IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 RCRev..No. 237 of 2010() ------------------------ RCA.71/2008 of RENT CONTROL APPELLATE AUTHROITY ,KOZHIKODE RCP.149/2004 of RENT CONTROL COURT ,KOZHIKODE-II .................... REV.PETITIONERS/APPELLANTS/RESPONDENTS 1 TO 4 ----------------------------------------------------------------- 1. THEYYANAYAKI,W/O.MUTHUSWAMI CHETTIYAR, AGED 70 YEARS RESIDING AT HOUSE NO.19/1877, KASABA AMSOM, DESOM, KOZHIKODE TALUK. 2. MANOMANI,D/O.MUTHUSWAMI CHETTIYAR, AGED 46 YEARS RESIDING AT HOUSE NO.19/1877, KASABA AMSOM, DESOM, KOZHIKODE TALUK. 3. MANOMANI,D/O.MUTHUSWAMI CHETTIYAR, AGED 44 YEARS RESIDING AT HOUSE NO.19/1877, KASABA AMSOM, DESOM, KOZHIKODE TALUK. 4. GANASEKHARAN,S/O.MUTHUSWAMI CHETTIYAR, AGED 38 YEARS RESIDING AT HOUSE NO.19/1877, KASABA AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) SMT.G.SANGEETHA RESPONDENT(S): RESPONDENT/PETITIONER AND 5TH RESPONDENT ------------------------------------------------------- 1. K.REGHUNANDANAN, S/O.K.P.G.PANICKER, AGED 34 YEARS, RESIDING AT HOUSE NO.19/1876, KASABA AMSOM,DESOM, KOZHIKODE TALUK. 673001 2. M.NEDUMCHOZHIYANS/O.MUTHUSWAMI CHETTIYAR AGED 48 YEARS, RESIDING AT HOUSE NO.13/2007, THIKKOVIL LANE, BIG BAZAR, NAGARAM AMSOM DESOM KOZHIKODE TALUK.6783018 THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 17/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------ R.C.R.No. 237 OF 2010 ------------------------ Dated this the 17th day of August, 2010 O R D E R Pius C.Kuriakose, J. Under challenge in this revision petition filed under Section 20 of Act 2 of 1965 is the judgment of the Rent Control Appellate Authority allowing the Rent Control Appeal preferred by the revision petitioners and setting aside the order of eviction which had been passed against the revision petitioners on various grounds and remanding the rent control petition to the Rent Control Court for fresh decision after affording an opportunity to both sides for adducing evidence. When we enquired of the learned counsel for the revision petitioners Sri.Abraham Mathew as to why the revision petitioners should be aggrieved, he submitted that the grievance of the revision petitioners is that the Rent Control Appellate Authority did not set aside the finding of the Rent Control Court that the revision petitioners do not have Kudikidappu rights over the building. The learned counsel RCR.No.237/2010 2 argued that when in a rent control petition seeking eviction, a plea of kudikidappu is raised by the tenant, it is obligatory on the part of the Rent Control Court to stay the proceedings and make a reference of the issue of kudikidappu to the Land Tribunal under Section 125(3) & (7) of the Land Reforms Act. According to him, in this particular case what was done was that the Rent Control Court itself enquired into the issue and held that the revision petitioners do not have kudikidappu right. According to the learned counsel, the finding entered by the Rent Control Court that the revision petitioners do not have kudikidappu right, is a finding entered without jurisdiction and hence the said finding can be treated as nonest. 2. We notice from the judgment of the Rent Control Appellate Authority that the appellate authority did not become inclined to interfere with the above finding of the Rent Control Court on the reason that in the judgment of another Division Bench of this Court in W.P.(C) NO. 7518/2007, this Court had upheld the finding of the Rent Control Court and the Appellate Authority that the writ petitioners do not have kidikidappu rights over the building in question and that the real motive of the writ RCR.No.237/2010 3 petitioners in requesting for a reference under Section 125(3) was to drag on the proceedings for eviction. 3. It was very persuasive submissions which were addressed before us by Sri.Abraham Mathew. He submitted that the judgment of the Division Bench of this Court in W.P.(C) No.75182007 was rendered per in curiam. The learned counsel pointed out that the observation of the Division Bench that, as the entrustment of the building is in the year 1973 there cannot be a kudikidappu right, is erroneous and runs contrary to the various judgments of this Court including the one in Mary Yohannan v. Sreekumaran Nair (1991 (2) KLT 751)(FB). We are in agreement with the learned counsel that the above observation of the Division Bench that no kudikidappu right can be created after 1970 is erroneous. But, then it was not on that reason alone that the Division Bench upheld the finding of the Rent Control Court as well as the Appellate Authority that the writ petitioners are not entitled to Kudkikidappu right. A commissioner had reported to the Rent Control Court that the building in question is not an independent building and it is a part of a building. It is trite by decision of a Full Bench of this Court RCR.No.237/2010 4 in Muhammad v. Imbichibi (1974 KLT 738) (FB) that part of a building cannot be subject matter of kudikidappu. The Submission of Sri.Abraham Mathew is that the Rent Control Court is erred in issuing a commission for finding out whether the building in question is a separate building or a part of a building. We cannot agree. The Supreme Court by the judgment in Thomas Antony v. Varkey (2000 (1) KLT 12 (SC) has held that the civil court is not expected to make reference under Section 125(3) of the Land Reforms Act as and when a plea is raised. The Civil Court is competent court to consider whether the plea is raised bona fide and that only when an issue of tenancy or kudikidappu arises seriously, the same need be referred. Obviously to the application, which was filed by the revision petitioners seeking reference, counter was filed by the respondents contending that the building in question is not an independent building. The commission was issued in the context of the controversy as to whether the building in question is an independent building. The commissioner conducted inspection with notice to both sides and submitted the report. The report of the commissioner was to the effect that the building is not an RCR.No.237/2010 5 independent building but it is only a part of a building. It is accepting that report, that the Rent Control Court concluded that the plea of kudikadappu raised by the writ petitioners was without bona fide. The above conclusion was approved by the Appellate Authority and finally confirmed by the Division bench in W.P.(C) No. 7518/2007. So long as the judgment in W.P.(C) No.7518/2007 stands, it is idle for the writ petitioners to contend that they are kudikidappukarns. In this revisional jurisdiction under Section 20, this Court is expected to examine only the legality, regularity and propriety of the judgment of the Appellate Authority. Having considered the impugned judgment of the Appellate authority within the contours of Section 20, it is very clear to our mind that there is no warrant for invocation of the revisional jurisdiction for interfering with the approval given by the appellate authority for the finding that the petitioners are not kudikidappukarans. As for the rest of the judgment of the Appellate Authority, the revision petitioners cannot have any legitimate grievance as the same is completely in their favour. The order of eviction passed against them was set aside and the RCP has been RCR.No.237/2010 6 relegated back to the Rent Control Court for adjudication on merits. The revision petition fails and the same will stand dismissed. PIUS C.KURIAKOSE,JUDGE C.K.ABDUL REHIM , JUDGE dpk