IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 RSA.No. 618 of 2006() --------------------- AS.63/2000 of SUB COURT,NEYYATTINKARA OS.474/1998 of II ADDL..MUNSIFF COURT, NEYYATTINKARA .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------- LEELA, D/O. SUNDARI, AGED 52, GOVT. SERVANT, VETTAMANGALATHU, KALATHUVILA VEEDU, MARANALLOOR DESOM -DO- VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.B.KRISHNA MANI RESPONDENTS: RESPONDENTS/DEFENDANTS: ------------------------------------ 1. SOMAN, S/O. KOCHAPPI, AGED 53, VETTAMANGALATHU KALATHUVILA VEEDU, MARANALLOOR DESOM,-DO- VILLAGE,NEYYATTINKARA TALUK 2. SARASAMMA SARALA, AGED 40, RESIDING AT -DO- -DO-. 3. THOMAS ANIL, AGED 30, AGRICULTURIST, RESIDING AT -DO- -DO-. 4. SMITHA, D/O. SARALA, AGED 19 (HOUSEHOLD DUTIES) OF -DO- -DO-. BY ADV. SRI.L.MOHANAN FOR R1-4 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/07/2008 ALONG WITH C.R.P. NO.1058 OF 2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. -------------------------------------------- R.S.A. NO.618 OF 2006 & C.R.P. NO. 1058 OF 2002 -------------------------------------------- Dated this the 11th day of July, 2008 JUDGMENT The appellant in R.S.A. No.618 of 2006 is the plaintiff in O.S. No.474 of 1998 on the file of the II Additional Munsiff's Court, Neyyattinkara. The suit is one for injunction restraining the defendants from trespassing into the property and committing waste. According to the appellant/plaintiff, she is in possession of the plaint schedule property and that she filed an application, O.A. No.41 of 1992, for purchase of kudikidappu right, that the defendants have no manner or right over the plaint schedule property, but they are trying to trespass into the property and commit waste. In the written statement filed by the defendants, it is contended inter alia that the plaintiff is not in possession of the property, that O.A. No.41 of 1992 filed by the plaintiff for kudikidappu right was dismissed by the Land Tribunal and that the appeal, A.A. No.57 of 1994 filed by her against the dismissal of the application is pending before the Appellate Authority, Attingal. They further contended that the jenmi of the property executed a sale deed in favour of the first defendant R.S.A.NO.618/2006 & C.R.P. NO.1058/2002 2 authorising him to redeem the mortgage in the property. The defendants further contended that the first defendant filed O.S. No.565 of 1983 for redemption of mortgage, that the plaintiff and her mother who were the defendants in the above suit claimed kudikidappu right over the property which was rejected by the court below and a decree of redemption was passed allowing the plaintiffs therein to deposit the mortgage money and value of improvements and to redeem and recover possession of the property. 2. In support of her case, the plaintiff herself was examined as PW.1 and another witness was examined as PW.2 and Exts.A1 to A3 were marked on her side. On the side of the defendants, the first defendant was examined as DW.1 and Ext.B1 was marked on their side. The trial court considered the question and concluded that the suit is barred by res judicata, that the plaintiff is not in possession of the property and, therefore, she is not entitled to the injunction sought for. The said judgment was confirmed by the lower appellate court in A.S. No.63 of 2000 finding that the trial court had rightly declined the relief sought for by the plaintiff. R.S.A. No.618 of 2006 is filed against the judgment and decree passed by the courts below. R.S.A.NO.618/2006 & C.R.P. NO.1058/2002 3 3. The question whether the plaintiff is in possession of the plaint schedule property is a question of fact decided by the fact finding authorities concurrently. The courts below held that the plaintiff has not succeeded in proving her possession over the plaint schedule property. The trial court also considered the previous suit, O.S. No.563 of 1983, and found that the property in question was delivered to the decree holder in that case who is none other than the first defendant in this case. Thus, the first defendant is in possession of the property. Since the findings recorded by the trial court is purely on merits and on the basis of facts, I am of the view that the Second Appeal filed formulating the question of law cannot stand. No question of law, much less any substantial question of law arises for consideration in the appeal. The appeal lacks merits and is liable to be dismissed. 4. In the connected revision, C.R.P. No.1058 of 2002, the revision petitioner is the first respondent in A.A. No.104 of 1998 on the file of the Appellate Authority (LR),Thiruvananthapuram. The first respondent in the revision claimed kudikidappu right over the plaint schedule property by filing O.A. No.41 of 1993 before the Land Tribunal, Neyyattinkara. The Land Tribunal dismissed the application holding that the applicant has not satisfied the conditions of Section 2(25) of the Kerala Land Reforms R.S.A.NO.618/2006 & C.R.P. NO.1058/2002 4 Act and hence she is not entitled to claim kudikidappu right. The Appellate Authority by a cryptic order, without considering any of the questions arising for decision, held that the applicant is a kudikidappukari and allowed the application. 5. The fact that the property is not in the possession of the applicant and that the property in question was delivered to the revision petitioner in C.R.P. No.1058 of 2002 in execution of the decree in O.S. No. 565 of 1983 are proved facts. It is clear from the evidence on record that neither the applicant is in possession of the property nor has she satisfied the conditions for claiming kudikidappu. The Appellate Authority has wrongly reversed the finding of the Land Tribunal. Hence, the order passed by the Appellate Authority in A.A. No.104 of 1998 is set aside and the order of the Land Tribunal in O.A. No.41 of 1993 is restored. In the result, R.S.A. No.618 of 2006 is dismissed and C.R.P. No.1058 of 2002 is allowed. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ R.S.A.NO.618/2006 & C.R.P. NO.1058/2002 5 HAURN-UL-RASHID, J. R.S.A.NO.618 OF 2006 & C.R.P. NO. 1058 OF 2002 JUDGMENT 11th July, 2008 R.S.A.NO.618/2006 & C.R.P. NO.1058/2002 6