appeal was dismissed. He challenged that order before this Court by filing a civil revision petition. It was also dismissed. After the death of Mohammed Haneefa, plaintiff demanded defendants to vacate the premises. But they did not do so. Therefore, suit was filed. Defendants 2 and 3 the children of Mohammed Haneefa in his first wife resisted the suit contending that the building was not constructed by the plaintiff RSA 1139/11 3 and it was constructed by their predecessors. It was their defence that their mother, Rafiya Beevi obtained the land and constructed the home-stead and she was a kudikidappukari. Late Mohammed Haneefa in collusion with the plaintiff filed O.A.239/1977 and allowed the plaintiff to get an order in his favour. The order is not binding on defendants 2 and 3. According to them defendants 2 and 3 alone have right and defendants 1 and 5 to 9 the second wife and children born to her to Mohammed Haneefa have no right in the property. Defendants 1 and 7 to 9, the second wife and her children filed a written statement contending that the plaintiff has not constructed the building and there was no license as alleged and the order in O.A.239/1977 is not binding on them. RSA 1139/11 4 2. Learned Munsiff referred the claim for kudikidappu raised by defendants 2 and 3 to the Land Tribunal under Section 125 (3) of Kerala Land Reforms Act. The Land Tribunal rendered a finding that defendants 2 and 3 are entitled to kudikidappu right. Learned Munsiff, as is bound to accept the finding, accepted the finding and dismissed the suit, though it was found that the plaintiff has title to the property. Additional plaintiffs challenged the decree before Sub Court, Thiruvananthapuram in A.S.93/2005. Learned Sub Judge on reappreciation of the evidence found that finding of the Land Tribunal is not correct and defendants 2 and 3 cannot claim kudikidappu right and the order of the Land Tribunal as confirmed in Ext.A3 order by the RSA 1139/11 5 Appellate Authority and Ext.A4 order of this Court in civil revision petition establish that defendants are not kudikidappukars and therefore set aside the findings of the Land Tribunal and granted a decree declaring title of the plaintiffs and recovery of possession. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. 4. Argument of the learned counsel is that first appellate court was not justified in setting aside the finding of the Land Tribunal and granting a decree for declaration of title and recovery of possession in favour of the plaintiff. Learned counsel vehemently argued that when the case of the plaintiff was that the plaint schedule building was constructed and Mohammed Haneefa, RSA 1139/11 6 father of defendants 2 and 3, were permitted to occupy the house in 1968, records produced before the Land Tribunal establish that mother of defendants 2 and 3 were residing in the building even in 1960 and in such circumstances, first appellate court should have found that there was no entrustment in 1967 as alleged and instead the building has been in possession of the wife of Mohammed Haneefa. Learned counsel argued that report of the authorised officer before the Land Tribunal establish that defendants 2 and 3 had no other land where they could erect a hut and plaint schedule building was constructed by the mother of defendants 2 and 3 in 1956 and in such circumstances, first appellate court should have found that defendants 2 and 3 cannot be evicted. Though learned counsel RSA 1139/11 7 vehemently argued that when case of the plaintiff that the building was constructed and entrusted to Mohammed Haneefa, in 1968 cannot be true, as records establish that Rafiya Beevi the wife of Mohammed Haneefa has been residing in that building from 1960 onwards, it is to be found that the building was obtained by Rafiya Beevi, I cannot agree with the submission. Even if it is to be found that the building was in existence before 1967, and Rafiya Beevi and Haneefa were residing in the building, that does not mean either that the land was entrusted to Rafiya Beevi to erect a home-stead or the hut was entrusted to Rafiya Beevi. It is a fact to be independently pleaded and proved. 5. It is pertinent to note that even in the written statement there was no specific RSA 1139/11 8 plea that when Rafiya Beevi died, she was not having any other land where she could erect a home-stead. Though it was contended before the Land Tribunal in the affidavit filed that subsequent to the death of Rafiya Beevi, Mohammed Haneefa married first defendant and started to reside separately and later they came back and started residing along with defendants 2 and 3 in the plaint schedule building, no evidence was adduced to prove that Mohammed Haneefa at any point of time, left defendants 2 and 3 and lived separately as contended before the Land Tribunal. It is to be born in mind that even if Rafiya Beevi was not having any land where she could erect a home-stead, on her death, her rights devolved on her husband and children. The husband who was living along RSA 1139/11 9 with defendants 2 and 3, their children. Mohammed Haneefa was having another land where he could erect a house as found in Exts.A3 and A4 orders. Hence defendants 2 and 3, the children of Mohammed Haneefa are not entitled to the benefit under Section 80 B of Kerala Land Reforms Act. It is clear that Mohammed Haneefa claimed kudikidappu, by filing an application before the Land Tribunal. Land Tribunal found that he is not a kudikidappukaran. The order was challenged before the Appellate Authority. The order of the Land Tribunal was confirmed by the Appellate Authority under Ext.A3 order and it was affirmed by this Court under Ext.A4 order, I cannot agree with the submission of the learned counsel appearing for the appellant that entire land tribunal proceedings and RSA 1139/11 10 subsequent proceedings were result of collusion between the plaintiff and Mohammed Haneefa father of defendants 2 and 3. More over, as rightly found by the first appellate court, lease in favour of Rafiya Beevi for erection of a home-stead was not proved. More over, a lease in favour of an unmarried muslim lady for the purpose of erecting a home-stead is not at all probable when her parents are alive. When the entire evidence is properly appreciated, finding of the first appellate court that the building was not obtained by Rafiya Beevi and she did not erect the home-stead and therefore,on her death, defendants 2 and 3 cannot claim kudikidappu right is perfectly correct. As the plaintiffs has title to the property and defendants have no other right to continue in RSA 1139/11 11 possession of the property, first appellate court rightly declared title and granted recovery of possession. As no substantial question of law is involved, the appeal is dismissed. 6. Learned counsel then submitted that defendants have no other house to reside, if they are to be sent out of the house and therefore, they may be granted one year to surrender possession of the building. Suit itself was filed in 1997 and defendants could cling on to the possession for more than a decade. In such circumstances, a period of one year to surrender vacant possession as sought for cannot be granted. But considering the fact that they were residing in the plaint schedule building, they are granted three months time, from today, to surrender the RSA 1139/11 12 vacant possession of the building on condition of appellant filing an affidavit before the executing Court, within ten days from today, unconditionaly undertaking to surrender vacant possession on the expiry of three months from today. M.SASIDHARAN NAMBIAR, JUDGE. uj.