IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 RSA.No. 98 of 2008 ---------------------- AS.17/2002 of SUB COURT,NEYYATTINKARA OS.629/1998 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS/APPELLANTS/DEFENDANTS --------------------------------------------- 1. AMBAI, W/O.ENOSE, AGED 79 YEARS, RESIDING AT PANDARAVILAKATHUPUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 2. ENOSE RAGHAVAN, AGED 57 YEARS, RESIDING AT PANDARAVILAKATHUPUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 3. OMANA, D/O.AMBAI, AGED 55 YEARS, RESIDING AT PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 4. ENOSE BABY, AGED 42 YEARS, RESIDING AT PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 5. AMBAI SASIKALA, AGED 35 YEARS, RESIDING AT PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 6. PATHORSE THANKAPPAN, RESIDING AT IDAVILAKATHUPUTHEN VEEDU, PALLICHAL DESOM, PALLICHAL PAKUTHY. 7. N.RAJAMMA, D/O.PATHROSE, AGED 69 YEARS, RESIDING AT IDAVILAKATHU PUTHENVEEDU, PALLICHAL DESOM, PALLICHAL PAKUTHY. 8. N.APPU CALLED AS THANKAYYAN, S/O.PATHROSE, AGED 65 YEARS, RESIDING AT IDAVILAKATHUPUTHEN VEEDU, PALLICHAL DESOM, PALLICHAL PAKUTHY. 9. VIJAYAN, S/O.SUMATHY,AGED 44 YEARS KAVINPURATHUPUTHEN VEEDU, KUKKOLACKAL, IDAVAL DESOM, OTTASEKHARAMANGALAM. 10. SOBHANA, D/O.SUMATHY, AGED 40 YEARS, KAVINPURATHUPUTHEN VEEDU, KUKKOLACKAL, IDAVAL DESOM, OTTASEKHARAMANGALAM. 11. VINOD, D/O.SUMATHY, AGED 37 YEARS, KAVINPURATHU PUTHEN VEEDU, KUKKOLACKAL, IDAVAL DESOM, OTTASEKHARAMANGALAM. 12. ANITHA ALIAS AJITH KUMARI, D/O.SUMATHY, AGED 33 YEARS, KAVINPURATHUPUTHEN VEEDU, KUKKOLACKAL, IDAVAL DESOM, OTTASEKHARAMANGALAM. 13. CHELLAN, H/O.SUKUMARI, AGED 32 YEARS, KAVINPURATHUPUTHEN VEEDU, KUKKOLACKAL IDAVAL DESOM, OTTASEKHARAMANGALAM. 14. AJI, S/O.SUKUMARI, AGED 35 YEARS, KAVINPURATHUPUTHEN VEEDU, KUKKOLACKAL, IDAVAL DESOM, OTTASEKHARAMANGALAM. 15. ANI, S/O.SUKUMARI, AGED 32 YEARS, KAVINPURATHU PUTHEN VEEDU, KUKKOLACKAL, IDAVAL DESOM, OTTASEKHARAMANGALAM. 16. AJITHA, D/O.SUKUMARI, AGED 27 YEARS, KAVINPURATHUPUTHEN VEEDU, KUKKOLACKAL, IDAVAL DESOM, OTTASEKHARAMANGALAM. 17. AJITH, S/O.SUKUMARI, AGED 23 YEARS, KAVINPURATHUPUTHEN VEEDU, KUKKOLACKAL, IDAVAL DESOM, OTTASEKHARAMANGALAM. 18. ENOSE SUKUMARAN, AGED 62 YEARS, RESIDING AT PANDARAVILAKATHUPUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 19. AMBAI GOMATHY, AGED 56 YEARS, RESIDING AT PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 20. ENOSE SASI, AGED 49 YEARS, RESIDING AT PANDARAVILAKATHU VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 21. ENOSE THANKAPPAN, AGED 45 YEARS, U.D.CLERK OF K.V.THOMAS, WOMAN DEVELOPMENT CORPORATION, PATTOM, THIRUVANANTHAPURAM AND FROM PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 22. MANUVEL KOCHUKUNJAN, AGED 86 YEARS, RESIDING AT PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 23. LOUIS THANKAMMA, AGED 65 YEARS, RESIDING AT PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 24. MUTHU SARASWATHI, AGED 56 YEARS, RESIDING AT PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 25. MUTHU SREEMATHY, AGED 50 YEARS, RESIDING AT PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 26. MUTHU LALITHA, AGED 45 YEARS, RESIDING AT PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. 27. YACOB KUNJUKRISHNAN, AGED 38 YEARS, RESIDING AT PANDARAVILAKATHU PUTHEN VEEDU, MUTHUVALLOORKONAM, PALLICHAL DESOM, PALLICHAL PAKUTHY. BY ADV. SRI.B.GOPAKUMAR SRI.C.MANOHARAN SRI.ASWIN GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENTS: RESPONDENTS/PLAINTIFFS ------------------------------------------------- 1. KRISHNA PILLAI, BHASKARAN NAIR, AGED 72 YEARS, RESIDING AT IDAVILAKATHUPUTHEN VEEDU, PALLICHAL DESOM, PALLICHAL PAKUTHY. 2. KRISHNA PILLAI, GOPAKUMARAN NAIR, CALLED AS GOPALAKRISHNAN NAIR, AGED 60 YEARS, RESIDING AT IDAVILAKATHU PUTHEN VEEDU, PALLICHAL DESOM, PALLICHAL PAKUTHY. 3. KRISHNA PILLAI, RAVINDRAN NAIR, AGED 58 YEARS, RESIDING AT IDAVILAKATHUPUTHEN VEEDU, PALLICHAL DESOM, PALLICHAL PAKUTHY. 4. KRISHN PILLAI, RADHAKRISHNAN NAIR, AGED 54 YEARS, RESIDING AT IDAVILAKATHUPUTHEN VEEDU, PALLICHAL DESOM, PALLICHAL PAKUTHY. 5. DEVAKI PILLAI SUKUMARI AMMA, AGED 48 YEARS, RESIDING AT IDAVILAKATHUPUTHEN VEEDU, PALLICHAL DESOM, PALLICHAL PAKUTHY. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------ R.S.A. No 98 of 2008 ----------------------------------------------- Dated this the 10th July 2008 JUDGMENT This Regular Second Appeal arises out of O.S. No 629 of 1998 on the file of the Munsiff's Court, Neyyattinkara. The plaintiffs who are the respondents in this R.S.A sought for a decree declaring their rights over plaint C schedule property; for putting up of boundaries thereto separating it from plaint B schedule property and for an injunction restraining the defendants therein from trespassing into any portion of plaint C schedule property, putting up buildings thereon or in any way interfering with the rights of the plaintiffs over C schedule property. 2. The allegation in the plaint, inter alia, is that plaint A schedule property which was plaint B schedule property in O.S.No 597 of 1963 was outstanding on mortgage with the defendants in that suit; that decree was obtained for redemption of the mortgaged property, that Exts. A1 and A2 are respectively preliminary and final judgments in the above case, that in execution of the decree in that suit as per Ext A3 delivery list dated 15.07.1067 the entire A schedule property RSA 98/08 2 herein which was described as plaint B schedule property in O.S. No 597 of 1963 was delivered over to the decree holders therein who were the first plaintiff herein and his mother who passed away and whose L. Rs are the present plaintiffs, that while effecting such delivery the two buildings which stood in the said property wherein mortgagees were residing were not delivered over, that in 1970 namely, long after the delivery vide Ext A3, they filed O.A. Nos 706 and 707 of 1970 before the Land Tribunal, Malayinkeesh, that the said applications were dismissed, that none of the defendants in the present suit are kudikidappukars, that they as also their predecessors in interest were having landed properties and houses of their own, but however with a view to set at rest the disputes between the parties plaintiffs are prepared to give five cents each to the occupants in the two buildings and that excluding the ten cents which is scheduled herein as B schedule from out of A schedule, title and possession of the plaintiffs over rest of the property whichis scheduled as C schedule has to be declared and boundary wall has to be put up separating the B and C schedule properties and that the defendants are to be restrained by a decree of permanent prohibitory injunction restraining them from putting up any new buildings in the C RSA 98/08 3 schedule property or cutting trees therefrom and from causing any sort of obstruction to the plaintiffs' peaceful enjoyment of C schedule property. The suit was resisted by the defendants contending that they are entitled to kudikidappu rights in respect of six huts and that they are entitled to kudikidappu rights and that therefore relief sought for by the plaintiffs should not be granted to them. They also contended that appropriate proceedings are pending before various authorities under the Land Reforms Act. 3. On the above pleadings the trial court raised necessary issues for trial and considering the rival claims advanced in the light of the evidence adduced at trial which consisted of the oral evidence of P.W.1, D.W.1 and C.W.1 and documentary evidence, Exts. A1 to A14 and C1 to C4, decreed the suit as prayed for. Assailing the said decree, defendants 6, 8, 10, 13, 14 and 17 jointly filed A.S. No. 17 of 2002 before the first appellate court as against the plaintiffs impleading also defendants 1 to 5, 7, 9, 11,12, 15,16 and 18 to 21 as respondents 6 to 20. The first appellate court concurred with the findings arrived at by the trial court and dismissed the appeal. Assailing the concurrent verdicts given by the courts below the defendants 6,8,10,13 and 14 who were appellants 1 to 5 in A.S. 17 of RSA 98/08 4 2002 as appellants 1 to 5; defendants 1, 2 and 4 as appellants 6 to 8, L.Rs of deceased 3rd defendant as appellants 9 to 12, L.Rs of deceased 5th defendant as appellants 13 to 17 and defendants 7, 9, 11, 12, 15,16 and 18 to 21 as appellants 18 to 27 have preferred this R.S.A impleading the plaintiffs as respondents 1 to 5. 4. At the outset it has to be observed that other than appellants 1 to 5 the other appellants have no right to pursue the matter in Second Appeal as they had not preferred any appeal from the decree and judgment of the trial court. Learned counsel for the appellants has no quarrel on that aspect. 5. The contention that is advanced before me by the learned counsel for the appellants is that there is no demarcation of 10 cents anywhere other than in the plaint and the commission report and plan; that what was excluded from Ext A3 delivery list was the houses in plaint “B” schedule property in the redemption suit which is “A” schedule property herein and that it is for the authorities under the Land Reforms act to decide as to how much extent is to be ear- marked for the kudikidappu and that civil court cannot grant a decree as prayed for by the plaintiffs separating plaint B schedule from plaint C schedule as prayed for by the plaintiffs. RSA 98/08 5 6. It is worthy to note that the two buildings that were in existence at the time of delivery alone were excluded from delivery and the entire land which is “A” schedule had been delivered over to the first plaintiff and the predecessor of the other plaintiffs as per Ext A3 delivery list. Admittedly those who were in occupation of the buildings in plaint B schedule property in the redemption suit which is plaint A schedule property herein were the mortgagees. They were entitled to kudikidappu rights if at, all only on redemption by virtue of Explanation IV to Section 2 (25) of the Land Reforms Act. On redemption, in execution of the decree in Ext A2 suit vide Ext A3 delivery list it does not appear that the mortgagees advanced any claim. Counsel for the appellants contends that the appellants are entitled to kudikidappu rights by reason of Explanation II A to Section 2 (25) of the Land Reforms Act and it is that, that is being agitated before the authorities under the Land Reforms Act by the concerned appellants. That is not a matter on which any observation needs to be made by this court. That is a matter to be decided by the appropriate authorities. However, as matters now stand, kudikidappu is not upheld by any authority in favour of the appellants and what we have is Ext A3 delivery list which shows that the entire plaint A RSA 98/08 6 schedule property in the present suit had been delivered over except the two buildings that existed then, namely, at the time of delivery. Ext C2 plan shows that other than the two buildings which were in existence then there are four other huts also adjacent to the said two buildings which obviously were not there at the time of delivery, vide Ext. A3. Despite the fact that the mortgagees or the occupants of the buildings that were in existence as on the date of Ext A3 were not found to have any statutory right, the plaintiffs even in the plaint have admitted that to avoid further disputes and to set matters at rest they are prepared to exclude five cents each for the said two buildings which were not delivered over and that what is required is only relief in relation to the balance property which is scheduled as C schedule to the plaint. It is seen that as per Ext C2 plan which forms part of the decree (referred to as Ext C4 in the decree and as Exts. C2 in the judgment at one place and as Ext C4 at another place) the ten cents plot taking with it the buildings in the occupation of the defendants is demarcated as the C D E F K L M C plot and the balance property namely, the C schedule is marked as A B C M L K F G H I J A plot. As regards the plan demarcating the ten cents as B schedule property and the balance as C schedule from out of A RSA 98/08 7 schedule property the appellants' counsel has no objection. The defendants are not entitled to any right as matters stand apart from getting the property of 10 cents which the plaintiffs have relinquished by virtue of the averments in the plaint. It cannot therefore be said that the decree granted in favour of the plaintiff by the trial court and upheld by the first appellate court suffers from any infirmity so as to be interfered with by this court in this Regular Second Appeal. In view of the facts discussed above, there is no substantial question of law arising for consideration in this R.S.A as is attempted to be formulated and made out by the learned counsel for the appellants. Consequently this R.S.A deserves only to be dismissed in limine. In the result, I dismiss this R.S.A in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 10/07/2008 en [true copy]