IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 RSA.No. 451 of 2006() --------------------- AS.44/2000 of PRINCIPAL SUB COURT,PARAVUR OS.418/1993 of MUNSIFF COURT,ALUVA .................... APPELLANT GOPINATHAN, S/O.NARAYANAN, THEKKETHALA HOUSE, THOTTAKKATTUKARA, ALUVA. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): 1. GOPALAN, S/O.MANIYAN, MADAVANA HOUSE, THOTTAKKATTUKARA, ALUVA VILLAGE. 2. SARASWATHY, W/O.SREENIVASAN, KARAYATHARAPARAMBIL HOUSE, POONITHURA DESOM, POONITHURA VILLAGE. 3. NARAYANAN, S/O.GOVINDAN, SAMTHRUPTHI (THOPPIL), NADAMA DESOM, NADAMA VILLAGE, NEAR RLV MUSIC ACADEMY. 4. SADEESH, S/O.NARAYANAN, SAMTHRUPTHI (THOPPIL) NADAMA DESOM, NADAMA VILLAGE, NEAR RLV MUSIC ACADEMY. 5. SURESH, S/O.NARAYANAN, DO. DO. 6. SANTHOSH, S/O.NARAYANAN, DO. DO. ADV. SRI.S.VIDYASAGAR FOR R.2TO6 SMT.I.SHEELA DEVI FOR R1 SMT.M.SINDHU THANKAM FOR R1 SRI.S.VIDYASAGAR FOR R2TOR6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.451 of 2006 = = = = = = = = = = = = = = Dated this the 25 th day of November, 2008 JUDGMENT Heard both sides. 2. The plaintiff in O.S.No.418 of 1993 on the file of the Munsiff's Court, Aluva is the appellant in this second appeal. The said suit was one for a declaration that the plaintiff is a Kudikidappukaran under the defendants and for consequential injunction restraining the defendants from interfering with the plaintiff's possession over the plaint B Schedule Property admeasuring 5 cents which is alleged to be part of the plaint A Schedule Property admeasuring 1.14 acres. 3. The 1st defendant remained ex parte. Defendants 2 and 3, who are the sisters of the 1st defendant, resisted the suit contending, inter alia, that the suit was not maintainable, that the civil court has no jurisdiction to grant the declaration prayed for since the same comes within the purview of the Kerala Land Reforms Act, that the plaint A Schedule Property did not belong to the 1st defendant as alleged by the plaintiff, that the plaintiff's case that he is a kudikidappukaran under the 1st defendant is R.S.A.No.451 of 2008 2 false, that O.S.No.110 of 1986 was a suit filed by defendants 2 and 3 seeking partition and separate possession of their shares over the plaint A Schedule property that the 1st defendant Gopalan and his brother Madhavan were parties to the said suit that the plaintiff who is the nephew of Madhavan's wife has been set up by Gopalan with a view to frustrate the decree passed in O.S.No.110 of 2008 and that the suit should be dismissed with compensatory costs. 4. The learned Munsiff, Aluva framed the following issues for trial:- i. Whether the plaintiff is a kudikidappukaran? ii. Whether the plaintiff is entitled to the injunction sought for? iii. Reliefs and cost. 5. Issue No.1 was referred to the Land Tribunal, Ernakulam at Poonithura presumably under Section 125(3) of the Kerala Land Reforms Act. The Land Tribunal returned a finding dated 5.8.1998 in R.C.6 of 1995 to the effect that the defendant is not a kudikidappukaran. Accepting the said finding the learned Munsiff dismissed the suit as per judgment and decree dated 11.3.1999. The plaintiff preferred an appeal as R.S.A.No.451 of 2008 3 A.S.No.44 of 2000 before the Sub court, North Paravur which as per judgment and decree dated 16.11.2001 dismissed the appeal holding that since the plaintiff had not obtained a stay in the appeal preferred by him before the Land Reforms Appellate Authority against the order passed by the Land Tribunal on the separate application filed by him under Section 80B of the Kerala Land Reforms Act, the finding of the Land Reforms Appellate Tribunal cannot be said to be erroneous. Hence the second appeal. 6. It is shockingly strange that in a suit of this nature the trial court framed an issue as to whether the plaintiff is a kudikidappukaran and referred the issue to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act for a finding. 7. Section 125(1) of the Kerala Land Reforms Act reads as follows:- “No civil could shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board (or the Taluk Land Board) or the Government or an officer of the Government.” R.S.A.No.451 of 2008 4 8. Thus there is an express ouster of the jurisdiction of the civil court to settle, decide or deal with any question or to determine any matter which is by or under the Kerala Land Reforms Act required to be settled, decided or dealt with or to be determined by the land tribunal or the appellate authority etc. In a suit of this nature it cannot be said that a question of kudikidappu did arise for consideration so as to warrant a reference to the Land Tribunal under Section 125(3) of the Kerla Land Reforms Act, which reads as follows:- “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 landor part thereof is situate together with the relevant records for the decision of that question only.” 9. If the plaintiff was really a kudikidappukaran he had the right to approach the Land Tribunal by filing an application under Section 80B of the Kerala Land Reforms Act. Instead of doing so he could not have straightaway approach the civil court seeking a declaration that he is a kudikidappukaran. In the light R.S.A.No.451 of 2008 5 of the ouster of the jurisdiction of the civil court the learned Munsiff ought to have rejected the plaint under Order 7 Rule 11 C.P.C. Instead, the suit was entertained, summons was issued and the defendants were permitted to file written statement and the matter was referred to the Land Tribunal, all without any authority or purpose. Even without framing any issue or referring the case to the land tribunal the suit should have been disposed of at the threshold. Strangely enough, the plaintiff filed an appeal before the lower appellate court and the same was also entertained and the dismissal of the appeal was also by a curious reasoning. 10. On the merits also, the appellant/plaintiff can easily be said to be the name lender of the 1st defendant Gopalan who remained ex-parte. His sisters namely defendants 2 and 3 had filed a suit for partition as O.S.No.110 of 1986. In the said suit Gopalan had no case that the 5 cents of land now claimed to be in the possession of the present plaintiff as a kudikidappukaran under him was held by the present plaintiff or that the said property is not available for partition. After the passing of the preliminary decree and the final decree, the property was delivered over without any demur. It was at that stage that the R.S.A.No.451 of 2008 6 present suit was filed. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 25 th day of November, 2008. V. RAMKUMAR, JUDGE sj