IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 CRP.NO. 77 OF 2010() ------------------------------- I.A.. NO.71 OF 2008 IN O.S. NO.261 OF 2005, MUNSIFF'S COURT, KARUNAGAPPALLY. REVN. PETITIONER(S): PETITIONERS/DEFENDANTS --------------------------------------------------------------------------- 1. VIMALA BAI, TSUNAMI RELIEF COMP, NO.67, PANDARATHURUTH, CHERIAZHEEKKAL, ALAPPADU VILLAGE. 2. BABU, TSUNAMI RELIEF COMP, NO.67, PANDARATHURUTH, CHERIAZHEEKKAL, ALAPPADU VILLAGE. 3. BABY, TSUNAMI RELIEF COMP, NO.67 PANDARATHURUTH, CHERIAZHEEKKAL, ALAPPADU VILLAGE. 4. SIBU, TSUNAMI RELIEF CAMP, NO.67, PANDARATHURUTH, CHERIAZHEEKKAL, ALAPPADU VILLAGE. BY ADV. SRI.NAGARAJ NARAYANAN RESPONDENT(S): RESPONDENTS/PLAINTIFFS ------------------------------------------------------------------- 1. PADMAVATHY, AMBALASSERIL, PANDARATHURUTH THURA, ALAPPADU VILLAGE. 2. MADHUBALA, AMBALASSERIL, PANDARATHURUTH THURA, ALAPPADU VILLAGE. 3. YATHEESWARANANTH, AMBALASSERIL, PANDARATHURUTH THURA, ALAPPADU VILLAGE. ADV. SRI.B.MOHANLAL FOR R1-R4 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.77 of 2010 ==================================== Dated this the 18th day of June, 2010 O R D E R Petitioners are aggrieved as learned Munsiff declined to order reference of the claim of kudikidappu raised by the petitioners to the Land Tribunal for a finding. Respondents/plaintiffs sued petitioners for prohibitory injunction claiming that they are in exclusive possession and enjoyment of the suit property and apprehending that petitioners might trespass into the property and put up structures. On the petitioners' claim that their predecessor-in-interest was entitled to a right of kudikidappu in the building situated in the suit property they filed I.A. No.71 of 2008 requesting reference of the said question to the Land Tribunal for a finding. That application was opposed by the respondents. Learned Munsiff upheld the objection and dismissed the application. Learned counsel for petitioners contends that an application preferred by petitioners in the Land Tribunal is pending consideration and that in so far as the issue regarding kudikidappu very much arose for a decision in the case on hand learned Munsiff ought to have referred the question to the Land Tribunal and C.R.P. No.77 of 2010 -: 2 :- placed reliance on the decision in Madhavai Amma v. Kesavan (2008 [1] KLT SN 49 (Case No.50). 2. True, under Section 125(3) of the Kerala Land Reforms Act (for short, “the Act”) when a question of Kudikidappu which is required by the Act to be determined by the Land Tribunal 'arises' for decision the civil court is obliged to refer that issue to the Land Tribunal for a finding. Question is not whether an issue regarding kudikidappu 'is raised' but whether it 'arises' for consideration. It can 'arise' only if it is relevant for decision of the suit. Hence the question for consideration is whether the issue regarding kudikidappu 'arises' for a decision so that learned Munsiff was obliged to refer the issue to the Land Tribunal. The decision of Full Bench of this Court in Keshava Bhat v. Subaraya Bhat (1979 KLT 66 (F.B.) which holds the filed even now is that in a suit for injunction based on possession no question of tenancy 'arises' for a decision. That principle must apply in the case of claim of a kudikidappu as well. In this case it is the stand of respondents that the suit property belonged to Brahmanandan, husband of respondent No.1 and father of respondent No.2 onwards as per partition deed No.4475 of 1125 ME and that has been in their possession conducting a shop in C.R.P. No.77 of 2010 -: 3 :- the building in the suit property. While so accepting request of husband of petitioner No.1 he was permitted to stay in one of the rooms for sometime but he later shifted from the said premises. In other words it is the case of respondents that as on the date of suit petitioners or any of their predecessor-in-interest had no right, title or possession of the suit property. The suit being one for injunction based on possession what is relevant for consideration is whether on the date of suit respondents were in absolute possession of the property. Therefore question of kudikidappu does not 'arise' for decision. For, if it is shown that petitioners are in possession of the suit property or any portion of it respondents would not get relief of injunction based on their plea of possession. In the circumstances I do not find reason to interfere with the order under challenge. Civil Revision Petition fails. It is dismissed. THOMAS P. JOSEPH, JUDGE. vsv