IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 FAO.No. 193 of 2010() --------------------- AS.193/2004 of SUB COURT,KOTTARAKKARA .................... APPELLANT/ 1ST RESPONDENT ---------------------------------- C.VARGHESE, RESIDING AT MUTTATHIL VEEDU, PANAMTHOPE PIRAVANTHOOR MURI, VELLITHITTA P.O. BY ADVS. SRI.DEVAN RAMACHANDRAN & SRI.K.M.ANEESH RESPONDENT(S): APPELLANTS/RESPONDENTS 2 &3 ------------------------------------------ 1. MATHEW (SUJAN), S/O.THANKACHAN, RESIDING AT MUTTATHIL VEEDU, ALIMUKKU, PIRAVANTHOOR VILLAGE AND TALUK. 2. JOHNSON, S/O.THANKACHAN, RESIDING AT MUTTATHIL VEEDU, ALIMUKKU, PIRAVANTHOOR VILLAGE AND TALUK. 3. ALICE, D/O.ANNA MARIYA, RESIDING AT MUTTATHIL VEEDU, ALIMUKKU, PIRAVANTHOOR VILLAGE AND TALUK. 4. LALY ANNA MARIYA, RESIDING AT MUTTATHIL VEEDU, ALIMUKKU, PIRAVANTHOOR VILLAGE AND TALUK. 5. V.MATHUKUTTY, RESIDING AT ROBIN BHAVAN, PIRAVANTHOOR MURI, VETTITHITTA P.O. 6. ANNA MARIYA, D/O.THANKAMMA, RESIDING MUTTATHIL VEEDU, ALIMUKKU, PIRAVANTHOOR MURI, VETTITHITTA P.O. ADV. SRI.VINOY VARGHESE KALLUMOOTTILL FOR R1,2,4&6 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/07/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: kkj P.BHAVADASAN .J - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No.193 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 08th day of July, 2011 J U D G M E N T The facts necessary for disposal of this appeal are as follows:- 2. It appears that the wife of the appellant, herein, is the 6th respondent, filed a suit as of O.S.No.342/87against the first respondent herein seeking a declaration of her title to the suit property on the basis of adverse possession and limitation. The first respondent, who was the defendant in the suit filed a counter claim in respect of 40 Cents of property. Suffice to say that suit filed by the wife of the appellant was dismissed and counter claim was decreed. 3. The decree holder in the counter claim put the decree in the execution through E.P.124/03. At that point of time first respondent filed EA No. 140/04 putting forward a claim as “Kudikidappukaran” in respect of property in relation to which execution was sought for. 4. It may be noted further that original claimant in the 2 F.A.O.No.193 of 2010 suit had died and his legal heirs had been impleaded in the party array. 5. E.A. was filed under Order 21 Rule 99 pointing out that claimant was not a party to the suit and he was not bound by the decree granted to the decree holder against the wife of the appellant. He claimed the benefit of Explanation IIA of Section 2(25) of the Kerala Land Reforms Act. 6. The decree holder resisted the petition. It was pointed out by him that this is nothing but a dilatory tackle adopted by the judgment debtor to delay and defeat the the decree that has been obtained by him and there are no bonafides in the claim made at all. By no such of imagination the appellant could come within the definition of deemed “Kudikidappukaran” contemplated under explanation IIA of Section 2(25) of the Kerala Land Reforms Act. He therefore prayed for dismissal of claim petition. 7. It appears that the trial court considered the question as to whether the claimant can put forward a claim 3 F.A.O.No.193 of 2010 under explanation IIA of Section 2(25) of the Kerala Land Reforms Act and found against him. Therefore the execution court dismissed the application. 8. Claimant took up the matter in appeal as AS No.193/2004 before the Sub Court, Kottarakkara. The lower appellate court was greatly impressed by the contention that the claim petition was disposed of without affording an opportunity to substantiate appellant's claims and that has considerably prejudiced the rights of the claimant. It was found that no evidence has been adduced even though parties had produced several documents. Lower appellate court therefore found that it is necessary to provide an opportunity to the claimant to establish his claims by adducing evidence. Accordingly the order of the execution court was set aside and the matter was remanded to execution court for fresh consideration after giving opportunity to both sides to adduce such evidences which they choose to adduce. 4 F.A.O.No.193 of 2010 9. It is the above order which is under challenge in this appeal. 10. Learned counsel for the appellant pointed out that the remand was not called for and the order of the executing court dismissing the plaint petition was fully justified. Learned counsel relied on the decision reported in Kassim Rawther Vs. Mytheen Beevi [1988 (2) KLT 812] contended that the executing court is competent to decide regarding the claim of “Kudikidappukaran” and there is no jurisdictional error in the order passed by the execution court. It is also contended that it could be very easily seen that the attempt is only to delay the execution and there is no merit in the contentions at all. Attention was drawn to the statement in the claim petition that after marriage the claim petitioner had taken up residence with his wife in the premises covered by the execution proceedings and that shows he has no independent right. Attention was also drawn to the fact that the present claim has no basis. 11. On the other hand, learned counsel for the 5 F.A.O.No.193 of 2010 respondent contended that execution court has not correctly understood the claim put forward by the claimant and was carried away by the fact that the claimant had stated that he had been residing with his family in the property ever since his marriage from 1957. The court omitted to note, according to the learned counsel, whether the claim put up was an independent claim. At any rate, according to the learned counsel an opportunity ought to have been given to the claimant to establish his case by adducing evidence. Learned counsel pointed out that the case of the decree holder was that claimant was in occupation from 1977 onwards, while the claimant has been in possession of the property and residing there long before that. These aspects when brought to the notice of the execution but the court omitted to take note those contentions. It was those aspects which persuaded the lower appellate court to remand the matter to the executing court for fresh consideration. 12. Whether claim is bonafide or not is a different 6 F.A.O.No.193 of 2010 question. The question whether the claimant is a “kudikidappukaran” to be determined. It is a matter to be determined whether the execution court can decide it by it self or whether the matter should be referred to the Land Tribunal concerned. Apart from all these facts, claimant has come forward with a claim that he has been in possession and residing in the property from 1957 along with his family and the case of the Ist defendant that he came to possession much after that is incorrect. 13. This Court is given to understand that, in fact before the hearing of the petition both sides had produced documents and wanted opportunity to adduce evidence. In spite of that the executing court dismissed the petition. 14. It is necessary to go into the correctness of otherwise of the above submission. Lower Appellate Court has exercised discretion in enabling parties to adduce evidence in respect of their respective claims. It could not be said in the nature of dispute that discretion exercised by the lower appellate court is either perversed or 7 F.A.O.No.193 of 2010 unwarranted 15. This appeal is without merits and is liable to be dismissed. I do so. However execution court is directed dispose the claim petition as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this order. There will be no order as to costs. Forward a copy of the order to the execution court. P.BHAVADASAN JUDGE kkj