IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 RSA.No. 151 of 2011 --------------------------------- AS.148/2009 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.6/2006 of SUB COURT, NEDUMANGAD .................... APPELLANT/APPELLANT/2ND DEFENDANT: V.SURENDRAN NAIR, S/O.VELAYUDHAN NAIR, AGED 58, RESIDING IN SANDHYA BHAVAN, XI/5, KALATHAPRA, ARUVIKARA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH RESPONDENTS/RESPONDENT/PLAINTIFF & D1: 1. S.RADHAKRISHNAN ASARI, S/O.SHANMUGHAN ASARI,GEETHA BHAVAN, KALKUZHI, ARUVIKKARA VILLAGE,THIRUVANANTHAPURAM. 2. K.SANKARA KURUP, S/O.KUNJUNNITHAN, CHIRATHALAKKAL HOUSE, VELLOORKONAM, ARUVIKKARA VILLAE, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. ---------------------------------------- R.S.A.No.151 of 2011 ---------------------------------------- JUDGMENT Second defendant in O.S.No.6/2006 on the file of Sub Court, Nedumangad is the appellant. First respondent is the plaintiff and second respondent, the first defendant. First respondent instituted the suit seeking a decree for declaration of his title, fixation of boundary and recovery of possession of plaint schedule properties. It is contended that plaint A schedule property, having an extent of 26½ cents, originally belonged to the second respondent/first defendant under Exhibit A1 sale deed 2934/1986 of S.R.O., Vellanadu. On 26.2.1991, under Exhibit A2 sale deed, he assigned twenty cents of that property in favour of the first respondent. At the time of execution of the sale deed, second respondent agreed to put up a boundary. But, no boundary as such was put up. Appellant is residing in the house situated on the eastern portion of plaint A schedule property and he is now claiming plaint A schedule property and he has no right over the same and therefore, first respondent is entitled to a decree declaring his title to plaint A schedule RSA 151/2011 2 property and also for fixation of boundary and for recovery of possession of plaint A schedule property from the possession of the appellant. 2. Second respondent remained ex parte. Appellant contended that plaint A schedule property has been in his possession and the property originally belonged to Gopala Pillai. Gopala Pillai granted a lease in favour of Sankara Pillai through a written agreement in 1961. While Sankara Pillai has been in possession of plaint A schedule property, as per an oral agreement, in 1968, he put the appellant in possession of the property. Thereafter, a written agreement was executed in 1976 and since then, he has been in peaceful possession of the property. It is contended that appellant is, therefore, entitled to fixity of tenure and in any case, he is entitled to kudikidappu right and first respondent is not entitled to the decree sought for. 3. Learned Sub Judge, on the evidence of PWs 1 to 3, DWs 1 to 3, Exhibits A1 to A5, B1 to B3 and C1 and C1(a), granted a decree declaring the title of the first respondent to plaint B schedule property and directing fixation of boundary as RSA 151/2011 3 demarcated by the Commissioner in Exhibit C1(a) plan and directed appellant to put plaint B schedule property in possession of the first respondent. Appellant challenged the judgment and decree before Additional District Court, Thiruvananthapuram in A.S.No.148/2009. Learned Additional District Judge, on re-appreciation of evidence, confirmed the findings of the learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellant was heard. 5. Argument of the learned counsel is that when appellant claimed tenancy right, the suit should have been referred to the Land Tribunal under Section 125(3) of Kerala Land Reforms Act and as learned Sub Judge has no jurisdiction to decide the question of tenancy, judgments of the courts below are not sustainable. It was also argued that in any case, when kudikidappu right is also claimed by the appellant, at least that question should have been referred to the Land Tribunal. Learned counsel finally submitted that identity of plaint B schedule property was not fixed and Commissioner has not properly demarcated the property covered under Exhibit A1 and RSA 151/2011 4 hence, the decree granted is not sustainable. 6. It is not in dispute that the property originally belonged to Vallyamma. Gopala Pillai leased out plaint A schedule property in favour of Sankara Pillai. It is under Exhibit B3 gift deed, Vallyamma, along with Gopala Pillai, gifted the properties, including plaint A schedule property, in favour of Sankara Pillai. Exhibit B3 establishes that even Gopala Pillai admitted that plaint schedule properties exclusively belong to Vallyamma. Under Exhibit B3, Raghavan Pillai obtained the plaint schedule properties and that right was transferred to Sivasankaran Nair, who assigned plaint A schedule property in favour of second respondent under Exhibit A1 sale deed in 1986. These aspects are not disputed. Second respondent, thereafter, in 1991, assigned plaint A schedule property in favour of first respondent. Hence, as rightly found by the courts below, first respondent has title to plaint A schedule property. When property of Vallyamma was transferred under Exhibit B3, Gopala Pillai could not have granted an oral lease in favour of Sankara Pillai as claimed by the appellant. Therefore, appellant cannot, under a sub lease created by Sankara Pillai in 1968, the claim tenancy right in RSA 151/2011 5 respect of plaint A schedule property. When, on the face of it, claim of tenancy does not arise for consideration, I find no reason to interfere with the decree granted by the courts below for not referring the question of tenancy to the Land Tribunal, as canvassed. Moreover, the judgment of the first appellate court establishes that judgment of the trial court was not challenged on the ground that there was no reference under Section 125(3) of Kerala Land Reforms Act. 7. Similarly, though, alternatively, appellant claimed kudikidappu right, ingredients of kudikidappu right as such were not pleaded in the written statement. Moreover, it is the admitted case that though tenancy was claimed by the appellant in S.M.Proceedings No.76/1996, that claims was rejected and though A.A.No.15/2004 was filed, that also was dismissed. In such circumstances, claim of the appellant for tenancy right or kudikidappu right was rightly rejected by the courts below. 8. Then the argument of the learned counsel is that plaint B schedule property was not properly demarcated by the Commissioner. Reliance was placed on the fact that plaint B schedule property, as demarcated by the Commissioner in RSA 151/2011 6 Exhibit C1(a) plan, is not in accordance with plaint A schedule property shown in Exhibit A1. Argument is that as per Exhibit A1, the property assigned in favour of the second respondent is the western part and not inclusive of the southern part. A reading of Exhibit A1 shows that the property assigned in favour of the appellant is the property, having an extent of twenty cents, excluding 6½ cents retained on the eastern part of the property obtained under Exhibit A1. The document does not show that said 6½ cents is the entire eastern portion of 26½ cents from north to south. It only shows that said 6½ cents includes the building and the well situated on the eastern side. As rightly found by the first appellate court, appellant has subsequently modified the house which was in existence in that 6½ cents of property and that 6½ cents, which is excluded under Exhibit A1 assignment deed, is to be fixed inclusive of the structure. If so, it could only be demarcated as fixed by the Commissioner in Exhibit C1(a) plan. Commissioner had stated that for convenience of all the parties, the property excluded under Exhibit A1 could only be the property shown in Exhibit A1. It is in such circumstances, courts below fixed the boundaries of the RSA 151/2011 7 property in accordance with Exhibit C1(a) plan. I find no substantial question of law involved in the appeal. Appeal is dismissed. 7th March, 2011 (M.Sasidharan Nambiar, Judge) tkv