IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 WP(C).No. 18590 of 2008(K) --------------------------------------- (E.P. NO.92/01 IN OS.NO.511/1996 OF I ADDL.MUNSIFF COURT, NEYYATTINKARA RC.3/2002 OF LAND TRIBUNAL, THIRUVANANTHAPURAM. .................... PETITIONERS: --------------------- 1. NISHADKUMAR, S/O SAROJINI, KULATHINKARA VEEDU, NEMOM, THIRUVANANTHAPURAM. 2. BRINDA VASUDEVAN, D/O SAROJINI, RESIDING AT KULATHINKARA VEEDU, NEMOM, THIRUVANANTHAPURAM. 3. SANJEEV KUMAR, S/O SAROJINI, RESIDING AT KULATHINKARA VEEDU, NEMOM, THIRUVANANTHAPURAM. BY ADVS. MR.R.S.KALKURA, MR.M.S.KALESH, MR.HARISH GOPINATH, MR.V.VINAY MENON, MR.M.AJAY (IRUMPANAM). RESPONDENTS: ------------------------ 1. RAJAMMA, D/O KALU, THUNDUVILAKATHU VEEDU, IDAKKODU DESOM, PALLICHAL PAKUTHY. 2. SARALAMMA, D/O RAJAMMA, RESIDING AT THUNDUVILAKATHU VEEDU, IDAKKODU DESOM, PALLICHAL PAKUTHY. R1 & R2 BY ADV. MR.J.HARIKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/03/2010, THE COURT ON 24/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.18590/2008-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PRELIMINARY DECREE DTD. 20/11/97 IN O.S. 511/1996 ON THE FILE OF THE I ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA. EXT.P.2: COPY OF THE FINAL DECREE DTD. 26/07/00 IN O.S. 511/96 ON THE FILE OF THE I ADDITIONAL MUNSIFF'S COURT, NEYYATTINKARA. EXT.P.3: COPY OF THE SALE DEED NO.4067/1970 DTD 30/12/70. EXT.P.4: COPY OF THE ORDER DTD. 11/02/05 ISSUED BY THE LAND TRIBUNAL IN R.C. NO. 3/2002. EXT.P.5: COPY OF THE SALE DEED NO. 3046/1964 DTD. 27/08/64. EXT.P.6: COPY OF THE DEPOSITION OF THE P.3. IN R.C. NO.3/2002 BEFORE THE LAND TRIBUNAL. EXT.P.7: COPY OF THE DEPOSITION OF THE R.2. IN R.C. NO. 3/2002 BEFORE THE LAND TRIBUNAL. EXT.P.8: COPY OF THE ORDER DTD. 05/01/2008 IN E.P. NO. 92/2001 IN O.S. 511/1996. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 18590 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of March, 2010. JUDGMENT Aggrieved by Ext.P8 order passed by the Additional Munsiff's Court, Neyyattinkara in E.P. 92 of 2001 in O.S. 511 of 1996, the decree holder has come up in appeal. 2. 36 cents of land belonged originally to the mother and the grandfather of the petitioners. 36 cents of land had been mortgaged to the first respondent. Upon death of their grandfather Sri.Kunjanpanicker, his half share of 18 cents was sold to the first respondent by the legal heirs of Kunjanpanicker. O.S.511 of 1986 was instituted by the plaintiffs against the respondents seeking redemption of mortgage dated 27.12.1955. Plaint item No.1 belonged to the mother and grandfather of the petitioners, who have obtained it under partition deed No.1838 of 1950. The petitioners' mother obtained WPC.18590/2008. 2 the other half share, which belonged to the grandfather of the petitioners. The first respondent had constructed a residential building in item No.1 and was residing therein. While so the western 18 cents of plaint schedule item No.1 was sold to the first respondent by the mortgagors. The remaining portion is plaint schedule item No.2. Plaint schedule item No.2 is a portion of the 36 cents, about which already mention has been made. In the sale deed in favour of the first respondent the mortgage amount was adjusted and the respondents were continued as mortgagees of item No.2 for a mortgage amount of Rs.300/-. The first respondent in order to defeat the petitioners sold 18 cents which was purchased. In the suit for redemption, she then raised a claim of kudikidappu over plaint item No.2. A preliminary decree was passed for redemption. But before applying for the final decree petitioner's mother had passed away. Therefore, the petitioners instituted O.S. 511 of 1996 for redemption of item No.2. The first respondent had raised a plea of kudikidappu. A final decree was passed in which it WPC.18590/2008. 3 is stated that the claim of kudikidappu will be considered at the time of execution. Copy of the preliminary decree is produced as Ext.P2. 3. Petitioners put the decree in execution as E.P. 92 of 2001. The first respondent raised the contention of kudikidappu, a plea which had been reserved in her favour to be raised at the time of execution. As is required under Section 125(3) of the Kerala Land Reforms Act the execution court has no option but to refer to the Land Tribunal concerned. The Land Tribunal went into the question of the claim of kudikidappu raised by the judgment debtor. Evidence was adduced before the Land Tribunal and on a consideration of the materials, the Land Tribunal came to the conclusion that the first respondent, ie., the judgment debtor is entitled to kudikidappu rights and returned the finding to the execution court. 4. The execution court after receiving the final report and incorporating the same dismissed the E.P. by pointing out that the decree holder did not want delivery of WPC.18590/2008. 4 rest of the portion of the property. It is this order that is assailed in this proceedings. 5. The main contention taken by the learned counsel for the petitioner is that the order of the Land Tribunal is cryptic and it did not discuss the evidence adduced before the Land Tribunal and no conclusions are drawn based on evidence. The Land Tribunal has not even considered whether the essential ingredients necessary to attract the definition of kudikidappukaran is established or not. After the evidence was adduced all that the Tribunal did was to say that the Land Tribunal had gone through the records and the Land Tribunal is convinced that the judgment debtor is entitled to kudikidappu rights. Learned counsel pointed out that the Land Tribunal was dealing with property rights and it ought to have been very careful in its evaluation of the evidence and drawing of conclusions. There is no discussion of the evidence and there is no finding as to how it has concluded that the judgment debtor was a kudikidappukari. Learned counsel also attacked the WPC.18590/2008. 5 order of the execution court by pointing out that even assuming that the judgment debtor was entitled to kudikidappu rights, she was entitled at best to 10 cents and the total extent being 18 cents, delivery of 8 cents ought to have been given. It is thus pointed out that the findings of both the Land Tribunal and the execution court are not sustainable in law. 6. A preliminary objection was raised on behalf of the respondents that the Original Petition is not maintainable and that only an appeal is maintainable. Attention was drawn to Section 125(3) of the KLR Act, which reads as follows: “125(3) If in any suit or other proceedings any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the Civil Court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is WPC.18590/2008. 6 situate together with the relevant records for the decision of that question only.” Based on the said provision, it was contended that an appeal has to be filed challenging the order of the Land Tribunal. 7. The said provision does not say so at all. When reference is on the original side of the civil court, then on returning the finding of the Land Tribunal it forms a part of the decree of the trial court. The finding of the Land Tribunal has no independent existence. When reference is in the execution stage, it forms part of the execution proceedings. Unless of course the proceedings in execution is such a nature, or the order qualifies to be a deemed decree, an appeal cannot be filed. In the case on hand, there is no order which is deemed to be a decree passed at the execution stage. So the remedy available is only the supervisory jurisdiction of this court. The contention is without merits. 8. Learned counsel appearing for the respondents pointed out that the Land Tribunal has mentioned the entire WPC.18590/2008. 7 evidence adduced before it and then after having convinced that it was found that the judgment debtor is a kudikidappukari. The finding is based on facts. It is pointed out that there is no infirmity in the order of the Land Tribunal. 9. As regards the order of the execution court, it was pointed out that, after the Land Tribunal returned its finding, the decree holders did not want the balance property to be delivered and they insisted that the entire 18 cents be delivered. That according to the execution court was not possible in view of the finding of the Land Tribunal and since the decree holders did not insist for delivery of balance, the only option available to the execution court was to dismiss the E.P. Learned counsel also drew the attention of this court that before the execution court the decree holders had examined P.Ws. 1 to 3 and marked Exts.A1 to A13. It is therefore contended that no grounds are made out to interfere with the order of the execution court. WPC.18590/2008. 8 10. The issue as to whether the plea of kudikidappu could have been relegated to the execution stage and could it be raised at the execution stage are matters which are not agitated before this court for consideration. Whatever that be, in the preliminary decree there was a reservation in favour of the defendants in the suit that their claim of kudikidappu will be considered at the time of execution. This is carried forward in the final decree also. 11. A perusal of the order of the Land Tribunal shows that both sides have adduced evidence before the Land Tribunal. The applicant, that is the judgment debtor, was examined as P.W.1 and marked Exts. A1 to A13. The second applicant was examined as P.W.3 and an independent witness was examined as P.W.2. The third respondent was examined as R.W. 1 and marked Exts.B1 to B8. The Land Tribunal has mentioned the details of the various documents produced by both sides. WPC.18590/2008. 9 12. The operative portion of the order of the Land Tribunal reads as follows: “I have gone through the records available on the file perused the exhibits marked as A1 to A7 in favour of the plaintiffs. B1 to B8 in favour of the respondents. From the report of the authorised officer from the deposition P.W.1 to P.W.3, I am convinced that the applicants are in possession and enjoyment of the plaint schedule property. Nothing is found in adverse of them. In the result, in pursuant to the rules made under K.L.R. Act, I find that the applicant are kudikidappukars. With the position finding, the are records are returned to the civil court.” 13. The question is whether the above finding is sufficient. Certainly it is not. The decree holders had raised several contentions, which according to them dis-entitled the judgment debtors from claiming the status of a kudikidappukari. One of their contentions was that there was a shed in the property, which was sold to the first respondent and the shed over which she claimed rights was WPC.18590/2008. 10 that shed. It was emphasized that the first respondent before the court below had no case that there were two huts. 14. It is also important to notice that there is no discussion to find out whether the applicant before the Land Tribunal satisfied the definition of 'kudikidappukari'. There is no reference to the Revenue Inspector's report and the details given in his report. It is also not mentioned as to under which clause of Section 2(25) does the judgment debtor fall to occupy the status of a kudikidappukari. As far as the mortgagee is concerned, there are two provisions, namely, 2(25) Explanations III and IV. The ingredients necessary to establish those explanations are entirely different. From the order of the Land Tribunal, it is not clear as to under which provision the judgment debtor falls. The order of the Land Tribunal is thoroughly unsatisfactory. One must notice that the Land Tribunal dealing with the valuable rights over the properties of the persons are bound to give reasons for the conclusion drawn by them. The order in this WPC.18590/2008. 11 case by the Land Tribunal as rightly pointed out by the learned counsel for the petitioner is a cryptic one and cannot stand scrutiny. The impact of the documentary evidence and the oral evidence has not been discussed and the contentions of the rival sides had not been adverted to or considered. 15. As far as the order of the execution court is concerned, it is seen that before the execution court also the decree holders adduced evidence. They had examined P.Ws. 1 to 3 and produced Exts.A1 to A13. It is mentioned in the order that the decree holders were not satisfied with the delivery of the property excluding the property over which the judgment debtors got kudikidappu right. It is not possible to understand what the court below is meant by that statement. Item No.2 of the plaint, which was the subject matter of the suit has an extent of 18 cents. Even assuming that the judgment debtor is entitled to kudikidappu, at best he can claim only 10 cents. Balance 8 cents had to be delivered to the decree holder. There is WPC.18590/2008. 12 no finding by the court below that the extent of kudikidappu available to the judgment debtors cannot be determined or identified. 16. Therefore the order of the execution court dismissing the E.P. is unsustainable. In the result, this writ petition is allowed, the orders of the Land Tribunal and the execution court are set aside and the matter is remanded to the execution court for trial and disposal in accordance with law and in the light of what has been stated above. The executing court will make every endeavour to dispose of the matter as expeditiously as possible at any rate within six months from the date of receipt of a copy of this judgment. Parties shall appear before the court below on 7.4.2010. P. BHAVADASAN, JUDGE sb.