IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 CRP.No. 648 of 2008() --------------------- OS.674/1998 of M.C.,WADAKKANCHERRY .................... CIVIL REVISION PETITIONER: RESPONDENT- IST RESPONDENT: ------------------------------------------------------------------------------------------------ NARAYANA CHETTIAYAR, PAPPAD BUSINESS, S/O.PARAKKOTHODI VEERA BHADRAN CHETTIYAR, RESIDING AT IX/443 HOUSE,CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK. BY ADV. SRI.P.RADHAKRISHNAN SRI.MADHU RADHAKRISHNAN RESPONDENT: PETITIONER AND RESPONDENTS 2 TO 6 IN RCP: ----------------------------------------------------------------------------------------------- 1. NARUL HUDHA YATHIM KHANA, REG.NO.241/78, FOUNDED AND WORKING IN VALLATHOLE NAGAR PANCHAYATH, CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK, BY JOINT SECRETARY, K.V.ABUBACKER,S/O.VALIYAKATH KUNJUMON, VETTIKKATTIRI DESOM, CHERUTHURUTHY VILLAGE, TALAPPILLY TALUK. 2. VESSA, W/O.NARAYANA CHETTIYAR AND RESIDING AT IX/443 HOUSE CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK. 3. RAMANKUTTY, S/O.NARAYANA CHETTIYAR, RESIDING AT IX/443 HOUSE,CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK. 4. JAYANTHI, D/O.NARAYANA CHETTIYAR, RESIDING AT IX/443 HOUSE, CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK. 5. SUBRAMANIAN, S/O.NARAYANA CHETTIYAR, RESIDING AT IX/443 HOUSE, CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK. 6. MOLI @ INDIRA, D/O.NARAYANA CHETTIYAR, RESIDING AT IX/443 HOUSE CHERUTHURUTHY VILLAGE, THALAPPILLY TALUK. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.648 of 2008 ------------------------------- Dated this the 25th August, 2008. O R D E R This petition is filed under Section 115 of Code of Civil Procedure challenging the finding of Munsiff, Wadakkancherry, in O.S.No.674 of 1998, on the issue regarding maintainability of the suit in favour of the plaintiff. Petitioner is the first defendant in the suit. 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel is that in the earlier Rent control proceedings (RCP. 7 of 1990), claim raised by the petitioner for kudikidappu right was referred to the Land Tribunal under sub-section (3) of Section 125 of Kerala Land Reforms Act and the claim was upheld by the Land Tribunal, and RCP was dismissed and it was challenged in R.C.A.No.50 of 1993 before Rent Control Appellate Authority, CRP.No.648 of 2008 2 Thirssur, which allowed the appeal and remanded the RCP to the Rent Control Court, after setting aside the finding of the Land Tribunal on 15.10.1997. But as per notification, dated, 31.10.1996, buildings belonging to the Wakf's were exempted from the purview of Kerala Buildings (Lease and Rent Control) Act. It was contended that therefore on 15.10.1997, Rent Control Appellate Authority had no jurisdiction to consider the appeal, and, hence, the Appellate Authority could not have set aside the findings of the Land Tribunal, and if so, the finding of the Land Tribunal that the petitioner is a Kudikidappukaran stands and in the light of that finding, learned Munsiff should have found that suit is not maintainable. Learned counsel also argued that in any case, learned Munsiff should have independently considered the question of Kudikidappu, if it is to be taken that Rent Control Court has no jurisdiction because of the notification SRO.769 of 1996, dated 31.10.1996. 4. Rent Control petition was filed originally when Kerala Buildings (Lease & Rent Control) Act was applicable to CRP.No.648 of 2008 3 buildings owned by the Wakfs. In the rent control petition, petitioner raised a contention that he is a kudikidappukaran. In view of the plea, as is bound to, Rent Control Court referred the question of kudikidappu to the Land Tribunal under Section 125 (3) of Land Reforms Act. The Land Tribunal entered a finding that petitioner is a kudikidappukaran. As is bound to, the Rent control court accepted that finding and dismissed the rent control petition. That finding could only be challenged along with the findings of the Rent Control petition in an appeal as provided under Kerala Act 2 of 1965. The landlord challenged it in an appeal. When that appeal (RCA.No.50 of 1993) was filed in 1993, there was no notification exempting the building of Wakf from the purview of Kerala Act 2 of 1965. The appeal was disposed of on 15.10.1997. The appellate authority set aside that finding of the Land Tribunal that petitioner is a kudikidappukaran and remanded the rent control petition to the Rent Control Court, to decide the claim for eviction. That order was not challenged in time, though subsequently, a revision was CRP.No.648 of 2008 4 filed in 2005, which was dismissed by this Court on 2.12.2005. As rightly found by the learned Munsiff, though a finding that respondent was a kudikidappukaran was rendered by the Land Tribunal on a reference under Section 125(3) of Kerala Land Reforms Act, which was accepted by the Rent control court and the rent control petition was dismissed by the order in R.C.A.No.50/1993, Appellate Authority set aside that order including the finding of the Land Tribunal. It is to be borne in mind that there is no appeal provided under the Kerala Land Reforms Act, as against the finding under Section 125(3), except by filing an appeal against the judgment or orderIn that appeal the finding under Section 125(3) of Kerala Land Reforms Act can also be challenged. It cannot be said that in the appeal which was filed at a time, when admittedly Appellate Authority has jurisdiction, Appellate Authority is not competent to consider the appeal on merits, at least with regard to the claim for kudikidappu right. If that be so, when the Appellate Authority set aside that finding of the Land Tribunal, petitioner is not entitled CRP.No.648 of 2008 5 to contend that the order of the Land Tribunal, which was set aside by the Rent Control Appellate Authority will stand. Moreover, the finding of the Land Tribunal under Section 125(3) alone cannot stand. It is only a finding in the suit or Rent Control Proceedings. Take a case where the finding under Section 125(3) was against the dependant, but the suit was dismissed on other grounds. When the defendant cannot file an appeal as against a finding in the suit, when the suit was dismissed, it cannot be said that the finding of the Land Tribunal under Section 125(3) of Kerala Land Reforms Act will operate against him in subsequent proceedings. When the rent control petition itself can only be dismissed by the subsequent notification, it cannot be said that the earlier finding will stand, and, therefore, the suit is not maintainable. It is in such circumstances, learned Munsiff found that suit is maintainable. I do not find any illegality or irregularity or impropriety warranting interference in the impugned order. The question whether petitioner is a kudikidappukaran or not is to be decided by the learned Munsiff CRP.No.648 of 2008 6 and it is not necessary for this Court to give any opinion on that matter. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.